Kerala High Court
Saraswathi vs Kamalakshiamma (Died) on 13 January, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941
RFA.No.397 OF 2004
AGAINST THE ORDER/JUDGMENT IN OS 3/2003 DATED 20-12-2003 OF
PRINCIPAL SUB COURT,IRINJALAKUDA
APPELLANTS:
1 SARASWATHI
D/O. KAYINTHARA KAMALAKSHIAMMA, VASUPURAM DESOM,
MATTATHUR VILLAGE,, MUKUNDAPURAM TALUK.
2 MANI, D/O. KAMALAKSHIAMMA
KAYINTHARA HOUSE, VASUPURAM DESOM, MATTATHUR VILLAGE,
MUKUNDAPURAM TALUK.
3 SASIKUMAR, S/O. KAMALAKSHIAMMA
KAYINTHARA HOUSE, VASUPURAMDESOM, MATTATHUR VILLAGE,
MUUNDAPURAM TALUK.
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)
SRI.RENJITH B.MARAR
RESPONDENTS:
1 KAMALAKSHIAMMA (Died)
D/O. KAYINTHARA LAKSHIAMMA, VASUPURAM DESOM,
MATATHUR VILLAGE, MUKUNDAPURAM TALUK.
2* SUBHADRA, D/O. KAMALAKSHIAMMA
AND W/O. KOTTAMADATHIL SUBRAMANIAN, CHENGAMANAD
DESOM, ERNAKULAM DISTRICT.
3* SREEDEVI, D/O. KAMALAKSHIAMMA
KAYINTHARA HOUSE, VASUPURAM DESOM, MATTATHUR VILLAGE,
MUKUNDAPURAM TALUK.
4* SAROJINIAMMA, W/O. LATE SURENDRAN
KAYINTHARA HOUSE, VASUPURAM DESOM, MATTATHUR VILLAGE,
MUKUNDAPURAM TALUK.
RFA.No.397 OF 2004 2
5* SALEESH, S/O. SAROJINIAMMA
KAYINTHARA HOUSE, VASUPURAM DESOM, MATTATHUR
VILLAGE, MUKUNDAPURAM TALUK.
6* SAJEESH S/O. SAROJINIAMMA
KAYINTHARA HOUSE, VASUPURAM DESOM, MATTATHUR
VILLAGE, MUKUNDAPURAM TALUK.
7* SATHEESH, S/O. SAROJINIAMMA
KAYINTHARA HOUSE, VASUPURAM DESOM,, MATTATHUR
VILLAGE, MUKUNDAPURAM TALUK.
(*It is recorded that R1 expired and her Legal
Heirs are already in the party array as R2 to R7,
vide order dated 3.7.19 in memo dated 1.7.19
bearing C.F.No.8367/19)
R4 to R7 BY ADV. SRI M P PRAKASH
R4 to R7 BY ADV. SRI THOMAS ANTONY
R1 to R3 BY ADV. SRI.FRANCO T.J.
R2 BY ADV. SRI.ROY VARGHESE
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA.No.397 OF 2004 3
JUDGMENT
A very interesting and a rather not-too- common question is asked in this appeal: Is the 'Velichapadu'(വവളളചപപടട), common and prominent in various parts of Kerala- particularly in the erstwhile Valluvanad area- synonymous to a 'Shebait', popularly known in the northern India, in their relationship and attributes with a debutter property?
2. Exordially, while a Shebait is the manager of the Devasthan in Northern India, a 'Velichapadu' semantically translates as a 'Revealer of Light" and is thought to be the Oracle or mediator between a diety and devotees, especially in Bhagavathi Temples in Kerala.
3. Can they be, therefore, construed to be synonymous? - the question which I will address after the unexpendable facts are first recorded.
4. This appeal is at the hands of the RFA.No.397 OF 2004 4 plaintiffs in O.S.No.3 of 2003 on the files of the Principal Sub Court, Irinjalakuda.
5. The suit was filed by the plaintiffs seeking partition by means and bounds of the plaint schedule properties, conceding that in item No.1 thereof is a temple held jointly by themselves and the defendants.
6. The pleadings in the plaint would show that the plaintiffs are the children of deceased Shri.Krishnan Nair and that defendant No.1 and defendants 2 and 3 are their mother and siblings respectively. As regards defendant Nos.4 to 7 are concerned, they are stated to be the legal heirs of late Shri.Surendran, another brother of the plaintiffs, and it is alleged that they are mismanaging the affairs of the temple situated in plaint schedule item No.1 property.
7. The specific case of the plaintiffs is that the plaint schedule properties are partible into seven shares and that they are RFA.No.397 OF 2004 5 entitled to one among them, though they expressly concede that the actual extent on which the temple is situated is to be maintained in common. As regards the temple, on the basis of the afore mentioned allegations of mismanagement by defendants 4 to 7, they also pray that a Scheme be settled for its proper administration.
8. In response, a written statement was filed by defendants 4 to 7 asserting that the temple is situated in the entire plaint schedule item No.1 property and that the 'Velichapadu' is the person exclusively entitled to look after the affairs of the temple, to manage its property and to take income therefrom, as per the applicable custom and tradition. They thus assert that plaint schedule item No.1 property is not partible at all and that its original 'Velichapadu' was Shri.Echaran Nair, who is the father of Shri.Krishnan Nair and that on his death, the latter became the 'Velichapadu' as per custom. RFA.No.397 OF 2004 6 They further assert that, on the death of Krishnan Nair, his son, the now deceased Shri.Surendran took over as the 'Velichapadu' and that after his life time, his son-the 5th defendant-has been ordained as the 'Velichapadu' and that he is thus now in possession and management of the temple in question. They say that, in fact, a suit for partition with respect to the same properties involved in this lis had been laid on file earlier by the 1st defendant, the mother of the plaintiffs, but that same has been dismissed for default and therefore, that the present suit is not maintainable.
9. The Trial Court took the suit to trial on the following issues:-
" 1. What if any the share to which each parties entitled in the event of partition, as the item found available?
2. What provision or scheme are to be formulated for the management of temple?
3. What is the order as to costs?"
10. During trial, the 1st plaintiff was RFA.No.397 OF 2004 7 examined as PW1; while defendant Nos.1 and 5 testified as DW1 and DW2 respectively. Three other witnesses, namely DW3 to DW5, were also examined on the side of the defendants, primarily to prove the custom and tradition with respect to 'Velichapadu'; and Exts.A1 to A7 were marked on the side of the plaintiffs, while Exts.B1 to B2 were marked on the side of the defendants.
11. The Trial Court, on an examination of the evidence and testimonies on record, decreed the Suit in part, directing item No.2 to be divided into seven equal shares and allotting one among them to the plaintiffs; while dismissing the suit as regards plaint Item No.1 schedule property, holding that same must be construed to be a debutter property and that the 'Velichapadu' must be construed to be its Shebaiet.
12. The Trial Court then proceeded to hold that even though the post of a Shebaiet RFA.No.397 OF 2004 8 is heritable as per the normal Rules of Succession, in the case at hand it would only go to the son of the 'Velichapadu', in accordance with the Rule, which, though unwritten, is being followed regularly; and for so concluding, it relied heavily upon the deposition of DW3 to DW5.
13. It is this judgment and decree of the Trial Court, which has been assailed in this appeal by the plaintiffs.
14. I have heard Shri.Sreekumar Chelur, learned counsel appearing for the appellants as also Shri.M.P.Prakash, learned counsel appearing for the respondents.
15. Shri.Sreekumar Chelur, learned counsel for the appellants, commenced submissions by admitting that his client has no contest against the judgment and decree as regards plaint item No.2 property and that they are only calling into question the validity of the conclusions and findings of RFA.No.397 OF 2004 9 the Court below with respect to plaint item No.1 property. He says that, as is clear from the averments in the plaint, his clients sought for partition of the properties included in both the plaint schedules, save the area to be demarcated in which the temple is situated; and that a Scheme for administration of the affairs of the said temple be framed by the Court, because it is being mismanaged by defendant No.5, who is the son of late Shri.Surendran.
16. Shri.Sreekumar Chelur vehemently submitted that, going by the evidence on record and the materials available, an established custom or tradition- that the line of succession with respect to the property of the temple lies only with the 'Velichapadu' - has not been proved at all, which is manifest from the fact that it is contended by his clients and admitted by DW3, that defendant No.5 came in the management of the temple only as instructed by defendant No.1, who is the RFA.No.397 OF 2004 10 mother of the plaintiffs.
17. Shri.Sreekumar Chelur then explained that the property originally belonged to Shri.Echaran Nair, who had created the endowment over it for the purpose of consecration of a temple and that he was also its first 'Velichapadu'. He continued to say that after the death of Echaran Nair, his son
- Shri.Krishnan Nair, took over as the 'Velichapadu' and appears to have been in the management of the temple; but that consequent to his death, the line of succession opened and that Shri.Surendran- his son - was allowed to be in temporary management of the temple on the instructions of the 1st defendant. He says that this would clearly show that there is no custom or tradition that a coparcenary system had been followed, particularly because it is unequivocally conceded by the parties that the family is governed by the laws of 'Marumakkathayam'.
RFA.No.397 OF 2004 11
18. Shri.Sreekumar Chelur, thus, predicated that the Trial Court went egregiously wrong in having concluded that the 'Velichapadu' was in the same position as a Shebaiet and that the normal line of succession to the said post had been terminated by an unwritten code, sanctioned by customs and traditions. He, therefore, prayed that this appeal be allowed and the judgment and decree of the Trial Court be set aside with respect to plaint schedule item No.1 property.
19. In answer to the above, Shri.M.P.Prakash, learned counsel for the respondents/defendants, submitted that the evidence on record conclusively establishes that a specific custom and tradition is applicable with respect to the temple in question, as per which, only the eldest son of the 'Velichapadu' would be entitled to inherit the said post. He says that this is evident from the fact that Shri.Echaran Nair was the RFA.No.397 OF 2004 12 first 'Velichapadu' of the temple, followed by his son Shri.Krishnan Nair and that on the death of Shri.Krishnan Nair, his son Shri.Surendran took over, which according to him, indubitably establishes that only the son of now deceased Shri.Surendran is entitled to succeed to the temple properties and its management.
20. Shri.M.P.Prakash further submitted that in the afore view of the matter and since the plaintiffs themselves admit that the temple is to be kept in common and not partible, the post of 'Velichapadu' becomes synonymous with that of a Shebait; and that since its inheritance has been established to be, at least for the last more than three or four generations, in the manner above, it would have to be construed as a custom and tradition to be followed in future also. He contends that, in fact, this has been specifically conceded to by PW1 herself, who admitted that on the death of Shri.Krishnan RFA.No.397 OF 2004 13 Nair, his son Shri.Surendran became the 'Velichapadu'. He asserts that this is further bolstered by the evidence of DW3, who is the brother of the afore mentioned Shri.Krishnan Nair, who also spoke that under the traditions and customs applicable, it is the son of Shri.Krishnan Nair who would become the 'Velichapadu' and his son thereafter. He says that this is incontestable, because DW3 admitted that, even though he was desirous to stake or claim to be the 'Velichapadu', he was stopped from doing so by the persons in the locality asserting that the applicable customs and traditions would not permit such a succession.
21. In forensic support of the afore submissions, Shri.M.P.Prakash relied upon Swami Paramatmanand Saraswati & Another v. Ramji Tripathi & Another [(1974) 2 SCC 695]; Mundacheri Koman v. Thachangat Puthan Vittil Achuthan Nair [AIR 1934 PRIVY COUNCIL 230]; Aurobindo Ashram Trust and Others v. RFA.No.397 OF 2004 14 R.Ramanathan and Others [(2016) 6 SCC 126]; Kakinada Annadana Samajam v. Commr. Of Hindu Religious and Charitable Endowments, Hyderabad and Others [1970 (3) SCC 359] and Namburi Venkatarama Chetty v. Vemur Thiruvenqadathan Chetty [AIR 1916 MADRAS 530] and prayed that this appeal be dismissed.
22. I have considered the afore submissions made by the learned counsel for the parties and have also closely examined the pleadings on record, the testimonies of the witnesses and the documents marked in evidence before the Court below.
23. As I have already indicated above, the parties are ad idem that the judgment and decree of the Trial Court with respect to plaint schedule item No.2 property does not require to be tested and I, therefore, deem it apposite to confine my views in this judgment only to plaint schedule item No.1 property.
24. Before I speak on the dialectical RFA.No.397 OF 2004 15 contentions of the parties, it will be fruitful to understand the nature of a Shebaiet as is known in law.
25. As early as in the year 1979, the Hon'ble Supreme Court in Profulla Chorone Requitte and Others v. Satya Chorone Requitte [(1979) 4 SCC 409] declared the nature of the Shebaiet in the following words:-
"20. Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of sebaitship. Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as shebait in Northern India. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debutter his position is analogous to that of a trustee; yet, he is not precisely in the position of a trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and not in the shebait. Although the debutter never vests in the shebait, yet, peculiarly enough, almost in every case, the shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder.
22. Shebaitship being property, it devolves like any other species of heritable property. It follows that, where the founder does not dispose RFA.No.397 OF 2004 16 of the shebaiti rights in the endowment created by him, the shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist."
26. This view was followed in Shambhu Charan Shukla v. Shri.Thakur Ladli Radha Chandra Madan Gopalji Maharaj and Another [(1985) 2 SCC 524], wherein in Paragraph 15 thereof, the Hon'ble Court held as under:-
"15. The text of Hindu Law and the aforesaid two decisions of this Court and the earlier decision in Angurbala Mullick case show that shebaitship is in the nature of immovable property heritable by the widow of the last male holder unless there is an usage or custom of a different nature in cases where the founder has not disposed of the shebaiti right in the endowment created by him"
27. Finally, in the year 2007, in S.Rathinam Alias Kuppamuthu and Others v. L.S.Mariappan and Others [(2007) 6 SCC 724] the Hon'ble Supreme Court reiterated these principles, in Paragraph 24 and 25 of the said judgment, which is as under:-
24. In Shambhu Charan Shukla v. Thakur Ladli Radha Chandra Madan Gopalji Maharaj this Court held: "15. The text of Hindu Law and the aforesaid two decisions of this Court and the earlier decision in Angurbala Mullick case show that shebaitship is in the nature of immovable property heritable by the widow of the last RFA.No.397 OF 2004 17 male holder unless there is an usage or custom of a different nature in cases where the founder has not disposed of the shebaiti right in the endowment created by him. In the present case Purushottam Lal has not made any disposition regarding shebaiti right in his will, Ext.A-2 dated April 14, 1944 whereby he created the endowment. No custom or usage to the contrary has been pleaded. Therefore, the widow Asharfi Devi had succeeded to the shebaiti right held by him on his death as a limited owner and that right has become enlarged into an absolute right by the provisions of Section 14(1) of the Hindu Succession Act, 1956 and she could transfer that right by a will in favour of a person who is not a non-Hindu and who could get the duties of shebait performed either by himself or by any other suitable person. In these circumstances I hold that the second respondent has acquired the shebaiti right under the will Ext.A-6 executed by Asharfi Devi on her death on March 7, 1963. No interference is called for in this appeal with the judgment of the learned Single Judge of the High Court. The appeal is accordingly dismissed with costs."
Sabyasachi Mukharji, J. in his concurring judgment stated the law thus: (SCC p. 532, para
16) "in my opinion it is well settled by the authorities that shebaitship is a property which is heritable. The devolution of the office of shebait depends on the terms of the deed or the will or on the endowment or the act by which the deity was installed and property consecrated or given to the deity, where there is no provision in the endowment or in the deed or will made by the founder as to the succession or where the mode of succession in the deed or the will or endowment comes to an end, the title to the property or to the management and control of the property as the case may be, follows the ordinary rules of inheritance according to Hindu Law."
25. In Rambir Das v. Kalyan Das this Court stated the law thus: (SCC p.112, para 13) "The will in the normal connotation, takes effect after the demise of the testator. But in the case of nomination of a Shebait, the nomination takes effect from the date of its execution though it is styled as a will. Once it takes effect, the RFA.No.397 OF 2004 18 nominee becomes entitled to go into the office as a Shebait after the demise of the last chela of Hari Dass. Under these circumstances, the shebaitship being a property, vests in Rambir Dass and he could administer the property and manage the temple for the purpose of spiritual and other purposes with which Hari Dass, the original founder had endowed the property to Lord Krishna and Radha.".
28. It is thus perspicuous that the legal character and incidents of a Shebaitship, though is incapable of a precise and exact definition, is a species of property, which devolves like any other species of heritable property. The only exception to this is that when the founder does not dispose of his Shebaiti rights, then it would devolve on his heirs according to the applicable Hindu Law, which can be disrupted only by a usage or a custom of a different nature, which is shown to exist. Ineluctably, therefore, what is relevant in this case is whether the position of a 'Velichapadu' can be equated to that of a Shebait and whether, even if it is so, the line of succession of such rights can be disrupted on the basis of the evidence which is presently available.
RFA.No.397 OF 2004 19
29. Before I answer these issues specifically, I deem it appropriate to first examine the citations relied upon by Shri.M.P.Prakash.
30. The Madras judgment in Namburi Venkatarama Chetty (Supra) was not with respect to the rights of a Shebaitship but as to whether a scheme of management of an endowment or a debutter property can be changed without proper proof being led of its mismanagement or misconduct.
31. Coming to Mundacheri Koman(Supra) the Privy Council was considering the nature of the temples in Malabar, leading to a declaration that there is no presumption as regards them as being public charitable Trusts, in the absence of evidence to such effect. In such context, the Privy Council declared that the property standing in the name of different temples being dedicated for its support, the 'Karnavan' of the Tharavadu RFA.No.397 OF 2004 20 is placed in the position of an "Oolaran" or a Trustee and that the mere fact that the income from the temple was used for the expenses of another temple would not disturb this conclusion.
32. As regards Swami Paramatmanand Saraswati (Supra), the Hon'ble Supreme Court was considering a suit under Section 92 of the CPC and it declared that a private right cannot be sought to be projected through such a procedure. The Hon'ble Supreme Court held that a suit, whose primary object or purpose was to remedy the infringement of an individual right or to promote such a right, does not fall under Section 92 of the CPC and that only suits which, besides claiming any of such reliefs, are brought by individuals or representatives of public for vindication of public rights can be maintained.
33. In Kakinada Annadana Samajam (Supra) the primary question decided therein is as to RFA.No.397 OF 2004 21 whether the office of a heriditory trustee is 'property' within the meaning of Article 19(1)
(f) of Constitution of India, which the Hon'ble Court declared to the contrary. After saying so, the Hon'ble Court then proceeded to assess the position of a heriditory trustee and held that it is analogous to that of a 'Dharamkartha' or a mere manager/custodian of an institution or endowment, with the exception that such a trustee succeeds to office as of right and in accordance with the rules governing succession.
34. Finally, in Aurobindo Ashram Trust (Supra) the Hon'ble Supreme Court was considering the drawing of inference as to maladministration with respect to a Public Trust and concluded that mere difference of opinion in the exercise of discretion by Trustees would not bring a suit within the ambit of Section 92 of the CPC; and therefore, that disagreements between them, however passionate it may be, does not necessarily RFA.No.397 OF 2004 22 lead to a conclusion of maladministration in relation to a trust.
35. The principles of law in the citations relied upon by Shri.M.P.Prakash as afore, certainly are binding on this Court. However, the question is whether those citations are relevant to the facts of this case, particularly because the issues germane herein revolve around the right of a 'Velichapadu' and the correctitude of the conclusion of the Trial Court that the same tantamounts to a Shebaitship.
36. When I assess this aspect, it is pertinent that both sides agree that there is a temple in plaint schedule item No.1 property and that it has to be maintained in common. Of course, Shri.Sreekumar Chelur, learned counsel for the appellants submits that only that property on which the temple is actually situated has been conceded to be kept in common by his clients and that the rest of the RFA.No.397 OF 2004 23 property is partible. However, this is not a contention that I deem necessary or requisite to consider or conclude upon because, going by the plaint schedule averments, it is clearly admitted therein by the plaintiffs themselves that plaint schedule item No.1 property is being used as a temple and that it requires to be retained and maintained in common.
37. The only other question, therefore, which is relevant for my consideration in this appeal is whether the right of ownership and management of the temple would vest in defendant No.5, as has been asserted by him or whether a Scheme for Management of the same ought to have been considered by the Trial Court, as requested by the plaintiffs.
38. As has been already seen above, even assuming that the post of a 'Velichapadu' is a Shebaiti right, the law is now well settled that its inheritance depends upon the normal Hindu Law applicable. Obviously, therefore, RFA.No.397 OF 2004 24 unless there is a custom or tradition asserted and established by the defendants to the contrary, even if the right of a 'Velichapadu'' is synonymous with the right of a Shebait, defendant No.5 cannot claim exclusive ownership or management of the temple, especially because it is conceded that the property in question was owned by Shri.Krishnan Nair and that on his death it would have normally devolved upon all his heirs, including the plaintiffs.
39. It is now too well established in law, requiring no restatement, that when someone asserts a custom or a tradition, it is certainly upon him to establish the same through cogent and reliable evidence. This is the mandate of law and this is how the processes before the Trial Court ought to have gone forward.
40. In the case at hand, it is evident that the Trial Court relied heavily upon the RFA.No.397 OF 2004 25 evidence of defendants 3 to 5 to conclude that a tradition of the exclusive inheritance of the right of a 'Velichapadu' to his elder son has being established beyond doubt and therefore, that the principles of Marumakkathayam with respect to the inheritance of the property of the temple would not apply.
41. I am afraid that it is here that the Court below has made the first mistake, because the evidence on record, the materials available and the deposition of witnesses are clearly insufficient to prove any custom or tradition in the manner as has been asserted by defendants 4 to 7. Merely because defendants 3 to 5, who are stated to be seniors of the locality, spoke about an acceptance that the right of a 'Velichapadu' goes only from the father to his son, it was not sufficient for the Court to have concluded affirmatively that a 'Velichapadu' is to be construed as a Shebait or that he obtains RFA.No.397 OF 2004 26 exclusive charge and ownership of the temple properties and its income. Interestingly, the case of defendants 4 to 7, as pleaded by them in their written statement and in their evidence, is that the income from the temple is not partible and that as per the "usual custom and tradition" it is to be enjoyed only by the 'Velichapadu' and no one else.
42. It is here that the afore referred citations with respect to the Shebaitship becomes important because, even assuming that the post of a 'Velichapadu' can be equated with that of a Shebait, the normal line of succession - consequent to the death of Shri.Krishnan Nair - would have been disrupted only had there been enough evidence to unequovacally establish a custom or a tradition, entitling only the son of Shri.Krishnan Nair to be the 'Velichapadu' and to be thus in ownership and management of the temple.
RFA.No.397 OF 2004 27
43. That said, there is a further problem that I find with the impugned judgment and decree, which is that the Court below has gone ahead and equated the post of 'Velichapadu' with that of a Shebait rather casually, after holding that the property is a debutter property. In usual parlance and belief in Kerala, a 'Velichapadu' is an 'Oracle' and hence, whether it obtains the attributes of a Shebait, with full rights of ownership and management of the temple and its property ought to have carefully analysed, on the basis of the evidence, rather than concluding in an automaton fashion, as has been done in the judgment in paragraph 13 thereof that: 'the post of Velichapadu which is synonyms with the post of shebait is not heritable by the legal heirs of Echaran Nair'. More interesting is the next finding of the Court below that - 'it would go to the next person only in accordance with the Rules which of course are unwritten but being followed regularly' (sic). RFA.No.397 OF 2004 28
44. It is thus ineluctable that the impugned judgment is edified on two assumptions made by the Court below - that the post of a 'Velichapadu' is synonymous with that of a Shebait; and that this post would be heritable only by the son of Shri.Echaran Nair in accordance with certain Rules which admittedly are unwritten but which it concludes to have been followed regularly. I am afraid that these assumptions of the Court below cannot obtain the favour of this Court, because when a custom or tradition has to be established it has to be done in the manner known to law; and merely because a particular course had been done or followed regularly, it would not automatically gather the character of a custom or a tradition. In the absence of evidence to either show that the post of 'Velichapadu' is the same or even comparable with that of the post of a Shebait; and that the said post would devolve in breach of the normal Rules of inheritance, I am of the firm RFA.No.397 OF 2004 29 opinion that the impugned judgment and decree cannot be offered the imprimatur of this Court.
45. This is not to mean that this Court has concluded affirmatively with respect to these issues or that I am answering them conclusively in this judgment. This is because these aspects certainly require to be considered more in detail by the Court below, after affording necessary opportunity to the parties to lead further necessary evidence with respect to the nature of the post of 'Velichapadu'.
46. This is all the more so because, the plaintiffs have made an adscititious prayer in their plaint for framing of a Scheme for administration of the temple, which can be done only after it is assessed as to whether the allegation of mismanagement and commission of misleads by defendant No.5 are reliably proved, in the backdrop of the law declared in RFA.No.397 OF 2004 30 the various judgments relied upon by Shri.M.P.Prakash referred above. These issues have never been considered by the Court below, since it assumed that the post of 'Velichapadu' is synonyms with a Shebait and that the normal line of succession of the temple and its rights of management have been disrupted on account of an "unwritten code."
47. I am thus of the firm opinion that this Court would be justified in remanding the suit for fresh trial and disposal to the Sub Court, Irinjalakkuda; however, only with respect to plaint schedule item No.1 property, but confirming the judgment and decree as regards plaint schedule item No.2 property.
48. Resultantly, this appeal is allowed in part and the judgment and decree of the Court below, with respect to plaint schedule item No.1 property is set aside; and the Trial Court is, consequentially, directed to dispose of the suit afresh as regards this property, RFA.No.397 OF 2004 31 after affording necessary additional opportunity to the parties to lead evidence and to produce documents in substantiation of their respective claims as regards the nature and rights of a 'Velichapadu' and the prevalence of any custom or tradition with respect to the ownership and management of the temple; however clarifying that plaint schedule item No.1 will, on account of the conceded case of the parties, be treated in its whole as that being part of the temple and no part of it being capable of subject to a partition by metes and bounds.
49. Since the suit is of the year 2003, I deem it apposite that the Trial Court must endeavour to dispose it of at the earliest, but not later than the last working day when the Civil Courts close for the Onam holidays for the year 2020.
50. To enable the Trial court to commence proceedings in terms of this RFA.No.397 OF 2004 32 judgment, I direct the plaintiffs and defendants to appear before it at 11.00 a.m. on 14/02/2020.
51. I further order that until the suit is decided as afore, defendant No.5 will continue to be in management of the plaint item No.1 property and the temple therein, but only in the position of a Receiver under Order XL Rule 1 of the CPC; and his position will, thereafter, be regulated as per the judgment and decree to be passed by the Court below in terms of the judgment.
In the singular factual scenario noticed in this appeal, I make no order as to costs and direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/18.1.2020