Kerala High Court
Naluvila Bhagavathi Devaswom Trust vs Omanakumari on 31 August, 2022
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
RSA NO. 711 OF 2020
AGAINST THE ORDER/JUDGMENT IN AS 21/2018 OF SUB COURT, CHENGANNUR
OS 105/2006 OF MUNSIFF COURT,CHENGANNUR
APPELLANTS/APPELLANTS 1, 2, 4 AND 5/DEFENDANTS 1, 4, 6 & 7:
1 NALUVILA BHAGAVATHI DEVASWOM TRUST
ENNAKKADU VILLAGE, CHENGANNUR TALUK, REP.BY ITS PRESENT PERSON IN
POSSESSION-DILEEP AGED 37 YEARS, S/O.LATE SOMANATHAN PILLAI,
KADUVINAL HOUSE, ENNAKKADU MURI, ENNAKKADU VILLAGE, CHENGANNUR
TALUK-689 624.
2 VALSALA KUNJAMMA
AGED 65 YEARS
W/O.LATE SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI,
ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
3 DILEEP
AGED 37 YEARS
S/O.LATE SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI,
ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
4 PARVATHY
AGED 35 YEARS
D/O.LATE SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI,
ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
BY ADV N.ASHOK KUMAR
RESPONDENTS/RESPONDENTS 1 TO 3 & APPELLANT NO.3/PLAINTIFFS 1 TO 3 & DEFENDANT
NO.5:
1 OMANAKUMARI
AGED 69 YEARS, D/O.JANAKIAMMA, KADUVINAL VADAKKETHIL HOUSE,
ENNAKKADU MURI, ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
2 SIBIN K KARNAVAR
AGED 36 YEARS
S/O.OMANAKUMARI, KADUVINAL VADAKKETHIL HOUSE, ENNAKKADU MURI,
ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
3 UMADEVI
AGED 62 YEARS
D/O.PONNAMMA, KADUVINAL THEKKKETHIL HOUSE, ENNAKKADU MURI,
ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
4 RAJALAKSHMI
AGED 39 YEARS
D/O.SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI, ENNAKKADU
VILLAGE, CHENGANNUR TALUK-689 624.
BY ADVS.
K.V.SOHAN
ATUL SOHAN
SRI.S.SANDEEP (S-3458)
BIJO MATHEW JOY
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE
COURT ON 31.08.2022 DELIVERED THE FOLLOWING:
R.S.A.No.711/2020
2
JUDGMENT
This appeal has been directed against the judgment and decree in A.S.No.21/2018 on the file of Subordinate Judge's Court, Chengannur which arose out of the judgment and decree in O.S.No.105/2006 on the file of Munsiff's Court, Chengannur.
2. Appellants are the defendants 1, 4, 6 & 7. The suit was one for declaration, for removal of trustee and for rendition of accounts. The plaintiffs and defendants 2 and 3 and additional defendants 4 to 7 are members of Kaduvinal family. First defendant is the Naluvila Bhagavathy Devaswom Trust, is owned by the Kaduvinal family trust. The temple is situated in the property having an extent of 48.80 Ares, comprised in resurvey No.2/1 and it belongs to the family trust. The members of the family are beneficiaries and are having right to administer the temple. The members of the family executed a partition deed No.4343/1951 of Mannar Sub Registry Office. There is a stipulation in the partition deed that administration of the temple is to be done based on seniority and custom and further that the administration will be carried out by the first party to the Deed, Neelakanda Pillai during his lifetime and thereafter it devolves R.S.A.No.711/2020 3 upon the person next in the order of seniority. Neelakanda Pillai died in the year 1996. Thereafter, Raghavan Pillai administered the temple on the basis of seniority, who is the father of the plaintiffs. Since Raghavan Pillai was incapacitated due to old-age ailments and plaintiffs were also preoccupied with the family affairs, administration of the temple was entrusted with the second defendant, who is the nephew of plaintiffs' father. On the death of the plaintiffs' father, the right to administer the temple vested with the plaintiffs as per the stipulation in the partition deed. But the second defendant is claiming right over the temple and its properties on the basis of a Will executed by Neelakanda Pillai, the former Karnavar, who have no right to execute a Will with respect to the temple and the properties. That Will is void ab initio and is not binding on the other family members. The income from the temple has been increased considerably during the last 10 years and the defendant is appropriating the income without maintaining proper accounts. So the plaint schedule properties are to be declared as the assets of the Trust and administration of the temple is to be entrusted to the first plaintiff after divesting the second respondent from its administration. Though originally a scheme was sought to be R.S.A.No.711/2020 4 framed with regard to the administration of the temple, that prayer was subsequently deleted.
3. The second defendant filed written statement contending that first defendant - temple never functioned as a Trust and its administration is being conducted in accordance with the stipulations in the family documents and title deeds and based on Oorazhma system. The right over the temple and its properties is vested with Karnavar of Kaduvinal family and administration is managed by thavazhy members. It is denied that first defendant is a family trust. It is open for the whole inhabitants in the locality for worship. Plaintiffs are not born out of the legal marriage of the deceased Raghavan Pillai and is not entitled for the administration of the temple. The first defendant is administering the affairs of the temple as Oorazhma right holder based on the Will No.51/91 of Chengannur SRO executed by the karnavar of Kaduvinal family, Sri.Neelakanda Pillai. It is also contended that the plaintiffs' father obtained some property from the Land Tribunal and thereby his right over the Kaduvinal family has been extinguished and he is estopped from claiming to be a senior member of Kaduvinal family. The plaintiffs claiming through him is also having no right over the temple R.S.A.No.711/2020 5 properties. The temple was found to be private property as per the judgment in A.S.No.35/1959 of this Court. Temple and its properties are being managed properly by the second defendant and he has not committed any misappropriation. So there is no necessity to appoint a Receiver for the administration, pending the suit and hence according to him there is no cause of action for filing the suit. Pending the suit, second defendant died and his legal heirs have been impleaded as defendants 4 to 7. Additional defendant No.6 filed written statement endorsing the contentions in the written statement of the second defendant.
4. Exts.A1 to A13 marked and PW1 examined from the side of the plaintiffs. Exts.B1 and B2 marked and DW1 examined from the side of the defendants. Exts.C1 and C1(a) were also marked.
5. The learned Munsiff on evaluating the facts and circumstances and evidence adduced from both sides found that the first defendant is a family temple belonging to the plaintiffs' family and the temple is governed by the stipulations in Ext.A1 Partition Deed and the Will alleged to have been executed in favour of the second defendant is of no value in the eye of law and accordingly the first plaintiff was found to be entitled to R.S.A.No.711/2020 6 have the charge of administration with respect to Sree Naduvila Bhagavathi Devaswom Temple and her right to carry out the administration of the temple and its properties are declared and 6th defendant is directed to handover the charge of the administration of the temple along with its assets to the first plaintiff.
6. Aggrieved by the judgment and decree passed by the learned Munsiff, first defendant represented by 4th defendant and additional defendants 4 to 7 filed appeal before the Subordinate Judge's Court, Chengannur and the learned Sub Judge on a r-appreciation of the facts and evidence adduced confirmed the judgment and decree passed by the trial court. Having lost before the two forums, appellants approaches this Court in this Regular Second Appeal. (The parties would hereinafter be referred as per their status before the trial court).
7. This Court, at the time of admission, formulated the following substantial questions of law:
1) Are the courts below right in decreeing the suit and declaring that the 1st plaintiff being the eldest member of "Kaduvinal" family, without considering the impact of Kerala Joint Family System (Abolition) Act, 1975, which abolished joint family system thereby impliedly repealed R.S.A.No.711/2020 7 the clause in Exhibit-A1 empowering the senior most family member to administer the disputed temple?
2) Are the courts below right in allowing declaration, which is time barred as per the Limitation Act?
8. The only argument advanced by the learned counsel is with regard to the change of law due to the advent of the Kerala Joint Hindu Family System (Abolition) Act, 1975, (for short, the Act), which, according to him, would take away the rights of eldest member as provided in Ext.A1 Partition Deed for administration of the temple and all the members will have the right over the property as tenants in common and hence the proper course of the plaintiffs is to file a suit for framing a scheme, which, though originally sought for in the plaint, subsequently was deleted. In short, according to him, due to the commencement of the Act, the stipulation in the Partition Deed to administer the property by the temple and the properties by the senior member of the family will no longer exists.
9. The learned counsel for the respondents/plaintiffs on the other hand would vehemently contend that, the stipulation in Ext.A1 partition deed, by which, senior member of the family has been authorized to administer the temple and its properties, R.S.A.No.711/2020 8 itself would constitute a family trust and hence there is no further requirement to frame a scheme with respect to the administration of the Trust and that is why though originally a prayer for framing a scheme was also incorporated in the plaint, subsequently, by amendment, that prayer was deleted. He would also contend that tharawad setting apart certain properties for a temple and for its administration itself would create a valid trust.
10. Before going to the rival contentions of the parties, it would be apposite to understand the stipulations in Ext.A1 Partition Deed. As per the stipulation in Ext.A1-partition deed, it has been specifically provided in page No.2 that the administration of the family temple, Naluvila Bhagavathy Devaswom Trust is being administered by the first party in the partition deed - Neelakanda Pillai and during his lifetime he has to continue the administration and thereafter the senior member of the family should conduct the administration of the temple and hence the temple property is not included in the partition deed. To make the matters more clear, I would extract the above stipulation in vernacular which reads thus :
ÈN{áæ¿ µá¿á¢Ì¢Õµ ÈÞÜáÕß{ Í·ÕÄß çÆÕØb¢ Íøâ ÎâMáÎáùÏᢠµàÝíÉÄßÕᢠ¥ÈáØøߺîᢠ൧ Þ¢ çÉøáµÞøX çfεøÎÞÏß È¿JßÕøáKÄᢠ¿ßÏÞæa ¼àÕßĵÞÜ¢Õæø R.S.A.No.711/2020 9 ¿ßÏÞX ÄæK Íøâ È¿JßæAÞçUIÄᢠ¥ÄßÈáçÖ×¢ ¥ÄÄáµÞÜ¢ ÎâMíÎáù ØßÆíÇßAáK ¦Z Íøâ È¿JßæAÞçUIÄᢠ¿ß çÆÕØb¢ Õµ ØbJáAZ §ÄßW çºVJßGßÜïÞJÄᢠ¦µáKá.
So I will first deal with the contention of the learned counsel for the appellants that after the advent of the Act whether the stipulation in Ext.A1 Partition Deed will extinct or not. Before that, it would be necessary to enter into a finding as to whether the stipulation in Ext.A1 Partition Deed by itself will constitute a family trust, as contended by the learned counsel for the respondents/plaintiffs.
11. The learned counsel for the plaintiffs placed reliance on Narayana Pillai and Anr. v. Kesava Pillai and Ors. [1962 KLJ 389 : 1962 KHC 288], wherein, His Lordship the Hon'ble Mr. M. Madhavan Nair J., as he then was, dealt with the characteristics of the Hindu Religious Trust and it has been held that a tarvad sets apart certain properties for the performance of certain religious services and dedicates all the future income for the religious purposes and when right of management of the property be retained with tarvad, a valid trust is created though the right of the management of the property is retained with the tarvad. That was a case in which a trust is created as per the R.S.A.No.711/2020 10 provisions in Ext.A in that case and the plaintiffs and defendants are members of a Nair tarwad and there was a partition deed in the tarwad as Ext.A and some properties were left in common for religious and charitable purposes to be managed by the first defendant and when the first defendant mismanaged the property by creating a Gift Deed in favour of the second defendant his nephew and son-in-law and thereupon the plaintiff approached the court seeking to set aside the gift deed executed by the trustee, the first defendant, in favour of the second defendant with respect to the trust properties and as well as for removal of first defendant from trusteeship. So the question decided in that case is very much identical to the fact situation of this case and when there is a specific stipulation in the Partition Deed by setting apart certain item of properties for religious purposes and the ownership of the property is still vested with the tarwad that itself would create a trust and it was also held that it is not necessary that the founder of religious trust should transfer the property to someone else in the trust. It is also categorically held in paragraph No.5 that if a tarwad sets apart certain properties for the performance of certain religious services and dedicate all the future income thereof for such R.S.A.No.711/2020 11 purposes a valid trust is created thereby, even though the right of management of the property is retained with the tarwad itself. It is also held that the object of the trust enumerated in Ext.A as the worship of family deity on the Uthradom day in the month of Chingam, feeding pilgrims to Sabarimala, the conduct of five monthly ceremonies in the family chapel, Shanthi, Bhagavathi Seva, Easwara Seva, Ganapathi Homam etc., etc. and properties set apart for purposes of the aforesaid objects are also specified and the entire income thereof is directed to be utilized for those purposes without reservation of any beneficial interest in any member of the tarwad. In the circumstances, it was held that, the essential requirements of the creation of a religious and charitable trust are complied with in the provisions in Ext.A and it was found that Ext.A has therefore created a trust for the religious and charitable objects enumerated therein in regard to the properties specified as specified as item 1 in the schedule appended to the document. In Narayanan Pandarathil E.K. v. P.K. Vasudevan Pillai and Ors. [2014 (3) KLT 497 : 2014 (3) KLJ 758 :
ILR 2014 (4) Ker. 675] also an issue in connection with Hindu religious endowment arouse. A temple Pannivizha Peedikayil Bhagavathi Temple belongs to Edamnana Illom and the illom was R.S.A.No.711/2020 12 holding extensive properties and was running various temples in their properties and Pannivizha Peedikayil Bhagavathi Temple was one among such temples run and administered by the members of the said illom. Public were also permitted to worship the deity and to make offerings. The then Urallen of the temple entered into a settlement with a Society through a registered agreement whereby the duty to administer the temple was entrusted with the Society and the society started administering the temple and some of its properties. A contention was raised that through the agreement temple and its properties acquired a status of public charitable trust and some persons filed a suit for a scheme within the meaning of Section 92 of the Code of Civil Procedure, 1908 and the members of illom contended that the agreement in favour of the Society was void ab initio and it could not have transferred the right of 'uraima' of the members of the Illom in favour of the Society. In the said circumstances it was held by the learned Single Judge that Urallen who is merely a trustee cannot transform a private trust into a public trust in derogation of the rights of all other members of the Illom and there is no absolute dedication of the proprieties by the owners and it is also held that mere fact that worshipers were not R.S.A.No.711/2020 13 obstructed from worshiping and making offerings will not convert a private temple into public trust and accordingly the agreement executed in favour of the Society was held to be void and the Pannivizha temple was held to have never acquired the status of a public charitable trust.
12. The members of the Kaduvinal family while executing Ext.A1 partition deed created a Trust and administration of the Trust was also stipulated to be carried out by the then member who was administering the temple and the properties and thereafter specifically stipulated that the senior member of the family have to administer the temple and the properties. It is also specifically stipulated that hence the temple property is not included in the partition deed. So, the stipulation in Ext.A1, as rightly contended by the learned counsel for the plaintiffs, would create a family trust with respect to the first defendant - Trust and hence there is no necessity to further frame a scheme with respect to the administration of family temple and hence the prayer for framing the scheme was subsequently deleted by way of amendment.
13. The learned counsel for the defendants on the other hand would contend that, by the commencement of the R.S.A.No.711/2020 14 Act, the stipulation in Ext.A1 will extinct and framing of a scheme is very much necessary for the administration of the temple. He would highlight Section 4 of the Act, which reads thus:
4. Joint tenancy to be replaced by tenancy in common.-
(1) All members of an undivided Hindu Family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall, with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undevided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed (2) All members of a Joint Hindu Family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in- common, as if a partition of such property per capita had taken place among all the members of the family R.S.A.No.711/2020 15 living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner there of.
But the specific contention of the learned counsel for the plaintiffs is that the partition has been effected in the family way-back in 1951 and there is no joint family in existence as on the date of commencement of Act in Kaduvinal family and only the temple has been kept in common without partition with the specific stipulation with regard to its administration.
14. Learned counsel for the defendants placed reliance on Kt. N. Rm. Thenappa Chettiar & Ors v. N. S. Kr. Karuppan Chettiar & Ors [AIR 1968 SC 915]. In that decision, while dealing with Hindu religious and charitable endowments it was held that even in case of private trust a suit can be filed for the removal of trustee or settlement of a scheme for the purpose of effectively carrying out the objects of the trust, if there is breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administrations of the endowment.
15. Ramchand (Dead) By Legal Representatives v Thakur Janki Ballabhji Maharaj & Anr. [1969 (2) SCC 313] it has been R.S.A.No.711/2020 16 held that in case of private trust suit is maintainable before the civil court to frame scheme for management of temple. Vijayakumaran v. Sankarankutty Ezhuthassan [2001 (2) KLT 335] is the another decision relied on the learned counsel, wherein, it has been held, while dealing with Section 5(2) of the Act, that a suit for partition filed and decreed after commencement of the Act without impleading all the members of the coparcenary parties and the decree passed and sale effected are not binding on the other coparceners who are not parties to the suit and separate suit filed by them for partition is held to be maintained. This decision actually has no application to the case in hand.
16. Dharmambal v. Lakshmi Ammal [2002 (2) KLT 843] it has been held that Section 4 sub-section (2) of the Act excludes undivided Hindu family referred to in sub-section (1) and even though it is stated that all the members of an undivided joint Hindu family holding a joint property on the day of coming into force of the Act shall hold it as tenants in common as if the partition has taken place among the members of the family living on that date aforesaid, it is not stated that their shares will be on per captia basis. Sub-section (2) is not applicable to undivided Hindu family. It is also held that a reference to the statement of R.S.A.No.711/2020 17 objects and reasons attached to the bill of the Kerala Joint Hindu Family System (Abolition) Act also show that the Legislature never intended to include under sub-section (2) of Section 4 an undivided Hindu family governed by Mitakshara law. Thereafter the property has to be partitioned ignoring sub-section (2) of Section 4.
17. The above two decisions relied on by the learned counsel will not have any application to the present case since there is no joint family in Kaduvinal family since the property has already been partitioned in the year 1951 and only the temple property has been left without partition by creating a family trust empowering the senior most member of the family to administer the temple and the property. So either the commencement of the Act or Section 4 of the said Act will not have any impact in the family trust created by the members of family as per Ext.A1. So the contention so advanced by the learned counsel for the appellants/defendants 1, 4, 6 & 7 is not at all sustainable in law.
18. It has been concurrently found by the courts below that first plaintiff, now being the senior most member of the family, is entitled for the administration of the temple as per R.S.A.No.711/2020 18 stipulations in Ext.A1 partition deed. There is also a reference in the judgment with regard to Ext.A2 judgment in A.S.No.35/1959 of this Court which arose out of the judgment and decree in O.S.No.22/1958 on the file of Additional Sub Court, Mavelikkara and no argument was advanced by the learned counsel in that aspect. But it is discernible from the judgment passed by the courts below that in Ext.A2 judgment a co-ownership right of Srattil family along with plaintiff's family though referred, it was left open for final decision in appropriate proceedings. In Ext.A1 partition deed also there is reference with regard to that case. Moreover, the suit in this case has been filed in a representative capacity. So as has been rightly found by the courts below nobody has come forward claiming any right or interest over the temple either from Srattil family or anybody else.
19. Defendants has also raised a plea of bar under the law of limitation for a prayer for declaration sought for by the plaintiff. The contention of the contesting defendants is that after the death of the father of plaintiff 3 years have elapsed and hence the suit for declaration to declare her as the administrator of the temple is barred by limitation. But, as rightly found by the R.S.A.No.711/2020 19 courts below, the temple is a family Trust and the senior member is stipulated to act as the administrator and the temple has also been set apart for the benefit of the entire family. Section 10 of the Limitation Act, 1963 provides that notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation to Section 10 further provides that any property compromised in a Hindu, Muslim or Budhist religious or charitable endowment shall be deemed to property vested in trust for a specific purpose and the manger of the property shall be deemed to be the trustee thereof.
20. The present suit has been filed by the plaintiffs for declaration that the plaint schedule properties as the assets of the trust and to entrust the administration of the temple to the first plaintiff being the senior most member of the family and also for rendition of accounts. So, as found earlier, as per Ext.A1, a family Trust has been created with respect to Naluvila R.S.A.No.711/2020 20 Bhagavathy Temple and its administration. So Section 10 of the Limitation Act squarely applies and there will not be any limitation for any of the reliefs sought for by the plaintiffs.
In the result, appeal is found to be devoid of any merit and hence dismissed.
Sd/-
M.R.ANITHA
Shg/3.9 JUDGE