Kerala High Court
Thoriyottu Madan vs (*V)1. Krishnan Sukumaran
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 17TH DAY OF MARCH 2015/26TH PHALGUNA, 1936
SA.No. 624 of 1997 (G)
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AGAINST THE JUDGMENT AND DECREE IN A.S.NO. 7/1993 of SUB COURT,ATTINGAL
AGAINST THE JUDGMENT AND DECREE IN O.S.NO. 189/1986 of MUNSIFF COURT,
ATTINGAL
APPELLANT(S)/APPELLANTS/PLAINTIFFS:
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1. THORIYOTTU MADAN, MANAMPOOR VILLAGE,
CHIRAYINKEEZH TALUK
2. A.VEDAPALAN, DAIVAPURA VEEDU, MANAMPOOR VILLAGE
MANMPOOR DESOM.
3. RAGHAVAN JAIN, CHATHARAVILA VEEDU, KILIMANOOR,
REPRESENTED BY POWER OF ATTORNEY - A.SADASIVAN,
DAIVAPURA VEEDU, MANMPOOR VILLAGE.
BY ADV. SRI.P.K.MUHAMMED
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
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(*v)1. KRISHNAN SUKUMARAN, SETHU BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE (DIED. LRS. IMPLEADED)
2. GOVINDAN SATHYAVRITHAN, G.H.BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE.
(*ii)3. MATHEVAN RAMAKRISHNAN, PARAKKAL VEEDU, MANAMPOOR
VILLAGE (DIED. RECORDED. LRS. IMPLEADED)
4. NARAYANAN JAYARAJ, NARAYANAVILASATHU VEEDU,
MANAMPOOR VILLAGE.
5. MARTHANDAN BHODANANDAN, VILAYIL VEEDU,
MANAMPOOR DESOM, MANAMPOOR VILLAGE.
6. KAMALASANAN BHODAYANI OF -DO- -DO-
(*iii)7. KUNCHU SAHADEVAN, ANITHA NIVAS OF -DO- -DO- (DIED. RECORDED.
LRS. IMPLEADED)
8. KESAV VIDYADHARAN, MANCHU BHAVAN OF -DO- -DO-
AN
9. RAMANKUTTY JAYADEVAN, LAILA SADANAM, MANAMPOOR
DESOM, MANAMPOOR VILLAGE.
SA NO.624/1997 2
(*iv)10. RAMANKUTTY SIVADASAN, PRASANNA MANDIRAM,
-DO- -DO- (DIED. RECORDED. LRS. IMPLEADED)
(*i)11. GOVINDAN PUSHPANGADAN, AKKARAVILA VEEDU,
-DO- -DO- (DIED. RECORDED) (ALIVE)
12. KRISHNAN NAKULAN, OF LAVANYA OF -DO- -DO-
13. KOCHUKRISHNAN SOMANATHAN, VAGUMKOTTY VEEDU, -DO- -DO-
*THE DEATH OF RESPONDENTS 3, 7, 10 AND 11 ARE RECORDED VIDE ORDER DATED
6.6.2011 IN MEMO BEARING CF 2211/11 ATED 30.03.2011
(*i)'R11 IS ALIVE' AS PER ORDER DATED 14.11.2014 IN SA 624/1997.
ADDL.RESPONDENTS:
(*ii) R14. SMT.OMANA, W/O.LATE RAMAKRISHNAN, PARAKKAL VEEDU,
MANAMPOOR VILLAGE.
R15. K.RAJIVE, S/O.LATE RAMAKRISHNAN, PARAKKAL VEEDU,
MANAMPOOR VILLAGE
R16. REJITHA, D/O.LATE RAMAKRISHNAN, PARAKKAL VEEDU,
MANAMPOOR VILLAGE
R17. REJEEVE, S/O.LATE RAMAKRISHNAN, PARAKKAL VEEDU,
MANAMPOOR VILLAGE
R18. SMT.MADANAVATHI, W/O.LATE SAHADEVAN, ANITHA NIVAS,
VILAYIL VEEDU, MANAMPOOR DESOM, MANAMPOOR VILLAGE,
ATTINGAL, THIRUVANANTHAPURAM.
ADDL.R14 TO R18 IMPLEADED BEING LRS OF DECEASED R3 AS PER ORDER
DATED 14/11/14 IN IA NO.1530/11.
(*iii) R19. DILEEP KUMAR, S/O.LATE SAHADEVAN, ANITHA NIVAS,
VILAYIL VEEDU, MANAMPOOR DESOM, MANAMPOOR VILLAGE,
ATTINGAL, THIRUVANANTHAPURAM, PIN 696101
R20. ANITHA, D/O.LATE SAHADEVAN, ANITHA NIVAS,
VILAYIL VEEDU, MANAMPOOR DESOM, MANAMPOOR VILLAGE,
ATTINGAL, THIRUVANANTHAPURAM, PIN-696101
R21. RINKU, D/O.REENA SAHADEVAN,
VILAYIL VEEDU, MANAMPOOR DESOM, MANAMPOOR VILLAGE,
ATTINGAL, THIRUVANANTHAPURAM, PIN-696101
R22. GEETHU, D/O.REENA SAHADEVAN,
VILAYIL VEEDU, MANAMPOOR DESOM, MANAMPOOR VILLAGE,
ATTINGAL, THIRUVANANTHAPURAM, PIN-696101
ADDL.R19 TO R22 IMPLEADED BEING LRS OF DECEASED R7 AS PER ORDER
DATED 14/11/14 IN IA NO.1473/11.
SA NO.624/1997 3
(*iv) R23. PANKAJAKSHI, W/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R24. RADHAMANI, D/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R25. RADHA RAMANAN, D/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R26. SREEVALSAN, S/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R27. PRASANNA, D/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R28. SUDHAMANI, D/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R29. MOHANDAS, S/O.LATE SIVADASAN, PRASANNA MANDIRAM,
MANAMPOOR DESOM, MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R30. ARUNA JAYAPRAKASH, S/O.JAYAPRAKASH SIVADASAN,
PRASANNA MANDIRAM, MANAMPOOR DESOM,
MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R31. PRAJOSH, S/O.LATE JAYAPRAKASH SIVADASAN,
PRASANNA MANDIRAM, MANAMPOOR DESOM,
MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R32. JYOTSNA, D/O.LATE JAYAPRAKASH SIVADASAN,
PRASANNA MANDIRAM, MANAMPOOR DESOM,
MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
R33. SUNIL KUMAR, @ PATEL, S/O.SIVADASAN,
PRASANNA MANDIRAM, MANAMPOOR DESOM,
MANAMPOOR VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM, PIN-696101.
ADDL.R23 TO R33 IMPLEADED BEING LRS OF DECEASED R10 AS PER ORDER
DATED 14/11/14 IN IA NO.1475/2011
(*v) R34. SMT. K.N.LAXMIKUTTY, W/O.KRISHNAN SUKUMAR ,
RESIDING AT SETHU BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE.
SA NO.624/1997 4
R35. SMT.SETHU, D/O.KRISHNAN SUKUMAR ,
RESIDING AT SETHU BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE.
R36. SMT.SUDHA, D/O.KRISHNAN SUKUMAR ,
RESIDING AT SETHU BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE.
R37. SMT.LATHA, D/O.KRISHNAN SUKUMAR ,
RESIDING AT SETHU BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE
R38. SMT.ANITHA, D/O.KRISHNAN SUKUMAR ,
RESIDING AT SETHU BHAVAN, MANAMPOOR DESOM,
MANAMPOOR VILLAGE.
ADDL.R34 TO R38 IMPLEADED BEING LRS OF DECEASED R1 AS PER ORDER
DATED 14/11/14 IN IA 1301/12.
R5, R6, R8, R9, R11 & R12 BY ADV. SRI.G.S.REGHUNATH
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2015, THE
COURT ON 17-03-2015 DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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S.A. No.624 of 1997
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Dated this the 17th day of March, 2015
JUDGMENT
Appeal by the plaintiffs, who lost both in the trial court and in the first appellate court. The suit is one for declaration and consequential injunction. The dispute is in respect of a temple consecrated in the plaint schedule property. Essence of the dispute is whether the temple is a private temple or a public temple. Incidentally, whether the plaintiffs, as members of a particular tarwad, could claim exclusive right of management of the affairs of the temple also arises for consideration.
2. Heard Shri P.K.Muhammed, learned counsel for the appellants/plaintiffs and Shri G.S.Reghunath, learned counsel for the respondents/defendants.
3. Bare minimum facts can be considered first. Plaintiffs are members of an Ezhava marumakkathayam tarwad called Pulivilakom tarwad. They are permanent residents of Manampoor Village. As there are numerous persons in the tarwad, who are interested in the affairs of the temple, plaintiffs sought permission from the trial court to institute the suit under Order 1 Rule 8 CPC and the permission was granted. Similarly, the SA No.624/1997 2 defendants are also impleaded as representatives of the persons, who are interested in opposing the plaintiffs' claim. According to the plaint averments, the property admeasuring 5B= cents, where the temple is located, belongs to the family of the plaintiffs. There was a partition in the year 1103 ME and as per the partition deed, the plaint schedule property was kept in common to all the members of the tarwad. The document specifically recites the exclusive right of members to administer the temple. Members of the family spent substantial amounts for constructing structures in the temple. Main deity in the temple is Thoriyodu Madan. The defendants formed a committee called Thoriyodu Madan Nada Kshethra Samithy and proclaimed that they have right to administer the temple. Hence the suit for declaration that the plaintiffs have right of ownership and management over the temple and also for a consequential injunction against the defendants from interfering with the administration of the temple.
4. Defendants 1 to 5 opposed the suit by contending that the suit is without any bonafides and the plaintiffs are not entitled to get any relief. It is admitted that Pulivilakom tarwad is an ancient Ezhava tarwad. The main tarwad by passage of time had branched out to various sub tarwads. Plaintiffs are only members of a sub tarwad. They have no authority to SA No.624/1997 3 claim exclusive right over the temple. Further, the document relied on by the plaintiffs itself does not confer any right on the plaintiffs as the recital therein would show that the seniormost male member has the right to administer the temple and the plaintiffs are not the senior most male members. That apart, the inclusion of the temple and its properties in 1103 ME partition deed itself was baseless, because even prior to that document, the temple was in existence and the property vested in the idol. The avements in the partition deed relied on by the plaintiffs that the temple property was kept in common is legally and factually incorrect. According to the defendants, the temple is a public temple and the plaintiffs are not entitled to get the declaration or injunction as claimed for.
5. Learned trial Judge, after considering the evidence of witnesses examined on the side of the plaintiffs and defendants and also based on the documents produced by the contesting parties, arrived at a conclusion that the suit must fail for too many reasons. Firstly, the identity of the property shown in the plaint could not be established and the compound of the temple lies as part of a large property extending more than 11 cents. Secondly, the land on which the temple had been consecrated vested in the deity and nature of the temple is that of a public temple. Therefore, it was necessary for the plaintiffs to file a suit under SA No.624/1997 4 Section 92 CPC in a proper forum. Thirdly, it is also found that the plaintiffs, going by Ext.A1 partition deed of the year 1103 ME, could not claim exclusive right as they do not satisfy the qualification prescribed in the document. The lower appellate court without much discussion disposed the appeal against the appellants. It is pertinent to note that before the lower appellate court the idol was impleaded as an additional appellant to cure the defect in the form of the suit. Now, the question urged before this Court is whether the reasons stated for dismissing the suit by the courts below are proper and valid.
6. Learned counsel for the appellants contended that the interpretation placed by the courts below on Ext.A1 is totally unsustainable. According to him, the defendants, as members of a committee constituted temporarily for the conduct of a festival in the temple, cannot claim any right in the day today administration of the temple. It will be profitable to look into Ext.A1 to appreciate the rival contentions. It is a partition deed between certain members of Pulivilakath veedu. Admittedly the parties were following marumakkathayam. Title to the properties included in Ext.A1 had been traced in the document. The contention raised by the defendants is that the parties to Ext.A1 had no right to include the properties dedicated to the temple long before 1103 ME. Learned counsel SA No.624/1997 5 for the defendants relied on a recital in Ext.A1 that the properties set apart to the temple should be possessed by the eldest member in the tarwad and he should conduct the rituals in the temple. Item No.7 in the document is the property set apart to Madan Kavu. On a reading of Ext.A1, it could be seen that the temple was in existence even prior to Ext.A1. It is the contention of the appellants that the recitals in Ext.A1 would clearly indicate that the temple is a private temple kept in common for the worship of members of Pulivilakom tarwad. Learned counsel for the appellants relied on a decision of the Supreme Court in Deoki Nandan v. Murlidhar and others (AIR 1957 SC 133). His Lordship Shri Venkatarama Ayyar has lucidly explained the distinction between a public temple and a private temple in the following terms:
b