Kerala High Court
Padmanabhan vs Mukkottil Bhagavathy Devaswom ... on 9 June, 2025
2025:KER:41053
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 9TH DAY OF JUNE 2025 / 19TH JYAISHTA, 1947
RSA NO. 4 OF 2024
AGAINST THE JUDGMENT DATED 25.08.2023 IN AS NO.9 OF
2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII,
ERNAKULAM/IV ADDITIONAL MACT, ERNAKULAM ARISING OUT OF THE
JUDGMENT DATED 10.12.2019 IN OS NO.1433 OF 1990 OF I
ADDITIONAL MUNSIFF COURT, ERNAKULAM
APPELLANT(S)/RESPONDENTS 1 TO 8, 11 & 12/DEFENDANTS 1 TO 8,
11 & 12:
1 PADMANABHAN
S/O. EDATHAMARA KUNJAN, JAWAHAR ROAD,
KADAVANTHRA P.O., ELAMKULAM VILLAGE,
KANAYANNUR TALUK (DIED), PIN - 682 020.
2 HARIHARAN E.P
AGED 53 YEARS
S/O. LATE PADMANABHAN, EDATHAMARA HOUSE,
MUTTATHIL LANE, KADANTHRA P.O.,
ELAMKULAM VILLAGE, KANAYANNUR TALUK,
ERNAKULAM, PIN - 682 020.
3 JANAKI,
W/O. LATE PADMANABHAN, AGED 88,
EDATHAMARA HOUSE, MUTTATHIL LANE,
KADANTHRA P.O., ELAMKULAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM (DIED),
PIN - 682 020.
4 KAMALA
D/O. LATE PADMANABHAN,
W/O. VASUDEVAN,
MURATHUM MALAYIL HOUSE,
UDAYANAPURAM POST, VAIKOM,
KOTTAYAM DISTRICT (DIED),
PIN - 686 143.
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RSA NO.4 OF 2024
2
5 SHANTA
AGED 60 YEARS
D/O. LATE PADMANABHAN, EDATHAMARA HUSE,
MUTTATHIL LANE, KADANTHRA P.O.,
ELAMKULAM VILLAGE, KANAYANNUR TALUK,
ERNAKULAM, PIN - 682 020.
6 BHAVANI
AGED 57 YEARS
D/O. LATE PADMANABHAN, KALLATTUVEEDU,
KURUMASSERI POST, PARAKKADAVU,
PIN - 683 579.
7 SARALA
AGED 55 YEARS
D/O. LATE PADMANABHAN, W/O. RAJU,
LAKSHMI NIVAS, KALAYIL HOUSE,
BHRAMAMANGALAM POST, KOTTAYAM, PIN - 686 605.
8 AMBIKA
AGED 53 YEARS
D/O. LATE PADMANABHAN, W/O. DINESAN,
POOMANGALATH, KARIPADAM POST,
KOTTAYAM, PIN - 686 605.
9 RAJANI
AGED 41 YEARS
D/O. LATE KAMALA, W/O. ANIL,
SOUPARNIKA, PADINJAREKKARA,
VALLAKAM, VAIKOM, PIN - 686 146.
10 SREEDEVI
AGED 35 YEARS
D/O. LATE KAMALA, NADUVILE HOUSE,
MEKKADAMBU P.O., MUVATTUPUZHA, PIN - 682 310.
BY ADV SRI.S.SHYAM
RESPONDENT(S)/APPELLANTS AND RESPONDENTS 9 & 10/
PLAINTIFFS AND DEFENDANTS 9 & 10:
1 MUKKOTTIL BHAGAVATHY DEVASWOM
REPRESENTED BY "MUKKOTTIL BHAGAVATHY DEVASWOM
BHARAN SAMITHY"
THROUGH ITS PRESIDENT GOPALAKRISHNA MENON
S/O. JANAKI AMMA, CHAKKALAPARAMBIL,
PULIKKAZHATHU, POONITHURA DESOM,
POONITHURA VILLAGE (DIED), PIN - 682 038.
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3
2 MUKKOTTIL BHAGAVATHY DEVASWOM BHARANA SAMITHI
THROUGH ITS SECRETARY K.MANOHARAN,
AGED 49 YEARS
S/O. P.KANDUNNI MENON,
PATTAMANA KIZHAKKETHIL, UDAYAMPROOR P.O.,
UDAYAMPEROOR
(PREVIOUS SECRETARY OF DEVASWOM,
NOT HOLDING ANY PRESENT POSITION,
PIN - 682 307.
3 KRISHNAN
AGED 78 YEARS
S/O. PARAMESWARA MENON,
PRESENT PRESIDENT OF 'MUKKOTTIL BHAGAVATHY
DEVASWOM BHARANA SAMITHI'
RESIDING AT ROHINI, MAHAKAVI G ROAD,
ERNAKULAM, KARITHALA DESOM,
PIN - 682 011.
4 MOHANA KRISHNAN
AGED 62 YEARS
S/O. KAKANAM VEETTIL SARADAMMA,
SECRETARY OF MUKKOTTIL BHAGAVATHY DEVASWOM
BHARANA SAMITHI' RESIDING AT NANDANAM,
POOSSARIPADI, KOTTUVALLY VILLAGE,
NORTH PARAVOOR,
ERNAKULAM DISTRICT
(PREVIOUS SECRETARY OF DEVASWOM,
NOT HOLDING ANY PRESENT POSITION),
PIN - 683 519.
5 MUKKOTTIL BHAGAVATHY DEVASWOM BHARANA SAMITHI
REPRESENTED BY ITS PRESENT SECRETARY
MADHU NARAYANAN K.
AGED 38 YEARS
S/O. K.M.NARAYANAN, KAKKANAM VEEDU,
KUKKOTTIL LANE (THEKKE NADA), POONITHURA,
KOCHI, PIN - 682 038.
6 MURUKESHAN [*DELETED]
AGED 49 YEARS
S/O. LATE PADMANABHAN, EDATHAMARA HOUSE,
MUTTATHIL LANE, KADAVANTHRA P.O.,
ELAMKULAM VILLAGE, KANAYANNUR TALUK,
ERNAKULAM
*RESPONDENT NO.6 IS DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER
DATED 27.02.2025 IN IA 1/2025), PIN - 682 020.
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RSA NO.4 OF 2024
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7 SATHEESH
AGED 44 YEARS
S/O. LATE KAMALA,
MURATHAMMOOLAYIL HOUSE,
UDAYANAPURAM P.O., VAIKKOM,
PIN - 686 143.
R1, R3 & R5 - SRI.K.V.JAYACHANDRAN
- SRI. RAJU V.MATHEW
- SRI. HARISHANKAR K.J
R7 - SRI. K.B.SAJAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 09.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:41053
RSA NO.4 OF 2024
5
EASWARAN S., J
-----------------------------
R.S.A No.4 of 2024
-------------------------------
Dated this the 09th day of June, 2025
JUDGMENT
The defendants, in OS No.1433 of 1990 on the files of the First Additional Munsiff Court, Ernakulam, are the appellants herein.
2. The suit was filed for recovery of possession, mesne profits and setting aside Ext.A5 document dated 28.08.1978, if found necessary.
3. As per the plaint averments, the 1st plaintiff, the Mukkottil Bhagavathi Devaswom, represented by its Manager who was appointed by the Sub Court in a scheme suit, OS No.137 of 1977. Later, as per the final decree in the said suit, the Mukkottil Bhagavathy Devaswom Bharana Samithi took over the administration of the plaintiff Devaswom. The plaint schedule property 2025:KER:41053 RSA NO.4 OF 2024 6 belongs to the Mukkottil Bhagavathi Devaswom, which is a private Devaswom of Kakkanam Veettil Tharavadu. In view of the mismanagement of the affairs of the Devaswom, some of the members of the Tharavadu instituted a suit as OS No.137 of 1977. Initially, Adv.T.Sankunni Menon was appointed as an interim manager and he assumed charge on 31.01.1979 and later a preliminary decree was passed on 07.03.1980 upholding the necessity to frame a proper scheme. OS No.331 of 1977 was also preferred against one Bhaskara Menon and another Ramankutty Menon and was also tried along with the aforesaid suit. While the suit was pending, Bhaskara Menon and Ramankutty Menon assigned certain landed properties belonging to the Devaswom without any necessity or benefit to the Devaswom. After assuming charge on 31.01.1979, Sri.Sankarankutty Menon, the Manager, went to take possession of lands which were resisted by the assignees who were put in possession by Bhaskara Menon and 2025:KER:41053 RSA NO.4 OF 2024 7 Ramankutty Menon. During the pendency of OS No.137 of 1977, I.A No.3283 of 1979 was preferred, wherein the Sub Court, Ernakulam, directed the Manager to take all necessary steps to set aside the transfer and to protect the interest of the Devaswom. The plaint schedule property was item No.8 in the list of properties directed to be recovered. It is further alleged that the deceased Bhaskara Menon and Ramankutty Menon were not karanavars or Managers of the Kakkanam Veettil tharavadu or any of its thavazhies and therefore there was no necessity for devaswom to alienate the properties. Therefore, it is contended that the plaintiffs were entitled to recover the plaint schedule property and get the sale deed No.2584/1978 of SRO, Ernakulam set aside, if found necessary. The defendants appeared and contested the suit and contended that they are bonafide assignors of the property. It was further contended that the suit filed for setting aside the document is clearly beyond the law of limitation. It is also contended that the suit was bad 2025:KER:41053 RSA NO.4 OF 2024 8 for non-joinder of the parties.
4. On behalf of the plaintiffs, Exts.A1 to A5 documents were produced and on behalf of the defendants, Exts.B1 to B6 documents were produced. C1 and C1(a) are the commission report and sketch of the Advocate Commissioner. PW1 was examined on behalf of the plaintiffs and DW1 was examined on behalf of the defendants.
5. The trial court on the basis of the material evidence and pleadings, framed the following issues:-
"i. Whether the plaintiff is entitled to recover vacant possession of the plaint schedule property from the defendant on the strength of title? ii. Whether plaintiff is entitled to recover mesne profit as prayer for?
iii. Relief and costs?"
6. On consideration of the evidence adduced by the parties, the trial court came into a conclusion that the suit is hit by limitation and thus dismissed the suit. Aggrieved by the judgment and decree, dismissing the suit, the plaintiffs preferred AS No.9 of 2020 before the 2025:KER:41053 RSA NO.4 OF 2024 9 Additional District Court - VIII, Ernakulam. By judgment dated 25.08.2023, the first appellate court reversed the findings of the trial court and decreed the suit and hence, the present appeal.
7. Heard Sri.S.Shyam, the learned counsel appearing for the appellants, Sri.K.V.Jayachandran, the learned counsel appearing for respondents 1, 3 and 4 and Sri.K.B.Sajan, the learned counsel appearing for the 7 th respondent.
8. Sri.S.Shyam, the learned counsel appearing for the appellants mainly contended that the suit was clearly barred by limitation inasmuch as the plaintiffs ought to have approached the court within a period of three years either from the date of execution of Ext.A5 document or at least three years from the date on passing of the preliminary decree that is 07.03.1980. Since the suit was filed only in the year 20.08.1990, it was clearly barred by limitation, and therefore, the first appellate court was not justified in setting aside the document.
2025:KER:41053 RSA NO.4 OF 2024 10
9. Per contra, the learned counsel appearing for the plaintiffs would contend that the plaintiffs were entitled to ignore Ext.A5. The suit filed for recovery of possession and the same was filed clearly within a period of twelve years as provided under Article 65 of the Limitation Act, 1963. The plaintiffs had only sought for setting aside the document, if found necessary, and therefore, the appellate court rightly found that the predecessor-in-interest of the plaintiffs having no right to alienate the property in question and was justified in holding that the documents are void, only if on finding that the documents may stand as a clog on the title of the Devaswom, it was found necessary to set aside the same and therefore, the findings of the first appellate court are perfectly legal and justified.
10. I have considered the rival submissions made across the Bar and perused the judgment of the courts below.
11. Though the learned counsel for the appellants 2025:KER:41053 RSA NO.4 OF 2024 11 specifically urged this Court to frame the substantial question of law as formulated in the memorandum of appeal, this Court in the peculiar facts of the present case is not inclined to accept the aforesaid argument for the following reasons:-
a) Admittedly, the sale in favour of the appellants was on 28.08.1978. When the Ext.A5 sale deed was executed, OS No.137 of 1977 was pending consideration.
Therefore, the first appellate court correctly found that the sale in favour of the appellants were hit by the principles of lis pendens.
b) Even assuming that the doctrine of lis pendens as envisaged under Section 52 of the Transfer of Property Act, 1882, will not arrest the period of limitation, since the suit is filed within the period of twelve years as prescribed under Article 65 of the Limitation Act, 1963, the suit is not barred by the limitation.
c) In Mallavva Vs Kalsammanavara Kalamma (since dead) by Legal Heirs 2024 INSC 1201 {2024 2025:KER:41053 RSA NO.4 OF 2024 12 KLT Online 3051} the Supreme Court held that when there are several relief claimed in the suit, the limitation period would be that of the main relief, with the limitation of ancillary relief being ignored.
d) The necessity to set aside a document would arise only, if the document is a voidable document.
12. In the present case, Ext.A5 cannot be said to be a voidable document for two reasons: a) The entitlement of Bhaskara Menon and Ramankutty Menon, who executed the sale deed, has been specifically found against by the sub court in OS No.137 of 1977. Though, it is true that the defendants in the present suit were not parties to the said suit, the sanctity of the same transaction effected by the Bhaskara Menon and Ramankutty Menon subjected judicial scrutiny. Once it is found that Bhaskara Menon and Ramankutty Menon did not have any right to alienate the property, Ext.A5 becomes a voidable document. b) The second reason being that, admittedly, the property belongs to Mukkottil 2025:KER:41053 RSA NO.4 OF 2024 13 Bhagavathi Devaswom. The title being that of a perpetual minor, any transaction which divest the title of the minor has to be scrupulously scrutinised by the court. In the present case, Ext.A5 cannot be said to be a valid document in the light of the specific finding in the earlier litigation touching upon the right of the vendors of the defendant to execute the sale deed. Therefore, Ext.A5 document is clear falling under the category of a void document, and that there was no legal necessity to set aside the same. Lastly, it must be noticed by this Court that the transaction being hit by lis pendens and that the suit for recovery being constituted within a period of twelve years from 07.03.1980 was thus clearly maintainable.
13. Therefore, this Court is of the considered view that, in the light of the decision of the Supreme Court in Mallavva (supra) the limitation if any for filing of the suit to set aside Ext.A5 is liable to be ignored. Admittedly, the fact remains that Ext.A5 sale deed has not been given 2025:KER:41053 RSA NO.4 OF 2024 14 sanctity in the eye of law. Viewed in the above perspective, this Court cannot find any infirmity or error in the judgment of the first appellate court in decreeing the suit for recovery of possession.
Resultantly, this Court finds that no substantial question of law arises for consideration in the said appeal. The first appellate court has correctly appreciated the facts and law in correct perspective and therefore, does not require any interference of this Court. Therefore, the appeal fails, and the same is dismissed. Cost Made easy.
Sd/-
EASWARAN S. JUDGE SPR