Kerala High Court
Karippal Kallambally Tharawad ... vs K.K.Divakaran
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY,THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939
OP(C).No. 692 of 2017 (O)
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AGAINST THE JUDGMENT DATED 13.12.2016 IN CMA NO. 21/2016 of SUB COURT,
PAYYANNUR.
ORDER DATED 31.08.2016 IN IA NO.838/2016 IN OS NO.86/2016 OF MUNSIFF'S COURT,
PAYYANNUR.
PETITIONERS/APPELLANTS/PETITIONERS/PLAINTIFFS:
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1. KARIPPAL KALLAMBALLY THARAWAD KSHETHRA PARIPALANA TRUST
REPRESENTED BY IT PRESIDENT, SIVADASAN KARIPPAL,
S/O.P.DAMODARAN NAMBIAR, AGED 47 YEARS, BUSINESS,
PULLAYIKODI HOUSE, VELLORAAMSOM, KARIPPAL DESOM,
CHAPPARAPADAVU, KARIPPAL P.O.,TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN-670 581.
2. SIVADASAN KARIPPAL
S/O.P.DAMODARAN NAMBIAR, AGED 47 YEARS,
RESIDING AT 'AMRITHAKRIPA', PRESIDENT,
KARIPPAL KALLAMBALLY THARAWAD KSHETHRA PARIPALANATRUST,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU, KARIPPAL P.O.,
TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
3. K.P.SREEDHARAN
S/O.LATE K.KUNHAMBU NAIR, AGED 62 YEARS,
KARIPPAL PATINHARE VEEDU, SECRETARY,
KARIPPAL KALLAMBALLY THARAWAD KSHETHRA PARIPALANATRUST,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU, KARIPPAL P.O.,
TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
BYADV. SRI.R.SURENDRAN
RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. K.K.DIVAKARAN
S/O.LATE P.KANNAN NAIR, AGED 56 YEARS, VELLORAAMSOM,
KARIPPAL DESOM, CHAPPARAPADAVU, KARIPPAL P.O.,
TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
2. K.PAVITHRAN
S/O.LATE P.V.RAGHAVAN NAMBIAR, AGED 61 YEARS, PERUMBADAVU,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O., TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
3. K.K.RAJAN
S/O.LATE KANNAN NAIR, AGED 54 YEARS,
KARIPPAL KALLAMBALLYVEEDU, VELLORAAMSOM, KARIPPAL
DESOM, CHAPPARAPADAVU, KARIPPAL P.O., TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN-670 581.
OP(C) NO.692/2017 2
4. M.JANARDHANAN
S/O.LATE P.KRISHNAN NAMBIAR, AGED 61 YEARS,
MEENAMGADA HOUSE, VELLORAAMSOM, KARIPPAL DESOM,
CHAPPARAPADAVU, KARIPPAL P.O., TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN-670 581.
5. N.K.SURENDRAN
S/O.LATE K.R.KANNAN NAMBIAR, AGED 53 YEARS,
NELLOOR KORACHAN VEEDU, VELLORAAMSOM, KARIPPAL DESOM,
CHAPPARAPADAVU, KARIPPAL P.O., TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN-670 581.
6. A.P.K.RAGHAVAN
S/O.LATE KANNAN NAIR, AGED 70 YEARS, VELLAKKAD,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O.,TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
7. K.C.LAKSHMANAN
S/O.A.P.K.KOMAN NAMBIAR, AGDD 56 YEARS,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O., TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
8. PANAYANTHATTA DAMODARAN NAMBIAR
S/O.A.P.K.GOVINDAN NAMBIAR, AGED 70 YEARS,
PANAYANTHATTAHOUSE, VELLORAAMSOM, KARIPPAL DESOM,
CHAPPARAPADAVU, KARIPPAL P.O., TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN-670 581.
9. P.V.RAMACHANDRAN
S/O.RAMAN, AGED 48 YEARS, NEAR SOMESWARI TEMPLE,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O., TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
10. P.RAJAN, S/O.NARAYANAN NAMBIAR, AGED 51 YEARS, PERIYATHOUSE,
MAVULLAPOYIL, VELLORAAMSOM, KARIPPAL DESOM,
CHAPPARAPADAVU, KARIPPAL P.O., TALIPARAMBA TALUK,
KANNUR DISTRICT, PIN-670 581.
11. K.K.VENUGOPAL
S/O.LATE KUNHIRAMAN NAMBIAR, AGED 59 YEARS,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O.,TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
12. E.V.PURUSHOTHAMAN
S/O.LATEA.P.K.KUNHIRAMAN NAMBIAR, AGED 53 YEARS,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O.,TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
13. K.K.JANARDHANAN
S/O.C.C.CHATHUKUTTY NAMBIAR, AGED 62 YEARS, PERUMBADAVU,
VELLORAAMSOM, KARIPPAL DESOM, CHAPPARAPADAVU,
KARIPPAL P.O.,TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 581.
BYADVS. SRI.RAJESH VENUGOPAL
SRI.K.K.VISWANATHAN
SRI.BINU GEORGE
SMT.HEMALATHA
THIS OP (CIVIL) HAVING BEEN FINALLYHEARD ON 07-06-2017, THE COURT ON
21-06-2017 DELIVERED THE FOLLOWING:
OP(C).No. 692 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE TRUST DEED DATED 19-10-2002 AND REGISTERED AS
DOCUMENT NO.70 OF 2002 OF BOOK NO.4 AND SRO MATHAMANGALAM.
EXHIBIT P2 TRUE COPY OF THE PLAINT IN O.S.NO.86 OF 2016 BEFORE THE MUNSIFF'S
COURT, PAYYANNUR.
EXHIBIT P3 TRUE COPY OF THE I.A.NO.588 OF 2016 BEFORE THE VACATION COURT,
THALASSERY RENUMBERED AS I.A.NO.838 OF 2016 IN O.S.NO.86 OF 2016 BEFORE THE
MUNSIFF'S COURT, PAYYANNUR.
EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS
BEFORE THE VACATION COURT,THALASSERY IN I.A.NO.588 OF 2016.
EXHIBIT P5 TRUE COPY OF THE EXTRACT OF THE ORDERS PASSED BY THE VACATION
COURT,THALASSERY IN I.A.NO.588 OF 2016.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 31-8-2016 IN I.A.NO.838 OF 2016 IN
O.S.NO.86 OF 2016 ON THE FILE OF THE MUNSIFF'S COURT,PAYYANNUR.
EXHIBIT P7 TRUE COPY OF THE MEMORANDUM OF APPEAL IN C.M.A.NO.21 OF 2016
BEFORE THE SUB COURT,PAYYANNUR.
EXHIBIT P8 TRUE COPY OF THE I.A.NO.907 OF 2016 IN C.M.A.NO.21 OF 2016 BEFORE
THE SUB COURT, PAYYANNUR.
EXHIBIT P9 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS
IN I.A.NO.907 OF 2016 IN C.M.A.NO.21 OF 2016 BEFORE THE SUB COURT,PAYYANNUR.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 13-12-2016 IN C.M.A.NO.21 OF 2016
ON THE FILE OF THE SUB COURT, PAYYANNUR.
EXHIBIT P11 TRUE COPY OF THE PLAINT IN O.S.NO.51 OF 2016 BEFORE THE MUNSIFF'S
COURT, PAYYANNUR.
EXHIBIT P12 TRUE COPY OF THE LAWYER NOTICE DATED 18-3-2016 ISSUED BY THE
ADV.SUNIL KUMAR TO SRI.K.P.RAGHAVAN NAMBIAR.
EXHIBIT P13 TRUE COPY OF THE REPLY DATED 26-3-2016 ISSUED ON BEHALF OF
SRI.K.P.RAGHAVAN NAMBIAR.
EXHIBIT P14 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES BOOK OF THE
GENERAL BODY OF THE FIRST PETITIONER TRUST DATED 2-4-2016.
RESPONDENT(S)' EXHIBITS
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EXT.R1A TRUE COPY OF THE PHOTOCOPY OF THE BYELAW OF THE KARIPPAL
SOMESWARI DEVASWAM COMMITTEE
EXT.R1B TRUE COPY OF THE AGREEMENT DATED 28.8.1974 EXECUTED BY VALIYA
CHATHU NAMBIAR AND OTHERS IN FAVOUR OF KARIPAL SOMESWARI DEVASWAM
KARYA NADATHIPPU COMMITTEE
OP(C).No. 692 of 2017 (O)
EXT.R1C TRUE COPY OF THE ARGUMENT NOTE FILED BEFORE THE MUNSIFF'S COURT,
PAYYANNUR.
//TRUE COPY//
A.HARIPRASAD, J.
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O.P.(C) No.692 of 2017
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Dated this the 21st day of June, 2017
JUDGMENT
Judgment passed by the Subordinate Judge, Payyannur in C.M.A.No.21 of 2016 is under challenge. The lower appellate court dealt with an appeal against an order passed by the Munsiff's Court, Payyannur on I.A.No.838 of 2016 in O.S.No.86 of 2016 filed by the petitioners/plaintiffs. Ext.P2 is the copy of the plaint. It was filed before the Vacation Court (District Court, Thalassery). Petitioners approached the trial court seeking a permanent prohibitory injunction restraining the respondents/defendants and their men from causing any obstruction or interference with the day-to-day management of Sree Someswari Kshethram, Kalari, Nagasthanam and other Upadevathasthanams in the properties described in the plaint schedule. It is further prayed in the plaint that the defendants should pay a sum of `66,000/- with 6% interest to the 1st plaintiff Trust (1st petitioner) from the date of suit till realisation and for such other reliefs. Along with the suit Ext.P3 temporary injunction application was filed. Contesting respondents filed Ext.P4 counter OP(C) No.692 of 2017 2 statement opposing the temporary injunction application. Admittedly the defendants have not filed any written statement in the suit. As per Ext.P5 the Vacation Court granted an ad-interim order of injunction. Although the respondents pleaded for modifying the injunction order, the Vacation Court refused to do so. Thereafter the trial court considered the temporary injunction application. As per Ext.P6 order, it dismissed the application and vacated the ad-interim order of injunction. The court below considered 16 exhibits on the side of the petitioners and 42 exhibits on the side of the respondents. Aggrieved by Ext.P6 order, Ext.P7 appeal was filed before the lower appellate court in which Ext.P10 judgment was pronounced. That judgment is under challenge in this proceedings. Ext.P11 is the copy of plaint in O.S.No.51 of 2016 pending before the Court of Munsiff, Payyannur filed by the 3rd defendant (3rd respondent herein). It was produced by the petitioners to show that the 3rd defendant himself has admitted the existence of 1st plaintiff/1st petitioner Trust and its right to manage the temple and its properties. Ext.P12 is a lawyer notice issued at the instance of K.K.Divakaran, President, Karippal Someswari Devaswom Committee, Karippal to one K.P.Raghavan Nambiar, who is not a party to the suit. Ext.P13 is the reply notice. Ext.P14 is purported to be copy of some pages of minutes book of a general body meeting. Respondents produced Exts.R1A to R1C.
OP(C) No.692 of 2017 3
2. Heard the learned counsel for the petitioners and the contesting respondents.
3. Learned counsel for the petitioners contended that as per Ext.P1 trust deed, the petitioners/plaintiffs have a right of management of a private temple by name Sree Someswari Kshethram and adjuncts to that temple. Ext.P1 was executed on 19.10.2002. It is the contention of the petitioners that the temple in question is a private temple and the respondents have no right of administration/management. Periodically committees with different names were formed with members of Karippal Kallambally Tharawad and local inhabitants for assisting Karanavan of the Tharawad in the administration of temple and its properties. According to the petitioners, neither the respondents/defendants personally nor any committee has a right in the matter of administration of the temple and its properties.
4. Per contra, the respondents contended that right from 1974 onwards, the members of Karippal Kallambally Tharawad have disassociated from the administration of the temple in dispute and it was entrusted to a committee constituted by taking in members in the tharawad and local public. Ext.R1B is an agreement purported to be executed by four senior members of Karippal Kallambally Tharawad. It bears a date - 1974 August 28, corresponding to 1149 Chingam 12. This is a disputed OP(C) No.692 of 2017 4 document. Learned counsel for the petitioners, by producing a relevant extract from a Panchangam (almanac), contended that 1149 Chingam 12th can only be 1973 August 28 and not 1974 August 28. It is therefore strongly contended that Ext.R1B agreement is product of a forgery. As rightly observed by the courts below, genuineness of Exts.R1A and R1B will have to be established at the time of trial. It may be premature for me to make any observation regarding the validity, correctness and acceptability of those documents.
5. It is contended on behalf of the petitioners that Ext.R1A does not conform to the pleadings in the counter statement. Ext.R1A is said to be a byelaw formulated by the 'Karippal Someswari Devaswom karyam nadathippu committee'. It is true that this is a loose sheet from a note book and its authenticity will have to be proved at the time of trial. The core question is whether the temple and its properties are being administered by the trust as claimed by the petitioners or by a committee consisting of the family members and others. This question will lead to the another question as to the nature of the temple, ie., whether Sree Someswari Kshethram and other places of worship are public temples or private temples?
6. To resolve the dispute regarding nature of the temple, as to whether it is a private temple or a public temple, the principles in the decision in Deoki Nandan v. Muralidhar and others (AIR 1957 SC 133) OP(C) No.692 of 2017 5 are highly essential. Extractions from paragraphs, 6, 7 and 17 of the judgment read as follows:
"Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it.
But it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment.
Even according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.
When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the OP(C) No.692 of 2017 6 founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.
Thus where property is dedicated for the worship of a family idol, it is a private and not a public endowment, as then persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshipers.
Held on facts that the Thakurdwara in question was a public temple and not a family temple."
7. Learned counsel for the petitioners relied on the decision in Kidangoor Devaswom v. Krishnan Namboothiri (2016 (1) KLT 778) wherein a Division Bench of this Court considering Deoki Nandan and other decisions on the point held as follows:
"Bearing in mind the principles thus laid down in the above judgments, we shall now proceed to examine whether, in the light of these principles, the temple can be held to be a public temple as claimed by the appellants or is a private OP(C) No.692 of 2017 7 temple as contended by the contesting respondents. To substantiate the case that the temple is a public temple, it is for the plaintiffs to prove that the temple was dedicated to the public, law require that such dedication must be of a complete relinquishment of right of ownership over the properties of the temple. Keeping this legal requirement in mind, we shall now proceed to examine the evidence available on record."
8. Learned counsel for the petitioners contended that the temple in question is a private temple and it belongs to a family. Members of the family constituted a trust on 19.10.2002. Ext.P1 is the trust deed executed specifying the manner in which Sree Someswari Kshethram and adjuncts are to be administered. On the contrary, the contesting respondents contended that from 1974 onwards, by virtue of Ext.R1B, the family members have dedicated the temple and its properties to be administered by a body of general public consisting of the family members as well. Thenceforth the temple has become a public temple. It is the case of the respondents that they have collected contributions from public and improved the temple.
9. To buttress the respective contentions, the parties have produced large number of documents. Most of the documents require proof as many of them are minutes book and other private documents. OP(C) No.692 of 2017 8 The respondent have produced certain basic tax receipts and receipts issued by the Kerala State Electricity Board to the President of the committee showing that they were in administration of the temple. As mentioned above, the documents produced by both sides are to be considered along with other evidence to be adduced at the time of trial. Prima facie, the courts below agreed with the contention of the respondents and found that the petitioners are not entitled to get an order of temporary injunction.
10. Scope of interference in a proceeding under Article 227 of the Constitution is limited as the power is in the nature of a supervisory jurisdiction. Unless a palpable mistake or illegality is brought out, it will be difficult for this Court to interfere with the concurrent findings on facts.
11. Learned counsel for the petitioners contended that as per Ext.P11 plaint, the 3rd respondent/3rd defendant has admitted the existence of a trust constituted for management of the temple. According to him, the 3rd defendant is estopped from contending against the administrative authority of the trust. In answer to this contention, the learned counsel for the respondents contended that in Ext.P11 plaint though the existence of a trust is admitted, its administrative control is limited to certain other places of worship and not Sree Someswari Kshethram. The respondents would contend that there may be a trust in existence constituted by the members OP(C) No.692 of 2017 9 of Karippal Kallmbally Tharawad. But, the Tharawad has dedicated all its right in respect of Sree Someswari Kshethram as early as in 1974 and therefore filing of Ext.P11 plaint by the 3rd defendant will not affect the case of the respondents. Merely by producing Ext.P11 plaint it may not be possible for the petitioners to contend that right of administration of the temple, claimed by them, is admitted by the 3rd defendant. It is interesting to note that there is no description of the properties shown in Ext.P11 and it is not clear as to whether the suit is in relation to the temple in dispute.
12. Another contention raised by the counsel for the petitioners is that there is no consistency in the name of the committee said to be in management of the temple. At different times, different committees were constituted for helping the trust is the contention of the petitioners. According to the respondents, the present committee is continuation of an earlier committee to which the temple and its properties were dedicated by the Karanavan of the Tharawad. However, no opinion at this stage can be expressed as to those questions as they are vexed questions of facts.
13. With reference to Ext.B38 (Ext.R1A) and Ext.B43 (Ext.R1B) much has been argued regarding the powers of the President of the trust in appointing the committee members. According to the learned counsel for the respondents, it is a mistake committed by the lawyer while drafting the counter statement. The documents would show that the trustees have no OP(C) No.692 of 2017 10 manner of right in electing the members to administer the temple.
14. It is brought to my notice that this is a suit for injunction simplicitor. According to the respondents, the suit should have been one for declaration of the plaintiffs' right to manage the temple and its properties. Further, the provision in Order I Rule 8 of the Code of Civil Procedure, 1908 has not been invoked despite the fact that the defendants represent an unregistered committee. True, there are some inherent defects in the frame of the suit which the plaintiffs will have to explain before the trial court.
15. Having regard to the facts and circumstances and the matters considered by the courts below, I am of the view that there is no illegality or irregularity warranting an interference by this Court in its supervisory jurisdiction. Admittedly this is a case where two sets of people are scrambling for a right of administration of a temple. One set of parties would say that it is a public temple whereas the other set contended that it is a private temple. Prima facie, the petitioners failed to establish a case to claim an order of temporary injunction. Courts below rightly rejected the relief of temporary injunction to the plaintiffs. Trial court shall expedite the trial of the case. If there occurs any delay in disposal of the case on account of reasons beyond the control of the parties and the court, anyone of the parties may approach the court below to appoint a receiver for OP(C) No.692 of 2017 11 administration of the trust. However, such a step shall be resorted to only if there is a valid reason for a delayed trial.
With these observations, the original petition is dismissed.
A. HARIPRASAD, JUDGE.
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