A. Janardhanan and V. Gopalan v. Sivadasan Namboodirippad and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 3RD DAY OF JULY 2018 / 12TH ASHADHA, 1940 FAO.No. 118 of 2018 AGAINST THE ORDER IN OP 1/2016 of SUB COURT, KANNUR DATED 21-12-2017 APPELLANT(S)/PETITIONERS 1 A.JANARDHANAN, SON OF KRISHNAN, AGED 71 YEARS, ASSISTANT TRANSPORT OFFICER, RETD. & PARTNER, ALINKEEL CINEMA THEATRE, TALIPARAMBA, RESIDING AT THALIYIL, ANDOOR AMSOM, DESOM, P.O.KALLIASSERI, PIN - 670 562, KANNUR DISTRICT. 2 V. GOPALAN, SON OF KUNHAMBU, AGED 69 YEARS, OWNER, PETROL PUMP, ALAKODE, RESIDING AT VENGALOT, KALLIASSERI AMSOM, DESOM, P.O.KANNUR UNIVERSITY CAMPUS, PIN - 670 567. BY ADVS.SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND RESPONDENT(S)/RESPONDENTS: 1. SIVADASAN NAMBOODIRIPPAD, SON OF YAJNAN NAMBOODIRIPPAD, AGED 80 YEARS, TRUSTEE, MELTHALI SIVA TEMPLE, KODALLOOR PEROOR ILLAM, ANDOOR AMSOM, KODALLUR DESOM P.O., PARASSINIKKADAVU, PIN - 670 563. 2. PRESIDENT, SATHYA ARTS CLUB, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, P.O.KALLIASSERI, PIN - 670 562. 3. KAMALA VADAKKEEL, WIFE OF CHINDANGIL KUNHIKANNAN, AGED 84 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. 4. PREMAN VADAKKEEL, S/O. CHIDANGIL KUNHIKANNAN, AGED 64 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. FAO 118/2018 ## 5. UNNIKRISHNAN VADAKKEEL, S/O. CHIDANGIL KUNHIKANNAN, AGED 62 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. 6. VASANTHA VADAKKEEL, D/O. CHIDANGIL KUNHIKANNAN, AGED 57 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. 7. MANIVARNAN VADAKKEEL, S/O. CHIDANGIL KUNHIKANNAN, AGED 52 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. 8. PRASEEDA VADAKKEEL, D/O. CHIDANGIL KUNHIKANNAN, AGED 50 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. 9. SREEJA VADAKKEEL, D/O. CHIDANGIL KUNHIKANNAN, AGED 47 YEARS, NEAR MELTHALI SIVA TEMPLE, THALIYIL, ANDOOR AMSOM, DESOM, KALLIASSERI P.O., PIN - 670 562, KANNUR DISTRICT. 10. THALIYIL SREE MELTHALI MAHADEVA KSHETHRAM TRUST, THALIYIL, KALLIASSERY P.O., PIN - 670 562. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **F.A.O. No.118 of 2018** ## **-----------------------------------------------** ## **Dated 3[rd] July, 2018.** ## **J U D G M E N T** Petitioners in an original petition filed seeking leave to institute a suit under Section 92 of the Code of Civil Procedure ('the Code'), are the appellants in this appeal. 2. The original petition was filed alleging that the petition schedule property belongs to Melthali Siva Temple (the Temple); that petitioners are devotees of the Temple; that Melthali Siva Temple is a public trust of religious nature; that the 'Oorayma' right of the Temple vests with Kodallur Peroor Illom (the Illom); that the first respondent is the present Ooralan of the Temple representing Illom; that the first respondent has neglected to take care of the affairs of the Temple; that the people in the locality, therefore, formed a trust, namely, Thaliyil Sree Melthali Mahadeva Kshethram Trust and are administering the affairs of the Temple by receiving contributions from the 2 F.A.O. No.118 of 2018 general public; that the first respondent committed breach of trust by inducting respondents 2 to 9 in the petition schedule property; that the first respondent has no authority to induct respondents 2 to 9 in the petition schedule property and that therefore, a suit is required to be instituted for evicting respondents 2 to 9 from the petition schedule property, for removing the first respondent from the administration of the Temple and for settling a scheme for the administration of the Temple. 3. The first respondent filed objection to the original petition contending that the petition schedule property belonged to the Illom; that members of the Illom who have rights over the property transferred 5 ½ cents out of the petition schedule property to the second respondent and 81 cents to one Kannan, the predecessor of respondents 3 to 9; that respondents 2 to 9 are in lawful possession of their respective holdings; that the Temple is a private Temple 3 F.A.O. No.118 of 2018 belonging to the Illom situated in a portion of the remaining property; that the petitioners have no right to form a trust to administer the affairs of the Temple and that the petitioners are, therefore, not entitled to the leave sought for. 4. Respondent Nos.2, 3, 4, 7, 8 and 9 also filed objections to the original petition, supporting the stand taken by the first respondent. 5. The court below, on an appraisal of the materials on record, found that the petitioners have not established a prima facie case for leave under Section 92 of the Code and consequently, dismissed the original petition. The petitioners are aggrieved by the said decision of the court below. Hence, this appeal. 6. Heard the learned Senior Counsel ## Sri.K.Ramakumar. 7. It is trite that in order to seek leave to institute a suit under Section 92 of the code, the applicants shall establish 4 F.A.O. No.118 of 2018 that there exists an express or constructive trust in respect of the subject matter of the suit; that there is an allegation of breach of the said trust or that direction of the court is deemed necessary for the administration of the trust and that the reliefs proposed in the suit are reliefs falling within the scope of Section 92 of the Code. It is also trite that at the stage of considering the question of granting leave, the allegations in the original petition and the document produced along with the original petition alone need be looked into, for, the court is not resolving at that stage any dispute, but is only being satisfied with the prima facie case of the petitioners. Of course, in a case where the court orders notice in the petition and the respondents in the petition raise objection against the same, the court can take note of the objections as well while considering the question of granting leave. 8. As noted, in terms of the order impugned, the court below declined leave to the petitioners to institute a suit 5 F.A.O. No.118 of 2018 under Section 92 of the Code in respect of the Temple. A copy of the original petition filed seeking leave, which was made available at the time of hearing, indicates that the pleadings of the petitioners are sketchy. True, it is alleged in the original petition that the Temple is a public trust of religious nature, the petitioners are devotees of the Temple, the Temple is being managed with the contribution given by the general public etc. From the aforesaid allegations alone, it cannot be inferred that the Temple is a public trust of religious nature. The petitioners have to prima facie establish the said case for obtaining leave to institute a suit as the very purpose of the requirement to obtain leave of the court is to prevent mischievous litigations against public trusts. The averments in the original petition indicate that the petitioners are proceeding as if the Temple is a public temple and the Illom is the trustee of the Temple. No document, whatsoever, is produced to show that the Temple is a public temple. The only document produced on the side of 6 F.A.O. No.118 of 2018 the petitioners is the certified copy of the Adangal Register pertaining to the petition schedule property. Ext.A1 is the Adangal Register. Ext.A1 indicates that the name of the first respondent in his capacity as the Ooralan of the temple is shown as the Pattadar of the property. I am afraid, the same does not establish that the Temple is a public temple. Of course, Ooralan is a trustee as far as public Temples are concerned, but in the case of private Temples, Ooralan is an expression used to indicate the owner of the Temple. [See **Kunhukutty Amma v. Ravunni Menon** (1959 KHC 367)]. As noted, other than Ext.A1, there are absolutely no materials to show that the temple is a public temple. True, private temples would also become public temples in course of time by dedication. If the instant case is one coming in that category, there would have been evidence to indicate dedication of the Temple to the public. No material towards that direction is also forthcoming. It is relevant in this context to refer to the 7 F.A.O. No.118 of 2018 objection raised by the first respondent. From the objection preferred by the first respondent, it is seen that respondents 2 to 9 are in possession of portions of the petition schedule property from early seventies. It is also seen that a portion of the petition schedule property was earmarked by the Illom for the Temple only much later in the year 1983. In the aforesaid facts and circumstances, the court below cannot be found fault with for having found that the petitioners have not made out a prima facie case for leave to institute a suit in respect of the Temple under Section 92 of the Code. The appeal is, accordingly, dismissed. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** tgs