Gopalakrishnan Marar Meenakshi Marasiar v. Cochin Devaswom Board and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939 **WP(C).No. 6163 of 2013 (U) ---------------------------** PETITIONERS: ------------- 1. GOPALAKRISHNA MARAR MEEENAKSHI MARASIAR, PERUVANATH MARATH, PERVANAM, CHERPU P.O., THRISSUR DISTRICT. 2. T.M.SIVADASSAN S/O.VALSALA MARASIAR, PERUVANATH MARATH, PERVANAM, CHERPU P.O., THRISSUR DISTRICT. BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA SRI.S.V.BALAKRISHNA IYER (SR.) RESPONDENTS: -------------- 1. COCHIN DEVASWOM BOARD REPRESENTED BY IT SECRETARY, COCHIN DEVESWOM BOARD BUILDING, ROUND NORTH, THRISSUR DISTRICT-680 001. 2. DEVASWOM OFFICER COCHIN DEVASWOM BOARD, PERUVANAM, THRISSUR DISTRICT-680 001.\ ## **ADDITIONAL RESPONDENTS 3 AND 4:** ** Addl. 3. PERUVANAM KUTTAN MARAR @ SANKARANARAYANAN S/O.APPU MARAR, AGED 59 YEARS, PANJAJANYAM, MARATH HOUSE, PERUVANAM, CHERPU.P.O., THRISSUR. ** Addl. 4. C.MURALEEDHARAN S/O.LATE KOCHUNNI MARAR, PERUVANATH MANA, PERUVANAM, CHERPU.P.O., THRISSUR. (**ADDITIONAL RESPONDENTS 3 AND 4 ARE IMPLELADED AS PER ORDER DATED 25.03.2013 IN I.A.No,4458 OF 2013] ## *****ADDITIONAL RESPONDENTS 5 TO 19:** Addl. 5. PERUVANATH MARATH VISALAKSHI MARASSYAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. **WP(C).No. 6163 of 2013 (U)** Addl. 6. PERUVANATH MARATH LEELA MARASSYAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 7. PERUVANATH MARATH SANTHA KUMARI - PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 8. PERUVANATH MARATH VALSALA PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 9. PERUVANAM UNNIKRISHNA MARAR - PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 10. LATHIKA MARASSYAR - PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 11. PERUVANAM SATHEESAN MARAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., Addl. 12. PERUVANAM PRAKASAN MARAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 13. PERUVANATH MARATH SANKARA NARAYANAN PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 14. SURESH P. MARAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 15. PERUVANAM VIJAYAN PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 16. P.M.REGHA MARASYAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 17. P.M.SUJITH MARAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 18. PERUVANATH MARATH VINU PARAMESWARA MARAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. Addl. 19. P.M.VANI MARASYAR PARUVANATH MARATH, PERUVANAM, CHERPU PO., THRISSUR - 680 561. (***ADDITIONAL RESPONDENTS 5 TO 19 ARE IMPLEADED AS PER ORDER DATED 27.11.2013 IN I.A.No.14449 of 2013] **WP(C).No. 6163 of 2013 (U)** R1-R2 BY ADV. SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD R1,R2 BY ADV. SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD R3,R4 BY ADV. SRI.RENJITH THAMPAN (SR.) R3-4 BY ADV. SMT.P.R.REENA ADDL.R BY ADV. SRI.M.P.SREEKRISHNAN ADDL.R BY ADV. SMT.M.H.BINDU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2017, THE COURT ON 26-10-2017 DELIVERED THE FOLLOWING: ## **WP(C).No. 6163 of 2013 (U)** ## **APPENDIX** ## _**PETITIONER(S) EXHIBITS**_ EXHIBIT P1. TRUE COPY OF THE PARTITION DEED NUMBERED 2233/2012 ME, OF OORAKAM , SRO. EXHIBIT P2. TRUE COPY OF AGREEMENT DATED 25TH EDVAM 112ME. EXHIBIT P3. TRUE COPY OF ORDER NO.MI 697/2005 DATED 1/10/2005 OF THE 1ST RESPONDENT. EXHIBIT P4. TRUE COPY OF THE MEMO DATED 12/7/2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5. TRUE COPY OF THE LETTER DTED 25/7/2012 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P6. TRUE COPY OF THE NOTICE DATED 20/2/2013 PUBLISHED BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 7/3/13 ISSUED BY THE SPEPCIAL DEVASWOM COMMISSIONER. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 29.07.2013 SUBMITTED BY THE 1ST PETITIONER BEFORE the 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 13/3/12 IN R.S.A.1352/04 OF THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF PROCEEDINGS IN SLP(C)27083 /12 OF THE HON'BLE SUPREME COURT. EXHIBIT P10 (PRODUCED ALONG WITH I.A.NO.10972 OF 2016) TRUE COPY OF THE PETITION DATED 29/10/15 FILED BY LATE SRI P.M. KOCHUNNI MARAR BEFORE COCHIN DEVASWOM BOARD. EXHIBIT P12 TRUE COPY OF ORDER NO.M4-7918//12 DATED 15/11/13 ISSUED BY THE SECRETARY OF THE BOARD PURSUANT TO THE BOARD'S DECISION BEARING NO.90 OF THE DATE 26/10/13. ## **RESPONDENTS' EXHIBITS** EXT.R3(a) TRUE COPY OF THE APPLICATION DATED 20.09.2004 FILED BY KOCHUNNI MARAR BEFORE THE COCHIN DEVASWOM BOARD EXT.R3(b) TRUE COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD DATED 13.05.2005 EXT.R3(c) TRUE COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD DATED 01.10.2005 EXT.R3(d) TRUE COPY OF THE PROCEEDINGS DATED 12.12.2005 OF COCHIN DEVASWOM BOARD. EXT.R3(e) TRUE COPY OF THE REPRESENTATION DATED 17.07.2012 OF KOCHUNNI MARAR. ## **WP(C).No. 6163 of 2013 (U)** EXT.R3(f) TRUE COPY OF THE MEMO OF THE DEVASWOM OFFICER DATED 03.07.2012 TO KOCHUNNI MARAR. EXT.R3(g) TRUE COPY OF THE PROCEEDINGS OF THE SPECIAL DEVASWOM COMMISSIONER DATED 05.03.2013 EXT.R3(h) TRUE COPY OF THE PROCEEDINGS OF THE COCHIN DEVASWOM BOARD DATED 08.02.2013. EXT.R3(i) TRUE COPY OF THE ORDER DATED 24.05.2013 M.4.79118/12 OF COCHIN DEVASWOM BOARD. EXT.R3(i) _**(PRODUCED ALONG WITH I.A.No.15104 of 2017)**_ TRUE COPY OF THE ORDER OF THE DEPUTY COMMISIONER OF MALABAR DEVASWOM BOARD KOZHIKODE IN O.A.8/2009 DATED 08.12.2010. EXT.R3(j) TRUE COPY OF THE ORDER OF THE COMMISSIONER OF MALABAR BOARD IN AP.4/2011 DATED 03.08.2011 EXT.R3(k) TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)No.1385/2012 DATED 24.07.2012. EXT.R3(l) TRUE COPY OF THE ORDER OF COCHIN DEVASWOM BOARD No.A4.1591/04 DATED 19.02.2010. EXT.R3(m) TRUE COPY OF THE PROCEEDINGS OF THE SPECIAL DEVASWOM COMMISSIONER COCHIN DEVASWOM BOARD 22.03.2000. **EXT.R2(a)** TRUE COPY OF THE LETTER OF CERTIFICATION DATED 13.06.13 ISSUED BY THE THANTRI OF PERUVANAM MAHADEVA TEMPLE. **EXT.R3(A)** LETTER DATED 05.08.2013 ISSUED BY KSHETRAM THANTHRI PERUVANAM MAHADEVA KSHETRAM. EXT.R3(B) GENEALOGY OF MEMBERS OF PERUVANATH MARATH THARWAD. /true copy/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & SHIRCY V, JJ.** .............................................................................. **W.P.(C)No.6163 OF 2013** ......................................................................... **Dated this the 26[th] October, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The challenge raised by the petitioners is against the alleged inaction on the part of the respondent Devaswom Board in giving effect to Ext.P3 order with regard to the 'Sambanthi Adiyanthiram' – a 'Karaima right' exercised by the Peruvanam Marath Tharwad in connection with the affairs of 'Peruvanam Mahadeva Temple' and the steps proposed to appoint other persons to perform such rights, as per Ext.P6 notice. The delay in disposing of Ext.P5 representation, (claiming appropriate relief) is also under challenge, besides seeking for a declaration that “Karaima Sambandhi Adiyannthiram” right which was being exercised by the Peruvanam Marath Tharwad stands vested upon the first petitioner and his duly appointed successor (2[nd] petitioner) in the light of Ext.P3 order. 2. Heard Mr. S.V. Balakrishna Iyer, the learned Sr. Counsel **2** ## **W.P.(C)No.6163 OF 2013** appearing for the petitioners, Mr. Ranjith Thampan, the learned Sr. Counsel appearing for the respondents 3 and 4, Mr. V. Krishna Menon, the learned Standing Counsel for the Devaswom Board and Mr. M.P. Sreekrishnan, the learned counsel appearing for the party respondents concerned. 3. As mentioned above, the dispute is with regard to 'Karaima Sambandhi Adiyanthiram' right which was being enjoyed by the Peruvanam Marath Tharwad , which came to be decided in favour of two different Thavazhies of the said family as per Ext.P1 Partition Deed (executed in the year 1122 M.E. Of Oorakam S.R.O) and Ext.P2 Agreement executed on the same day, i.e.25[th] Edavam 1122 M.E. With regard to the sequence of events, it will be relevant to note that the common ancestor by name Madhavi Marassiar had three children by name Narayana Marar, Lakshmikutty Marassiar and Parukutty Marassiar. There were further lineal descendants as well from the female members. Ext.P1 Partition deed was executed (in the year 1122 M.E. of Oorakam S.R.O)among the members of the Tharwad, whereby Lakshmikutty Marassiar and her lineal descendants were shown as Thavazhy No.1, whereas Parukutty Marassiar and **3** ## **W.P.(C)No.6163 OF 2013** others under her were shown as Thavazhy No.2. The petitioners herein belong to the second Thavazhy. The third respondent is the son of the late Sankunni Marar, who belongs to the 1[st] Thavazhy, and the 4[th] respondent is the son of the younger brother of Sankunni Marar (by name Kochunni Marar), who also belongs to the 1[st] Thavazhy. The main dispute is between the petitioners and respondents 3 and 4, while the Addl. Respondents 5 to 19 appear to be supporting the case of the petitioners, and they are stated as the members of the 2[nd] Thavazhy. 4. The 'Karaima right' in relation to the affairs of Peruvanam Mahadeva Temple stood vested with the Peruvanam Marath Tharwad and as per Ext.P1 Partition Deed and Ext.P2 Agreement, the said right came to be divided between two Thavazhies of the above Tharwad. The right in respect of the period from 1[st] of 'Kumbham' to the last day of 'Karkkidakam' was vested with 1[st] Thavazhy ( of Lakhmikutty Marassiar); whereas such right in respect of the other half of the year, i.e. from 1[st] 'Chingam' to last day of 'Makaram' stood vested with the 2[nd] Thavazhy. The right in respect of the 1[st] Thavazhy was being exercised by Sankunni Marar, the father of the 3[rd] respondent as **4** ## **W.P.(C)No.6163 OF 2013** the seniormost male member of the said Thavazhy, after whose demise, it was taken over by his younger brother by name Kochunni Marar , the father of the 4[th] respondent. In respect of the 2[nd] Thavazhy, the rights were being performed by the first petitioner, who was being assisted by the second petitioner, the nephew of the first petitioner, being sister's son, who belongs to the second Thavazhy. 5. While so, late Kochunni Marar submitted an application before the Board that due to old age, he was not in a position to perform the duties of 'Karaima Sambandhi Adiyanthiram' and hence sought to transfer his rights in favour of his sonMuraleedharan (4[th] respondent). This was considered favourably and an order was passed by the Board on 13.05.2005 [Ext.R3 (b)]. On coming across the said order, the first petitioner submitted a complaint before the Board pointing out that the son of Kochunni Marar ( i.e. 4[th] respondent) was not a Member of the 1[st] Thavazhy and as such, the right of 'Sambandhi Adiyanthiram' vested with the said Thavazhy could not have been transferred to an outsider and further that, in the absence of any surviving lineal descendants belonged to the very same Thavazhy, it **5** ## **W.P.(C)No.6163 OF 2013** should come to be vested with the second Thavazhy, represented by the first petitioner. 6. The merit of the said complaint was considered by the Devaswom Board, who arrived at a finding that the transfer of right of 'Sambandhi Adiyanthiram' from Kochunni Marar belonging to the first Thavazhy to his son (4[th] respondent), who was not a member of the first Thavazhy, was not correct and as such, Ext.R3(b) order dated 13.05.2005 was not correct or sustainable. It was accordingly, that Ext.R3(b) order was set aside and Ext.P3 order was passed on 01.10.2005, conferring the right of first Thavazhy enjoyed by Kochunni Marar, (in the absence of any eligible person to perform such rights in the Thavazhy), to the second Thavazhy. It was also made clear that, in view of the consent given by Narayanankutty Marar belonging to the second Thavazhy (eldest male member), such right was permitted to be exercised by the first petitioner. It is stated that the first petitioner was exercising the right for the whole year accordingly. 7. After about 7 years, the first petitioner was served with Ext.P4 memo/notice dated 12.07.2012 issued by the Devaswom, **6** ## **W.P.(C)No.6163 OF 2013** pointing out that, since the first petitioner had already crossed the age of 70 years, as per the policy decision taken by the Board, the right to perform the 'Sambandhi Adiyanthiram' was to be transferred to some other eligible member of the Thavazhy and it was accordingly, that particulars in writing were sought for in this regard. On receipt of Ext.P4, the first petitioner submitted Ext.P5 reply dated 25.07.2012, referring to Ext.P3 order, conferring the entire right to perform 'Sambandhi Adiyanthiram', upon the second Thavazhy and as such, he was nominating the second petitioner-his nephew(sister's son) to be the authorised person to exercise such rights and seeking for appropriate orders in this regard. 8. While so, Kochunni Marar took his last breath on 18.02.2013, upon which nobody belonging to Peruvanam Marath Tharwad (both Thavazhies) was in a position to have entry to the Temple because of the 'pollution”/”Pula” in connection with the religious rituals. To meet the need of the hour, the Devaswom Board issued Ext.P6 notice on 20.02.2013 intending to make alternate arrangements by engaging interested persons from Marar community, to do the 'Sambandhi Adiyanthiram' on daily **7** ## **W.P.(C)No.6163 OF 2013** wage basis, till proper 'Sambandhi Marar' was appointed by the Devaswom. Apprehending further steps to oust the petitioners from the field of doing 'Sambandhi Adiyanthiram', on appointing other persons, the petitioners approached this Court with the following prayers: _“i) Direct the respondents to consider and dispose of Exhibit P5 within a time limit as may be prescribed by this Hon'ble Court._ _ii) Direct the respondents to give effect to Exhibit P3 order and restrain them from appointing any persons other than the 1[st] petitioner or his duly appointed successor to perform Karaima rights in Peruvanam Mahadeva Temple;_ _iii) Declare that the Karaima “Sambanthi Adiyanthiram” which were exercised by Peruvanam Marath Tarwad rights in Peruvanam Mahadeva Temple is vested upon the 1[st] petitioner and his duly appointed successors in the light of Exhibit P3 order;_ _iv) Call for records leading to Exhibit P6 notice and quash the same;_ _And_ _v) Such other reliefs this Honourable Court deems fit and proper to grant in the facts and circumstances of the case.”_ 9. When the matter came up for admission on 06.03.2013, it was admitted, ordering notice to respondents and also granting an interim direction to the respondent Devaswom Board to permit **8** ## **W.P.(C)No.6163 OF 2013** the first petitioner to perform the duties of 'Sambanthi Adiyanthiram' for the time being, provisionally, on daily wage basis. The said order was sought to be varied by filing a petition by the Devaswom Board to the effect that for six months' period, the Thavazhy was entitled to perform/exercise the rights. The said application (I.A.No.7894 of 2013) was considered and the earlier interim order dated 06.03.2013 was modified as per order dated 19.06.2013, allowing the nominee of the first Thavazhy to perform the duties of Sambanthi Adiyanthiram from the 1[st] of ' _Kumbham'_ to the last day of _Karkkidakam_ and the second Thavazhy was allowed to perform the duties from the 1[st] of ' _Chingam'_ till the last day of ' _Makaram'._ It was also made clear that the Addl.4[th] respondent (S/o. Late Kochunni Marar, who was doing the duties earlier) representing the 1[st] Thavazhy would perform the duties during the turn of the 1[st] Thavazhy and that the first petitioner would be free to nominate the person of his choice, to do such duties in respect of the turn of the second Thavazhy. This Court also made it clear that the nominees or the persons representing either of the Thavazhies would be entitled for all the benefits due **9** ## **W.P.(C)No.6163 OF 2013** to 'Sambanthi Adiyanthiram'. It was also held that the first petitioner, who was performing the duties on daily wage basis, based on the earlier interim order would be entitled for all the benefits normally due from the date of the interim order, till the date of the modified order passed on 19.06.2013. The said arrangement still continues. 10. In the meanwhile, this Court, as per the order dated 08.04.2013, had referred the matter to the Ombudsman, calling for a report to see whether there could be any chance for settlement. As per report dated 27.05.2013, the complexity of questions of fact and law has been pointed out by the Ombudsman, also asserting that adjudication of the issue by this Court was necessary. As pointed out already, the basic challenge raised by the petitioners is that, though the third respondent is the son of late Sankunni Marar, he belongs to a different Marath (Thrikkur Makkothu Marath) and is not a member of 'Peruvanam Marath', who hence cannot represent the Thavazhy of Peruvanam Marath. Similar is the position in respect of 4[th] respondent as well [who is the son of late Kochunni Marar, who was discharging the duties of Sambanthi Adiyanthiram after the demise of his elder **10** ## **W.P.(C)No.6163 OF 2013** brother Sankunni Marar (as a member of 1[st] Thavazhy)], as he belongs to 'Cherukantathu Marathu' and not of Peruvanam Marathu. It is also pointed out that Ext.P3 was never subjected to challenge by the 3[rd] /4[th] respondents or anybody else and that it was only modified slightly by Ext.R3(d) order dated 12.12.2005, which was based on the submission made by Kochunni Marar stating that he had regained health and was able to discharge the duties of 'Sambandhi Adiyanthiram'. Since the right of Kochunni Marar to do 'Sambandhi Adiyanthiram' during his life time could not be disputed, it was allowed by the Devaswom by modifying Ext.P3 dated 01.10.2005 as per Ext.R3 (d). According to the petitioners, since Kochunni Marar took his last breath on 18.02.2013 **,** Ext.P3 got revived and that the entire rights would come vested with the second Thavazhy, in view of the specific finding of the Board in Ext.P3 that the right of 'Sambandhi Adiyanthiram' stands conferred upon the family and not on an individual. 11. In contrast to the said contention, the stand of the 3[rd] and 4[th] respondents is that by virtue of the Kerala Joint Hindu Family System (Abolition) Act, 1975 [Act 30 of 1976], the **11** ## **W.P.(C)No.6163 OF 2013** concept of Joint Family/Thavazhy has gone and as such, the persons who were enjoying the rights could continue only as 'tenants-in-common'. By virtue of the said position, once Kochunni Marar died, all the rights and interests would come vested upon the Legal Heirs and under no circumstance, would it get transferred to the second Thavazhy. It is also pointed out from the part of the respondents 3 and 4 that Ext.R3(d) has not been subjected to challenge from the part of the writ petitioners and as such, no benefit flows from Ext.P3, which was set aside/modified as per Ext.R3(d). 12. It is to be noted that the first petitioner, during the pendency of the proceedings, bid farewell to this world on 02.07.2017 and a Memo dated 20.09.2017 has been filed on behalf of the second petitioner in this regard. It is also pointed out that he was nominated as the eligible person to represent the second Thavazhy and change of rights to his name was sought to be effected by first petitioner during his life time. Pursuant to said application and based on the consent given by the other elder members in the second Thavazhy, Ext.P12 order was passed by the Board on 15.11.2013, transferring such rights in **12** ## **W.P.(C)No.6163 OF 2013** the name of the second petitioner (which has been produced along with I.A. No.14978 of 2017). This being the position, no other person or member representing second Thavazhy or any other legal heir of the first petitioner does require to the impleaded, according to the second petitioner. 13 **.** By virtue of the turn of events, the first prayer in the writ petition, to cause transfer of rights to the name of second petitioner as sought for in Ext.P5/P8, stands already considered and granted by the Devaswom Board as per Ext.P12 dated 15.11.2013. This is discernible from the interim order passed by this Court on 19.06.2013 as well. This being the position, the remaining point for consideration is only with regard to the declaration sought for; that pursuant to Ext.P3, all the rights of 'Sambandhi Adiyanthiram', which were being enjoyed by the first Thavazhy came to be vested with the 2[nd] Thavazhy and whether Ext.R3(d) modifying/setting aside Ext.P3 will have only a limited application; enabling Ext.P3 to get revived. 14. Incidentally, it is to be noted that various provisions of law and precedents are referred to and relied on from the part of the petitioners as well as respondents 4 and 5. The petitioners **13** ## **W.P.(C)No.6163 OF 2013** asserts that, by virtue of the ruling rendered by the Supreme Court in _**R.Balakrishna Warrier vs. Santha Varassiar and another**_ [ **1996(11) SCC 500]** , the question whether 'Karaima right' (or hereditary right) will devolve on the members of the erstwhile Tharwad (even after Act 30 of 1976) as 'tenants- in common' was left open, as rightly decided by a Division Bench of this Court as per the decision in _**Kodakkattu Cheriya Krishnan**_ _**Namboothiri vs. Guruvayoor Devaswom**_ [ **2009(1)KLT 506].** The decision rendered by a Division Bench of this Court in _**Vishnu Narayanan Namboodiri vs. Travancore Devaswom Board**_ [ **2001(3)KLT 888]** as to the appointment of 'Melsanthi' with reference to 'Karaima right' available to the family (as the Board had decided to continue the Karaima right) is also sought to be relied on. The petitioners also banks upon the observations in paragraph 13 of the decision rendered by a learned Single Judge of this Court in _**Sreedharan Nair vs. State of Kerala**_ [ **2002(3) KLT 307]** (dealing with 'Viruthi Service Rules). It is pointed out that, in so far as 'Viruthi Rules' are concerned, it was assignable to individuals unlike 'Karaima rights' and as such, the position is different, which hence was rightly reversed by the **14** ## **W.P.(C)No.6163 OF 2013** ## Division Bench in _**Saraswathy Amma vs. N. Sreedharan Nair**_ [ **2010 (2) KLT 925 ]** 15 **.** From the part of the respondents 4 and 5, it is stated that, since the prayers and the pleadings are related to disputed questions of fact, it cannot be adjudicated in a proceeding under Article 226 of the Constitution. It is further pointed out that after Ext.P1 Partition Deed, no Joint Family existed, but for two separate Thavazhies and as such, the rights conferred upon the first Thavazhy, under no circumstance, will pass on to the second Thavazhy even after Act 30 of 1976; more so when the right of 'Sambandhi Adiyanthiram' was also partitioned, conferring half right to the first Thavazhy and the remaining half right to the second Thavazhy. Since the Thavazhy has become extinct, the last male member takes the rights as his individual property, as per the law declared by a Division Bench of this Court. It is also contended that the right involved herein is a **Service Inam** , which right was abolished, as dealt with by this Court in _**Travancore Devaswom Board vs. Chellappan Pillai [**_ **1988 (1)KLT 16]** . After the Act 30 of 1976, not only the system of Joint Family has been abolished, but also all the related aspects **15** ## **W.P.(C)No.6163 OF 2013** stand extinguished. Reliance is sought to be placed on the decision in _**Savithri Antharjanam vs. Madhavi Antharjanam**_ [ **1998 (1) KLT 79 (Case No.80) ],** wherein it has been held that the right to perform “Keezhsanthi” can be partitioned and the same analogy will apply to 'Sambandhi Adiyanthiram' as well. 16. Mr. M.P. Sreekrishnan, the learned counsel for the additional respondents 5 to 19 submits that the relative rights in respect of 'Sambandhi Adiyanthiram' are also discernible from Ext.P1 Partition Deed, wherein it has been mentioned that all relations between the two Thavazhies stand separated and partitioned and that nothing further remained except 'Attaladakkam' and the 'Blood relationship'. According to the learned Counsel, the term “Attaladakkam” refers to reversion of right to the remaining Thavazhy, when there is no lineal descendant through a female member in the other Thavazhy. Reference is also made to the verdict passed by this Court in _**Buhari Koya vs, Kasim Koya Haji**_ [ **ILR 1979 (1) (Ker.)730]** dealing with such rights and scope of the word “Attal”. 17. The learned Sr. counsel for the respondents 4 and 5 submits that, it is a new contention set up for the first time, **16** ## **W.P.(C)No.6163 OF 2013** which does not have any base with reference to the pleadings or proceedings raised already. The factual position is also disputed and that the rights, if any, in this regard have to be specifically pleaded and established by necessary pleadings and evidence to be let in. It is also pointed out that the system of Joint Family has come to an end with the introduction of Act 30 of 1976, as specifically made clear by a Larger Bench of this Court in _**Chellamma Kamalamma vs. Narayana Pillai Prabhakaran Nair**_ **[1993(1)KLT 174]** (by five Judges)( Paragraphs 73 and 74). As it stands so, it becomes a 'tenancy-in-common' property, which should go to the legal heirs. It is accordingly submitted that, it is a case involving mixed questions of fact and law, which cannot be adjudicated in a writ proceeding. With regard to the alleged finality of Ext.P3, it is stated as modified by Ext.R3(d) dated 12.12.2005. The said proceeding has not been subjected to challenge by the petitioners. On demise of Kochunni Marar, Ext.P3 will not come revived automatically and there is no rider in Ext.R3(d) in this regard, submits the learned counsel. That apart, Ext.R3(g) was issued on 05.03.2013 as a stop gap arrangement till the dispute between the two Thavazhies was over/finalised, **17** ## **W.P.(C)No.6163 OF 2013** which by itself is an indicator to show that Ext.P3 will not get automatically revived, but for which Ext.R3(g) was not necessary. 18. After hearing both the sides, this Court finds that the first prayer in the writ petition, particularly to cause Ext.P5 ( and P8) to be considered has become infructuous, as conceded by the learned counsel for the petitioners, by virtue of issuance of Ext.P12 order/proceedings by the Devaswom Board, after considering the claim/request therein. It is ordered accordingly. 19. With regard to the second/surviving relief as to the declaration sought for with reference to Ext.P3, the contention of the petitioners, that by virtue of the finding and reasoning given in Ext.P3, it will survive and get revived on expiry of Kochunni Marar, is not acceptable as such. According to the learned counsel for the petitioners, Ext.R3(d) dated 12.12.2005 was only a modification of Ext.P3 and Ext.P3 was not cancelled as such. The modification was only to facilitate enjoyment of 'Sambandhi Adiyanthiram' right by Kochunni Marar during his life time, on regaining health, as pointed out by him in Ext.P11, ( produced along with I.A.No.10972 of 2016 dated 07.07.2016 – wrongly marked as Ext.P10, which ought to have been Ext.P11, as **W.P.(C)No.6163 OF 2013** **18** documents upto Ext.P10 were already marked in I.A.No.3606 of 2016 dated 09.03.2016 **)** which could not have been legally denied under any circumstance. In so far as it is conceded that the right of Kochunni Marar could not have been validly transferred during his life time to the second Thavazhy, as accepted by the Board, Ext.P3 was modified replacing/restoring the position as per Ext.R3(d). In other words, the position, which was prevailing earlier, enabling the first Thavazhy to enjoy the rights of 'Sambandhi Adiyanthiram' was brought back as per Ext.R3(d). There is no rider in Ext.R3(d) that, on demise of Kochunni Marar, Ext.P3 will get revived automatically. In other words, Ext.R3(d) does not say that it is only in partial modification of Ext.P3. Evidently it is by way of complete modification of Ext.P3, restoring the position as it prevailed earlier. By virtue of the above, the position whereby the rights were being enjoyed by two Thavazhies separately ( half an year each) has been restored as per Ext.R3(d). This arrangement was permitted to be continued even by this Court, as per the interim order dated 19.06.2013. If at all, exclusive right has to be claimed and to be conferred upon second Thavazhy itself, as now **19** ## **W.P.(C)No.6163 OF 2013** claimed by the petitioners, the factual and legal position has to be specifically pleaded and established by adducing evidence before the appropriate Forum/Court, in accordance with law. This Court is of the view that the issue projected herein is a mixed one, involving both questions of law and facts. This exercise cannot be pursued in a writ proceeding, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. 20. In the said circumstance, the 'declaration' sought for by the petitioners is not liable to be granted in this writ petition and it stands dismissed. However, it will be without prejudice to the rights and liberties of the parties to move the appropriate authority/Forum/Court for redressal of grievance, if any, in accordance with law. ## **P.R. RAMACHANDRA MENON, JUDGE** **SHIRCY V, JUDGE** lk