Jayakkuttan v. Keralapurath Devaswom Board (RSA Nos.1177 of 2013 & 1178 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944 RSA NO. 1177 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN A.S.314 OF 2006 ON THE FILE OF ADDL.DISTRICT COURT (ADHOC-I), KOTTAYAM AGAINST THE JUDGMENT AND DECREE IN OS 56/2002 OF MUNSIFF'S COURT,** ## **ETTUMANOOR** ## **APPELLANT/APPELLANT/DEFENDANT:** JAYAKKUTTAN, S/O.LATE SANKARAN MOOTHATHU, AGED 33 YEARS, RESIDING AT VATTAPPALLY ILLAM,PERUMBAIKKADU.P.O,PERUMBAIKKADU VILLAGE,KUMARANALLOOR KARA,KOTTAYAM.REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SADASIVAN NAIR,S/O.SIVARAMAN NAIR,VILLOONNIKKAL HOUSE,PERROR VILLAGE,THELLAKOM KARA,KOTTAYAM TALUK. BY ADVS. SRI.M.P.ASHOK KUMAR SRI.S.NANDAGOPAL ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 KERALAPURATH DEVASWOM BOARD THELLAKOM-686630. 2 KERALAPURATHU DEVASWOM AGED 54 YEARS, S/O.KOCHU REPRESENTED BYH BHARANAKKARAN,P.K.MANI,RESIDING AT PEETHAM CHERINJATHIL,THELLAKOM KARA,PERROR VILLAGE686630. BY ADV SRI.A.K.HARIDAS FOR R1, R2 (BY ORDER) SRI.K.M.SANTHOSH KUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 08.12.2022, ALONG WITH RSA.1178/2013, THE COURT ON 19.01.2023 DELIVERED THE FOLLOWING: R.S.A.Nos.1177 of 2013 & 1178 of 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **RSA NO. 1178 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN A.S.313 OF 2006 DATED 27.03.2013 ON THE FILE OF ADDL.DISTRICT COURT (ADHOC-I), KOTTAYAM AGAINST THE JUDGMENT AND DECREE IN OS 41/2002 DATED 18.10.2006 OF** **MUNSIFF'S COURT, ETTUMANOOR** ## **APPELLANT/APPELLANT/PLAINTIFF:** JAYAKKUTTAN AGED 44 YEARS S/O.LATE SANKARAN MOOTHATHU, RESIDING AT VATTAPPALLY ILLAM, PERUMBAIKKADU P.O., PERUMBAIKKADU VILLAGE, KUMARANALLOOR KARA, KOTTAYAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SADASIVAN NAIR, S/O.SIVARAMAN NAIR, VILLOONNIKKAL HOUSE, PERROR VILLAGE, THELLAKOM KARA, KOTTAYAM TALUK. BY ADVS. SRI.M.P.ASHOK KUMAR SRI.S.NANDAGOPAL ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 K.K.SURESH AGED ABOUT 44 YEARS RESIDING AT KODOOR KANJIRAM HOUSE, PERROR VILLAGE, THELLAKOM KARA, THELLAKOM P.O., KOTTAYAM-686630. 2 P.K.MANI, AGED 57 RESIDING AT PEETHAM CHERINJATHIL, PERROR VILLAGE, THELLAKOM KARA, PERROR P.O., KOTTAYAM-686637. BY ADV.A.K.HARIDAS FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 08.12.2022, ALONG WITH RSA.1177/2013, THE COURT ON 19.01.2023 DELIVERED THE FOLLOWING: R.S.A.Nos.1177 of 2013 & 1178 of 2013 3 **“CR”** ## **M.R.ANITHA, J** ## ************** R.S.A.Nos.1177 of 2013 and 1178 of 2013 ------------------------------------------------Dated this the 19[th] day of January, 2023 ## **JUDGMENT** R.S.A.No.1178 of 2013 has been filed against the judgment and decree in A.S.No.313 of 2006 on the file of Additional District Court-I, Kottayam which in turn arise out of the judgment and decree in O.S.No.41 of 2002 on the file of Munsiff's Court, Ettumanoor. R.S.A.No.1177 of 2013 has been filed against the judgment and decree in A.S.No.314/2006 on the file of Additional District Court-I, Kottayam which in turn arise out of the judgment and decree in O.S.No.56/2002 on the file of Munsiff's Court, Ettumanoor. R.S.A.Nos.1177 of 2013 & 1178 of 2013 4 2. Appellant in both appeals is the plaintiff in O.S.No.41/2002 and defendant in O.S.No.56/2002. (Parties would be referred as per their status in O.S.No.41/2002 before the trial court). O.S.No.41/2002 is a suit for permanent injunction for restraining the defendants from trespassing into the plaint schedule item Nos.1 and 2 properties and causing obstruction to the day to day rituals or affairs of the temple. In plaint schedule item No.1 Thiru Keralapuram Sreekrishnaswamy temple is situated which is comprised in Sy.No.277/21 of Peroor Village, Kottayam Taluk. It is a very old temple believed to be constructed by Cheraman Perumal nearly 1,000 years back and is referred in 'Aithihya Mala' of Kottarathil Sankunni. Plaint Schedule item No.2 is 73 Ares 70 sq.meters of property comprised in Sy.No.288/5 of Peroor Village lying appurtenant to the land of the temple and used for the temple purposes. Plaint schedule item Nos.1 and 2 are the properties of the family of late Sankaran Moothathu, father of the plaintiff. Administration, possession, enjoyment and ownership of the plaint schedule R.S.A.Nos.1177 of 2013 & 1178 of 2013 5 properties have been given to the family sakha to which Sankaran Moothathu, plaintiff's father belonged. He got absolute ownership and possession over plaint item Nos.1 and 2 through individual partition of the family Sakha in 1974. Temple has been set apart to the personal share of the plaintiff's father in the above partition deed. Sankaran Moothathu was continuously performing the rites and rituals of the temple with the consent of all the legal heirs of Sankaran Moothathu. Plaintiff appointed a poojari in the temple for performing day to day rituals of the temple. He is the sole administrator of the plaint schedule properties. Apart from the 'poojari' (santhikkaran), plaintiff also appointed a kazhakam. On 14.09.2001 at 5.30 p.m while the plaintiff was offering and performing pooja, defendants and 30 persons under him trespassed into the sanctum sanctorum of the temple and manhandled the plaintiff. A complaint was lodged in connection with the same at Ettumanoor police station. Again on 04.02.2002 when the plaintiff was offering pooja, defendants trespassed into the _sanctom sanctorum_ of the temple and R.S.A.Nos.1177 of 2013 & 1178 of 2013 6 manhandled the plaintiff. They abused the poojari and kazhakam in filthy language and threatened to do away with the plaintiff. The attempt of the defendants is to interrupt the day to day poojas of the temple and wanted to take possession of the plaint schedule property and administration of the temple. They have no right over the plaint schedule property and administration of the temple. They are highly influential people in the locality and the plaintiff is unable to prevent the illegal acts of the defendants. Hence the suit. 3. Defendants filed written statement along with counter claim contending that the plaintiff or his family has no right or possession over the plaint schedule properties. Before two years of the partition of 1974 in the family of the plaintiff itself, plaintiff's predecessor dedicated the property to the people of the locality and thereafter the temple is being managed by a committee and the property is owned and administered by Keralapuram Devaswom. During 1940 when people had no faith there was no pooja in the temple. Thereafter, as consented by R.S.A.Nos.1177 of 2013 & 1178 of 2013 7 plaintiff's father, he dedicated the properties and the temple to the people of the locality during 1972. Thereafter, partition was effected in the family of plaintiff's father. Even though he had no right over the property, it was included in the partition deed and the administration was given to the plaintiff's father. Even before the execution of the partition deed, the plaintiff's father dedicated the building and the property to the committee formed by the people of the locality. It is denied that the plaint schedule property is allotted to the plaintiff's sakha. Family of Sankaran Moothathu has no right in the property so as to allot the share to the plaintiff's father. Sankaran Moothathu did not conduct pooja in the temple and pooja was conducted by a priest appointed by the temple committee from 1972 to 2001. The plaintiff was abroad during the death of Sankaran Moothathu and he came back only in February, 2000. He is not the administrator of the temple and never appointed a kazhakam, as alleged. After the death of the priest appointed by the temple committee, a new priest was appointed on 15.09.2001 and plaintiff caused R.S.A.Nos.1177 of 2013 & 1178 of 2013 8 obstruction and obtained key of the _sanctum sanctorum_ at the instance of police on 17.09.2001. Suit was filed suppressing those facts. So, the defendants and temple committee are in possession of the plaint schedule property for the last more than 30 years and are entitled to conduct the administration of the temple. 4. O.S.No.131/1984 was filed by the predecessor of the plaintiff representing the temple and obtained a decree and delivery was effected on the application filed by Induchoodan, the then administrator of the temple. Defendant sought for counter claim for restraining the plaintiff from committing trespass into the temple. 5. Plaintiff filed replication reiterating the averments in the plaint. It is also contended that the committee was constituted for helping the Urallen in the temple administration and they have no independent right or title to the properties. Poojari is appointed by the Urallen. Sankaran Moothathu have no title to the property in the year 1972 and had no right to dedicate R.S.A.Nos.1177 of 2013 & 1178 of 2013 9 the properties. In O.S.No.131/1984 it has been declared that the plaint schedule property and the temple belong to Vattappalli Illam. Induchoodan was only an agent of the plaintiff's father and father had not entrusted the temple to the committee, as alleged. 6. O.S.No.56/2002 was filed by Thellakam Keralapurathu Devaswom represented by its bharanakkaran against plaintiff in O.S.No.41/2002. It is alleged that the Thirukeralapuram Sreekrishnaswami temple in item No.1 property is a very old temple and the Devaswom was established by Cheraman Perumal but the temple was kept abandoned by the people. During 1972, a meeting was convened by the people for the administration of the temple and from that period onwards, temple and management of the Devaswom was with the local committee elected from the devotees. Sankaran Moothathu also attended the meetings. The Committee maintained minutes, accounts and vouchers and paid salary to the priest from the offerings of the devotees. The land of the Devaswom was given for cultivation R.S.A.Nos.1177 of 2013 & 1178 of 2013 10 only. During 1974 Vellonickal Siva Raman Pillai and others failed to pay the pattom and the committee with the help of the devotees decided to take possession of the land from the tenants. O.S.No.131/1984 was filed against trespass committed by one Kuruvilla Chandy and a decree for recovery of property was ordered and delivery was taken by the then administrator. The account book for the period 1993-1997 would reveal that the administration was being carried out by the committee and poojari was being paid salary by the administrator. The committee also appointed a kazhakam who is a member of Ezhava community and hence Nair community of the locality instigated the defendant to claim that he was the owner of the properties. During 1997, general body of the devotees fixed the duration of the committee as three years. The members of the committee resigned in the general body meeting held on 26.03.2000 which was presided over by the defendant. The intention of the defendant is to share the income from the plaint schedule properties and appropriate the same for his personal R.S.A.Nos.1177 of 2013 & 1178 of 2013 11 use. He obtained the minutes book and did not return it. The committee held on 09.02.1992 appointed a thanthri for the temple. On 10.09.2001, the defendant obstructed pooja conducted by the thanthri and thereafter poojari Sankaran Namboodiri was conducting the pooja till his death on 14.09.2001. Thereafter, another poojari was appointed at the instance of Sub Inspector of Police and the members of the committee were made to sign a decision of the Sub Inspector that the defendant had the right to perform pooja and to appoint priest and the administration was given to the committee. One Hari Namboothiri and Prakasan were conducting pooja. But there was misappropriation of funds and the time of poojas was changed. After registering a false criminal case, O.S.No.41/02 was filed and additional door to the temple was put up by the defendant and the temple was put under lock and key. Administrator was remanded to jail and hence the suit was filed for declaration that the first plaintiff Devaswom is the absolute owner of the plaint schedule property and for a mandatory R.S.A.Nos.1177 of 2013 & 1178 of 2013 12 injunction directing the defendant to return the key of the temple and for a permanent prohibitory injunction. 7. Defendant filed written statement reiterating the averments in the plaint and replication in O.S.No.41/2002. 8. Both cases were tried jointly taking O.S.No.41/2002 as the leading case. PW1 to PW3 were examined and Exts.A1 to A6 were marked from the side of the plaintiff. DW1 to DW7 were examined and Exts.B1 to B35 were marked from the side of the defendants. 9. Thereafter, on evaluating the rival contentions, facts and circumstances and evidence, the learned Munsiff found that there was permanent dedication of the plaint schedule properties in favour of the temple committee by the plaintiff's predecessor. Temple was being managed and administered by the committee as early as in the year 1979. It is further found that there is a public trust as devotees of innumerable numbers are attending the temple for worship and plaintiff can challenge the authority of the defendants by filing a proper suit under Section 92 of the R.S.A.Nos.1177 of 2013 & 1178 of 2013 13 C.P.C for setting a scheme for administration of the temple. It is further found that Exts.A3 and A5 would not show that the plaint schedule properties are subject matter of the partition. On the other hand, Exts.X1 to X4 show that the owner of the property is the first defendant and it is managed and administered by temple administration committee which was elected from time to time from 1979 onwards and hence the defendants proved that the temple and plaint schedule property are in absolute ownership of Keralapurathu Devaswom, Thellakom and it is possessed and managed by the temple administration committee elected from time to time and the plaintiff in O.S.No.41/02 is directed to surrender the key of the _sanctum-sanctorum_ in court within one month from the date of decree. Counter claim sought by the defendants dismissed also. 10. Aggrieved by the common judgment passed in both suits, A.S.No.313/2006 and 314/2006 have been filed. First appellate court, on re-appreciating the facts and circumstances and evidence confirmed the judgment and decree passed by the R.S.A.Nos.1177 of 2013 & 1178 of 2013 14 court below in both cases. Aggrieved by the same, the above R.S.As were filed. 11. Appeals were admitted by this Court and the following substantial questions of law seen formulated in the appeal memorandum. _“1. Whether there was any dedication of the Thiru Keralapuram Shree Krishnaswamy Temple owned by vattappilly illam to the public in accordance with the custom and rituals._ _2. Whether a Family temple can be dedicated to general public without following any religious rituals, practices and customs?_ _3. Whether a private temple and property can be dedicated in favour an unregistered committee which is functioning even without a by-law._ _4. What are the criteria to decide whether temple is a family temple or a public temple._ _5. Whether the Family Temple and the property can be transferred to a group of persons without any legal document and ignoring the provisions of Transfer of Property Act and Registration Act._ _6. What is the legal right of an unregistered organization to claim any title or claim right over the_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 15 _private property and Temple owned by an individual or a family?_ _7. Is Travancore Devaswom Board is a necessary party to decide the status of the Temple situated in an area which comes under the territorial jurisdiction Travancore Devaswom Board._ _8. Whether Travancore Cochin Hindu Religious Institution Act has got any role in the affairs of the Thiru Keralapuram Shree Krishnaswamy Temple owned by Vattappilly illam._ _9. Whether the deity is a necessary party in a suit_ _relating to a temple and its dedication?"_ 12. Notice was issued to the respondents in both appeals. Adv.A.K.Haridas appeared on behalf of the respondents in both cases. Lower court records were called for and perused. Heard Adv.M.P.Ashok Kumar, learned counsel for the appellant as well as the learned counsel for the respondents. 13. The learned counsel for the appellant assails the judgments and decree on various grounds. According to him conclusion of the trial court that the plaint schedule properties have been dedicated to the temple committee by the plaintiff's R.S.A.Nos.1177 of 2013 & 1178 of 2013 16 predecessor is not sustainable either in law or on facts. The finding that there is a public trust on the ground that the innumerable number of devotees are attending the temple for worship and hence plaintiff can challenge the authority of the defendants by filing a civil suit under Section 92 of the Code of Civil Procedure is without any legal footing. The finding that plaint schedule properties are not included in the schedule of properties in Exts.A3 and A5 and hence plaintiff failed to prove that the plaint schedule property belongs to plaintiff’s family is without proper interpretation of those documents. Exts.X1 to X4 documents relied on by the trial court to find that the owner of the property is the first defendant and it is managed by the temple administration committee from 1979 onwards is legally and factually incorrect since revenue records will not confer title. The Deity is not made a party and hence the suit filed affecting the interest of the deity is not maintainable in law. Hindu deity, being a perpetual minor, this Court is bound to exercise the _Parens Patriae_ jurisdiction while dealing with the property of the R.S.A.Nos.1177 of 2013 & 1178 of 2013 17 deity. Without any independent appreciation or analysis of facts and law, the first appellate court simply confirmed the judgment and decree passed by the trial court. 14. Learned counsel for the respondents/defendants on the other hand, would contend that during 1972 it was a private temple and the plaint schedule property belong to the deity and the defendants had denied the title and right of the plaintiff over the plaint schedule property and a suit for declaration of their right and title has also been filed as O.S.No.56/2002. Hence, a simple suit for injunction without a prayer for declaration is not maintainable. It is also his contention that the plaint schedule properties are not included in the partition deeds Exts.A3 and A5 and the family of the plaintiff has no right over the plaint schedule properties and that is why it is not included in the schedule attached to the partition deed and both courts have concurrently found that though there is description regarding the plaint schedule property in the body of Exts.A3 and A5, it is not included in the schedule of properties and that would indicate R.S.A.Nos.1177 of 2013 & 1178 of 2013 18 that the plaintiff's predecessors have no right over the plaint schedule properties. He would also contend that Exts.X1 to X5, the payment of basic tax and thandaper account would prove that first defendant Devaswom is having right, title and interest over the plaint schedule properties. He would further contend that principles of lost grant would also apply. 15. O.S.No.41 of 2002 has been taken as the leading case and evidence was adduced in it. Hence parties would hereafter be referred as per their status in O.S.No.41/2002. Reference to plaint schedule property is also as per the description of properties in the said case. 16. Based on the above the following points were raised for consideration. (1) Whether Thellakom Srekrisna Swamy temple belong to Vattappilly illom? (2) Whether plaintiff’s father dedicated the plaint schedule properties to general public or to the committee formed by the people of the locality as alleged, in 1972? R.S.A.Nos.1177 of 2013 & 1178 of 2013 19 (3) Whether suit filed by the plaintiff for injunction with out a prayer for declaration is not maintainable ? (4) Whether principle of lost grant has any application to the case in hand? Point Nos:1 & 3 17. Plaint item No.1 property is 5 Ares 25 sq.meters and Sreekrishna Swami Temple and other improvements comprised in Sy.No.277/21 and item No.2 is 73 Ares 70 sq.meters of property in Sy.No.288/5 of Peroor village. Appellant/plaintiff claims right, title and possession over the properties as per Exts.A3, A4 and A5. Ext.A5 is the partition deed No.2177/1954 occurred in the family of the plaintiff. There is a recital in page No.8 of the said document by which Sakha No.1 has been authorised to do all the matters with respect to Shree Krishnaswamy Temple at Thellakam. It is not specifically included in the schedule attached to the deed. Sakha No.1 admittedly includes the father of the plaintiff Sankaran Moothathu @ Sankunni Moothathu. Ext.A3 is the subsequent partition deed among sakha members in which R.S.A.Nos.1177 of 2013 & 1178 of 2013 20 the plaintiff's father Sankaran Moothathu is a party. In that partition deed, in page No.5 it has been described that the Thellakam Sreekrishna Swami Temple and the properties of the temple is left apart to the absolute right of fourth party, Sankaran Moothathu who is the plaintiff's father and he was authorised to do the temple administration and all other matters in connection with temple and he can do it by himself or get it done and was also authorised to receive all the income therefrom and it is also further made clear that the other shareholders have no responsibility or right with respect to the temple affairs or the properties. So, there is specific recital in Exts.A3 and A5 with respect to Thellakam Sreekrishna Swami Temple as a property belonging to Vattappalli Illam. 18. Defendant in the plaint in O.S.No.56/2002 has pleaded that the Devaswom is an old one and as per the 'Aithihya Mala' of Kottarathil Sankunni, temple and devaswom were established by Cheraman Perumal, the erstwhile ruler of the area in those days. It was further alleged that it was meant for Brahmins and R.S.A.Nos.1177 of 2013 & 1178 of 2013 21 managed by various families of Brahmins of the locality and later the Brahmins left that area and the temple was left unattended. 19. Learned counsel for the plaintiff bring to my attention the relevant reference in 'Aithihya Mala' with respect to Thellakam Sreekrishna Swami Temple. In page No.711 of 'Aithihya Mala', in paragraph No.2, there is a reference that after the Urallens of Thellakam Devaswom became extinct, residuaries surrendered the Devaswom to Kumaranelloor Devaswom and the people of Kumaranelloor Devaswom gave it to Vattappalli Moothathu who was an employee of Kumaranelloor Devaswom and presently that temple stands in the name of Vattappalli Moothathu. 20. So, the description in Exts.A3 and A5 that the Thellakam Devaswom is belonging to Vattppallil illam is probabilised by the narration in 'Aithihya Mala'. Though it has been found by the courts below that the temple and the temple properties are not included in the schedule of the partition deed and hence there is no material to prove that the Thellakam Sreekrishna Swami R.S.A.Nos.1177 of 2013 & 1178 of 2013 22 Temple belonged to Vattappalli illam is not seem to be correct for various reasons. 21. First of all, there is reference in Ext.A5, a 1954 document that the temple and the properties belong to the Vattappalli Illam and Sakha No.1 has to do all the matters in connection with the temple thereafter. Moreover, even though the contentions were raised by the respondents, denying the right and title of the plaintiff over the schedule properties even in Ext.B1 which is the judgment in O.S.No.131/1984 filed by the Keralapuram Devaswom against a trespasser for declaration of title and recovery of possession, the father of the plaintiff Sankaran Moothathu has been impleaded as additional 3[rd] plaintiff and in the body of the judgment while quoting the plaint averments, it has been clearly stated that third plaintiff is the owner of Thiru keralapuram Devaswom. Judgment would also show that though the suit was filed originally by the Devaswom and the bharanakkaran Induchoodan, in view of the contentions raised by the defendant in that case, Sankaran Moothathu, the R.S.A.Nos.1177 of 2013 & 1178 of 2013 23 father of the plaintiff herein has been impleaded as the additional third plaintiff. Even though the counsel for the defendant would emphasis that the delivery in pursuance of Ext.B1 judgment was taken on behalf of Devaswom by Induchoodan, it is very relevant to note that in paragraph 9 of that judgment, it has been stated that the defendant in that case taken up a contention that the first and second plaintiffs are not competent to institute the suit since there is no registered document transferring the rights of the third plaintiff over the plaint schedule property to the Devaswom Committee. It is also stated that in the affidavit in support of the petition for impleadment filed by the third plaintiff, it has been averred that the plaint schedule property belongs to the third plaintiff and for management of the affairs of the temple, 29 cents of property was set apart for the temple and the court concluded from the evidence and circumstances available before the court that, it is only an arrangement for the conduct of daily pooja in the temple and for administration of the temple properties that the plaint schedule properties were entrusted with R.S.A.Nos.1177 of 2013 & 1178 of 2013 24 the committee in view of the fact that PW2, the third plaintiff was residing four miles away from the temple properties. 22. So also, in the written statement filed in O.S.No.41/2002, in paragraph No.4, the defendants categorically admitted that the plaintiff's family had right over the plaint schedule properties. Their further contention is that even before two years of 1974 when the family partition took place in their family, the property was dedicated by the father to the local public. Again, in Ext.A6, which is the order of Land Tribunal, Kottayam in S.M proceedings No.64/2002, it has been described that the President and Secretary of Thirukeralapuram Devaswom, Peroor is the tenant and Jayakuttan (plaintiff) Vattappilly Illam, Kumaranelloor, Perumpayikkad is the landlord. But the order would show that inspite of repeated notices issued to both parties, they were continuously absent and accordingly the case was dismissed. That order is dated 15.09.2007. That order would further strengthen the case of the plaintiff that even admittedly by the President/Secretary of the then Thirukeralapuram R.S.A.Nos.1177 of 2013 & 1178 of 2013 25 Devaswom filed an application for issue of purchase certificate in favour of Thirukeralapuram Devaswom in which the plaintiff has been shown as the landlord. The above factors would speak in volumes that even the defendants and the local people admit the plaintiff as the owner of the plaint schedule properties. It is also pertinent in this context to note that as per Ext.A4, which is a document of 1951, Krishnan Moothathu who was the Predecessor-in-interest of the plaintiff who had been in administration of the temple during that time had mortgaged 15 cents of property to Lakshmi Amma Kochukutty Amma and raised Rs.200/- for renovating the 'thidappally' of the temple. Ext.X3(a), the certified extract of basic tax register produced at the instance of defendant would show that tax is being paid with respect to Sy.No.446/1 with respect to 7 Ares 90 Sq.meters of property by Ambalaparambu Lakshmi Amma Kochukutty Amma who is the mortgagee in Ext.A4. That would indicate that Ext.A4 mortgage is not redeemed yet and the mortgagee Lekshmy Amma is continuing the possession. It would substantiate the R.S.A.Nos.1177 of 2013 & 1178 of 2013 26 mortgage executed as per Ext.A4 by the predecessor-in-interest of the plaintiff who was then in administration of the affairs of the temple who had mortgaged 15 cents of property for renovating the ' _thidappally'_ (Oottupura) of the temple. The above factors would strongly probabilise the case of the plaintiff that the Thellakam Sree Krishna Swami Temple belong to Vattappilly Illam. 23. The findings of the courts below is to the effect that the plaint schedule properties are not included in the schedule attached to the partition deeds Exts.A3 and A5 and hence it was concluded that there is no evidence to prove that the plaint schedule properties belong to the plaintiff's family. 24. In this context, it is relevant to have a reference to ## **Kidangoor Devaswom v. Krishnan Naboothiri : 2016(1)** **KLT 778** . The fact situation of that case is more or less similar to the case in hand. That was a case in which the suit was filed for a declaration that first plaintiff Devaswom is a public trust of religious and charitable nature and to frame a scheme in respect R.S.A.Nos.1177 of 2013 & 1178 of 2013 27 of the first plaintiff Devaswom for its administration and management and also for consequential reliefs and the main issue was whether the plaintiff is a public religious trust dedicated to the public or is it a private temple. Plaintiff's case is that the temple is more than 3000 years old and according to the historians Gouna Maharshi, a sage who was an ardent worshiper of Lord Balasubrahmanyan, had lived and died there. At that time, a temple for Lord Mahavishnu was being built at Kidangoor by Adiyodi Nair, a local chieftain, to beget children. It is alleged that the construction of the temple and consecration of the idols were an act of penance for hanging an innocent man which was believed to have resulted in the extinction of male members in the Adiyodi family. Adiyodi Nair had a dream in which he was advised to install Balasubrahmanyan instead of Mahavishnu. Accordingly, idol of Lord Balasubrahmanyan was consecrated in the main structure in the south and the idol of Lord Vishnu was shifted to the structure in the north. Consecration of the idol was done by famous _Thanthrikal_ of Tharananaloor Illam and the R.S.A.Nos.1177 of 2013 & 1178 of 2013 28 Santhi is a 'Purappeda Santhi' and there is a _Keeshsanti_ to assist him. It is alleged by the plaintiff that in order to assist in the performance of poojas and to otherwise attend to the various matters thereto, Adiyodi Nair had summoned Naranathu Moothath, Chalackal Warriayar and some others along with their family members and they settled down in Kidangoor. Adiyodi Nair entrusted different responsibilities to the members of these families. There were 14 such Brahmin families whose entitlement was only to chant vedas and mantras. Even during the inception of the temple, Hindu devotees of the locality were entitled to worship in the temple as of right. Subsequently, Adiyodi Nair left Kidangoor on a pilgrimage. Plaintiff's case is that there were complete dedication of the temple as a public temple and after Adiyodi Nair left on pilgrimage, 14 Brahmin families which were summoned by him for chanting mantras in the temple assumed the administration and management of the temple and the plaintiff alleged that it is clearly an act of usurpation which will not clothe them with any authority or ownership of the temple or R.S.A.Nos.1177 of 2013 & 1178 of 2013 29 its assets and it is alleged that Ooraima Yogam constituted by the 14 families is a clear act of illegality and was an attempt on their part to give the temple the colour of a private temple. Plaintiff also alleged that the construction of oottupura and oottupura malika were duly done by expending amounts from the Government Treasury which is a clear indication of the fact that the temple was dedicated to the public and it would indicate that there were no grant of the temple to the family of the defendants 1 to 12 or their predecessor-in-interest. 25. The first defendant in that case, on the other hand, contended that Kidangoor Devaswom and the temple are not public trusts and private and it is governed and managed by 13 Urallens which are 13 Namboothiri families at Kidangoor. Formerly there were 14 Urallen Illoms of which one Illom extinguished and presently there are 13 Urallens. It is also contended that in ancient times, Kidangoor Devaswom was under the control and administration of a cheftain by name Manayil Adiyodi Nair. There were no issues in the family of Adiyodi Nair R.S.A.Nos.1177 of 2013 & 1178 of 2013 30 and he had an invocation that a Subrahmania temple be built on the southern bank of Meenachil river along with one Vishnu idol. Accordingly, idol of Balasubrahmania was built and consecrated, which is the present Kidangoor Sree Subrahmania Swamy Temple and as a result, Adiyodi family was blessed with children. Following that, others who had no issues also used to donate properties to the temple. At that time, Meenachil Kartha and Thekkumkor Raja were the Rulers in the eastern and western areas respectively of Kidangoor Desom. Adiyodi Nair was very much afraid of these two rulers and apprehended invasion from both sides. Therefore, Adiyodi Nair gave the temple and its properties to the 14 Namboothiri families, which had already settled at Kidangoor and left that place and did not return and from that date onwards, the Devaswom and temple were owned and managed by the 14 Namboothiri families who were the Urallens of the temple and presently, there are only 13 such families. 26. Evaluating the rival contentions and also discussing R.S.A.Nos.1177 of 2013 & 1178 of 2013 31 the various authorities in the field, the question was determined as to whether there was any dedication of the temple by Adiyodi Nair or anybody thereafter and whether Adiyodi Nair or the Namboothiri families or anybody else have held out to the general public that the temple is a public temple. Ultimately Division Bench of this Court found that the plaintiff failed to prove that it is a public temple or that the temple was held out to be a public temple. On evaluating the fact situation of **Kidangoor Devaswom** what could be gathered is that though originally the temple was built up by Adiyodi Nair, the case of the defendant was that on a later period, he left the place by entrusting the temple with the 14 Namboothiri families who are the Urallens of the temple. That would clearly probabilise the version in ' _Aithihya Mala'_ that the residuary Urallens of Thellakam Sree Krishna Swami Temple left out the temple to Kumaranelloor Devaswom and the people of Kumaranelloor Devaswom has given the temple to Vattappilli Moothathu and the temple now belongs to Vattappilli Moothathu. That is why in 1951 registered mortgage R.S.A.Nos.1177 of 2013 & 1178 of 2013 32 deed as well as in the 1954 partition deed there is specific mention that Thellakam Sree Krishna Swami Temple belong to Vattappilli Illom. 27. Rule 15 of Transfer of Registry Rules, 1966 was relied on by the defendants to establish the right of defendant over the schedule properties. According to them, the property was dedicated by the predecessor-in-interest of the plaintiff several years back and Exts.B3 to B22 and Exts.B25 to B33 etc. would establish and prove that the temple committee is administering the affairs of the temple over the last several years and it is a question of fact and hence there is no reason whatsoever to interfere with the concurrent findings entered into by the courts below. (Whether there is dedication by the plaintiff's father or not would be determined in the coming paragraphs.) 28. But the counsel for plaintiff would contend that only document which would confer title to any party over a property is the document issued under the Record of Rights Act, 1968 (Kerala) and no such document has been produced by the R.S.A.Nos.1177 of 2013 & 1178 of 2013 33 defendant so as to claim any right over the plaint schedule properties. The Act has been provided for preparation of record of right in respect of lands in the State of Kerala. Section 3 of the Act deals with preparation of record of right. Section 3 is relevant in this context to be extracted which reads thus : ## **3. Preparation of record of rights:** _(1) A record of rights shall be prepared by the prescribed officer in the prescribed manner in respect of any area or areas notified by the Government in this behalf in the Gazette._ _(2) The record of rights in respect of any land shall include the following particulars namely_ _(a) the description and extent of the land;_ - _(b) the name and address of the person in occupation of the land;_ _(c) the names and addresses of other persons interested in the land;_ _(d) the nature and extent of the respective interest of the persons referred to in clauses (b) and (c);_ _(e) the names and addresses of the kudikidappukars, if any; and_ _(f) such other particulars as may be prescribed,_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 34 _(3) The record of rights shall be maintained by such officer as may be prescribed, and different officers may be prescribed for different areas._ 29. So, the provisions under the Act would make it clear that a record of rights maintained by the authorised officer is a document proving the rights of a party with respect to a property. 30. In **Pradeepan v. State of Kerala : 2019 (1) KLT 623** the petitioner challenged an order passed by the Village Officer wherein he was directed to produce an affidavit showing that the person who used the property in question as the right of way had no objection in the petitioner securing record of rights (ROR) in terms of the provision contained in the Kerala Record of Rights Act, 1968. While disposing the matter, this Court held that it is the duty of the prescribed officer to conduct necessary enquiries and find out the names and addresses of the persons who would fulfill the requirement of persons interested in the land as envisaged in Section 3(2)(c) of the Act. 31. In the present case, Ext.A6, the order of the Tahsildar R.S.A.Nos.1177 of 2013 & 1178 of 2013 35 would prove that an attempt was made by the President and Secretary of the Devaswom to get pattayam with respect to the property in question showing the plaintiff as the landlord. That petition was dismissed for default. A devaswom is unheard of being a tenant under any individual also. So on a totality of the facts, circumstances and evidence adduced, I don’t have any hesitation to hold that Vattappilly Illom is the owner of Thellakam Sree Krishna Swami Temple and properties. Hence the contention of the defendant that the suit is not maintainable with out a prayer for declaration also is not sustainable. Points are so answered in favour of the plaintiff. ## **Point No.2** 32. The next question would be whether there was any dedication of the temple and the properties by Sankaran Moothathu @ Sankunni Moothathu in the year 1972 to the local public or Committee formed by the people of the locality as alleged by the defendants. 33. The plaintiff's family is the Urallen of the temple R.S.A.Nos.1177 of 2013 & 1178 of 2013 36 described in plaint item No.1 Hindu Law of Religious and Charitable Trusts by Sri.B.K.Mukherjea 5[th] Edition Chapter V deals with Management of Debutter – Shebaitship – Its Legal Character and Incidents. Shebait is the Manager and the legal representative of the deity and in Malabar it is known as Urallen and he is the person entitled to speak on behalf of the deity on earth and is endowed with authority to deal with all its temporal affairs. As regards the temple property, the manager is in the position of a trustee, but as regards the service of the temple and the duties that appertain to it he is rather in the position of the holder of an office of dignity. 34. In page No.206, under the sub heading 'Devolution', it has been provided that Shebaitship remains in the founder and his heirs unless disposed of. It is also provided that shebaitship like any other species of heritable property follows the line of inheritance from the founder. In **Profulla Chorone Requitte & Ors vs Satya Chorone Requitte : AIR 1979 SC 1682** it has been pointed out by the Apex Court that shebaitship being R.S.A.Nos.1177 of 2013 & 1178 of 2013 37 property, it devolves like any other species of heritable property and that consequently where the founder does not dispose of the shebaiti rights in the endowment created by him, the shebaitship devolves upon the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist. In paragraph 5.8 it is discussed that the judicial committee observed in course of the judgment in **Gnanasambanda Pandara Sannadhi v. Velu Pandaram and Ors. : MANU/PR/0027/1899** that ruling in **Tagore v. Tagore : (1872) Ind App Sup 47 (SC)** is applicable to hereditary office and endowment as well as to other immovable property. After the death of a Shebait, the senior most in age amongst their legal heirs would be the Shebait. 35. Ext.A5, the partition deed of 1954 giving the right of management of the temple to Sakha No.1 and subsequent partition in the year 1974 by Ext.A3 giving exclusive right of management of the temple and property to the plaintiff's father is in consonance with the religious texts. It is in 1974 that the R.S.A.Nos.1177 of 2013 & 1178 of 2013 38 temple and the properties have been given to the fourth party, i.e. Sankaran Moothathu @ Sankunni Moothathu, the father of the plaintiff and he has been held responsible to administer the temple and look after all the affairs in connection with the temple on his own or getting it done through anybody and he was also authorised to receive all the income therefrom and all the other sharers also have been excluded from having any right over the properties of the temple or its affairs. Ext.A3 speaks in unequivocal terms that the plaintiff's father has been appointed as the Urallen of the temple and its properties. 36. With regard to dedication aspect, their specific case is that the plaintiff's father dedicated the property to the public or the committee formed by the people of the locality in the year 1972. Both sides brought to my attention umpteen decisions with regard to religious endowment and dedication in Hindu Law. 37. Learned counsel for the plaintiff as well as respondent relied on **Menakuru Dasaratharami Reddi vs Duddukuru Subba Rao : AIR 1957 SC 797** . Defendants counsel relies on R.S.A.Nos.1177 of 2013 & 1178 of 2013 39 the decision to support his contention that dedication need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of private secular character of the property and its complete dedication to charity. It is also held therein that whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. But, in the present case, admittedly by the defendant, there is no written document dedicating the plaint schedule property by the plaintiff's predecessor to the temple committee or the general public. 38. The decisions further relied on by the learned counsel for the plaintiff would be discussed first. **Kunhunni Nambudiripad v. Cochin Devaswom Board : 1964 KLT 1034** R.S.A.Nos.1177 of 2013 & 1178 of 2013 40 was a case of Nambudiri temple and the question arouse whether it was dedicated for the benefit of public. Paragraphs 4, 5 and 6 were highlighted by the learned counsel which read thus: _“4. The Privy Council said that though in the greater part of the Madras State, private temples are practically unknown, “the prevailing impression in Malabar would seem to have been that these Nair temples were private”, in Mundacheri Koman v. Thachangat Puthan Vittil Achuthan Nair (A. I. R.1934 P. C. 280); in my view the position is not different in the case of Nambudiri temples, if I may use that term in Satyanarayana Avadhani v. Hindu Religious Endowments Board, Madras (A.I.R.1957 Andhra Pradesh 824) too, this distinguishing feature in the case of Malabar temples was recognised. This applies to the rest of the temples in Kerala. The District Judge also came to the conclusion, that there is no presumption, that a Malabar temple is a public temple. The oral evidence discussed above has given me the impression that the temple is only a temple in name. There is nothing in the oral evidence adduced by the respondent to shake the inference that properly arises on the documentary evidence_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 41 _discussed above, that the temple was owned by the appellant’s Illom._ _5. The evidence adduced does not point to any dedication of the temple by the appellant’s Illom for the benefit of the public; as remarked, even dedication of properties to a temple is not inconsistent with its private ownership. As for user by the worshipping public, I consider it unsafe to act upon the testimony of D. Ws. 1 to 3 alone, as they are connected with the litigations that ensued after Govinda Kaimal’s death. Granting that worshippers have attended or that they used to attend the temple and were not turned out by the Illom, no presumption can be made that such worship or user was as of right, once the temple is proved to belong to the Illom. It is where such proof is wanting that worshipping without let or hindrance by the members of the public has been held to raise a presumption, that such worship or user was as of right. See Venkataramana Devaru v. State of Mysore (A.I. R.1958 S. C. 255), V. Mahadeva Gurukkal v.Commissioner for the Board of Hindu Religious Endowments, Madras (A.I. R.1956 Madras 522) and Narayan Bhagwantrao Gosayi Balajiwala v. Gopal Vinayak Gosayi (A.I. R.1960 S. C. 100). These cases, as also_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 42 _Vathyanarayana Avadham v. Hindu Religious Endowments Board, Madras (A. I. R.1957 Andhra Pradesh 824), are authorities for the view, that once the private character of the temple is proved, user however long is not presumed to be as of right. This has been explained by the Privy Council in Babu Rhagwan Din, v. Gir Har Varoop (1940 (1) M. L. J. l) in the following words: “In these circumstances it is not enough, in their Lordships’ opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol; they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 43 _an individual or family. Such an inference if made from the fact of user by the public is hazarduous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of private temple should in all circumstances desire to discourage popularity”. In Mundacheri Koman v. Thachangat Puthen Veettil Achuthan Nair (A. I. R.1934. P. G. 280) after finding that the temple was a public temple, the Privy Council said: “Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times possibly owing to altered conditions, would affect the private character of the trusts.” The decision of a division bench of this Court in A. S.1008 of 1959 was based on the particular facts and circumstances proved in that case._ _6. If the temple is found to belong to the appellant’s Illom, the location of the temple at some distance away, nearly 30 miles from the seat of the Illom, the existence of a lane formerly and a_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 44 _public road now, by the side of the temple compound, the presentation according to D. W. 1, even if true, of a deepasthambham to the temple by a stranger tarwad, these and other considerations however relevant and useful in other cases, are by themselves insufficient to deprive the Illom of its ownership of the temple.”_ 39. In **S.Shanmugam Pillai And Ors vs K. Shanmugam** **Pillai And Ors : AIR 1972 SC 2069** the question arouse as to whether dedication of property was complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of a charity is not created but a charge in favour of charity is attached to, and follows the property which retains its original private and secular character. Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. If the income of the property is substantially intended to be used for the purpose of a charity and only an insignificant and minor portion of the R.S.A.Nos.1177 of 2013 & 1178 of 2013 45 income is expected or required to be used for the worshipper or the manager, it may be possible to take the view that dedication is complete. If on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. In **Pratapsinhji N.** ## **Desai vs Deputy Charity Commissioner : AIR 1987 SC 2064** paragraph 11 was highlighted by the learned counsel which reads thus: _"The essence of a public endowment consists in its being dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise. The distinction between a private and public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. The distinction is succinctly brought out in Mula's Hindu Law in_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 46 _para 424 at pp. 544-545 in these words:_ _"Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. The essential distinction between a public and a private endowment is that in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private endowment the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the fluctuating and uncertain body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make it a private endowment. The essence of a public endowment consists in its being dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise. Besides user by the public, conduct of the founder and his descendants is also relevant, and if they in_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 47 _fact held out the temple to be a public one a very strong presumption of dedication would arise. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."_ _It therefore follows that the principles are well-settled. When property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the members who are entitled to worship at the shrine of the deity can only be the members of the family i.e. an ascertained group of individuals. But where the beneficiaries are not the members of a family or specified individuals but the public at large of a specified portion thereof, then the endowment can only be regarded as public intended to benefit the general body of worshippers."_ ## 40. **Mogera Nema Daivasthana Parankila v.** **Seethamma : 2012 (4) KLT 919** was cited to contend that a person cannot dedicate any property which did not belong to him but is alleged to be held by him on lease. In that case, the R.S.A.Nos.1177 of 2013 & 1178 of 2013 48 document is styled as a gift deed and executant declares having obtained the property on a lease for a period of one year on rent and which was 'gifted, conveyed and the entire right transferred in favour of the aforesaid Bhandaram'. The Adalthedars of the temple is stated to be put in possession and document also stated that gift has been made after religious rituals. In the said circumstances, it was held that it cannot, for a moment, be held that there was any valid transfer. The executant himself styled his rights over the property as being that of a lease. The rights gifted or conveyed by the said document could be only the rights the executant had on the property. The executant could not have dedicated any property which did not belong to him. In the said circumstances, it was held that the executant could not have dedicated any property which did not belong to him. 41. **Gangadharan Nair v. Commissioner, Malabar Devaswom Board : 2013 (3) KLT 1017** is relied on by the learned counsel. That was a case in which the orders passed by R.S.A.Nos.1177 of 2013 & 1178 of 2013 49 the Deputy Commissioner declaring a religious institution as a public temple defined under S.6(17) of the Hindu Religious and Charitable Endowments Act (Madras) (for short ‘H.R. & C.E. Act’) was challenged before this Court. The first petitioner is a hereditary trustee of Panayamkulangara Bhagavathy Temple in Chavakkad Taluk which is owned by a family known as Manjulavil family. The second petitioner is his brother as well as his power of attorney holder. As per the prevailing system, senior most male member of the family is the hereditary trustee. The case of the petitioners is that the temple is situated in the property of the Manjulavil tharavad which is kept as a common property and remain unpartitioned. It is in that context, it was held by this Court that the – Deputy Commissioner has no power to declare that a temple will be a public temple under Section 57 of the H.R. & C.E. Act. Paragraph 48 was highlighted by the learned counsel which reads thus: _"48. The discussion above will therefore show that importance will have to be given with regard to_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 50 _dedication, to find out whether it is a family Temple or a public Temple. Various aspects will have to be assessed based on the intention of the propounder and other factors. Merely because public were allowed to worship, it is not conclusive to hold that it is a public religious institution. Various other factors will have to be assessed. When the evidence regarding the nature of the Temple is not clearly available, how it could be assessed, has been laid down by the Apex Court in Tilkayat Shri Govindlalji Maharaj’s case (AIR 1963 SC 1638)."_ ## 42. **Narayanan Pandarathil v. Vasudevan Pillai : 2014** **(3) KLT 497** the question arouse, as to what constitutes a valid dedication under Hindu Law? It was held that in order to constitute a valid dedication, such a dedication must be made by the owner of a property. Further, in order to create a valid dedication, the person dedicating his property should not reserve to himself any rights in the soil or the property. A dedication must be of a complete relinquishment of its rights of ownership over the property. - When there are specific provisions entitling the sharers to appropriate the income from the properties R.S.A.Nos.1177 of 2013 & 1178 of 2013 51 allotted to the temple for meeting the expenses of the temple and also the expenses towards the livelihood of such sharers and their family members, it cannot be said that there is any absolute dedication to the deity. 43. In the case on hand Ext.A3 specifically provides that the plaintiff's father can administer the temple directly or get it administered and authorised to take the entire income therefrom which would negative the plea of dedication. 44. **Kidangoor Devaswom** referred above also cited to substantiate the contention that merely because festivals are celebrated or persons visiting the temple are given food or shelter are not indications of the temple being a public temple. Further, it is held that, in a village in Kerala, which is dominated by the members of the Hindu community, who generally are very religious, it is common that people take initiative in the well being of the temple and the presiding diety. They do this by physical involvement and monetary contributions which are utilised for the purposes of the temple. That does not mean that a private R.S.A.Nos.1177 of 2013 & 1178 of 2013 52 temple would acquire the characteristics of a public temple or that the ownership thereof would stand divested from the owners of the temple or Urallers. It has also gone to the extent of holding that even if it is accepted that the temple has been declared as a religious institution of public nature, in exercise of the powers under Section 4(3) of Act 3 of 1961, that by itself cannot confer on the temple the status of a public temple. 45. Learned counsel for the respondent/defendant cited **Mathevan Pillai v. Kasi Viswanatha Ninar and others : 1951** **KLT 202** wherein the dedication of property to a family idol and the impact and scope was discussed and it was held that properties belong exclusively to the Idol and no one could alienate the properties except for absolute necessities in connection with the management of the temple. The Hindu Idol is a juridical person and when the dedication of the properties to the Idol is in the completest character, the properties comprised in it belong to the Idol. The Dharma Kartha or the manager of the temple where the Idol was installed would have the right to R.S.A.Nos.1177 of 2013 & 1178 of 2013 53 represent the Idol and to be in possession and management of the dedicated properties. But, it is also held that it is necessary that the donor should divest himself of the property and the Idol is a juridical person and when the dedication of the properties to the Idol is in the completest character, the properties comprised in it belong to the Idol. The Dharma Kartha or the manager of the temple where the Idol was installed would have the right to represent the Idol and to be in possession and management of the dedicated properties. The right to sue in respect of those properties would vest in that manager or Dharma Kartha. What was necessary for the foundation of a charitable endowment was that the purpose should be clearly specified and the properties intended for the endowment should be set apart as dedicated for the purpose. It was also necessary that the donor should divest himself of the property. The evidence of divestiture may be contemporaneous and in such a case the subsequent acts and conduct of the donor are irrelevant and cannot re-invest him. It is also held that when the dedication is complete, no manager of R.S.A.Nos.1177 of 2013 & 1178 of 2013 54 the dedicated property would have any right to deal with it as if it belong to him exclusively. 46. In **Deoki Nandan vs Murlidhar : AIR 1957 SC 133** it has been held that the question of dedication – religious endowment in Hindu Law is a mixed question of law and fact and the decision of which depend on the application of legal concept of a public and private endowment to the facts found. The distinction between private trust and public trust has been discussed in paragraphs 5 and 6 which read thus: _5. It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, 15th Edn., pp.15-16:_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 55 _“By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained....”_ _Vide also the observations of Mitter J. in Nabi Shirazi v. Province of Bengal (ILR 1942 1 Cal 211, 227, 228). Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof._ _6. Then the question is, who are the beneficiaries when a temple is built, idol installed therein and properties endowed therefor? 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 does it follow from this that it is to be regarded as the beneficial owner of the endowment? Though such a notion had a vogue at one time, and there is an echo of it in these proceedings (vide para 15 of the plaint), it is now_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 56 _established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties. Vide Prosunno Kumari Debya v. Golab Chand Baboo (1875 LR 2 IA 145, 152); Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi (1904 LR 31 IA 203) and Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1924 LR 52 IA 245). It cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly laid down in the Sanskrit texts. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sabara Swami has the following:_ _[Vernacular Language Omitted]_ _“Words such as ‘village of the Gods’land of the Gods’ are used in a figurative sense. That is property which can be said to belong to a person, which he can make use of as he desires. God however does not make use of the village or lands, according to its desires. Therefore nobody makes a gift (to Gods).Whatever property is abandoned for Gods, brings prosperity to those who serve Gods”._ _Likewise, Medhathithi in commenting on the expression “Devaswam” in Manu, Chapter XI, Verse_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 57 _26 writes:_ _[Vernacular Language Omitted]_ _“Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application to Gods. For the Gods do not make use of the property according to their desire nor are they seen’ to act for protecting the same”._ _Thus, 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 (Gainartha), and 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. In Bhupati Nath Smritititha v. Ram Lal Maitra ([1910] I.L.R. 37 Cal. 128), it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer to a ‘sentient being’, and that dedication of properties to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 58 _Lawrence Jenkins C. J. at p.138 that “the pious purpose is still the legate, the establishment of the image is merely the mode in which the pious purpose is to be effected” and that “the dedication to a deity” may be “a compendious expression of the pious purposes for which the dedication is designed”. Vide also the observations of Sir Ashutosh Mookerjee at p.155. In Hindu Religious Endowments Board v. Yeeraraghavachariar (A.I.R. 1937 Macl. 750), Varadachariar J. dealing with this question, referred to the decision in Bhupati Nath Smrititirtha v. Ram Lal Maitra (supra) and observed:_ _“As explained in that case, the purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust”._ 47. **Ram Kishan Mission and Ors. vs. Dogar Singh** **and Ors. : MANU/UP/0160/1984** was a case in which dedication of property was made to Dharmashala by a written deed and on interpretation of the deed, it was held that there was absolute and irrevocable dedication and therefore revocation R.S.A.Nos.1177 of 2013 & 1178 of 2013 59 of the deed is not valid. Paragraph No.8 was also highlighted by the learned counsel wherein it has been held that to constitute a valid dedication by a Hindu for religious or charitable purposes no document in writing or registered is necessary. Dedication to charity need not necessarily be by an instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. It must be proved that the donor intended to divest himself of his ownership in the property dedicated. Section 5 of the Trusts Act which provides the method for creating a trust of immovable property and in Section 1 it provides that the Act does not apply to public or private religious or charitable endowment. Therefore, the rule laid down in Section 5 regarding execution of a registered document in writing does not govern in the case of Hindu religious endowment nor the provisions of the Transfer of Property Act since it is not a deed of gift in favour of a living object. R.S.A.Nos.1177 of 2013 & 1178 of 2013 60 ## 48. **Kacha Kanti Seva Samity and Another : Sri Kacha Kanti Devi and Others : 2003 (4) SCC 665** , paragraph 10 of the said decision was highlighted by the learned counsel which reads thus. _“10. The question as to whether a religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case. It is difficult to lay down any test or tesis, which may he of universal application. In the context of their right to shebaitship, the respondent-plaintiffs have two ancient documents, Exhibits 1 and 2, Both the documents have been produced from proper custody. The originals of these documents were also seen by the appellate court. The documents Exhibit 1(1) and Exhibit 2(1) show that the name of Sonaram Sarma Deshmukhya appears to be there and that these are appointment letters showing the appointment of Sonaram Sarma in the post of Deshmukhya with some magisterial powers by the King. Since these two documents have been produced from proper custody, these two documents were admitted in evidence. The presumption under Section 90 of the Evidence Act was also available to the respondent- plaintiffs. It is proved in evidence that the_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 61 _right claimed by the respondent-plaintiffs to shebaitship is in exclusion to all others. The respondent-plaintiffs have adduced oral evidence of witnesses PW 3, PW 5, 6, PW 8 and PW 9. They are the persons from different walks of life residing in the locality where Plaintiff I is established. They have categorically stated that since the time of their maturity they have seen the present respondentplaintiffs performing the puja and offering other services to the deity and receiving the offerings made to the goddess by the devotees. PW8 is a person from the Muslim community who has also subscribed to the same view. Even in cross-examination nothing has been elicited from them to discredit their evidence and, in particular, regarding possession and the services rendered by them as shebaits.”_ 49. An unreported decision in **Murti Shivji Maharaj** ## **Birajman Asthal Mohalla & Others v. Mathura Das Chela Naval Das Bairagi & Others : Second Appeal No.737/2007** **dated 30.07.2018** (Allahabad High Court) was relied on, paragraph 19 was highlighted by the learned counsel which reads thus: R.S.A.Nos.1177 of 2013 & 1178 of 2013 62 _“19. In this case, it is clear that the suit properties were created as a result of endowments by the ancestors of the plaintiff Nos. 3 to 6. The properties were dedicated to the idol for the sacred purpose. It is also on record that when the endowment was made no deed providing for management of the suit property was made in writing nor any trust was created for management of the same. Under the law also, there is no requirement of a deed and in this case, the dedication to the idol is absolute and not partial. The endowment was created without providing for passing of any benefit or income accruing therefrom in favour of the descendants of the dedicator while creating the endowments. A Hindu dedication has the following peculiarities:-_ _(1) A dedication to the religious or a charitable trust under Hindu law is not a gift or a transfer of property._ _(2) A dedication does not require writing or registration. No formal words or ceremonies are necessary to effect a dedication._ _(3) A dedication does not require acceptance on behalf of the idol or charity._ _(4) A dedication will not fail even though there is uncertainty in the name of the idol or uncertainty in the quantum of income that has to be applied to the trust._ _(5) A dedication will not fail even if a gift is made to an idol which is not in existence at the time of the testator's death Mohan Singh Vs._ R.S.A.Nos.1177 of 2013 & 1178 of 2013 63 _Hat Singh, 32 All 337, nor a dedication to a temple which is yet to be built to a deity._ _(6) A dedication will not fall even if there is destruction or a mutilation of the image of the deity Raghavachari Vs. Narayan, AIR 1974 Mad 166. A dedication is not affected by the Rule against Perpetuities and Accumulations._ _(7) A dedication is irrevocable even at the instance of the donor Deoki Nandan Vs. Mulidhar, AIR 1957 SC 133._ _(8) The dedication of property is not a sacrament but a secular act. The only difference between a dedication and secular gift is that in former no acceptance is necessary; mere renunciation of ownership by the donor with a particular object being sufficient to create an endowment Ram Swaroop Vs. Thakur Ram Chandra, AIR 1953 Nag 35._ _(9) Declaration in unequivocal term is sufficient. Where a tablet was fixed declaring that house was set apart for using as staying place for marriage parties of Khattries, it was held as sufficient to constitute the dedication Jay Dayal Vs. Diwan, ILR 1938 Lah 704."_ ## 50. **Goswami Shri Mahalaxmi Vahuji vs** ## **Rannchhoddas Kalidas And Ors : (1969) 2 SCC 853** paragraphs 15 and 16 are highlighted by the learned counsel which reads thus: _15. Though most of the present day Hindu public temples have been found as_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 64 _public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer Worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the courts have to address themselves to various questions such as :--_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 65 _(1 ) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?_ _(2) Are the members of the public entitled to worship in that temple as of right ?_ _(3 ) Are the temple expenses met from the contributions made by the public ?_ _(4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples ?_ _(5) Have the management as well as the devotees been treating that temple as a public temple ?_ _16. Though the appearance of a temple is a relevant circumstance, it is by no means. a decisive one. The architecture of temples differs from place to place. The circumstance that the public or a section thereof have been regularly worshiping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter of right is a_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 66 _strong piece of evidence to establish the public character of the temple. If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple in question is a public temple. In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple._ In Lakshmana v. Subramania _: (1923) AIR 1924 PC 44 the Judicial Committee was dealing with a temple which was initially a private temple. The Mahant of this, temple opened it on certain days in each week to the Hindu public free to worship in the greater part of the temple, and on payment of fees in one part only. The income thus received by the Mahant was utilised by him primarily to meet the expenses of the temple and the balance went to support the Mahant and his family. The Privy Council_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 67 _held that the conduct of the Mahant showed that he had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and the inference was, therefore, that he had dedicated it to the public. In Mundancheri Koman v. Achutan Nair, the Judicial Committee again observed that the decision of the case would depend on the inferences to be derived from the evidence as to the way in which the temple endowments had been dealt with and from the evidence as to the public user of the temples. Their Lordships were satisfied that the documentary evidence in the case conclusively showed that the properties standing in the name of the temples belonged to the temples and that the position of the manager of the temples was that of a trustee. Their Lordships further, added that if it had been shown that the temples had originally been private temples they would have been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts. In Deoki Nandan v. Murlidar, this Court observed that the issue whether a religious endowment is a_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 68 _public. or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and private endowment to the facts found. Therein it was further observed that the distinction between a public and private endowment is that whereas in the former the beneficiaries, which means the worshipers are specific individuals and in the later the general public or class thereof. In that case the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public._ In Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors _. : (1960) 1 SCR 773 this Court held that the vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the Rulers taken along with other relevant factors in that case were consistent only with the public nature of the temple."_ 51. The question revolves upon the proof of dedication of the plaint schedule properties to the defendants since it has already been found that temple belongs to Vattappilly Illom. Admittedly, there is no written document by which the R.S.A.Nos.1177 of 2013 & 1178 of 2013 69 dedication is alleged to have been made. Trial Court mainly relied on Ext.B2, the deposition of PW2, the father of plaintiff in O.S.No.131/1984 the previous suit filed by Keralapuram Devaswom and Devaswom represented by Bharanakkaran and the father of the plaintiff as the third additional plaintiff. 52. It has been found by the trial court that PW2 in that case deposed that property was allotted to his share in Ext.A3 partition deed and he dedicated the property to the temple committee and the temple committee is managing the properties. It is further found that, in Ext.B2 Sankaran Moothathu deposed that he dedicated the property in the year 1984 and it is also found that PW2 admitted that minutes were maintained by the Committee during 1981 and 1982. It is also found that in page No.6, he stated that if the case is decreed the 2[nd] plaintiff can take delivery of the property. 53. But it is to be noted that, O.S.No.131/1984 was a case filed by the plaintiff in that case, that is, Devaswom and the R.S.A.Nos.1177 of 2013 & 1178 of 2013 70 Devaswom represented by Bharanakkaran for evicting the trespasser and due to the objection raised by the defendants in that case that the plaintiffs have no authority to institute the suit and the additional third plaintiff is the actual owner of the temple and properties, additional third plaintiff was subsequently impleaded. Ext.B1 judgment passed in O.S.No.131/1984 also would go to show that the specific pleading is that the third plaintiff is the owner of the Keralapuram Devaswom. While answering issue Nos.1 and 2 in page No.7, the learned Munsiff categorically stated that in the affidavit filed by the third plaintiff in I.A.No.1947/88, petition for impleadment he had averred that the plaint schedule property belongs to the petitioner who is the third plaintiff in the suit and for the management of the affairs of the temple, 29 cents of property was set apart for the temple and it is also found that as an arrangement for the conduct of daily poojas in the temple and for the administration of the temple properties that the plaint schedule properties were entrusted with the committee in view of the fact that PW2, the third plaintiff was R.S.A.Nos.1177 of 2013 & 1178 of 2013 71 residing four miles away from the temple properties. So, there is finding in O.S.No.131/1984 that the temple committee was entrusted with the administration of the temple properties since the father of the plaintiff is residing four miles away from the temple properties. 54. Finding by the learned Munsiff in page No.16 of the judgment is that in Ext.B2, Sankaran Moothathu deposed that he dedicated the property in the year 1984 and there was no document. But, on going through Ext.B2, the statement given by PW2 is to a specific question put to him which is recorded in question answer form as to when exactly that he had given up the plaint schedule property in that case and the temple properties? Then, he answered it as in 1984. It is to be noted that O.S.No.131/1984 is a case filed by the defendants impleading the father of the plaintiff as third plaintiff against a trespass by third party to the temple properties. So, in order to protect the interest of the temple and its properties that PW2, father of plaintiff was giving evidence in that case. In one part of R.S.A.Nos.1177 of 2013 & 1178 of 2013 72 his deposition, he has also categorically stated that the administration of the temple was entrusted with the committee since he was living four miles away. There is no contention for the defendants that the property was dedicated by the third plaintiff to them in O.S.No.131/1984. 55. So also, the evidentiary value of Ext.B2, the deposition of PW2, Sankaran Moothathu in O.S.No.131/1984 is relevant to be appreciated. Section 33 of the Indian Evidence Act, 1872 deals with the relevancy of the evidence given by a witness in a subsequent judicial proceeding, which reads thus: ## **Relevance of certain evidence for proving, in subsequent proceeding, the truth of facts** **therein stated.-** Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence R.S.A.Nos.1177 of 2013 & 1178 of 2013 73 cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided – that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.– A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section". 56. So, as per section 33 of the Evidence Act the deposition of a witness in a judicial proceeding would be relevant for the purpose of proving in subsequent judicial proceeding when the witness is dead or cannot be found etc., on satisfying the conditions prescribed under the proviso i.e. (1) the previous proceeding was between the same parties or their representative in interest (2) that the adverse party in the first proceeding had the right and opportunity to cross-examine (3) the questions in issue were substantially the same in the first as in the second R.S.A.Nos.1177 of 2013 & 1178 of 2013 74 proceeding. 57. In this context it is relevant to quote **Kalyanaswamy v. Bakthavatsalam : 2020(4) KLT 913 SC** . In paragraph No.67 of the said judgment, **Krishnayya Surya Rao Bahadur Garu and others (Defendants) v. Venkata Kumara Mahitathi Surya Rao Bahadur Garu (AIR 1933 PC 202)** has been quoted. The relevant portion in paragraph No.20 which has been quoted reads thus: _“…........................ It will be a question depending for its correct answer upon the circumstances of each case where the question arises, whether there was a party to the first proceeding who was a representative in interest of a party to the second proceeding within the wider meaning which their Lordships attribute to these words. Turning back to the first proviso, it requires, in their Lordships’ view, that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in the first proceeding to which “the facts which the evidence states” were relevant. It covers not only cases of privity in estate and succession of title, but_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 75 _also cases where both the following conditions exist, viz. (1) the interest of the relevant party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding; and (2) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical. There may be other cases covered by the first proviso; but if both the above conditions are fulfilled, the relevant party to the first proceeding in fact represented in the first proceeding the relevant party to the second proceeding in regard to his interest in relation to the particular question in issue in the first proceeding, land may grammatically and truthfully be described as a representative in interest of the party to the second proceeding.”_ _[emphasis supplied]_ It is also held therein that applicability of Sec.33 of the Evidence Act does not depend upon the nature of the decision which is rendered in the earlier proceeding. 58. In this case, first of all, the previous case was in between the father of the plaintiff as the third plaintiff in the suit R.S.A.Nos.1177 of 2013 & 1178 of 2013 76 and suit was against a person who trespassed into the property. Secondly, there was no opportunity to cross-examine PW1 in that case who was representing the Devaswom, by PW2, the father of the plaintiff. The questions in issue were also not substantially the same since in the previous case the issue was trespass into the property and the plaintiff's father along with the other plaintiffs were prosecuting the case against the trespasser. So, none of the conditions to attract Sec.33 of the Evidence Act comes to the rescue of the defendants herein so as to rely on Ext.B2, the deposition of PW2, the father of the plaintiff herein except that he is no more in the present proceeding. So section 33 of the Evidence Act has no application so as to accept Ext.B2 in the present cases. So, findings made by the courts below based on Ext.B2 is not acceptable in law. Hence, the finding of the trial court that the evidence of Sankaran Moothathu in Ext.B2 deposition proves the case of the defendants that the plaint schedule properties were dedicated to the temple committee by the plaintiff's predecessor is perverse. R.S.A.Nos.1177 of 2013 & 1178 of 2013 77 59. Ext.X4, the building tax assessment register extract produced from the side of the defendant would show that, on 18.02.1985 for the period 1984-1985, the tax was paid with respect to the properties by Sankaran Moothathu. If at all, the plaint schedule properties were dedicated by him in the year 1972, as alleged by the defendants, the tax would not have been paid by Sankaran Moothathu for the period 1984-1985. So also, on perusing Ext.X1(a) also, it would only show that tax was being paid in the name of Thellakam Karayil Keralapuram Devaswom (Thellakam Sreekrishna Swamy Temple). Ext.X2(a) Thandapper Account in the name of Keralapurathu Devawom is also of no consequence since the temple and properties are found to be of Vattapilly illom already in point No.1. 60. In the year 1972 when the dedication alleged to have been made by the plaintiff's father he had no independent right over the temple or its properties. Ext.A5 prior partition deed would reveal that the administration of the temple was entrusted with Sakha No.1 in which the plaintiff's father was also a member R.S.A.Nos.1177 of 2013 & 1178 of 2013 78 and as per Ext.A3 partition deed of 1974 the temple and the properties have been set apart to the share of the plaintiff's father for the administration of the temple and it is also provided that he is entitled to receive all the income therefrom. Since there is a specific description in Ext.A3 partition deed also that the temple belongs to illam and the plaintiff's father has been entrusted only with the administration and the connected matters in relation to the temple and to receive the income therefrom it will not give any right to the plaintiff's father also to dedicate the property which is of the illam. As has been held in **Narayanan Pandarathil** in order to constitute a valid dedication such a dedication must be made by the owner of the property. First of all, in the year 1972, the property actually belongs to Sakha No.1 in Ext.A5. Sankaran Moothathu has no right whatsoever to dedicate the property which is allotted to the Sakha in which he is only a member and that too when the right given to the Sakha No.1 in 1954 partition deed, Ext.A3 is to look after the whole affairs of the temple in effecting the administration of the temple R.S.A.Nos.1177 of 2013 & 1178 of 2013 79 belonging to illom. In the year 1972, the father of the plaintiff has no exclusive right even for administration of the temple and as per Ext.A3 partition deed in 1974 the right has been given to him for the administration of the temple and its affairs exclusively. That also will not confer any right upon him to dedicate the temple which does not absolutely belongs to him. In Ext.A3, he has been given the right to conduct the administration or to get it done and to receive the income directly. Whenever there is specific provision entitling the sharers to appropriate income from the properties allotted to the temple for meeting expenses personally and not for the temple as held in **Narayanan Pandarathil** , the reasonable inference would be that the property is still set apart as provided to the family and the plaintiff's father was given the right of administration as well as to take income while doing administration directly or through anybody else. That may be the reason why it has come out that he has entrusted the administration of the temple with the committee. That will not in any way amounts to dedication as R.S.A.Nos.1177 of 2013 & 1178 of 2013 80 contemplated under the Hindu Law. Moreover, since he is not the absolute owner of the temple even as per Ext.A3 he will not have any right to dedicate the temple or the properties to a third party viz. a committee or the general public. Learned counsel for the plaintiff in this context also brings to my attention a stipulation in Ext.A3 partition deed wherein Sankaran Moothathu has been allotted 64¼ cents of property described in C schedule and giving him absolute right for alienation. That also is an indication that with respect to the temple and the property he has no right of alienation. 61. So findings made by the courts below that plaintiff’s father gave evidence in Ext.B2 that the property was dedicated to the temple committee is due to misappreciation of evidence since he has not ever stated in Ext.B2 about dedication of the temple to the committee. Further finding that admittedly there is a public trust is also wrong since from the beginning the case of plaintiff is that the temple and property belongs to him and there is no admission that it is a public trust. Hence the above findings of R.S.A.Nos.1177 of 2013 & 1178 of 2013 81 the trial court as confirmed by the first appellate court is perverse and this Court is empowered to interfere with the said finding under Section 100 and 103 of the Code of Civil Procedure also (See **Nagarajappa v. Narasimha Reddy : 2021 (5) KLT OnLine 1137 (SC)** . For the reasons stated above, the point so found in favour of plaintiff. ## **Point.No.4** 62. The learned counsel also contends about the doctrine of lost grant though he did not describe as to how the principle would be applicable to the fact situation of this case. Law of Easements and Licences by Justice P.S.Narayana, 7[th] Edition, page No.67 deal with doctrine of lost grant. It says that the doctrine of lost grant is originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user. In **Lakshmidhar misra v. Rangalal : AIR 1950 P.C.56** it has been held that no lost grant can be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a village and such a R.S.A.Nos.1177 of 2013 & 1178 of 2013 82 right can be acquired only by custom. Since lost grant originates in grant, its owners whether original or by devolution are to be such persons as are capable of being the recipients of a grant and a right exercised by inhabitants of a village from time to time is neither attached to any estate in land nor it is such a right as is capable of being made the subject of a grant, there being not admissible grantees. 63. Paragraph 7 of **Manohar Das v. Charuchandra : AIR** **1955 SC 228** is relevant in this context to be extracted which reads thus: _“7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 83 _presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumption juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. "It cannot be the duty of a Judge to presume a grant of the non-existence of which he is convinced" observed Farwell, J. in Attorney-General v. Simpson [1901] 2 Ch. D. 671, 698). So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara and Others MANU/SC/0048/1951 : [1951] S.C.R. 431, 446). There will likewise be no scope for this presumption, if there is no person capable of making a grant : (Vide Halsbury's Laws of England, Vol. IV, page 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. [Vide Barker v. Richardson ([1821] 4 B. & Ald. 579) and The Rochdale Canal Company v. Radcliffe 1852 18 Q.B. 287)]._ 64. So, in order to claim right by lost grant first of all, R.S.A.Nos.1177 of 2013 & 1178 of 2013 84 there should be a person who is capable of making a grant. So also, the principle cannot be applied in the case of fluctuating body of persons. Here, the case of the defendant is that the father of the plaintiff dedicated the temple to the public or to the committee. So, both are fluctuating bodies and also the granter, the father of the plaintiff has no authority to grant the temple and the property since as per Ext.A3 only a right of administration of the temple either directly or through somebody has been reposed on him and that will not confer any right or authority to the father of the plaintiff to create a grant of the property to the public or to the committee as claimed by the defendants. So, the principle of lost grant has also no application to the present case. 65. Defendants raised a contention that plaintiff has not mounted the box and only PW1 the power of attorney holder was examined from the side of the plaintiff. First of all, oral evidence of the parties is of little significance in the present case in view of the question involved for consideration. Learned counsel for the R.S.A.Nos.1177 of 2013 & 1178 of 2013 85 plaintiff relies on Section 2 of the Powers of Attorney Act, 1882 (Act No.7 of 1882) which provides that the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof and would contend that the evidence adduced through the power of attorney is as good as the evidence of the plaintiff. In **Hamsa v. Ibrahim : 1993 (2) KLT 698** His Lordship Justice K.T.Thomas as he then was, had occasion to consider the effect of power of attorney and the extent to which power of attorney can act on behalf of the principal. Paragraph No.8 is relevant here to quote which reads thus: _8. “Power-of-attorney” is the instrument by which a person is authorised to act as the agent of_ R.S.A.Nos.1177 of 2013 & 1178 of 2013 86 _the person granting it (vide Black’s Law Dictionary). In Stroud’s “Judicial Dictionary”, power-of-attorney is described as “an authority whereby one is set in the turne, stead, or place of another to act for him”. Stone, C.J. has adopted the said definition as effective and acceptable in Ramdeo v. Lalu Natha (AIR 1937 Nag. 65). S.2 of the Power-of-Attorney Act, 1882 empowers the donee of a power-of-attorney to do anything “in and with his own name and signature” by the authority of the donor of the power. The section declares that everything so done “shall be as effectual in law as if it had been..... done by the donee of the power in the name and with the signature.... of the donor thereof (shorn of words which are not necessary in this context). In the light of such declaration, the legal position is that the power of attorney holder can do everything empowered by the donor and all such acts done by the donee shall have legal recognition and acceptance as though such acts were done by the donor himself."_ 66. Everything done by the power of attorney in the name and signature with the donor thereof is legally valid and such acts of the power of attorney shall have legal recognition and R.S.A.Nos.1177 of 2013 & 1178 of 2013 87 acceptance as though such acts were done by the donor himself. It is true that in **Janki Vashdeo v. Indusind Bank : 2005 (2) KLT 265 (SC)** the Apex Court while dealing with competency of the evidence of the power of attorney holder in a civil proceedings held that as per Order III Rule 1 of the Code, power of attorney cannot depose in respect of matters which are in the exclusive knowledge of the principal. 67. In **Ummer Farooque v. Naseema : 2005 (4) KLT 565** , a Division Bench of this Court while dealing with order III Rules 1 and 2 of the Code it has been held that power of attorney can give evidence only in respect of acts done by him in exercise of powers granted by instrument but cannot depose for the Principal in respect of the matter on which the Principal alone can have personal knowledge. 68. Ext.A1 power of attorney has been given to PW1 to conduct the above cases, appeal, revision etc and to institute any new litigation on behalf of plaintiff or Devaswom in connection with possession, preservation, administration and management R.S.A.Nos.1177 of 2013 & 1178 of 2013 88 of Devaswom properties etc. 69. Plaintiff, the son of Sankaran Moothathu, even according to the defendants was abroad during the relevant time. Moreover, interpretation of the documents and the proof of the factum of dedication which could be inferred from the attending circumstances and documents is of greater importance. Hence, the fact that the plaintiff was not examined is of no consequence. 70. Learned counsel for the plaintiff has got yet another contention that defendants filed O.S.No.56/2002 for a declaration that first plaintiff Devaswom is the absolute owner of the plaint schedule properties and for a mandatory injunction declaring the defendants to return the key of the temple and for permanent injunction and hence according to him since the suit has been filed alleging that there is dedication of the property and dedicated property vests with the idol which is a juristic person the deity is a necessary party to the suit. 71. In **Govindan Nair v. Gopalakrishna Sharma [1988** **(1) KLT 739]** it has been held that a Hindu idol is a juristic R.S.A.Nos.1177 of 2013 & 1178 of 2013 89 person and has juridical status with the power of suing and being sued. In paragraph No.7 it has been made clear that in a suit where relief claimed is for settlement of a scheme for administration of the temple properties there is no scope for contending that any of the properties did not or does not vest in the idol. But in suits where the right or title over the properties is questioned, the deity is a necessary party which could then be represented by a natural person having no interest or claim over such properties. 72. In **Sri Marthanda Varma (D) Thr. LRs. & Anr. v. State of Kerala : 2020 (4) KLT 490 (SC)** Apex Court observed that deity is a perpetual minor in the eye of law, the court has jurisdiction to protect it and further that Sree Padmanabhaswamy Temple being a public temple court has jurisdiction as _parens patriae_ . 73. In O.S.No.56/2002, the plaintiffs/defendants has got a specific contention that the plaint schedule properties have been dedicated to the general public or to the committee formed by R.S.A.Nos.1177 of 2013 & 1178 of 2013 90 the people of locality and the relief is also sought to declare that the Devaswom is the absolute owner of the plaint schedule properties and also for consequential injunction. It is a case in which the right and title over the properties is questioned and hence the deity is a necessary party in O.S.No.56/2002. Hence the suit filed without impleading the Deity as a party is bad for non-joinder of necessary parties also. 74. In the result, R.S.A.Nos.1177 of 2013 and 1178 of 2013 are allowed. The judgment and decree passed by the courts below in O.S.No.41/2002 and O.S.No.56/2002 as confirmed in A.S.No.313/2006 and A.S.No.314/2006 are reversed and set aside. O.S.No.41/2002 is decreed and defendants/respondents or anybody under them are permanently restrained from trespassing into the plaint Schedule item Nos.1 and 2 properties and committing any waste thereof or interrupting day to day pooja or affairs of the temple. O.S.No.56/2002 stands dismissed. Two keys of _sanctum sanctorum_ , if at all handed over to plaintiffs in O.S.No.56/2002, those shall be returned to plaintiff in R.S.A.Nos.1177 of 2013 & 1178 of 2013 91 O.S.No.41/2002 within one month. In the facts and circumstances, parties are directed to bear their respective costs in both suits. Pending interlocutory applications, if any, are closed. ## **M.R.ANITHA, JUDGE** jsr R.S.A.Nos.1177 of 2013 & 1178 of 2013 92 ## **APPENDIX OF RSA 1177/2013** APPELLANT'S EXHIBITS : ANNEXURE A1 : THE PHOTOGRAPHS SHOWING THE NATURE OF COMPOUND WALL AND STRUCTURE OF THE TEMPLE AND ROOF. ## **RESPONDENT'S EXHIBITS:** Exhibit R1 A TRUE COPY OF THE NOTICE OF DEVA PRASHNAM Exhibit R2 THE PICTURES OF THE SANCTUM SANCTORUM Exhibit R3 THE TRUE COPY OF THE PRASHNA CHARTH OF DEVA PRASHNAM ANNEXURE R4 ORIGINAL OF THE LETTER FROM THE TEMPLE THANTHRI DATED 26.08.2022 Annexure R5 THE ESTIMATE BY STHAPATHY KALALAYAM MOHANAN ACHARI DATED 05.9.2022 ALONG WITH THE PRESENT CONDITION OF 'SREEKOVIL' WITH ORIGINAL R.S.A.Nos.1177 of 2013 & 1178 of 2013 93 ## **APPENDIX OF RSA 1178/2013** PETITIONER'S EXHIBITS: ANNEXURE A1 CERTIFIED COPY OF THE ENQUIRY REPORT DATED 08.03.1977 IN OA 1498/75 BY THE REVENUE INSPECTOR ANNEXURE A2 CERTIFIED COPY OF THE ENQUIRY REPORT DATED 08.03.1977 IN OA 185/76 BY THE REVENUE INSPECTOR TRUE COPY P.S TO JUDGE