M.K. Parameswaran Elayath v. M.P. Parameswaran Elayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 16TH DAY OF SEPTEMBER 2014/25TH BHADRA, 1936** ## **OP(C).No. 1812 of 2014 (O)** **--------------------------CMA 62/2012 of ADDL. DISTRICT COURT - VII, ERNAKULAM** ## **----------** ## **PETITIONER :** - **------------------** **M.K.PARAMESWARAN ELAYATH, S/O. LATE KESAVAN ELAYATH KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** **BY ADV. SRI.M.BALAGOVINDAN** ## **RESPONDENTS/APPELLANTS/DEFENDANTS :** **----------------------------------------------------------------** **1. M.P.PARAMESWARAN ELAYATH, AGED 77 YEARS, RESIDING AT D.NO. 21/1798, S/O. PARAMESWARAN ELAYATH, MANGALA PILLI ILLAM, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-6.** **2. GANGA ANTHARJANAM W/O. LATE KESAVAN ELAYATH, KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** **3. M.K.NEELAKANDAN ELAYATH KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** **4. SATHI, W/O. M.K.PARAMESWARAN ELAYATH, KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** **5. ARUN P., S/O. M.K.PARAMESWARAN ELAYATH KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** ## **6. LATHA** - **W/O. NEELAKANDAN ELAYATH, M.K.NEELAKANDAN ELAYATH, KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** ## **OP(C).No. 1812 of 2014 (O)** ## **7. VISHNU** **S/O. NEELAKANDAN ELAYATH, M.K.NEELAKANDAN ELAYATH, KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** ## **8. M.N.RAMAN NAMBOODIRI,** **S/O. LATE NARAYANAN ELAYATH, KIZHAKE MANGALA PILLI ILLAM, NEAR MAHAVISHNU TEMPLE, KUMBALANGHI VAZHI, PALLURUTHY VILLAGE, KOCHI-06.** **R1 BY ADV. DR.K.P.PRADEEP R3,R6 & R7 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** **OP(C).No. 1812 of 2014 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1: TRUE COPY OF THE SUIT IN O.S. 264/2013.** **EXHIBIT P2: TRUE COPY OF THE INJUNCTION APPLICATION IN I.A. 1582/2013. EXHIBIT P3: TRUE COPY OF THE ORDER IN I.A. 1582/2013 ON THE FILE OF MUNSIFF'S COURT, KOCHI DATED 12-09-2013.** **EXHIBIT P4: TRUE COPY OF THE ORDER IN C.M.A.NO. 62/2013 BEFORE THE DISTRICT COURT, ERNAKULAM DATED 15-7-2014.** **RESPONDENT(S)' EXHIBITS :** **EXT.R1((A): COPY OF THE PARTITION DEED NO. 1133/1958 DT 11/08/1958 OF THE SRO, KOCHI.** **EXT.R1(B): COPY OF THE JUDGMENT DT 29/9/1987 IN O.S. NO. 97 OF 1986 OF THE PRINCIPAL SUB JUDGE, KOCHI.** **EXT.R1(C): COPY OF THE JUDGMENT DT 8/9/1997 IN AS NO. 293/1988 OF THIS HON'BLE COURT. EXT.R1(D): COPY OF THE DECREE DT 26/7/1990 IN OS NO. 305 OF 1988 OF THE PRINCIPAL MUNSIFF COURT, KOCHI.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## O.P.(C) No. 1812 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of September, 2014 ## **J U D G M E N T** This original petition is directed against the order dated 15.07.2014 in C.M.A.No. 62/2013, whereby, the petitioner was found competent to manage and administer the family temple Mangala Palli Mahavishnu Temple and the defendants were restrained from interfering with the right to conduct poojas and rituals by him as per the terms of partition deed entered between the members of the family. 2. The facts absolutely necessary for the disposal of this original petition are as follows: The Mangala Palli Illam branched out into four 'Thavazhies' as per Ext.R1(a), partition deed. E schedule in the said document was to be possessed by the second Thavazhi in the deed and the income from that property was to be utilized for the purpose of carrying on the affairs of the family temple. It is also stipulated that the second **O.P.(C) No. 1812 of 2014** **-2-** executant in the document is to administer the affairs of the temple initially and on his mismanagement or maladministration, the fifth executant is to take over. If the 5[th] executant is not administering the affairs of the temple properly, then on such opinion being formed by the executant Nos. 2 and 7, the 7[th] executant is to succeed to the administration. 3. It is not much in dispute that the suit was instituted against the second executant and the administration fell into the hands of the 5[th] executant. The 5[th] executant died on 25.02.2013. 4. Then the dispute arose. It is now contended on behalf of the second executant's descendants that on the death of the 5[th] executant, the property as it is to be possessed by the second thavazhi in Ext.R1(a), the right of management reverts back to them. The 7[th] executant in Ext.R1(a), who is the senior most male member in the family on the other hand contended that the 2[nd] executant having **-3-** ## **O.P.(C) No. 1812 of 2014** been found incompetent and removed, on the death of the 5[th] executant, he is entitled to administer the affairs of the temple. ## 5. O.S.No.264 of 2013 was laid by the 7[th] executant seeking the following reliefs: “7. Hence it is humbly prayed that this Honourable Court be pleased to pass a judgment and decree in favour of the plaintiff and against the defendants in the following terms. a) Declaring that plaintiff being eldest living male member of the 3 Thavazhies, is the hereditary trustee entitled to management and administration of the temple and its properties after the death of Kesavan Elayath the previous trustee who died on 25.02.2013 and is entitled to management and administration of family temple Mangala Pilli Illam Paradevatha Mahavishnu temple situated in plaint schedule properties and **-4-** ## **O.P.(C) No. 1812 of 2014** on plaintiff demise some will devolve upon his male children. b) Issue a permanent prohibitory injunction restraining the defendants, their agents and men from interfering or obstructing the plaintiff with plaintiff's right to manage and administer the family temple Mangala Pilli Illam paradevatha Mahavishnu Temple and in conducting poojas and other rituals therein and using B schedule movables and from taking income and usufructs from trust properties i.e. A schedule properties and not to obstruct plaintiff's right to administer and manage the above family temple and its properties and income from therein. c) Fix the boundaries of A schedule properties since there are not visible boundaries for the same and some encroachments **-5-** ## **O.P.(C) No. 1812 of 2014** are there. d) Decree the suit with costs. And e) Grant such other reliefs which plaintiff prays for in the course of this suit and which Court deems fit to grant.” 6. The suit was resisted by the defendants pointing out the history of various litigations between the parties and also contending that the 7[th] executant cannot claim to be a hereditary trustee and cannot get a declaration to that effect. 7. It is seen that the plaintiff in the suit moved I.A.No. 1582 of 2013 seeking an interim relief against the defendants from interfering with the administration and management of the family temple by the plaintiff. By Ext.P3 order, the same was dismissed. The aggrieved plaintiff carried the matter in appeal as C.M.A.No.62 of 2012. The lower appellate court assuming that the right of management falls on the senior most male member of the ## **O.P.(C) No. 1812 of 2014** **-6-** family, found the plaintiff, the 7[th] executant in Ext.R1(a) to be the senior most member of the family and conferred the benefit on him and allowed the appeal accordingly. It is the said order that is assailed. 8. Sri. M. Balagovindan, the learned counsel appearing for the petitioner contended that the suit itself is not maintainable in view of the relief sought for in the plaint. Going by the terms of Ext.R1(a), the plaintiff in the suit cannot get a declaration that he is the sole hereditary trustee entitled to the management of the temple and its properties and nobody else has any manner of right over the same. It has further contended that the relief of injunction sought for in the plaint being an ancillary relief, if the main relief cannot be granted, ancillary relief also cannot be granted. When that be the position, i.e., when the relief in the suit itself could not have been granted, it is contended on behalf of the petitioner that an interim relief also could not have been granted. At any rate, according to the **-7-** ## **O.P.(C) No. 1812 of 2014** learned counsel, going by the recital in Ext.R1(a), the property i.e., E schedule set apart for managing the affairs of the temple is to be in the possession of the second Thavazhi of which the 2[nd] executant was a member and it can only be at the junction of the members of the second Thavazhi that the 7[th] executant in Ext.R1(a) can assume Management. It is contended on behalf of the petitioner that Ext.R1(a) does not contemplate a situation where on the death of the 5[th] executant, the 7[th] executant automatically succeeds to his right of administration of the temple. At any rate, according to the learned counsel, the finding of the lower appellate court that the recital in Ext.R1(a) shows that the senior most male member of the family is to manage and administer the affairs of the temple cannot be accepted at all. The said observation is without any basis. Accordingly, it is contended that the lower appellate court proceeding on that premises has erred in conferring the right of management and administration of the temple on the 7[th] executant in **-8-** ## **O.P.(C) No. 1812 of 2014** Ext.R1(a). 9. The learned counsel appearing for the respondents on the other hand contended that even assuming that the main prayer that is the declaratory relief may not be capable of being granted, that does not preclude the courts from considering the second relief relating to injunction restraining the others except the 7[th] executant in Ext.R1(a) conducting the administration and management of the temple. It is pointed out by the learned counsel that the relief of injunction is not an ancillary relief to the main relief but it is an independent and distinct relief for which separate court fee has been paid. It is true according to the learned counsel for the respondents that Ext.R1(a) does not contemplate a situation consequent on the death of any one of the three parties namely the 2[nd] , 5[th] and 7[th] executant as to who should succeed to the administration of the temple. But a reasonable reading and understanding of the terms of Ext.R1(a) would clearly show that when the 2[nd] executant ## **O.P.(C) No. 1812 of 2014** **-9-** has been found to be incompetent to manage the affairs of the temple and has been replaced by the 5[th] executant, on the death of the 5[th] executant, it will be imprudent to hold that the administration reverts back to the 2[nd] executant or his successors so long as the 7[th] executant is alive. Going by the recitals in Ext.R1(a), the administration and management of the temple can revert back to the 2[nd] executant or his legal heirs as the case may be only on finding that the 7[th] executant is not managing the property properly and in the interest of the temple. The lower appellate court therefore was justified according to the learned counsel, in conferring the right of administration and management of the temple on the plaintiff, who is the 7[th] executant in Ext. R1(a). 10. It is true that the recitals in Ext.R1(a) presents certain difficulties. The Mangala Palli Illam branched out into four Thavazhies under that document. The concept of Thavazhi is unknown to Namboothiris of Kerala except ## **O.P.(C) No. 1812 of 2014** **-10-** probably for families in Payyannur Gramam. Even assuming that the word “Thavazhi” has been used, the concept of Thavazhi has a well laid connotation and going by that principle, it could not be said that any one of the branches constitute a natural Thavazhi. Be as it may, the court is called upon to consider the question as to who should succeed to the administration and management of the family temple on the death 5[th] executant in Ext.R1(a) who had replaced the 2[nd] executant on the 2[nd] executant being found to be incompetent to administer the affairs of the temple. 11. One cannot omit to note that going by the recital in Ext.R1(a), the E schedule item is set apart for meeting the expenses of the temple apart from paying tax and other revenue payments regarding the property and the property is to be in the possession of the second Thavazhi. It is further stated that if the administration of the temple shall initially be conducted by the 2[nd] executant in Ext.R1(a), and ## **O.P.(C) No. 1812 of 2014** **-11-** if it is found that he is mismanaging or not conducting the affairs of the temple properly, after issuing notice, he could be replaced by the 5[th] executant. Further recital is that if the 5[th] executant is found mismanaging the affairs of the temple, in the opinion of the 2[nd] and the 7[th] executant, he could be removed and the administration would then go to the hands of the 7[th] executant. If it so happened that the 7[th] executant mismanages the affairs of the temple, then the administration is to revert to the 2[nd] executant. This is the scheme of administration and management as per Ext.R1(a). 12. It is not in dispute that there was an earlier suit complaining of mismanagement and maladministration by the 2[nd] executant in Ext.R1(a) and with the intervention of the court, the administration and management of the temple came to vest with the 5[th] executant. The 5[th] executant died on 25.02.2013. The question that arises for consideration is who should carry on the administration and management of the temple. ## **O.P.(C) No. 1812 of 2014** **-12-** 13. According to the petitioner, as the second Thavazhi is to be in possession of the property, they are to decide as to who should thereafter conduct the administration and management of the temple. It is at their junction alone any arrangement can be made and in the absence of all members of that Thavazhi a decision regarding the persons to conduct the administration and management cannot be taken. The rival contention is that the 2[nd] executant having been found to be incompetent and mismanaging the affairs of the temple and replaced. Going by the recitals in Ext.R1(a), as long as any one of the three persons, namely executants 2, 5 and 7 are alive, on the death of the 5[th] executant, who was able to wrest the administration and management of the temple through the court, it cannot go back to the 2[nd] executant as he was found to be incompetent and then as 7[th] executant alive, among the three as per the document should have the right to administer and manage the temple. ## **O.P.(C) No. 1812 of 2014** **-13-** 14. The learned counsel appearing for the appellant relied on the decision reported in **K.P.M. Aboobucker** v. **V.K. Kunhamoo and others** [AIR 1958 Madras 287] contending for the position that an interim relief granted shall not be greater than what the ultimate relief that could be granted by the court. The said proposition is invoked by the learned counsel for the petitioner, in the light of the declaratory prayer sought for in the plaint. The learned counsel also pointed out that the relief regarding injunction is an ancillary relief. 15. It is true that if relief could not be ultimately granted in the suit, an interim relief of that sort cannot be granted. On going through the plaint, it is found that the declaratory relief and the relief regarding injunction are independent and distinct reliefs. Court fee have been paid separately for the reliefs. If the prayer for injunction was an ancillary relief, then the parties need not have been paid court fee for ancillary relief. The fact that court fee has been ## **O.P.(C) No. 1812 of 2014** **-14-** independently paid for that relief would indicate that even apart from the declaratory relief sought for by the plaintiff in the suit who is the 7[th] executant in Ext.R1(a), he was asserting a right in terms of Ext.R1(a) who succeeds to the administration and management of the temple in terms of Ext.R1(a). 16. As rightly pointed out by the learned counsel for the respondents, the 2[nd] executant was removed from the management and administration on being found to be incompetent to do so and that is how the 5[th] executant in Ext.R1(a) came to administer and manage the affairs of the temple. True, the 5[th] executant was not found to be incompetent at all as required under Ext.R1(a) or has been removed from the act of administration and management of the temple. He died on 25.02.2013. Going by proper and reasonable understanding of the recital in Ext.R1(a), it would then mean that the person who was found to be incompetent and from whom the management and ## **O.P.(C) No. 1812 of 2014** **-15-** administration was removed, in the light of the fact that a person who is competent to administer and manage the temple is alive as on the date is entitled to assume the administration and management of the temple. 17. The claim now made that unless there is consent of the descendants of the 2[nd] executant in Ext.R1(a), no decision can be taken as to who should have the management and administration of the temple is without basis. To that extent, Ext.R1(a) assumes to solve the issue. So long as the 7[th] executant is alive and it was found that the 2[nd] executant was incompetent and the right to manage was taken away from him, it will not be proper to say that on the death of the 5[th] executant, it should go back to the 2[nd] executant or his successors. It is necessary to notice here that the right of management and administration of the temple reverts to the 2[nd] executant, if it is later found that the 7[th] executant was mismanaging the affairs of the temple. Therefore the order of management and administration is ## **O.P.(C) No. 1812 of 2014** **-16-** clearly discernible from Ext.R1(a). As to what should happen after the lifetime of the 7[th] executant is a matter which does not arise for consideration in this original petition. 18. The contention that on the death of the 5[th] executant, the right of management and administration of the temple reverted to the 2[nd] executant cannot be countenanced in view of the recitals in Ext.R1(a), especially when the 5[th] executant succeeded to the management and administration of the temple on the 2[nd] executant being found to be incompetent and was found to be mismanaging the affairs of the temple. 19. Viewed from that angle, the lower appellate court though for different reasons seems to be justified in conferring right of administration and management on the plaintiff in the suit for the time being. As to what would happen after the lifetime of 7[th] executant are allmatters to be determined in the suit. ## **O.P.(C) No. 1812 of 2014** **-17-** 20. For the above reasons, this Court finds no merit in the original petition and there is no justifiable reasons to interfere with the findings of the lower appellate court though for different reasons. It is made clear that none of the observations made by this Court and the lower appellate court shall stand in the way of the trial court disposing of the suit in accordance with law and in the light of the evidence adduced in the case. The trial court may dispose of the suit as expeditiously as possible at any rate within a period of six months from the date of next posting. sd/- **P.BHAVADASAN JUDGE** ds