Oorankudi Devi Temple, Kadakkavoor v. Krishnan Anandavally and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935** ## **RSA.No. 639 of 2007 ( )** ## **------------------------** **AGAINST THE JUDGMENT IN AS.231/2001 of III ADDL. DISTRICT COURT, THIRUVANANTHAPURAM DATED 17-10-2006** **AGAINST THE JUDGMENT IN OS.271/1992 of SUB COURT,ATTINGAL DATED 30-04-2001** ## **APPELLANT(S)/APPELLANTS/RESPONDENTS 1,2 AND 4/PLTFFS.:** - **----------------------------------------------------------------------------------------------------------** **1. OORANKUDI DEVI TEMPLE, KADAKKAVOOR, REPRESENTED BY ITS SECRETARY.** **2. V.JANARDHANAN, SECRETARY, OORANKUDI DEVI TEMPLE, KADAKKAVOOR.** **3. RAMAN SREEDHARAN, RESIDING AT KAPPOORIVILAKOM VEEDU VAKKOM DESOM, VAKKOM VILLAGE PRESENT PRESIDENT OF THE KADAKKAVOOR OORANKUDI DEVI TEMPLE.** **BY ADVS.SRI.P.B.SURESH KUMAR (Senior) SRI.K.P.SUJESH KUMAR** ## **RESPONDENT(S)/APPELLANTS AND RESPONDENTS 5 TO 9/DEFEND:** - **--------------------------------------------------------------------------------------------------------------** **1. KRISHNAN ANANDAVALLY, RESIDING ATOORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM.** **2. KRISHNAN SOMAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM.** - **(R2 DELETED AND ADDED R9 TO R12)** **3. KRISHNAN VIDHYADHARAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM.** **4. KRISHNAN PRABHAKARAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM.** **..2** **RSA.No. 639 of 2007 ( )** **-2-** **5. KRISHNAN BHANU, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE, KADAKKAVOOR DESOM.** **6. KRISHNAN DIVAKARAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM.** **7. KRISHNAN SOMAN ALIAS K.SOMAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM, ALSO HAVING THAIVILAKOM VEEDU VAKKOM VILLAGE, VAKKOM DESOM.** **(R7 DELETED AND ADDED R9 TO R12)** **8. KUNJAMMA ARUNDHATHI, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE KADAKKAVOOR DESOM.** **ADDITIONAL. R9 TO R12** **9. VILAMA, W/O. SOMAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE, KADAKKAVOOR DESOM.** **10. LOBHA, D/O. SOMAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE, KADAKKAVOOR DESOM.** **11. LAJA, D/O. SOMAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE, KADAKKAVOOR DESOM.** **12. LAL, S/O. SOMAN, RESIDING AT OORANKUDI VEEDU, KADAKKAVOOR VILLAGE, KADAKKAVOOR DESOM.** **RESPONDENTS 2 AND 7 DELETED FROM THE PARTY ARRAY AND RESPONDENTS 9 TO 12 ADDED AS PER THE ORDER DATED 14.11.2007 IN I.A. NO.1946/2007** **R1 BY ADV. SRI.P.K.MUHAMMED R6 BY ADVS. SRI.M.R.ANANDAKUTTAN** - **SMT.M.HEMALATHA** **SRI.R.S.MADHU** **SRI.MAHESH ANANDAKUTTAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CR** ## **N.K.BALAKRISHNAN, J.** ................................................................. R.S.A. No. 639 of 2007 .................................................................... Dated 27.3.2013 ## **JUDGMENT** Plaintiffs are the appellants. The first plaintiff is a private temple which belonged to a family. Plaintiffs 2 and 3 were stated to be the Secretary and President of the Managing committee. The third plaintiff died pending suit. The person who claimed to have been subsequently elected as President got himself impleaded as the 4th plaintiff. The suit is for recovery of possession of the plaint B schedule property measuring 32 cents which is part of the total extent of 63 cents which as shown as the plaint A schedule. It was contended that the plaintiffs came to know that the defendant had, by practising fraud and collusion, obtained a purchase certificate from the Land Tribunal in respect of the B schedule property as per the order in SM 55/1984. It is contended that the purchase certificate so obtained by -:2:- R.S.A. No. 639 of 2007 the defendant is vitiated by fraud and collusion and that it is not valid and binding on the first plaintiff deity or the members of the family to whom the temple and the plaint schedule property belong. It was contended that the building situated in the B schedule property was let out to the first defendant on a monthly rent of Rs. 30 and she was paying the same but subsequently she defaulted to pay the rent. The plaintiff also contended that the members of Oorankudi family constituted a Committee during 1981 for the management and administration of the first plaintiff temple and its properties and that plaintiffs 2 and 3 who are the members of that family were elected as the Secretary and President of that committee and they were entrusted with the authority to manage the day-to-day affairs of the temple. Since the first defendant by fraudulent means obtained a purchase certificate the suit was filed to recover possession of the plaint schedule property ignoring the purchase certificate which was not R.S.A. No. 639 of 2007 -:3:- valid in view of the fact that the members of the family were not given notice in the proceedings in which the purchase certificate was issued. The defendants contended that no such committee was constituted and plaintiffs 2 and 3 are not the Secretary and President and they are not having any authority to institute the suit for and on behalf of the first plaintiff/temple. It was further contended that the first plaintiff temple is a public religious trust of a charitable nature and so the suit is not maintainable for want of sanction under Sec. 92 of the Code of Civil Procedure. 2. The courts below found that the temple in question is a private temple and not a public temple as contended by the defendants. It was also found that the purchase certificate obtained by the first defendant is vitiated by fraud and collusion and that it is not valid and binding as against the first plaintiff temple or other members of the family. But it was found that the claim -:4:- R.S.A. No. 639 of 2007 made by the plaintiffs that a Committee was constituted and that the the Second defendant was elected as the Secretary and the 3rd defendant was the President of the Committee and so they are entitled to sue on behalf of such a Committee was found against. But at the same time, the trial Court found that the plaintiffs 2 and 3 and the subsequently impleaded fourth plaintiff were members of the very same Oorankudi family and as such they are entitled to get a decree for recovery of possession on behalf of the first plaintiff deity. Hence, the suit was decreed. 3. The lower appellate Court concurred with the view taken by the trial Court as regards the purchase certificate projected by the defendants and held that it is vitiated by fraud and collusion. It was also found that the first plaintiff temple is a private temple. Since plaintiffs 2 and 3 and subsequently plaintiffs 2 and 4 could not prove that there was in existence a validly constituted Committee and that the plaintiffs 2 and 4 are the Secretary and -:5:- R.S.A. No. 639 of 2007 President of the Committee the lower appellate Court held that they are not entitled to sue on behalf of the first plaintiff deity and therefore only on the ground of the incompetency of plaintiffs 2 and 4 to represent the first plaintiff deity, the appeal was allowed and the suit was dismissed. 4. The learned Sr. Counsel Sri.Suresh Kumar would submit that the lower appellate court has gone wrong in upsetting the finding entered by the trial court regarding the competency of plaintiffs 2 and 4 to represent the first plaintiff deity. Even if it is assumed that the plaintiffs could not prove that there was a Committee constituted for the management of the affairs of the temple, plaintiffs 2 to 4 were the members of the very same Oorankudi family and that as the members of the family, to whom the private temple belongs, they were perfectly entitled to protect the interest of the first plaintiff deity and for that purpose they were entitled to sue for recovery of possession on behalf of -:6:- R.S.A. No. 639 of 2007 the first plaintiff temple, it is further argued. 5. The following substantial questions of law have been framed:- i) Whether plaintiffs 2 to 4 as the members of the family to which the temple belongs and as co-owners of the property are entitled to sue for recovery of possession on behalf of the first plaintiff/temple ? ii) Whether the lower appellate Court erred in holding that plaintiffs 2 to 4 are incompetent to institute the suit on behalf of the first plaintiff temple/deity ? The fact that the plaint schedule property measuring 63 cents belonged to the first plaintiff temple, which has been concurrently found in favour of the plaintiffs, is now beyond challenge. The evidence would show that the building in the plaint B schedule property alone was let out to the first defendant and that she was in possession of the property only as a lessee of the plaint B schedule building. The purchase certificate relied upon by the defendants was found to be vitiated by fraud and collusion. The evidence would show that no individual notice was given to the plaintiff or any of the members of R.S.A. No. 639 of 2007 -:7:- the family who was competent to represent the tarvad/family. It was obtained behind the back of the plaintiffs and other members of the family and as such the courts below were perfectly justified in holding that the purchase certificate obtained by first defendant is vitiated by fraud and collusion. That finding also is not in challenge now. 6. The only other question that survives for consideration is whether plaintiffs 2 and 3 were entitled to file the suit on behalf of the first plaintiff and whether after the death of the 3rd plaintiff, 4th plaintiff is competent to prosecute the suit on behalf of the first plaintiff/temple. As has been mentioned earlier, the first plaintiff/temple is held to be owner of the A schedule property of which the B schedule property is a part. The suit is only for recovery of possession of the B schedule property for and on behalf of the first plaintiff/temple. The recovery is not sought on behalf of any of the members of the family but only on R.S.A. No. 639 of 2007 -:8:- behalf of the temple. Since the evidence would show that there was total dedication of the A schedule property in favour of the temple, it can be very well found that the first plaintiff was the owner of the A schedule property of the which the B schedule is a part. It was specifically mentioned in the plaint that plaintiffs 2 and 3 are the members of Oorrankudi family to whom the temple belonged. That specific averment in the plaint was not specifically denied in the written statement. When a fact is specifically averred in the plaint and when that is not specifically denied in the written statement that part of the averment which was not traversed by the defendants must be held to have been admitted. Not only that P.W.1 has spoken in clear terms that the plaintiffs 2 to 4 are the members of Oorrankudy family. That also could not be effectively controverted by the defendants. Therefore, a finding was entered by the trial court that plaintiffs 2 to 4 were the members of the Oorankudi family. Since the -:9:- R.S.A. No. 639 of 2007 temple in question is a private temple owned by the family, the plaintiffs 2 to 4, being the co-owners of the property, were entitled to sue for recovery of possession on the strength of title, on behalf of all the co-owners. There was complete dedication in favour of the temple. Hence, the property is owned by the temple. But the management is vested with Orrankudi family. The uncontroverted averment in the plaint is that the plaintiffs 2 and 3 are the members of Oorrankudi tarwad. The evidence given by P.W.1 that plaintiffs 2 to 4 are the members of that family, having been not controverted, there can be no doubt that plaintiffs 2 to 4 are competent to sue, on behalf of the first plaintiff temple, for recovery of possession of the plaint B schedule property. The learned Sr. counsel would submit that since the suit is not filed by the plaintiffs in their individual capacity but only as members of the family and worshipers who are interested in the deity, certainly they are persons having interest in the property. Therefore, the -:10:- R.S.A. No. 639 of 2007 plaintiffs having interest in the property and also as coowners have every right to protect the property from being taken away by others. 7. A vague contention was raised by the defendants that since the procedure contemplated under Sec. 92 of C.P.C. was not followed the suit is not maintainable. But at the same time the fact that the temple and its property were kept apart as per the family partition deed was not disputed. Whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment. Where the evidence shows that the management of the property dedicated is in the hands of the founders or their descendants and not in the hands of the members of the public then certainly it is a private endowment. There is no case for the respondents/defendants that the control and management of the temple was not retained with the founder or his R.S.A. No. 639 of 2007 -:11:- descendants. The evidence would show that the plaint A schedule property was kept apart for the maintenance of the temple situated in the A schedule property. All these factors would prove to the hilt that the endowment is of a private nature. That apart, there is no case that the founder of the endowment had made any stipulation for offerings or contributions to be made to the temple by the members of the public. That is an important intrinsic circumstance to indicate the private nature of the endowment. If that be so, the contention that the suit should have been filed following the procedure under Sec.92 of the C.P.C. is devoid of any merit. 8. It was held by the Division Bench of this Court in **Kochara Panicker v. Sekhara Panicker - 1988 (2) KLT 46** 9 that the private endowment is for the benefit of the tarwad and its members and so the plaintiffs being a member of the tarwad and a beneficiary is entitled to bring the suit for recovery of properties alienated without R.S.A. No. 639 of 2007 -:12:- necessity or benefit. It was also held therein that the plaintiff being a member of the tharawad and a beneficiary, is entitled to maintain a suit for recovery of possession of the property on behalf of all the co-owners. It is well settled that a co-owner can, without joining other co-owner, maintain an action for ejectment/recovery of possession. The suit was filed on behalf of the deity. The deity itself is the first plaintiff in the suit. The deity is to be represented by a human agency and that is why plaintiffs 2 and 3 filed the suit on behalf of the first plaintiff. Whether there was a duly constituted committee or not does not assume much importance in view of the fact that they are admittedly members of the very same Oorankudi family. After the commencement of the Kerala Act 30 of 1976 the parties are to be treated as co-owners. Hence, it can be held that the plaintiffs are some of the co-owners of the property . When the suit is filed on behalf of the first plaintiff temple for recovery of possession of the property certainly the suit R.S.A. No. 639 of 2007 -:13:- is maintainable. The very fact that the pleading to that effect was not denied in the written statement and the further fact that the evidence given by P.W.1 regarding that aspect was also not effectively controverted would scuttle the plea raised by the defendants that the plaintiffs 2 to 4 are incompetent to represent the first plaintiff temple. The fact that a co-owner can, without joining other coowners, maintain an action to eject a trespasser is not disputed at all. But the question that has been raised by the defendants is that the suit was not actually laid on the premise that the plaintiffs are co-owners. The suit was filed for ejectment of the defendant. The defendant contended that he is also a member of the tarwad. But that contention was found against. The suit was necessitated because the first defendant fraudulently obtained a purchase certificate in his name in respect of the B schedule property as if he was a tenant. It was in order to see that the first plaintiff is not divested of its right over -:14:- R.S.A. No. 639 of 2007 the B schedule property, the suit was filed, to protect the interest of the first plaintiff deity. The defendant was acting totally against the interest of the deity and he even attempted to take wrongful possession of the property to himself. Therefore, even if he is a member of the tharwad, the suit against him is maintainable since, the suit is by the deity and the property was dedicated in favour of the deity. Above all the defendant was acting against the interest of the Ist plaintiff (deity) and against all the members of Oorankudy family. 9. In **Sri. Thakur Krishna Chandrama Jiu v. Kanhayalal -** - **AIR 1961 Allahabad 206** it was held by the Allahabad High Court that a person who had beneficial interest in the endowment could sue on behalf of the idol. The deity as a juristic person has undoubtedly the right to institute a suit for the protection of its interest. There can be no doubt, that so far as the plaintiffs are concerned they have got unquestionable right and interest in the idol R.S.A. No. 639 of 2007 -:15:- and its properties. The suit has been filed only to protect the interest of the idol and not for any personal gain. Right to sue is a necessary adjunct of the proprietary right. As the property vests in the deity the right to sue cannot be denied. As the idol suffers from perpetual incapacity to engage itself in juridical acts the natural personality of the shebait supplies this legal deficiency in the idol. In **Jangi Mal v. Panna Lal - AIR 1957 All. 743** it was held that the suit for enforcing the rights of the deity could be filed either by the idol itself as a juristic person or by the worshipers and members of the family in their own right. 10. It cannot be denied that a worshiper has interest of his own, quite apart, from that of the deity. His right to worship and maintenance of the deity carries in it the right to protect the deity's property from being squandered or plundered away by others. When a suit is filed by the worshiper or member of the family alleging that the suit is to protect the interest of the deity, the R.S.A. No. 639 of 2007 -:16:- Court has to consider whether interference with the possession of the property is required and whether there is a well founded fear that the property in question will be dissipated or wasted or irreparable mischief would be caused unless the said suit filed by a member of the family or worshiper is entertained and necessary relief is granted to protect the interest of the deity. In the commentaries by **R.K. Mukherjea on The Hindu Law of Religious and Charitable Trust ( Fifth Edition)** the learned author has observed: _"(1) An idol is a juristic person in whom the title to the properties of the endowment vests, but it is only in an ideal sense that the idol is the owner. It has to act through human agency and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, in one sense, be said to be merged in the Shebait"._ _(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. In such cases, the law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol._ -:17:- R.S.A. No. 639 of 2007 _(3) Where the endowment is a private one, the members of the family are the persons primarily interested in its upkeep and maintenance, and they are, therefore, entitled to act on behalf of the deity"._ Here, the temple belongs to Oorankudy tarwad. It is not disputed that the members of the family are persons primarily interested in the management of the temple. They are entitled to act on behalf of the deity. Since there is no evidence to show that it is a public temple the procedure prescribed under Sec. 92 of the C.P.C. is not applicable to the facts of this case. Even if it is accepted that members of the public are allowed to worship that by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple. ## 11. It was held by the Apex Court in **Deoki Nandan** v. **Murlidhar** [AIR 1957 SC 133] : “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 -:18:- R.S.A. No. 639 of 2007 persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals.” This decision has been followed by the Apex Court in various subsequent decisions. (See the decisions in **Mahant Ram Saroop Dasji** v. **S.P.Sahi** [AIR 1959 SC 951], **Narayan Bhagwantrao Gosavi Balajiwale** v. **Gopal Vinayak Gosavi** [AIR 1960 SC 100], **Gurpur Guni Venkataraya Narashima Prabhu** v. **B.G.Achia** [(1977) 3 SCC 17] and **Sri.Radhakanta Deb and Another** v. **Commissioner of Hindu Religious Endowments, Orissa** [(1981) 2 SCC 226]. Since the suit does not fall within the ambit of Sec. 92 of C.P.C. the right of the -:19:- R.S.A. No. 639 of 2007 worshipers or persons interested in the endowment to vindicate the rights of the idol under the general law remains unaffected. It was also observed by the learned author in the very same book: _"But where the matters in controversy in a suit would affect the interests of the deity, as for example when the trust is denied, or is sought to be altered, it is desirable that it should also be impleaded as a party"._ 12. It was held by the Madras High Court in **Sanakaranarayanan v. Shri. Poovananatha - AIR 1949 Madras 1221 and Subramannaiya v. Abbinava -** **AIR 1940 Madras 617** that the true rationale of the Rule is to permit a de facto trustee in possession and management of a temple or mutt to bring a suit for the recovery of properties belonging to the institution or to take such action as may be necessary in the interest of the trust. It is the duty of the Court to protect the trust property from misappropriation and diversion from the objects to which it was dedicated. When the trust property is without legal guardian, owing to any defect in the R.S.A. No. 639 of 2007 -:20:- machinery for the appointment of a trustee or owing to unwillingness of the legal trustee, it would lead to a a baffling and mystifying situation. If honest person is recognized as being in charge of the institution actually controlling its affairs in the interest of the trust, he should be entitled, in the absence of any one with a better title, to take such actions which are necessary to safeguard the interests of the Trust. Therefore, from what has been stated above, it is clear that so far as it relates to a private temple, the members of the family to whom the temple belongs or the worshipers or the persons interested in the idols can certainly file a suit to protect the interest of the deity . So far as the case on hand is concerned, plaintiffs 2 and 3 were competent to represent the first plaintiff temple. Now the 3rd plaintiff is no more. Plaintiffs 2 and 4 are indisputably the members of the very same Oorrankudi tarwad. They, as members of that family are to be treated as co-owners, after Kerala Act 30 R.S.A. No. 639 of 2007 -:21:- of 1976, came into force and as such they can certainly sue for recovery of possession of the property on behalf of and for the deity, for, otherwise the first plaintiff deity will lose its property. 13. To sum up, the plaint B schedule property belongs to the first plaintiff deity. The finding that the purchase certificate obtained by the first defendant in respect of the B schedule property is vitiated by fraud and collusion stands confirmed. But the finding entered by the lower appellate court that the plaintiffs 2 and 4 are not competent to file a suit on behalf of the deity is set aside. The finding entered by the trial Court that the plaintiffs 2 and 3 who instituted the suit on behalf of the first plaintiff were competent to sue on behalf of the first plaintiff is confirmed. Since the third plaintiff died pending suit , the 4th plaintiff who is also a member of the tarwad who was subsequently impleaded and who is also one of the co-owners can along with the second plaintiff certainly -:22:- R.S.A. No. 639 of 2007 maintain the suit for recovery of possession. Therefore, the suit is perfectly maintainable. The decree and judgment of the lower appellate Court are set aside and that of the trial Court are restored. In the result, this Regular Second Appeal is allowed . The decree and judgment of the trial Court stand restored. _Dated this the 27th day of March, 2013._ Sd/- **N.K.BALAKRISHNAN, JUDGE** ani/ /true copyu/ P.S. to Judge