R.S.A. No. 1170 of 2012

**C. R.** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944** **RSA NO. 1170 OF 2012** **AGAINST THE JUDGMENT IN AS 203/2005 OF ADDITIONAL DISTRICT COURT,** ## **IRINJALAKUDA** **AGAINST THE JUDGMENT DATED 28.02.2005 IN OS 109/2002 OF PRINCIPAL SUB** ## **COURT, IRINJALAKUDA** **------** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** *1 RAVINDRAN, S/O.KORAMBIL GOVINDAN, MAPRANAM DESOM, MADAIKONAM VILLAGE, MUKUNDAPURAM TALUK. **[SUBSTITUTED]** 2 SOMAN, S/O.VARIKKATTIL CHANDRAN, MADAIKONAM VILLAGE, MUKUNDAPURAM TALUK 3 SASI, S/O.MARUPARAMBIL VELU, MADAIKONAM VILLAGE, MUKUNDAPURAM TALUK *[THE NAME AND ADDRESS OF 1ST APPELLANT IS SUBSTITUTED BY “MR. ARAVINDAKSHAN, S/O SEKHARAN, AGED 51 YEARS, RESIDING AT KORAMBIL HOUSE, MANAPURAM P.O., MADAYIKONAM, THRISSUR680712,” PRESENT PRESIDENT OF “SRI.VARIKKASSERY BHAGAVATHI KSHETHRA SAMRAKSHANA SAMITHI”, AS PER ORDER DATED 30.05.2014 IN I.A. NO.722/2014] BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.K.C.KIRAN SMT.MEENA.A. SRI.SAJU.S.A ## **RESPONDENTS:** 1 THRIVIKRAMAN NAMBOOTHIRI, S/O.ANIMANGALATH SUBRAMANIYAN NAMBOODIRI,MADAIKONAM VILLAGE, DESOM, MUKUNDAPURAM TALUK, REP.FOR VARIKKASSERY DEVASWOM, VARIKKASSERY BHAGAVATHY TEMPLE,-DO- PIN-680712. **RSA NO. 1170 OF 2012 -2-** 2 THRIVIKRAMAN NAMBOODIRI S/O.ANIMANGALATH SUBRAHMANIYAN NAMBOODIRI,MADAIKONAM VILLAGE, DESOM, MUKUNDAPURAM TALUK,PIN-680712. BY ADVS. SRI.T.M.CHANDRAN SRI.P.R.NEELAKANDAN NAMBOODIRI THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R. S. A. No.1170 of 2012** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of July, 2022** ## **J U D G M E N T** Is the plaint scheduled temple a private temple belonging to the plaintiffs or is it a public temple, is the short question involved in this appeal. The relief claimed is, for a declaration regarding the status of the temple and a consequential injunction not to interfere with its administration. The suit was dismissed by the trial court. The decree was reversed in appeal, and the suit decreed as prayed for. Hence this appeal by the defendants. 2. The first plaintiff is the deity and the second plaintiff is the senior most member of the family-the Animangalath Illom. The 2[nd] plaintiff claims title over the plaint schedule temple and its properties under Ext.A1 Partition Deed of the year 1968 executed in the family. In the said partition, the temple and its properties were set apart to the 2[nd] plaintiff's branch. **R. S. A. No.1170 of 2012** -: 2 :- According to the second plaintiff, there is a “kottil” attached to the temple wherein the karanavan of one Varikkassery family is being worshipped. The 2[nd] plaintiff entrusted the management of the temple to one Varikkasseri Mohanan, and he was managing the affairs. Recently he expressed difficulties to continue with the management. The defendants are attempting to assume management of the temple. It is accordingly that the suit is filed. A declaration is sought, that the temple in question is a private temple belonging to the family of the plaintiff and for prohibitory injunction to restrain the defendants from interfering with its management. 3. The defendants contended that, the temple in question was lying in a dilapidated condition and in the year 1978, the local people formed a committee and took over the management of the temple. Poojas, festivals etc. were and are being conducted by the committee by receiving contributions from the public. The temple in **R. S. A. No.1170 of 2012** -: 3 :- question is a public temple, it is contended. 4. The trial court, on appreciating the evidence concluded that, though the temple was originally a private temple, it has been transformed as a public temple by implied dedication. On appeal, the first appellate court held that, since the rights of the second plaintiff and the family members to manage the temple has not been assigned, it continues as a private temple. Accordingly the suit was decreed. 5. Heard learned Senior Counsel Sri.T.Krishnanunni on behalf of the appellants-defendants and Sri.T.M. Chandran, the learned counsel for the respondentsplaintiffs on the following substantial questions of law:- _**“(i) Was the first appellate Court right in holding that, in the absence of an assignment of the rights by the plaintiff’s family there could not be a change in the character of the temple from private to public?**_ **R. S. A. No.1170 of 2012** -: 4 :- ## _**(ii) Is the evidence on record sufficient to find that the character of the temple has changed from a private temple to a public temple?”**_ 6. It is not in dispute that the temple in question originally belonged to the family of the second plaintiff. Whether the nature of the temple has changed from that of a private temple to a public temple is the issue. The learned counsel for the respondentsplaintiffs relied on the judgments of this Court in _**Sree Kandakarna Kshethra v. Karunakara Thandar [1994 (2) KLT 246]**_ and _**Kidangoor Devaswom v. Krishna Namboothiri [2016 (1) KLT 778]**_ to contend that, mere active public participation in the affairs of the temple and even receiving public contributions for the affairs of the temple, is not sufficient to deduce an implied dedication of the temple to the public. 7. In _**Goswamy Shri Mahalaxmi Vahuji v. Shah Ranchhoddas**_ _**Kalidas (dead) & Ors. [AIR 1970 SC 2025]**_ , the Apex Court laid down certain questions to be answered by Courts while determining whether a temple is a private temple or a **R. S. A. No.1170 of 2012** -: 5 :- public temple. The Apex Court held that, to find that a temple, private in its origin, has become a pubic temple, there must be proof to show that it is being used as a public temple. The circumstances, the Apex Court held to be relevant are:- _“(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 contribution 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.”_ 8. In _**Sri Radhakanta Deb & Anr. v. Commissioner of Hindu**_ _**Religious Endowments, Orissa [1981 (2) SCC 226]**_ , the Apex Court held that, the question as to whether a religious endowment is of a private or public nature, is to be decided with reference to the facts proved in each case ## **R. S. A. No.1170 of 2012** -: 6 :- and that it is difficult to lay down tests which may be of universal application. In _**Bala Shankar Maha Shanker Bhattjee & Ors. v. Charity Commissioner, Gujarat State [1995 Suppl (1) SCC 485]**_ , the Apex Court held that, dedication can be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. In _**R.M.Sundaram @ Meenakshisundaram v. Sri.Kayarohanasamy & Neelayadhakhi Amman Temple (through its Executive Officer) Nagapattinam, Tamilnadu [2022 LiveLaw (SC) 612],**_ the Apex Court held that extinction of private character can be inferred from circumstances. Therefore, ultimately it will depend on the facts in each case. There cannot be any litmus test. 9. Various circumstances are noticed hereunder, which persuades this Court to conclude that the nature of the temple in question has been transformed from a private temple to a public temple. **R. S. A. No.1170 of 2012** -: 7 :- (i) Sri.Varikkasserri Mohanan to whom the second plaintiff claims to have entrusted the management had, along with the people of the locality, formed a Society under Exts.B2 and B3, for the purpose of management of the temple. The said Mohanan is party No.6 in Ext.B2 memorandum of association of the Society. It is a registered Society. (ii) As PW1, the second plaintiff would admit that he is not aware that for the past so many years two poojas are being conducted daily, at the temple. (iii) PW1 admits that he is not a regular visitor of the temple. (iv) PW1 admits that he has not enquired whether any poojas are being conducted in the evening. (v) PW1 admits that he is not aware of the improvements effected in the temple. **R. S. A. No.1170 of 2012** -: 8 :- (vi) PW1 admits that the temple presently has an electric connection and that he is unaware as to in whose name the electricity connection stands. - (vii) PW1 admits that the electricity - charges are not paid by him. (viii) PW1 pleads ignorance to the suggestion that the electricity charges are being remitted by the temple committee. (ix) PW1 admits that a new 'Vazhipadu' by name 'Para nirakkal' has been started at the temple; but he does not claim that it was with his consent. (x) PW1 admits that for the past few years special poojas are being conducted in the Mandalam season and during Karkkidakom. However, he does not claim to have initiated the same or to have granted consent. ## **R. S. A. No.1170 of 2012** -: 9 :- (xi) PW1 admits that a new office building has been put up for the functioning of the temple committee office. He has no case that it was on his consent. (xii) PW1 admits that renovation and construction works were made at the temple, but were not by him or his family. (xiii) PW1 is unaware as to who has done or supervised the construction works in the temple. He admits that he had not done the same. (xiv) PW1 admits that the general body meeting of the Administrative Committee is being held at the temple premises. He has no case that he had consented for the same. (xv) PW1 admits that the temple and the property have been substantially improved, which he does not claim to have done. ## **R. S. A. No.1170 of 2012** -: 10 :- (xvi) PW1 admits that the constructions in the temple were done by the Committee with the contribution from the public. (xvii) Though PW2 claims that a Santhi was appointed by the family he has no idea regarding the salary payable and the offerings received at the temple. (xviii) PW2 has no case that the para nirakkal vazhipadu was started with the consent of the family. (xix) PW2 also pleads ignorance as to who effected the constructions in the temple, thus revealing that the family was not managing the temple. (xx) The person examined as PW3 is Varikkassery Mohanan to whom according to the plaintiff was to look after the management of the temple. Even according to his version, the Kshethra Samarakshana Committee was **R. S. A. No.1170 of 2012** -: 11 :- constituted in the year 1997 and he was a member of the Committee. (xxi) PW3 admits that the Committee was constituted for the management of the temple. (xxii) PW3 admits that the Committee has taken over management of the temple. (xxiii) PW3 admits that the Committee collected huge amounts from the public and effected renovation and construction works in the temple. (xxiv) PW3 admits that the Committee had started evening poojas and various special poojas in the temple. (xxv) PW3 admits that the Committee is maintaining the temple accounts. (xxvi) Exts.B4 to B6 are the accounts produced by the defendants regarding the 'Revathivela' conducted in the temple by the Committee. Exts.B7 and B8 are the notices **R. S. A. No.1170 of 2012** -: 12 :- regarding the same. Exts.B9 is the account book relating to the temple which is maintained by the Committee. Exts.B10 and B13 are the minutes book. Ext.B12 is the income book. Exs.B18 and B19 are bank account pass books of the Committee. (xxvii) PW1 has no case that he is maintaining any of the books mentioned in clause (xxvi) above. 10. From the above circumstances, it is evident that, the temple is being administered by the public, that new poojas and festivals are being conducted by them in the temple, that public have renovated the temple and constructed buildings without the involvement of the family. Therefore, it could reasonably be inferred that, though not under a specific document, there has been a dedication of the temple to the public. 11. Merely because a document has not been executed by the second plaintiff and his family dedicating the ## **R. S. A. No.1170 of 2012** -: 13 :- temple to the public does not mean there could not be any implied dedication. The circumstances as noticed above are convincing enough to hold that there was a dedication of the temple to the public. The materials as above were not taken into consideration by the first appellate court while interfering with the judgment of the trial court. Substantial questions of law are answered accordingly. 12. Thus, on the finding that the temple in question has been dedicated as a public temple, the suit is liable to be dismissed. Accordingly the Regular Second Appeal is allowed. The decree and judgment of the first appellate court is set aside and the suit will stand dismissed. No order as to costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge