RSA No.1007/2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** **RSA.No.1007 of 2007** **AGAINST THE DECREE AND JUDGMENT IN AS 81/2001 of SUB COURT, VADAKARA DATED 30-03-2007** **AGAINST THE DECREE AND JUDGMENT IN OS 61/1997 of MUNSIFF COURT, NADAPURAM** ## **APPELLANTS/APPELLANTS 1 & 3 IN A.S.81/2001/DEFENDANTS 1 & 5:** - **1 THANIYULLA KARIMBALAKKAL VISWANATHAN S/O.KUNHIKANNAN, AGED 59 YEARS, EDACHERY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** - **2 THODUVAYIL PADMINI D/O.NANU AGED 59 YEARS, VAIKKILASSERY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADV. SRI.PARTHASARATHY** ## **RESPONDENTS/RESPONDENTS IN A.S./PLAINTIFFS IN O.S.:** - **1 PONNARATH RAMACHANDRAN, S/O KUNHAPPA KURUP, AGED 48 YEARS, TEACHER, EDACHERY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** - **2 PUTHIYEDATH RAMAKRISHNAN** - **S/O.SANKARAVARMARAJA, AGED 42 YEARS, EDACHERY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** - **3 ARAYAKKOOL HARIDAS S/O.KANNAN AGED 39 YEARS, EDACHERY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** - **4 ORAYIN DAMODARAN S/O.POKKAN AGED 81 YEARS, EDACHERY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** - **5 KALLUPARAMMAL BALAN S/O.POKKEN** **AGED 51 YEARS, EDACHERY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,, KERALA STATE.** RSA No.1007/2007 2 |**6**|**PATTANDIYIL KRISHNAN S/O.KANNAN**| |---|---| ||**AGED 62 YEARS, EDACHERY AMSOM DESOM, VATAKARA**| ||**TALUK, KOZHIKODE DISTRICT, KERALA STATE.**| |**7**|**KATTIL RAJEEVAN S/O.KANARAN**| ||**AGED 25 YEARS, EDACHERY AMSOM DESOM, VATAKARA**| ||**TALUK, KOZHIKODE DISTRICT,, KERALA STATE.**| |**8**|**ARAYAKKOOL NANU S/O.KANNAN**| ||**AGED 56 YEARS, EDACHERY AMSOM DESOM, VATAKARA**| ||**TALUK, KOZHIKODE DISTRICT, KERALA STATE.**| ||**BY ADVS.**| ||**SRI.GEORGE THOMAS (MEVADA)(SR.) R1 TO R8**| **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA No.1007/2007 3 ## **JUDGMENT** The first and fifth defendants came up with this appeal aggrieved by the concurrent finding rendered by the trial court and the first appellate court in decreeing a suit for recovery of possession of property scheduled in the plaint. 2. There are two items in the plaint schedule. Item No.1 constitutes 36 cents and item No.2 constitutes 48 cents which were originally held by Pookkot Tarwad. The said property along with other properties were subjected to Ext.A1 partition in the year 1941 and these two properties were kept in common for the benefit of family members and for the purpose of worship as there was a temple situated in that property. While so, the then Karnavar on 5.1.1958 with respect to item No.1 property executed a deed of lease, Ext.B4 in favour of one Nanu. In respect of item No.2 property on the same day the Karnavar executed another lease, Ext.B1 in favour of the very same Nanu and he was holding the property as lessee. Ext.B2 is the title deed with respect to the properties RSA No.1007/2007 4 lying on the east south of item No.2, in favour of first and second defendants in which the survey number is stated as 89/5. But according to the defendant, it is a mistake. This property would come under Sy.No.88/6. Ext.B3 is the document with respect to the property lying east to the property covered by Ext.B2 document. During the life time of Nanu, he had executed Ext.B3 document with respect to a negligible extent in favour of the 5[th] defendant out of the plaint schedule property. It is after the death of Nanu, his legal heirs defendants 5 and others executed Ext.A9 assignment deed with respect to item Nos. 1 and 2 of the plaint schedule property in favour of a committee constituted for the benefit of the deity. A temple is situated in the said property. Now the suit was filed by the plaintiffs who are two members of Pookkot Tarwad for recovery of possession of plaint schedule item Nos. 1 and 2 from the defendants. 3. The first defendant is a stranger. The 5[th] defendant is one of the legal heirs of Nanu. The other defendants are also strangers. The suit was decreed by both the courts below. The courts below decreed the RSA No.1007/2007 5 suit in part finding that the properties which were in the hands of defendants 1, 2, 5 and 6 alone are recoverable and a decree for recovery of possession was also granted with respect to the specific plot held by them. 4. The above said decree assailed mainly on the ground that there is no prayer for setting aside Exts.B1 and Ext.B4 documents which were executed by the Karnavar in favour of Nanu. Secondly, on the reason that the suit was brought up by two members of the family, both in the capacity of worshiper as well as family members without arraying the committee or deity in the party array of the suit and the suit was filed for recovery of possession of property. 5. In so far as the non-inclusion of the prayer for setting aside Exts.B1 and B4 documents, the legal position was very much settled that if the party wants to avoid a voidable document, there should be a prayer for setting aside the same and it should be within a period of limitation. The legal position was very much settled by the Apex Court in **L.C.Hanumantappa ( since** **dead) represented by his L.Rs. v. H.B.Shivakumar (AIR** RSA No.1007/2007 6 **2015 SC 3364)** that a voidable document cannot be avoided unless there is a prayer for setting aside the document. The document will not stand as void at the very inception though it may become void when the option is exercised to set aside the document for which there should be a prayer for setting aside the document. The reason behind it is that otherwise the document would stand as valid in the eye of law in the absence of exercise of option within time permissible under the Limitation Act. Hence the argument advanced by the plaintiff that they can maintain a suit for recovery of possession without seeking to set aside Ext.B4 or Ext.B1 document cannot be sustained. 6. The learned counsel also took reliance on the decision rendered by a Full Bench of this court in **Mathew v. Ayyappankutty ( 1962 KHC 12)** in support of the legal position that when there is a provision dealing with voidability of a document, there should be a prayer for setting aside the document, otherwise the document would stand as valid. But in the instant case, yet another aspect is also involved. Nanu had given the property to a committee constituted for the RSA No.1007/2007 7 benefit of the temple and the deity in the year 1979 and it is well recognized and recited in the subsequent document, Ext.A9 executed by the legal heirs of deceased Nanu, the 5[th] defendant and others by stating that during the life time of Nanu, their father had given these two items of property to the temple committee constituted for the benefit of deity and temple and for the up-liftment of the affairs connected with the deity and temple. Ext.A9 document was executed by the legal heirs of Nanu inclusive of 5[th] defendant by recognizing the earlier act of their father giving the property for the upliftment of the temple and the deity and it was done through a committee constituted for the benefit of the temple. Under Ext.A9 the legal heirs of Nanu, after his death had given up all their right, if any, over the above said property by recognizing the earlier act of their father which would definitely constitute a dedication of property for the interest of deity and the temple. No longer this property can be brought under the purview of property kept in common by the family members for their beneficial enjoyment. There are lot RSA No.1007/2007 8 of difference when some property was kept in common for the benefit of family members and for their worship by maintaining a temple in it from that of dedication of the property to the temple for the benefit of deity and for the upliftment of religious ceremonies in connection with the affairs of the temple. Both are standing on a different footing. In the former case there is no parting with or transfer of ownership, possession, right, title and interest over the property to the deity or the temple as the case may be. But in the later case, there is an absolute transfer by dedication and thereafter the deity, a perpetual minor would be the owner of the property. The concept of perpetual minor evolved by various decisions assumes importance at this juncture. 7. When a suit was brought up either by the family members or some of the family members or some of the worshipers if it is pertaining to the property belonging to the deity or the temple as the case may be, It is maintainable when there is compliance of Order I Rule 8 C.P.C. to represent those who are interested in the welfare of the deity or the temple or RSA No.1007/2007 9 the religious affairs attached with the temple and the deity. They can definitely bring up a suit. The question whether it is necessary to implead the temple committee or the deity in the suit also assumes importance at this juncture. Inorder to get recovery of possession of property or a substantial relief, the owner of property, the temple or the deity who is a perpetual minor should be in the party array represented by a living body and should be made as party to the suit. But the said defect will stand cured when there is compliance of requirement as mandated under Order 1 Rule 8 C.P.C. and the decree would stand binding on all concerned including perpetual minor and the temple committee, when the suit was filed in a representative capacity in compliance with Order I Rule 8 C.P.C. Hence the suit filed by two members of the family either as the worshipers or in the status of family members is squarely maintainable and the decree can only be sustained. That is what is actually done by the first appellate court and hence the appeal deserves only dismissal, but without costs. None of the questions taken up would RSA No.1007/2007 10 come into play. The appeal is dismissed. No costs. SV **Sd/P.SOMARAJAN JUDGE**