South Maradi N.S.S. Karayogam No.3520, Thekkemarady v. Marady Kshethrasamrakshana Samithy and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 4TH DAY OF JANUARY 2013/14TH POUSHA 1934** **SA.NO. 903 OF 2001 ( ) ------------------------------** ## **O.S. NO.146 OF 1985, III ADDITIONAL SUB COURT, ERNAKULAM A.S.NO.162 OF 1993, FIFTH ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANT-APPELLANT-PLAINTIFF(S):** **--------------------------------------------------------** - ***1. N.S.S. KARAYOGAM NO.3520, THEKKEMARADY REPRESENTED BY PRESIDENT BHANUVIKRAMAN SON OF VASUDEVAN KARTHAVU, ELAVUNGAL USHA BHAVAN, THEKKEMARADY KARA, MUVATTUPUZHA (SUBSTITUTED)** ***N.S.S. KARAYOGAM NO.3520, THEKKEMARADY, REPRESENTED BY PRESIDENT, N.N. VISWANATHAN NAIR, S/O.NEELAKANTAN NAIR, AGED 58, RESIDING AT NIRAPPEL, THEKKEMARADY KARA, MUVATTUPUZHA TALUK.** **THE NAME AND ADDRESS OF THE APPELLANT'S PRESIDENT IS SUBSTITUTED AS PER ORDER DATED 2.7.2010 IN I.A. NO.1509 OF 2010.** **BY ADVS.SRI.S.SHYAM** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 5:** **----------------------------------------------------------------------------** - ****1. MARADY KSHETHRASAMRAKSHANA SAMITHY, NO.E.R.304, REPRESENTED BY THE PRESIDENT P.G. DAMODARAN, PULIMOOTTIL HOUSE,** ## **S.A. NO.903 OF 2001** ## **SOUTH MARADI POST, MUVATTUPUZHA** ## **(SUBSTITUTED)** - ****R1. MARADY KSHETHRASAMRAKSHANA SAMITHY, NO.ER 304, REPRESENTED BY PRESIDENT P.R. SUBRAMANIAN, S/O. LATE P.G. RAMAKRISHNAN, PULIMOOTTIL HOUSE, SOUTH MARADI P.O., MUVATTUPUZHA.** **THE NAME AND ADDRESS OF THE 1[ST] RESPONDENT'S PRESIDENT IS SUBSTITUTED AS PER ORDER DATED 2.7.2010 IN I.A. NO.1342 OF 2010.** **2. MARADY KSHETHRASAMRAKSHANA SAMITHY, NO.ER 304, REPRESENTED BY SECRETARY** **V.A. BALAKRISHNAN VATHIAPPILLIL HOUSE, SOUTH MARADI POST, MUVATTUPUZHA.** - *****3. NARAYANAN ELAYAD, SANTHYKARAN, EDAMANA ILLOM, RESIDING AT PATTARUMADAM, THEKKEMARADY KARA, MARADY VILLAGE (DIED).** **4. PARAMSWARAN ELAYATH, EDAMANA ILLOM, NEAR SIVA TEMPL, RAMANGALAM KARA, RAMANGALAM VILLAGE.** **5. NARAYANAN THRATHARU NAMBOOTHIRIPPAD @ PARAMESWARAN NAMBOODIRIPPAD, KARINGATHAMPILLY SWAROOPAM, KUNDOOR MURI, THIRUMUMUKULAM VILLAGE, MUKUNDAPURAM TALUK.** **6. KESAVAN ELAYATH, AGED 53, SANTHIKARAN, THIRUVITHANKUR DEVASWOM BOARD, EDAMANA ILLOM, RESIDING AT PATTARUMADAM, THEKKEMARADY KARA, MARADY VILLAGE.** **7. UNNIKRISHNAN NAMBOOTHIRIPPAD, S/O. LATE NARAYANAN THRATHARU NAMBOOTHIRIPPAD KARINGANAPPILLY SWAROOPAM, KUNDOORU MURI, THIRUMUKULAM VILLAGE, MUKUNDAPURAM TALUK.** ## **S.A. NO.903 OF 2001** *****3[RD] RESPONDENT DIED AND LEGAL REPRESENTATIVES OF 3[RD] RESPONDENT ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 4 AND 6 AND IT IS NOT NECESSARY TO IMPLEAD ANYBODY IN THE PLACE OF THE 3[RD] RESPONDENT IS RECORDED AS PER ORDER DATED 4.2.2011 IN MEMO BEARING CF N.709/111 DATED 28.1.2011.** **BY ADV. SRI.SAJAN VARGHEESE K. ) BY ADV. SRI.LIJU. M.P )R1 & R2 BY ADV. SRI.N.NEELAKANDHAN NAMBOODIRI )** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. No.903 of 2001 ==================================== Dated this the 04[th] day of January, 2013** ## **J U D G M E N T** The Second Appeal is drawn from the judgment and decree of the Fifth Additional District Court, Ernakulam in A.S. No.162 of 1993 confirming judgment and decree of the Third Additional Sub Judge, Ernakulam dismissing O.S. No.146 of 1985 which was for recovery of possession of the suit properties. 2. The following substantial questions of law are framed for a decision: (i) When the previous suits referred to in the judgments of the courts below do not relate to the plaint schedule property and title to the plaint schedule property was not directly and substantially in issue in the said suits, can an independent enquiry regarding the said issue in the present suit be held to be barred in view of Explanation IV to Section 11 of the Code of Civil Procedure (for short, “the Code”)? (ii) When there is direct evidence regarding title of the plaintiff and its predecessors over the plaint schedule property ## **S.A. No.903 of 2001** ## -: 2 :- which is clearly identified with reference to the survey number, boundaries and extent, can the mention of a “Maradikavu” in the earlier proceedings without reference to the survey number, boundaries and extent of the property wherein the said “Kavu” is situated, be taken as a ground to bar the trial of the issue in the present suit? (iii) Is not the 6[th] defendant who is setting up a rival title bound to prove the title of his family over the plaint schedule property by producing cogent evidence? (iv) Whether the trial court was right in holding that the temple and its property are not transferable? (v) Is the construction placed by the courts below on Exts.A2 and 5 sustainable and ought not the courts below have upheld validity of the documents they being only transfer of the right of management of the temple? 3. The appellant-plaintiff, South Maradi N.S.S. Karayogam No.3520 claims title over item Nos.1 and 2 of the plaint schedule where the Maradikavu Bhagavathi Temple (for short, “the Temple”) is situated, as per Exts.A2 and A5, gift deed Nos.2074 and 2075 of 1982. Item No.1 is 16.1 Ares comprised in ## **S.A. No.903 of 2001** ## -: 3 :- Sy. No.293/2/1 and a portion of the Temple. Item No.2 is 17 Ares comprised in Sy.No.293/2/2 and the remaining portion of the Temple. The appellant claims that the said Temple and properties belonged to a Nair Tarwad of the locality by name, Meppally Valiyedath Tarwad also known as Elavunkal Tarwad (for short, “the Tarwad). All sections of the Hindu community used to worship and offer vazhipadu in that Temple. There arose a situation that poojas in the Temple could be performed only with the offerings. On account of difficulties in the Tarwad, it could not attend to the affairs of the Temple. Vasudevan Kartha (P.W.2), a member of the Tarwad planted coconut saplings in the suit properties. Along with that, other people have also planted coconut saplings in the said properties by way of offering in the Temple. Devotees of the Temple constructed a Well. Poojas were being performed by the family of respondents 3 to 5 since long. Respondents 3 to 5 started appropriating the income from the Temple. Thereon a Committee by name “Kshethrabarana Samithy” was formed in the year, 1978 to conduct festivals in the Temple. The said Samithy consisted of Vasudevan Kartha, the 4[th] respondent and others. The Committee collected funds from the public (for conducting festivals). While so, difference of ## **S.A. No.903 of 2001** -: 4 :- opinion developed among the committee members. The name of the 'Kshethrabharana Samithy' was changed to Kshethrasamrakshana Samithy (for short, “the Samithy”). Vasudevan Kartha withdrew from the said Samithy. The Samithy has no right over the Temple or its properties or for its day to day administration. While so, one M.S. Viswambaran renovated the existing Temple and constructed additional structures by way of offering, with the permission of Vasudevan Kartha. The Ezhava members of the Samithy took the stand that the Temple and the property belong to their Community. Respondents 3 to 5 also supported them. While so, Vasudevan Kartha and Madhavi Kunjamma, the owners of the suit properties and the Temple conveyed their right over the said properties and the Temple to the appellant as per Exts.A2 and A5, gift deed Nos.2075 and 2074 of 1982, respectively. Since then, the appellant is the absolute owner of the suit properties and the Temple. Learning that the Samithy did some spade work in the properties of the Temple on 24.10.1982 in order to claim right over it, the appellant filed O.S. No.404 of 1982 against respondents 4 and 5 and some other members of the Samithy for a decree for prohibitory injunction. The application for temporary injunction ## **S.A. No.903 of 2001** ## -: 5 :- was dismissed. Pursuant to that, the respondents took forcible possession of the suit properties and the Temple. The 6[th] respondent has no right over the suit properties or the temple. If at all he has made any entry in his account books concerning the Temple known as 'Maradikavu' that will not confer any right for the 6[th] respondent. Hence the suit for recovery of possession with measne profits. 4. Respondents 1 and 2 contended that the appellant has no right over the suit properties or the Temple. The Temple and its properties are not assignable. The documents in favour of the appellant are void for the said reason. The Temple or its properties never belonged to the Tarwad. It is an ancient Temple where the Hindus of the locality belonging to all sections offered worship as of right. It is a 'Hindu Religious Institution' as defined in the Travancore-Cochin Hindu Religious Institutions Act (for short, “the TCHRI Act”). It belonged to the Karinganampilly Swarupam (for short, “the Swarupam”) of the 6[th] respondent. Edamana Illom, family of respondents 3 to 5 was performing the customary rites in the Temple as entrusted by the Swarupam. In the course of time a Samithy was formed for administration of the Temple and it took over the responsibility to conduct ## **S.A. No.903 of 2001** ## -: 6 :- festivals. In the meeting held on 12.04.1978 it was resolved to change the Samithy as the 'Maradikavu Bhaghavathy Ksehtrasamrakshana Samithy'. The Samithy was registered under Act 12 of 1985. The Smithy purchased 5.12 cents to provide access to the Temple. The Tarwad, Vasudevan Kartha or Madhavi Kunjamma had no right over the Temple or its properties. 5. Respondents 3 to 5 also raised similar contentions and claimed that the Temple belonged to the Swarupam. The santhi of the Temple was from the family of respondents 3 to 5. It has become a Karaima right of the family of respondents 3 to 5. Poojas were being performed from the family of respondents 3 to 5. Expenses were met from the Swarupam. While so, a Karar was executed from the Swarupam on 19.12.1974 as per which administration of the Temple was entrusted to the 3[rd] respondent. It is further contended that the decision in O.S. Nos.881 of 1103 and 919 of 1113 of the Munsiff's Court, Muvattupuzha operated as res judicata and hence the suit is barred. 6. The 6[th] respondent contended that the Temple referred to in the plaint schedule is known as 'Maradikavu' and that it is situated in the property belonging to the Swarupam. ## **S.A. No.903 of 2001** -: 7 :- The Swarupam filed O.S. Nos.881 of 1103 and 919 of 1113 against the Tarwad impleading its then Karanavan. The Temple then had kadjan thatched roof. The Tarwad was to met expenses for thatching roof of the Temple and for the daily poojas in the Temple from the michavaram payable to the Swarupam for other properties of the Swarupam in the possession of the Tarwad. As the Tarwad did not perform its obligation the Swarupam filed O.S. Nos.881 of 1103 and 919 of 1113. Those suits were decided in favour of the Swarupam holding that the Temple and its properties belong to the Swarupam. That decision operate as res judicata against the claim of the appellant (the other contentions raised by the 6[th] respondent are similar to those raised by respondents 1 to 5). 7. The trial court found that the Temple and its properties are inalienable and that the appellant has not acquired title over the suit properties and the Temple as per Exts.A2 and A5 since the executants of those documents (Vasudevan Kartha and Madhavi Kunjamma) or the Tarwad had no right over the said properties. The trial court also found that the suit is hit by the rule of constructive res judicata in view of the decision in O.S. Nos.881 of 1103 and 919 of 1113. The trial court dismissed the ## **S.A. No.903 of 2001** ## -: 8 :- suit. That decision was confirmed by the first appellate court. 8. It is contended by the learned counsel for the appellant that the finding of the courts below regarding application of constructive res judicata is erroneous. It is pointed out that there is no evidence to show that the 'Temple' referred to in the decisions in O.S. Nos.881 of 1103 and 919 of 1113 is the Temple referred to in the plaint schedule and Exts.A2 and A5. According to the learned counsel, pleadings in O.S. Nos.881 of 1103 and 919 of 1113 are not before the Court to prove identity of the Temple. Evidence of P.W.2 in re-examination that the Temple referred to in O.S. Nos.881 of 1103 and 919 of 1113 and the plaint schedule are different, is not subjected to crossexamination thereby accepting that version of P.W.2. Reliance is ## made on **Velu Pillai Padakalingam v. Paramananda** **Yesudasan** (1953 KLT 587). A further contention the learned counsel has advanced is that title to the suit properties and the Temple was not directly or substantially in issue in the previous suits. At any rate, the real owner of the property was not impleaded as a defendant in the previous suits. For the said reasons it is contended that the finding of the courts below regarding constructive res judicata is erroneous. Reliance is ## **S.A. No.903 of 2001** -: 9 :- placed on the decision in **Avira Joseph v. Varghese Mathai** (2010 [3] KHC 564). 9. Referring to the title claimed by the appellant, it is contended that it is proved by Exts.A8, A3, A4, A2 and A5, documents of title, A6, the copy of settlement register and Ext.A7 series, receipts for payment of revenue. According to the learned counsel, the suit properties along with other items belonged to the Tarwad where Ext.A8, partition, followed Ext.A3, partition was effected. By Ext.A3, partition, the B schedule items therein including a portion of the suit properties was allotted to Neelakantan Kartha while the remaining portion of the suit property was allotted to the share of Madhavi Kunjamma as E schedule. The said Neelakantan Kartha executed Ext.A4, assignment deed in favour of Narayanan Kartha of the same Tarwad. Narayanan Kartha executed Will No.2 of 1962 in favour of Vasudevan Kartha (P.W.2). The said Vasudevan Kartha executed Ext.A5, gift deed while Madhavi Kunjamma (who claimed right over the suit property as per Ext.A3, partition deed) executed Ext.A2, gift deed on the same day of Ext.A5 in favour of the appellant. It is pointed out that in Ext.A6, settlement register the property comprised in Sy.No.293/2 is shown as ## **S.A. No.903 of 2001** ## -: 10 :- belonging to Kunjipennu Lakshmi of the Tarwad as per patta No.269. Exhibit A7 series are receipts for payment of revenue for the suit properties, it is claimed. It is argued that in Ext.A7, the 'Pattadar” is stated to be Neelakantan Kartha of the Tarwad. 10. It is also argued by the learned counsel that while the appellant has proved its title over the suit properties as per the above said documents, no document is produced by the respondents to show that the suit properties belong to the Swarupam. It is pointed out that though the son of the 6[th] respondent (belonging to the Swarupam) was examined as D.W.5 to prove title of the suit properties with the Swarupam, his evidence is unacceptable and not supported by any documentary evidence. Though DW5 claimed that in the Settlement Register the properties of the Swarupam are mentioned, Ext.A6 disproved that contention. Further, the evidence of D.W5 is that he has not perused the settlement register concerning the suit properties. Though D.W5 claimed that there was a partition in the Swarupam in the year, 1970 and there is reference in that partition deed about the 'Maradikavu' that document is not produced. In the above circumstances finding of the courts below that the appellant has not acquired title of the property is ## **S.A. No.903 of 2001** ## -: 11 :- erroneous. It is argued that in the absence of any contra evidence reference can be made to the settlement registers and other revenue records which should be prima facie be accepted as genuine. Reliance is placed on the decisions in **Vishwa Vijay** ## **v. Fakhrul Hassan** (AIR 1976 SC 1485) and **Kalukurumban v. Sarojini Amma** (1997 [1] KLT 481). 11. As regards inalienability of the Temple, the argument of the learned counsel is that the said rule would apply only to a public temple or, a temple dedicated to the public or when the sale or purchase is against the very purpose of the Temple. No such situation arises in this case. It is pointed out that respondents 3 to 6 have no case that the Temple in question is a public temple or dedicated to the public. It is also argued that the evidence would only show that the public also offer worship in the Temple. According to the learned counsel, the Samithy was formed for conducting festivals in the Temple with the participation of the public and that would not convert the temple into a public temple. Reliance is placed on the decisions in **T.Mudaliar v. Commr. H.R. & C.E.** (AIR 1976 Madras 26), **Appukutty v. Kuniyil Achuthan** (1989 [1] ILR Kerala ## **S.A. No.903 of 2001** ## -: 12 :- ## 218) and **Kochara Panicker v. Sekhara Panicker** (1988 ## [2] KLT 469). 12. In response it is contended by the learned counsel for the respondents that the decisions in O.S. Nos.881 of 1103 and 919 of 1113 would operate as constructive res judicata so far the present claim of the appellant is concerned. It is contended that there was never a contention raised except in the re-examination of P.W2 that 'Maradikavu' referred to in Exs.B1 to B3 is not the Temple referred to in the plaint schedule and Exts.A2 and A5. Hence the belated attempt of the appellant made through P.W2 to show that the Temple referred to in Exts.B1 to B3 and the plaint Schedule and Exts.A2 and A5 are different cannot be accepted. The finding of the courts below regarding constructive res judicata requires no interference. Reliance is placed on the decision in **Ramachandra Dagdu Sonawane v. Vithu Hira Mahar** ([2009] 10 SCC 273). 13. It is also argued that there is no evidence to show that the suit properties or the Temple ever belonged to the Tarwad. According to the learned counsel, that a division of the suit properties was made in Exts.A8 and A3, partition deeds would not confer title over the properties with the Tarwad. It is ## **S.A. No.903 of 2001** ## -: 13 :- argued that partition by itself cannot confer title - there must be proof of antecedent title. There is no evidence to show that either the Tarwad or pursuant to Exts.A2 and A5, the appellant was ever in possession of the suit properties and the Temple. Even the evidence of P.W2 would show that pursuant to Exts.A2 and A5, possession of the suit properties was never obtained by the appellant. Exhibits B43 to B45, orders/judgment in the applications for injunction in O.S. No.404 of 1982 and the appeal therefrom would show that the appellant or its predecessors-ininterest never had possession of the properties. It is also argued that the prayer for recovery of possession having not been made in O.S. No.404 of 1982, the suit is hit by Order II, Rule 2 of the Code of Civil Procedure (for short, “the Code”). In the circumstances the mere mention in Ext.A6, settlement register about the properties belonging to the Tarwad cannot be acted upon. It is pointed out that the only receipt the appellant could produce for payment of revenue is Ext.A7 which refers to the property comprised in Sy.No.293/2/16 which is not the survey number of the suit properties and hence no reliance could be placed on Ext.A7. It is also argued that execution of Will No.2 of 1967 in favour of Vasudevan Kartha is not proved. The ## **S.A. No.903 of 2001** ## -: 14 :- documents produced by the respondents would show that the Temple was being administered from the Swarupam and later by the Samithy. In the circumstances finding of the courts below regarding title requires no interference. 14. Referring to the inalienability of the Temple, it is argued that the transaction covered by Exts.A2 and A5 are hit by Section 6(h)(i) of the Transfer of Property Act (for short, “the T.P. Act). The learned counsel has placed reliance on the decision ## in **Narayan v. Chintaman and Morreshvar** (1881 ILR (5) Bombay 393). 15. The applicability of the rule of constructive res judicata depends on the question whether the Temple referred to in Exts.B1 to B3 is the temple referred to in Exts.A2 and A5 and the plaint. Though learned counsel for the appellant has raised a contention that as the pleadings in O.S. Nos.881 of 1103 and 919 of 1113 are not before the court identity of the property cannot be decided, it is not as if in the absence of production of pleadings the rule of res judicata cannot at all be applied. If the pleadings are sufficiently extracted in the judgment, that could be relied on, as held in (2010 [3] KHC 564) **Avira Joseph v.** ## . **Varghese Mathai & Others** ## **S.A. No.903 of 2001** ## -: 15 :- 16. Exhibit B1 is only a copy of the decree in O.S. No.811 of 1103 of the Munsiff's Court, Muvattupzuha. A copy of judgment in that suit is not produced. The plaintiff In Ext.B1 is the Swarupam represented by Narayanan Thratharu Namboothirippad. Defendants 1 to 6 therein are the Tarwad and the persons representing it. Exhibits B2 and B3 are copy of decree and judgment in O.S. No.919 of 1113. There also, the plaintiff is the Swarupam while the defendant is one Narayanan Nair representing the Tarwad. Exhibit B3 shows that a copy of the decree in O.S. No.881 of 1103 (Ext.B1 herein) was produced and marked as Ext.A1 in O.S. No.919 of 1113. Therefore it is clear that O.S. No.881 of 1103 was in relation to the “Maradikavu” referred in O.S. No.919 of 1113. Exhibits B1 and B3, copy of decree in O.S. No.881 of 1103 and the judgment in O.S. No.919 of 1113 refer to the plaintiff therein, the Swarupam and liability of the Tarwad to meet expenses for thatching roof of Maradikavu and for the conduct of daily poojas, etc. 17. From Exts.B1 and B3 what emerges is that the predecessors-in-interest of the defendants in O.S. Nos.881 of 1103 and 919 of 1113 (i.e., members of the Tarwad) had taken certain properties (scheduled in those suits) belonging to the ## **S.A. No.903 of 2001** ## -: 16 :- Swarupam (the plaintiff in O.S. Nos.881 of 1103 and 919 of 1113) on agreement to pay michavaram. There was an agreement that from out of the michavaram payable to the Swarupam, thatching of the roof of “Maradikavu” would be performed by the members of the Tarwad. The expenses for the daily poojas of that temple also was to be met from the michavaram. There was failure on the part of the Tarwad to pay michavaram, etc. Exhibit B1, decree enabled the Swarupam to recover michavaram, etc., from the members of the Tarwad by sale of item Nos.1, 3 and 4 therein. Exhibit B3 makes reference to Ext.B1, decree and states that the said decree directed the members of the Tarwad to utilize michavaram and other dues for thatching the Maradikavu (temple) of the Swarupam, supply rice for daily poojas, payment to the Santhikars, lighting the lamp, etc. The defendant in O.S. No.919 of 1113 claimed that he has complied with Ext.B1, decree. He also claimed that he was conducting the festivities in the Maradikavu as authorized by Venkiteswarayyar, the then Karyastha of the Swarupam. 18. Exhibits B1 to B3 show that Maradikavu temple belonged to the Swarupam of the 6[th] respondent and that making use of michavaram payable for certain items of properties which ## **S.A. No.903 of 2001** ## -: 17 :- were put in the possession of the Tarwad, thatching of roof of that Temple and other activities of the Temple were to be performed. 19. The Appellant has a contention that “Maradikavu” referred to in Exts.B1 to B3 and the temple referred to in the plaint schedule and Exts.A2 and A5 are different. For that, reliance is placed on the evidence of P.W2 in re-examination. P.W2 stated in re-examination that the “Maradikavu” referred to in Exts.B1 to B3 and “Maradikavu” referred to in the plaint are not the same. According to P.W2 (in re-examination) there is a 'kavu' (small temple) situated towards western side (obviously to point out that it is the said temple which is referred to in Exts.B1 to B3). It is in this connection that the learned counsel placed reliance on the decision in **Velu Pillai Padakalingam** **v. Paamanandam Yesudasan** (1953 KLT 587) to contend that in so far as there is no cross-examination on the specific answer given by P.W.2 in re-examination the said version of P.W.2 has to be taken as accepted. 20. In the said decision it is held that when there is a failure to cross-examine on a particular point, the inference is that the said statement is not disputed. I have to look into the ## **S.A. No.903 of 2001** ## -: 18 :- attending circumstances as well. In further cross-examination of P.W.2, he stated that in the small temple he referred to as situated towards west of the suit property there is no permanent poojas, it is a small temple and that it was earlier thatched with kadjan leaves. But he admitted that there were offerings in that temple during the (Malayalam) month of Aswathy. 21. It is also the version of P.W2 that if there is any reference to the ownership of “Maradikavu” in Exts.B1 to B3, that is not correct. In other words, by the said statement, P.W2 was indicating that the ownership of “Maradikavu” referred to in Exts.B1 to B3, according to him was with the Tarwad. If the temple referred to in the plaint schedule and in Exts.A2 and A5 is not the one mentioned in Exts.B1 to B3, there is no reason why P.W2 should take such a stand. That indicates that the Temple referred to in Exts.B1 to B3 and plaint over which the appellant and P.W2 claimed right. 22. It is clear from the further cross-examination of P.W2 that his version in re-examination that “Maradikavu” referred to in Exts.B1 to B3 and the plaint are different was not challenged is not correct. It is true that a direct question that his version that the said temples are different is not correct, is not put. But the ## **S.A. No.903 of 2001** ## -: 19 :- suggestions in the further cross-examination is indicative of that. 23. In this connection it is relevant to note Exts.B43 to B45. The same are the copy of orders on the applications for injunction filed in O.S. No.404 of 1982 and the C.M. Appeal and the judgment in the C.M. Appeal. The appellant, claiming to be in possession of the said properties and administering the Temple referred to therein filed in O.S. No.404 of 1982 for a decree for prohibitory injunction. The application for temporary injunction was dismissed after hearing both sides finding that the appellant was not able to prove possession of the suit properties and the Temple. Challenging that order, the appellant filed C.M. Appeal. A separate application was filed in that C.M. Appeal also for temporary injunction. That application and later the C.M. Appeal were dismissed by Exts.B44 and B45 order/judgment. 24. Some of the respondents who were the defendants in O.S. No.404 of 1982 had raised the very same contentions they have raised in the present suit referring to Exts.B1 to B3. Referring to Exts.B1 to B3 also it was found that the appellant had not proved even prima facie, its claim of possession of the suit properties and the Temple. It is obvious that the said finding was made because the temple referred to in Exts.A2 and A5 and ## **S.A. No.903 of 2001** ## -: 20 :- the plaint schedule and in Exts.B1 to B3 are the same. In spite of that, it is interesting to note that in the plaint (in the present case) there is no contention raised by the appellant that 'Maradikavu' referred to in Exts.B1 to B3 and “Maradikavu” referred to in the plaint are different. P.W.1, President of the appellant did not even whisper so. P.W2, the executant of Ext.A5, gift deed and a member of the Tarwad did not states so in his chief examination or cross-examination. It was only at the stage of re-examination that wisdom dawned on the appellant and a statement was elicited from him that “Maradikavu” referred to in Exts.B1 to B3 and the plaint schedule are different. P.W3, examined by the appellant stated that there is only one temple by name 'Maradikavu' and that there is no other Devi temple in that locality to his knowledge. The said statement of P.W3 is not even attempted to be corrected or clarified in reexamination. In paragraph 8 of the plaint it is averred that as there was dispute regarding the 'Maradikavu' the 6[th] respondent was impleaded as a defendant. 25. It has come in evidence that there were poojas in the “Maradikavu” mentioned in Exts.B1 to B3. Details of the festivities and poojas are referred to in Exts.B1 to B3. The ## **S.A. No.903 of 2001** ## -: 21 :- evidence of P.Ws.2 and 4 would show that some of those poojas and festivities are being held in the Temple referred to in the plaint schedule as well. 26. Learned counsel for the appellant tried to show that there are two temples by pointing out that in Exts.B1 to B3, the Temple mentioned is kadjan thatched while according to the appellant, the Temple which was originally situated in the suit properties was thatched with hay. My attention is drawn to the evidence of the witnesses. I am not very much impressed by the said contention since thatching with hay or kadjan as the case may be, was something which happened about 45 years prior to the filing of O.S. No.404 of 1982. The discrepancy in the evidence regarding the material used for thatching the roof of the Temple as it then existed, therefore, cannot be decisive of the question. 27. P.W2 admitted in cross-examination that till about 45 years back, there was only one Sreekovil and as he claims it was thatched with hay (kadjan as referred to in Exts.B1 to B3). P.W.2 stated that the roofing was being thatched by the Tarwad and that the said temple was known as Maradikavu (as referred to in Exts.B1 to B3). He also admits that poojas in that temple were ## **S.A. No.903 of 2001** ## -: 22 :- being performed from the family of respondents 3 to 5 and that the santhikkars were not being paid anything from the Tarwad (of P.W2). 28. It is an admitted fact that in whatever name it be, P.W2 was a member of the committee which was in existence years back and which even according to the appellant, was conducting festivals in the Temple. Exhibits B4 and B5, notices of the year, 1965 and 1964 (published by the then Samithy in connection with the festivals) were published when P.W2 was the President of the Samithy. He claimed that a road committee was formed in the year, 1960 (but not supported by any evidence). The documentary evidence produced by the respondents would show that the road committee was formed in the year, 1982 and that an item of land was purchased by the Samithy for formation of the road to the Temple. P.W.2 admitted that though as he claimed the road was provided before 1960, there is no mention in Ext.A3, partition deed about the said road. 29. In the light of the above evidence coupled with the fact that in spite of the specific contention the defendants in O.S. No.404 of 1982 have raised with reference to the Temple referred to in Exts.B1 to B3, that there is no mention in the plaint ## **S.A. No.903 of 2001** ## -: 23 :- about the temple referred to in the plaint schedule being different from the temple referred to in Exts.B1 to B3, I find myself unable to accept the contention of the appellant that the Temple referred to in Exts.B1 to B3, the plaint schedule and Exts.A2 and A5 are different. I do not find on the fact situation and the evidence on record any reason to come to a conclusion different from the finding of the courts below that the Temple referred to in Exts.B1 to B3 is the Temple referred to in the plaint schedule and Exts.A2 and A5. 30. Exhibits B1 to B3 concerned liability of the Tarwad to thatch roof of the temple and meet expenses for daily poojas and other poojas and festivities of Maradikavu temple. But Exts.B1 to B3 are based on the ownership of the Swarupam over the Maradikavu temple. Title to the 'Maradikavu' temple was the basis for the claim made by the plaintiff in those suits. If the Tarwad and its members who were the defendants in Exts.B1 to B3 cases had a contention that Maradikavu temple referred to in Exts.B1 to B3 belonged to the Tarwad, necessarily they ought to have raised that contention in Exs.B1 to B3 cases and invited a decision on that. Exhibits B1 to B3 would show that no such contention was even raised. If the temple actually belonged to ## **S.A. No.903 of 2001** ## -: 24 :- the Tarwad, there would have been no obligation for the Tarwad to thatch the roof, meet the expenses for daily poojas, etc., from the michavaram payable to the Swarupam from its other properties in the possession of the Tarwad. Thus title to the Maradikavu temple was necessary to be decided for adjudicating on the liability of the Tarwad. Hence the title to Maradikavu, if disputed, had to be decided in Exts.B1 to B3 cases and this was directly and substantially in issue. The expression “substantially in issue” means “of real importance or value”. The present claim that the Maradikavu temple belonged to the Tarwad, therefore, might and ought to have been raised in O.S. Nos.881 of 1103 and 919 of 1113 and in so far as that contention is not raised, the present plea is barred by constructive res judicata. 31. Learned counsel for the appellant contends that the member of the Tarwad to whom the suit properties were allotted as per Ext.A8, partition deed was not a party in Exts.B2 and B3 cases and hence the decision would not bind the appellant or its predecessors-in-interest. That partition deed would not in any way bind the Swarupam. Its contract was with the Tarwad. That Tarwad was either a party or properly represented in Exts.B1 to B3, proceedings. ## **S.A. No.903 of 2001** -: 25 :- 32. Assuming for the worst that Exts.B1 to B3 would not operate as constructive res judicata, still, I am of the view that the said decisions would operate as binding precedents between the Tarwad, its members and the Swarupam. 33. The next question is whether, assuming that the plea of constructive res judicata is not available to the respondents, the appellant was able to establish the title claimed by it over the suit properties and the Temple referred to therein. 34. In the plaint schedule, item No.1 is described as 40 cents in Sy.No.293/2/1 and item No.2 is described as 42 cents in Sy.No.293/2/1, both of Maradi Village. The appellant claims title and possession of item No.1 as per Ext.A2, gift deed dated 16.09.1982 executed by Madhavi Kunjamma and over item No.2, as per Ext.A5, gift deed of the same day executed by Vasudevan Kartha (P.W.2). P.W2 has given evidence regarding the execution of Exts.A2 and A5. 35. It is the case of the appellant and P.W2 that the suit properties belonged to and was in the possession of the Tarwad. While so, a partition was effected in the Tarwad as per Ext.A8 dated 27.11.1098. The A schedule items therein were allotted to the then Karvanavan of the Tarwad, Raman Kartha while the B ## **S.A. No.903 of 2001** ## -: 26 :- schedule items were allotted to other members of the Tarwad. The B schedule in Ext.A8 includes 91 cents in Sy. No.291/2 (sarkar pattom), known as Maradi Elamkavungal Purayidom bounded by cherikkamari on the east, Nattuthodu on the south and west and Nattuvazhi on the north. Exhibit A3 is the partition deed of the year, 1101 executed by the allottees of the B schedule items in Ext.A8. The B schedule items in Ext.A3 were allotted to Neelakantan Kartha while the E schedule items were allotted to Madhavi Kunjuamma. Among the B schedule to Ext.A3 is the 42 cents towards southern portion of the 91 cents (excluding the portion retained as nilam) in Sy. No.293/2 (pandaravaka pattom). The boundary descriptions of the said 42 cents are as in Ext.A8, referred above. Among the E schedule items of Ext.A3 is the 49 cents (excluding the 42 cents referred above as allotted to Neelakantan Kartha) allotted to Madhavi Kunjamma. For that 49 cents also the same boundary descriptions. 36. Neelakantan Kartha to whom the 42 dents towards southern portion of the 91 cents was (allegedly) allotted, executed Ext.A4 assignment deed of the year, 1115 in favour of Narayanan Kartha of the same Tarwad. In Ext.A4 also the 42 ## **S.A. No.903 of 2001** ## -: 27 :- cents is given the same boundary descriptions as in Exts.A3 and A8. The said Narayanan Kartha is said to have executed Will No.2/1962 in favour of Vasudevan Kartha (P.W2) who in turn executed Ext.A5, in favour of the appellant. Madhavi Kunjamma who is said to have got the 49 cents as E schedule of Ext.A3 is said to have executed Ext.A2, gift deed in favour of the appellant. 37. Apart from Exts.A8, A3, A4, A2 and A5, the appellant also relies on Exts.A6 and A7 to prove the title claimed by it. Exhibit A6, is the copy of settlement register where the 91 cents (pandaravaka pattom) in Sy. No.293/2 covered by patta No.269 is described as belonging to Kunjipennu Lakshmi of the Tarwad and Ext.A7 is the receipt dated 28.11.1115 for payment of revenue by Neelakantan Kartha of the Tarwad (pattadar) for the property comprised in Sy. No.293/2/16. Exhibit A7(a) onwards are receipts for payment of revenue from the year 1985 onwards for the property comprised in Sy. No.293/2/1 and Sy.No.293/2/2. 38. Exhibit A7(a) onwards, it is obvious are based on Exts.A2 and A5. The only receipt for the period prior to 1985 produced by the appellant is Ext.A7 dated 27.11.1115 and that concerns the property comprised in Sy. No.293/2/16 and not the property comprised in Sy. No.293/2/1 or 293/2/2. ## **S.A. No.903 of 2001** ## -: 28 :- 39. True that the respondents did not produce any document of title or receipts for payment of revenue. It is also true that D.W.5 who gave evidence on behalf of the Swarupam though claimed that properties of the Swarupam are described in the settlement register as belonging to the Swarupam, did dot produce the extract of any such settlement register. He claims that in the year, 1970 there was a partition in the Swarupam where mention is made of the suit property as well. That partition deed is also not produced. I must remember that this being a suit on title, responsibility is on the appellant to prove its title and that weakness of the respondents to produce title deeds of the Swarupam, if any, particularly in the light of Exts.B1 to B3 is no ground to uphold title claimed by the appellant. 40. Though in some of the documents relied on by the appellant it is stated that the 91 cents in Sy. No.293/2/ is covered by patta No.269, that patta or its copy is not produced. What then available is only Exts.A8, A3, A4, A2, A5, and A6. 41. Exhibit A8 and A3 are partition deeds. Partition among co-owners is only an adjustment of rights and liabilities among them and that by itself cannot confer title. Partition should be based on an antecedent title. In Ext.A8, partition deed ## **S.A. No.903 of 2001** -: 29 :- there is no reference to any document of title or derivation of title as regards property comprised in Sy. No.293/2. No document is produced by the appellant to show how the Tarwad got title to the suit properties or that it was in possession and enjoyment of the suit properties prior to Ext.A8. 42. It is also relevant to note that notwithstanding that the Temple in whatever form it be, big or small was situated in the suit properties even prior to Ext.A8 and as Exts.B1 to B3 reveal, there is no mention of that Temple in the property comprised in Sy. No.293/2 and dealt with as per Exts.A3, A8 and A4. Reference to the temple as situated in the said property came for the first time only in Exts.A2 and A5 dated 16.09.1982. Immediately thereafter and claiming that some of the respondents and other members of the Samithy are attempting to trespass into the suit properties, the appellant filed O.S. No.404 of 1982 but Exts.B43 to B45 show that appellant was not able to establish even prima facie, the possession it claimed over the suit properties as per Exts.A2 and A5 and ultimately the suit was dismissed as withdrawn. P.W2 admitted that pursuant to Exts.A2 and A5, no steps were taken to deliver the properties to the appellant. There is no evidence that at any point of time the ## **S.A. No.903 of 2001** ## -: 30 :- appellant got possession of the suit properties. That also is an indication that even P.W.2 and Madhavi Kunjamma had no possession of the suit properties to be conveyed to the appellant as per Exts.A2 and A5. 43. The learned counsel for the appellant would contend that the boundary descriptions in Exts.A8, A3, A4, A2 and A5 would show that the Temple is situated in a corner of the property and that there happened to be no reference to the Temple in Exts.A8, A3 and A4 as it was a small structure in a dilapidated and neglected form situated in the corner. That explanation cannot be accepted. The temple was not merely a 'structure' for the Tarwad. Exhibits B1 to B3 show that there was daily poojas and other festivities in the temple, however small it be. 44. A further fact to be noted is that as per Ext.A3 (the B schedule therein), 42 cents was (allegedly) allotted to Neelakantan Kartha. That 42 cents formed southern portion of the 91 cents excluding the portion retained as paddy land. As per the E schedule of Ext.A3, the remaining 49 cents (out of 91 cents) was allegedly allotted to Madhavi Kunjamma. In Ext.A2, what Madhavi Kunjamma has (allegedly) transferred to the appellant is not the 49 cents she claimed to have got as E ## **S.A. No.903 of 2001** ## -: 31 :- schedule of Ext.A3 but only 40 cents in Sy. No.293/2/1. It is not clear where the remaining 9 cents which Madhavi Kunjamma claims to have got as per the E schedule of Ext.A3 has gone. There is no reference to that 9 cents anywhere in Ext.A2. Exhibit A2 does not say that the said 9 cents was retained by Madhavi Kunjamma. There is no mention of the said 9 cents as forming any boundary of the 40 cents covered by Ext.A2. There is also no case that otherwise Madhavi Kunjamma had disposed of the said 9 cents. 45. It is also relevant to note the northern boundary descriptions in Ext.A5 executed by P.W.2. If in Exts.A8, A3 and A4 the northern boundary of the entire 91 cents is described as 'Nattuvazhi' and D.W1 has admitted that on the north of the suit property it is presently a road, in Exts.A2 and A5, northern boundary of the property is described as mari nilam belonging to Thankappan. It is not clear how such a boundary description could be made in Exts.A2 and A5. If as claimed in Exts.A8, A3 and A4 the northern boundary of the 91 cents was Nattuvazhi (presently the road as stated by D.W.1), there was no possibility of Thankappan owning any nilam in between that Nattuvazhi (or road as the case be) and the 91 cents. ## **S.A. No.903 of 2001** ## -: 32 :- 46. I stated that it was for the first time that reference was made to the Temple in Exts.A2 and A5. More interesting is that portions of the Temple are described as coming in the 40 cents covered by Ext.A2 and the 42 cents covered by Ext.A5. To be so, similar division must have occurred in Ext.A3 also. It is difficult to think that when there was a Temple situated in the entire 91 cents referred to in Ext.A3, a division was made in Ext.A3 in such a way that portions of the Temple happened to be allotted to the two sharers separately as B and E schedules in Ext.A3. 47. The learned counsel for the appellant contends that since it was a family temple and by Exts.A2 and A5, Madhavi Kunjamma and P.W.2 have conveyed their right over the properties and the entire Temple to the appellant, it is of no consequence. That there happened to be gift deeds executed in favour of the appellant by Madhavi Kunjamma and Vasudevan Kartha is only a co-incidence. It was possible for Madhavi Kunjamma and Vasudevan Kartha (P.W.2) to convey their right, title, interest and possession of the properties they claim to have got (referred to in Exts.A2 and A5) to separate individuals. What would have been the fate of the Temple if such an event had ## **S.A. No.903 of 2001** ## -: 33 :- happened? Was it that the Temple also was to be partitioned? If the property where the Temple is situated actually belonged to the Tarwad and was in its possession, the normal conduct would have been to keep that property in common for the benefit of the Tarwad so that, the members of the Tarwad could offer worship in the Temple as of right. That was not done. That also indicates that the Tarwad had no right or authority over the Temple. 48. Though Narayanan Kartha who claims to have acquired right over the 42 cents in Sy. No.293/2 as per Ext.A4 is said to have executed Will No.2/1962 to Vasudevan Kartha (P.W.2) who in turn executed Ext.A5, the said Will is not produced and proved in accordance with the law. 49. It is contended by learned counsel for the appellant that there was no dispute concerning execution of Will No.2/1962 and hence it was not necessary to prove its due execution. Reliance is placed on the decision in **Thayyullathil Kunhikannan & Thayullathil Kalliani** (1990 [1] KLJ 114) **.** 50. That is not the position of law as it now stands. A Will, ## **S.A. No.903 of 2001** ## -: 34 :- in view of Section 68 of the Evidence Act even if not disputed, has to be proved as provided therein. This Court has held so in **Poulose A.V. v. Indira M.R.** (2010 ILR 3 Kerala 388) referring to the decisions of the Supreme Court in **Justiniano Anato & Others** ([2005] 1 SCC 40) and **K. Laxmanan v.** **Thekkayil Padmini** (AIR 2009 SC 951). The appellant was bound to produce Will No.2/1962 and prove the same in accordance with law. That is not done. In the light of the above I am not able to act upon Exts.A8, A3, A2, A5, A4, A6 and A7 series to find title of the suit properties with the appellant. 51. No doubt, the genuineness of Ext.A6, settlement register and Ext.A7 series are to be presumed. It is also possible that in the absence of other evidence, entries in the settlement register could be taken as evidence of title. But revenue records are not documents of title though in appropriate case it may be taken as evidence of title. 52. I stated that there is no evidence (apart from the recitals in Exts.A8, A3, A4, A2 and A5) to show that the Tarwad was in possession and enjoyment of the suit properties and was in control, administration and management of the Temple. On the ## **S.A. No.903 of 2001** ## -: 35 :- other hand, the various documents produced by the respondents would show that initially it was the Swarupam which was managing the Temple while poojas were being performed by Santhikkars belonging to the family of respondents 3 to 5. Later by Ext.B48, karar dated 19.12.1974 right of administration was conferred on the family of respondents 1 to 5. It is in the meantime that the Samithy in whatever name it be, came into existence and the Samithy took over administration of the Temple. 53. The appellant has a contention that the role of the Samithy was only in conducting festivals in the Temple with the co-operation of the local people. But various documents produced by the respondents as also the oral evidence let in would show that the Samithy was in control of the Temple and managing its affairs. It has come in evidence (Ext.B24 of 1979) that the Samithy purchased an item of land adjoining the suit properties to provide convenient access to the Temple and later the PWD constructed a retaining wall on the sides of the said road. 54. Exhibit B51 is the notice dated 19.01.1100 issued by the then Karyastha (E.V. Venkiteswarayyar) of the Swarupam to the Tarwad. That notice is addressed to Eravikuttan Kunji and ## **S.A. No.903 of 2001** ## -: 36 :- Narayanan Kunji of the Tarwad. The appellant denied that there was any such person in the Tarwad during that time. D.W.3 has explained that “Kunji” is the alias name of “Kartha” (members of the Tarwad are called Karthas - see P.W2, Vasudevan Kartha). Thus an explanation is given by the respondents for the names appearing in Ext.B51. It is also relevant to note from Ext.B3, judgment in O.S. No.919 of 1113 that D.W.1 examined in that case (obviously on behalf of the Tarwad) claimed that he had authority from E.V. Venkiteswarayyar, the Karyastha of the Swarupam to conduct festivities (stated by him in his evidence) in the Temple. It is clear that E.V. Venkiteswarayyar, the Karyastha referred to by D.W1, examined in O.S. No.919 of 1113 (mentioned in Ext.B3, judgment) is the Karyastha who issued Ext.B51, notice dated 19.01.1100. In Ext.B51, the Karyastha made a demand for payment of michavaram (from which thatching of roof of the Temple and the daily poojas were to be done). Exhibit B51 refers to the Maradikavu (Temple) which was then being administered by Elayath (belonging to the family of respondents 3 to 5). The respondents have produced Exts.B52 and B53, account books of the Swarupam. Exhibits B52 and B53 series are relevant pages referring to the expenses incurred by ## **S.A. No.903 of 2001** ## -: 37 :- the Swarupam for conducting poojas in the Maradikavu Temple. 55. Though it is argued by the learned counsel for the appellant that Ext.B48, Karar was fabricated on old stamp paper to create evidence and that Exts.B52 and B53 series are not proved to be in respect of the Temple in question, having regard to the circumstances above stated I am unable to accept the above argument. The courts below for valid reasons have accepted the same and that involves no substantial question of law. 56. Another argument advanced by the learned counsel for the respondents is that the suit is barred under Order II, Rule 2 of the Code. The learned counsel for the respondents contended that since the appellant never got possession of the properties, the prayer for recovery of possession ought to have been made in O.S. No.404 of 1982 and having not done that, the present suit for recovery of possession on the strength of title is barred. It is in this connection the learned counsel has placed reliance on the decision in **Alka Gupta v. Narender Kumar Gupta** (2010 KHC 4735). 57. The appellant never admitted that it had no possession of the properties even prior to the filing of O.S. No.404 ## **S.A. No.903 of 2001** ## -: 38 :- of 1982. According to the appellant, after dismissal of the applications for temporary injunction the respondents trespassed into the suit property. It is a different matter that the said allegation of the respondents is not established. O.S. No.404 of 1982 was merely for prohibitory injunction based on possession claimed by the appellant. The present suit is for recovery of possession on the strength of title. The cause of action pleaded in both the suits are different. Therefore I cannot accept the argument of learned counsel for the respondents that the present suit is hit by Order II, Rule 2 of the Code. 58. Whether the transfers made in favour of the appellant as per Exts.A2 and A5 are void for the reason of _'res extra comercium'_ is the next question for decision. Since I have concurred with the findings of the courts below that Exts.B1 to B3 operate as constructive res judicata on the claim made by the appellant and its predecessors-in-interest over the suit properties and the Temple situated therein and that Vasudevan Kartha (P.W.2) and Madhavi Kunjamma had no alienable right over the suit properties, this question (in fact) does not arise for a decision. However, since such a contention is raised I shall proceed to decide that contention as well. ## **S.A. No.903 of 2001** -: 39 :- 59. According to the learned counsel for respondents 1 and 2-defendants 1 and 2, the temple situated in the plaint schedule is a public temple, it having been dedicated to the public and hence the principle of _'res extra comercium_ ' would apply. The learned counsel has placed reliance on the decision in **Narayan** **v. Chitnaman & Moreshvar** (supra). It is pointed out that the Temple situated in the plaint schedule is a Hindu Religious Endowment as understood in the TCHRI Act. It is also contended that such a temple could not be the subject matter of a transfer in view of Sec.6(h)(i) of the T.P. Act. The learned counsel submitted that even the evidence of P.W2 would indicate that the public have a right of worship in the Temple which indicates public nature of the temple. Further reliance is placed on Ext.B6 and other documents which the respondents have produced to show that the Temple is being managed, administered and controlled by the Samithy. 60. In response it is argued by the learned counsel for the appellant that a reading of Exts.A2 and A5, the documents under challenge would show that the Temple is a private Temple which belonged to the Tarwad and which along with the properties was transferred to the appellant. According to the learned counsel, ## **S.A. No.903 of 2001** ## -: 40 :- the respondents 3 to 6 have no case that the Temple in question is a public Temple. A contention to that effect is raised only by respondents 1 and 2. Respondents 3 to 6 continued to hold the view that the Temple belongs to the Swarupam. It is also pointed out by the learned counsel that the Tarwad or the appellant has nothing to do with the Samithy and its bye-law (Ext.B6). At any rate, a reading of Ext.B6 would show that the Samithy was formed only for administration, management and control of affairs of the Temple and for conduct of festivals with the co-operation of the public. The learned counsel has placed reliance on the decisions in **T.Mudaliar v. Commr.H.R. & C.E.** (supra) and **Appukutty v. Kuniyil Achuthan** (supra) to show that the Temple in question is not a public temple. It is argued that in so far as there is no evidence of dedication of the Temple to the public, question of it being a Hindu Religious Endowment as defined in the TCHRI Act would not arise. It is also argued that a reading of Exts.A2 and A5 would show that the gift in favour of the appellant was conditional on the appellant conducting daily poojas and the festivals in the Temple properly and that in case that is not done or the appellant ceased to exist, the property with the Temple would revert to the donors. The ## **S.A. No.903 of 2001** ## -: 41 :- learned counsel argued that under Sec.6(h)(i) of the T.P. Act, a transfer is prohibited only when such transfer is opposed to the nature of the interest affected thereby, which question does not arise on the facts of this case. 61. The appellant proceeds on the basis that the Temple is a private Temple which belonged to the Tarwad and it was conveyed to it as per Ext.A2 and A5. In Exts.A2 and A5 (assuming that the same were to be accepted and acted upon) it is stated that the appellant is to conduct poojas and other festivals in the Temple. The gift is conditional since if the appellant failed to perform the conditions or the appellant ceased to exist, properties will revert to the donors. A reading of Exts.A2 and A5 (if the same were to be accepted) gives the impression that the Temple belong to the Tarwad, i.e., a private temple and that the gift in favour of the appellant is conditional. 62. P.W2 in his evidence stated that all Hindus could worship in the Temple as of right, that the devotees need not have to get permission of anybody for worshiping in the Temple and that all had the liberty to offer worship. It has come in evidence that one Viswambharan, a devotee reconstructed the building and there was a re-installation of the deity. Respondents ## **S.A. No.903 of 2001** ## -: 42 :- 1 and 2 say that Viswambharan did so as if it was a public temple, but the appellant has taken the view that it was a 'vazhipadu' performed by the said Viswambharan. Viswambharan is not examined by either side. Therefore there is no clear cut evidence as to in what circumstance Viswambharan had done as above. 63. In **T.Mudaliar v. Commr.H.R. & C.E.** (supra) and **Appukutty v. Kuniyil Achuthan** (supra), the distinction between a private and public Temple is discussed. In the former, it is held that the three guidelines which enable the court to decide whether it is a religious institution comes within the scope of (Tamil Nadu Hindu Religious Endowment Act) and whether it is a public or private temple are that it should be a place of public worship, there should be acceptable proof of dedication for the benefit of the Hindu Community or a section thereof and incidentally it should also be established that the worshipers have been using as of right a religious institution as a place of public religious worship. In the later decision it is held that the mere fact that the public are allowed to worship by itself would not make an endowment 'public' unless it is proved that the public had a right to worship in the temple. Where the **S.A. No.903 of 2001** ## -: 43 :- origin of the endowment cannot be ascertained, the question whether user of the temple by the members of the public is as of right has to be examined. The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management is a circumstance to indicate public nature of the Trust. Allied to that, there may be circumstances where the evidence shows that there is provision for a scheme to be framed by associating members of the public at large; where however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that control and management of the temple is retained with the founder or his descendants and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, that will be a conclusive proof to show that the endowment was of a private nature. 64. As per the contentions raised by respondents 1 to 6, the Temple belonged to the Swarupam though they contended that the Swarupam had executed Ext.B48, agreement in the year 1974 in favour of the family of respondents 1 to 5 for the purpose of conducting poojas and festivals in the Temple. Only ## **S.A. No.903 of 2001** ## -: 44 :- respondents 1 and 2 contended that the Temple is a public temple. 65. In Exts.A2 and A5, I stated that the Temple is referred to as belonging to the Tarwad along with the suit properties gifted conditionally to the appellant. I also stated that in Exts.A2 and A5 there is a specific direction that the appellant is to conduct poojas and festivals in the Temple and that in case of its failure to do so and in case it ceased to exist, the properties including the building shall revert to the donors. In other words, as per Exts.A2 and A5, the Temple is a private Temple. In the circumstances merely for the reason of P.W.2 stating that all the Hindus could worship as of right and devotees need not have get permission of anybody for such worship, I am not inclined to think that I must deduce from the above said statement alone that the Temple is a public Temple. What P.W.2 stated can only be understood as meaning that there is no objection to the Hindus of all sections offering worship and vazhipadu in the Temple. 66. Exhibit B6, bye-law also would not support the contention of respondents 1 and 2 that the Temple is a public temple. In Ext.B6 it is stated that ownership and possession of ## **S.A. No.903 of 2001** ## -: 45 :- the Temple was with the Swarupam. In the concluding portion of Ext.B6, it is stated that in case the Samithy is not able to conduct poojas in the manner referred to in Ext.B6, the Temple is to be entrusted to the Swarupam. A reading of Ext.B6 would only indicate that what was taken over by the Samithy is the administration and management of the Temple and the conduct of poojas and festivals. The mere fact of the Samithy being in administration and management of the Temple without any evidence of the Tarwad or the Swarupam having any role in its properties cannot be a circumstance to hold that the Temple is a public Temple. 67. Section 2(b)(i) of the TCHRI Act defines 'Hindu Religious Endowment' as meaning every Hindu temple or shrine or other religious endowment dedicated to, or used as of right by, the Hindu community or any section thereof. That circumstance does not arise in this case. 68. The learned counsel for respondents 1 and 2 has placed reliance on the Commentaries of the Transfer of Property Act, by H.S.Gour (9[th] Edn. at page 110) where it is stated that a Hindu Religious Endowment cannot be transferred. Reference is also made to Mulla's Transfer of Property Act (9[th] Edn. at page ## **S.A. No.903 of 2001** ## -: 46 :- 116) where it is held that things dedicated to the public or religious use are classed as ' _res extra comercium'_ which cannot be bought or sold. Reference is also made to the AIR Commentaries by Chitaley on the Transfer of Property Act (7[th] Edn. at page 332) where it is stated that temple meant to be a place of public worship cannot be transferred as it is opposed to the nature of the transfer. 69. To Attract Section 6(h)(i) of the T.P. Act it must be shown that the transfer is opposed to the nature of the interest affected thereby. I stated from Exts.A2 and A5 (assuming that the same is accepted) that the gift is conditional, it is intended for the proper conduct of the poojas and festivals in the Temple and that in case it is not so done, the properties and the Temple would revert to the donors. Therefore it is difficult to say that the transfer (vide Exts.A2 and A5) is opposed to the nature of the interest affected thereby. In the above circumstances, the contention of respondents 1 and 2 that the transfers as per Ext.A2 and A5 (assuming that the same were accepted) are hit by Sec.6(h)(i) of the T.P. Act cannot be accepted. Finding of the courts below to the contrary cannot therefore stand (this finding is of no consequence since I found that the appellant has not ## **S.A. No.903 of 2001** ## -: 47 :- acquired title or possession of the suit properties and the Temple situated therein). 70. The substantial questions of law framed are answered as above. Resultantly: - (i) The Second Appeal fails. It is dismissed. - (ii) Parties are directed to suffer their costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv