T. C. Chandrasekharan v. A. Raveendran Karthavu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** # **TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934** ## **OP(C).No. 1953 of 2012 (O)** **-------------------------------------OS.38/2010 of SUB COURT, OTTAPPALAM .......** ## **PETITIONER(S):** **------------------------** ## **T.C. CHANDRASEKHARAN, AGED 42 YEARS, S/O. SETHUMADHAVA VARIOR THRIKKAIKUNNATH VARIAM KAVUVATTAM, CHERPALCHERY.P.O. OTTAPPALAM, TALUK.** **BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH)** ## **RESPONDENT(S):** - **----------------------------** **1. A.RAVEENDRAN KARTHAVU, AGED 67 YEARS S/O. M.I. NEDUNGADI, AATHRAMPATTA HOUSE, NELLAYA P.O. OTTAPPALAM, TALUK.** **2. I. DEVIDASAN, AGED 52 YEARS S/O. N.A. APPU KUTTANUNNI ERADI, ELLARA KOVILAKAM CHERPALCHERY.P.O. 679 503.** **3. THE MANAGING TRUSTEE CHERPALCHERRY SREE AYYAPPANKAVU DEVASWOM, PAVUVATTAM CHERPALCHERRY.679 508.** **4. THE DEPUTY COMMISSIONER HR & CE (ADMN) DEPARTMENT KOZHIKODE.673 001.** **5. THE COMMISSIONER** - **MALABAR DEVASWOM BOARD, KOZHIKODE 673 001.** **R3 BY ADV. SRI.T.A.RAJAGOPALAN R1,R2 BY ADV. SRI.T.C.SURESH MENON R1,R2 BY ADV. SRI.P.S.APPU R1,R2 BY ADV. SRI.K.A.ANAS R4 & 5 BY ADV. SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD BY SRI.R.LAKSHMI NARAYANAN,SC,MALABAR DEVA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C) NO.1953/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1TRUE COPY OF THE PLAINT IN O.S. NO. 38/2010 ON THE FILE OF THE SUB COURT, OTTAPALAM DATED 27-1-2010.** **EXT.P2TRUE COPY OF THE ORDER NO. A1 2279/05 PASSED BY THE DEPUTY COMMISSIONER (HR & CE) DATED 20-6-2006.** **EXT.P3TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 IN O.S. 38/2010 DATED 20-3-2010 .** **EXT.P4TRUE COPY OF THE ORDER DATED 25-2-2012 IN O.S. NO. 38/2010 ON THE FILE OF THE SUB COURT, OTTAPALAM.** **EXT.P5TRUE COPY OF THE ORDER PASSED BY THE HIGH COURT OF JUDICATURE, MADRAS DATED 24-9-1930 WITH SCHEME COPY.** **EXT.P6TRUE COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT IN ANSWER TO THE PETITIONERS QUERY DATED 14-9-09.** ## **RESPONDENTS' EXHIBITS** **NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **tss** ## **S.S.SATHEESACHANDRAN, J.** ## **------------------------------O.P.(C).NO.1953 OF 2012** ## **----------------------------------Dated this the 5[th] day of February, 2013** ## **J U D G M E N T** Ext.P4 order passed by the learned Sub Judge, Ottapalam holding that the suit filed for a declaration that defendants 1 and 2 are not the hereditary trustees of a religious institution, with some other reliefs also, is not entertainable before the civil court is challenged by plaintiff in the above original petition invoking the visitorial jurisdiction of this Court under Article 227 of the Constitution of India. 2. Among other issues cast on the pleadings of the parties to the suit additional issue no.5 was raised over the jurisdiction of the court to entertain the suit. The religious institution covered by the case, it is not disputed, is one coming within the ambit of Hindu Religious and Charitable Endowments Act, 1951, for short, the 'Act'. Ext.P1 is copy of the plaint. Plaintiff claimed **O.P.(C).No.1953/2012** **2** that he is a member of a hereditary kazhakom family having some right of kazhakam to do service in the temple. When vacancies arose towards two posts of kazhakam and a clerk, he too applied but defendants 1 and 2 who were appointed as hereditary trustees by the 4[th] defendant, the Deputy Commissioner under the HR & CE (ADMN) Department were instrumental in denying him appointment adopting foul methods was his case. Entitlement of defendants 1 and 2 to be appointed as hereditary trustees was impeached by plaintiff contending that they are not members of the families from which hereditary trustees are to be selected and appointed. Whatever disputes raised by petitioner/plaintiff in the above suit for adjudication and also reliefs canvassed of fall within the authority of the Deputy Commissioner under the aforesaid Act for resolution, and as such, the civil court has no jurisdiction to entertain the suit was, in short, the objection raised by contesting defendants to resist the suit. So the short question that emerges for consideration is whether a declaratory suit of the nature as canvassed of, if disputes thereof are raised, is entertainable **O.P.(C).No.1953/2012** **3** before a civil court. Learned counsel appearing for 1[st] and 2[nd] respondents and also that of 3[rd] respondent banking upon Section 57 (b) of the above Act contended that whether defendants 1 and 2 can claim themselves to be hereditary trustees or not and their appointment is legal or otherwise, is a dispute which can be considered only by the Deputy Commissioner under the Act. ## 3. Section 57 (b) of the Act reads thus: **57. Deputy Commissioner to decide certain disputes and matters:-** Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters- (a) whether an institution is a religious institution; (b) whether a trustee holds or held office as a hereditary trustee; (c) …........... (Rest not required and omitted.) It does not require much expertise to form a conclusion that a declaratory suit whether one is a hereditary trustee or not does **O.P.(C).No.1953/2012** **4** not come within the ambit of Section 57 (b) of the Act. Section 93 of the Act emphatically makes it clear that the bar or interdiction on the jurisdiction of the civil court is only over matters or disputes, for the resolution of which specific provision and also procedure prescribed with conferment of authority on the person to decide the same are provided under the Act. Section 93 of the Act reads thus:- **93. Bar of suits in respect of Administration or Management of Religious institutions etc.-** No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act.” The Apex Court in **B.K.C.Muruga Konar (dead) by Lrs. and others v. V.Setha Kone and others (AIR 1989 SC 2102)** has considered the ambit and scope of identical provision similar to Section 93 of the above Act, in Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, with respect to a suit filed for **O.P.(C).No.1953/2012** **5** rendition of accounts by the trustees. Only in respect of matters where specific provision is made for determining or deciding the dispute with conferment of authority to one or other person covered by the Act, it was held, the bar of the civil court to entertain the suit would arise. A declaratory suit is one which is based on the civil right of a party. True, in the present case, what is set forth is a negative declaration and its entertainability is a matter that may have to be looked into with respect to the entitlement of plaintiff to seek such a relief. Before me, it was argued by the counsel appearing for respondents 1 to 3 that plaintiff a member of kazhakam family has no locus standi or competency to raise any dispute as to who are all could be considered as hereditary trustees of the temple, the religious institution, involved in the case. Whether he has competency or otherwise is a different matter which cannot be mixed with the question of jurisdiction of the court to entertain the suit. That challenge may have significance in considering the reliefs canvassed in his suit. But to say the court has no jurisdiction to entertain the suit with reference to Section 57 (b) of the **O.P.(C).No.1953/2012** **6** aforesaid Act is erroneous and unsustainable. Ext.P4 order is set aside, but, without prejudice to the rights of the contesting defendants to dispute the competency of petitioner to institute the suit and seek the reliefs thereunder. Original petition is disposed of. **S.S.SATHEESACHANDRAN JUDGE** prp