The Executive Officer, Sree Madanantheshwara Vinayaka Temple, Madhur (PO), Kasaragod v. M.V.Venkitakrishna Kalluraya and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939 MFA.No. 142 of 2013 () ----------------------- AGAINST THE ORDER/JUDGMENT IN OS 26/1999 of SUB COURT, KASARAGOD DATED 31-08-2013 APPELLANT(S)/3RD DEFENDANT: ------------------------------------ THE EXECUTIVE OFFICER, SREE MADANANTHESHWARA VINAYAKA TEMPLE, MADHUR (PO), KASARAGOD. BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA RESPONDENT(S)/RESPONDENTS: -------------------------------------- ## 1. M.V.VENKITAKRISHNA KALLURAYA, S/O.LATE VASUDEVA KALLURAYA, MELINAMANE, MADHUR(PO), KASARAGOD-671 124. ## 2. M.VASUDEVA KALLURAYA, S/O.VISHNU KALLURAYA, MELINAMANE, MADHUR(PO), KASARAGOD-671 124. ## 3. THE COMMISSIONER HR&CE(ADM), KOZHIKODE, CIVIL STATION, KOZHIKODE-673 001. (PRESENTLY COMMISSIONER), MALABAR DEVASWOM BOARD), HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE. 4. THE DEPUTY COMMISSIONER, HR&CE(ADM), KOZHIKODE, CIVIL STATION, KOZHIKODE-673 001. (PRESENTLY DEPUTY COMMISSIONER, MALABAR DEVASWOM BOARD). R1 BY ADV. SRI.JAWAHAR JOSE CAVEATOR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. RAVINDRAN & DAMA SESHADRI NAIDU, JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. No. 142 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## _**P.N. RAVINDRAN, J.**_ This appeal arises from the judgment delivered by the Court of the Subordinate Judge of Kasaragod on 31.8.2013 in O.S.No.26 of 1999. The appellant is the third defendant therein. By the impugned judgment, the suit instituted by respondents 1 and 2 under Section 62 of the Madras Hindu Religious and Charitable Endowments Act, 1951(hereinafter referred to as 'the Act' for shot) challenging the orders passed by the Deputy Commissioner, HR & CE (Administration), Kozhikode in O.A.No.2 of 1981 [Ext.X1(ar)] and the Commissioner HR & CE (Administration), Kozhikode in A.P.5 of 1998 [Ext.X1(aq)= Ext.A1] was decreed, setting aside the said orders and it was declared that the plaintiffs are the hereditary Keezhsanthies of Madhur Sree Madanantheshwara Vinayaka Temple. The brief facts of the case are as follows: 2. Respondents 1 and 2 herein are members of Melinamane Kalluraya family, an ancient family of priests residing in Madhur Village of Kasaragod District. They claim that they are hereditary Keezhsanthies of Sree Madanantheshwara Vinayaka Temple ('the temple' for short) established by members of the Maippady Kovilakom. Respondents 1 and 2 had in the plaint averred that they and their predecessors-in-interest have been M.F.A. No. 142 of 2013 -2- working as Keezhsanthies of the temple by virtue of their hereditary right, that originally there were only two hereditary Keezhsanthies and later, two posts of non hereditary Keezhsanthies were created in the year 1960, taking into account the need and necessity to have more Santhies. It is stated that after Sri. K Shankar Rao a practicing lawyer and Sri. B.S. Kakkilaya came into management of the temple as representatives of the hereditary trustee, they manipulated and destroyed the records with the mala fide intention of denying the status of the plaintiffs as hereditary Keezhsanthies, that later, Sri. K. Shankar Rao got himself appointed as the Fit Person of the temple and thereafter reduced the emoluments of the plaintiffs with a view to deny them their status as hereditary Keezhsanthies. 3. It is stated that the plaintiffs thereupon filed O.A.No.2 of 1981 before the Deputy Commissioner, HR & CE (Administration), Kozhikode under Section 57(e) of the Act a seeking declaration that they are hereditary Keezhsanthies of the temple. Sri. K. Shankar Rao, the respondent in the said application and Sri. B.S. Kakkilaya who got himself impleaded contested the said application. The Executive Officer of the temple was later impleaded as the third respondent in O.A.No.2 of 1981. Before the Deputy Commissioner, the first plaintiff was examined as PW1, the Thanthri of the temple was examined as PW2 and the hereditary trustee of the temple was examined as PW3. The plaintiffs also caused production of documents M.F.A. No. 142 of 2013 -3- which were marked as Exts.X1 to X1(as) and Ext.X2 to X2(d) series. On the side of the respondents, though Sri.K. Shankar Rao was examined as RW1, he did not turn up for cross examination. The Executive Officer of the temple was examined as RW2. The said witnesses did not however produce any documentary evidence before the Deputy Commissioner. 4. After considering the rival contentions, the Deputy Commissioner rejected the prayer in O.A.No.2 of 1981 by Ext.X1(ar) order dated 25.11.1997. The plaintiffs thereupon carried the matter in appeal before the Commissioner under Section 61 of the Act. By Ext.X1(aq) order dated 27.2.1999 which corresponds to Ext.A1 produced and marked in the suit from which the instant appeal arises, the Commissioner rejected the appeal. The instant suit was filed thereupon under Section 62 of the Act seeking the reliefs aforesaid. In the suit, the parties did not adduce any fresh oral or documentary evidence. 5. Before the trial court, the plaintiffs produced and marked only Ext.A1, the order passed by the Commissioner on appeal and the consequential proceedings issued by the Executive Officer of the temple as Ext.A2. They also relied on the evidence already adduced before the Deputy Commissioner and the Commissioner. The defendants produced and marked Exts. B1 to B6. After considering the rival contentions the court below held, relying on the decisions of M.F.A. No. 142 of 2013 -4- this court in **Ramachandran v. Kallianikutty Amma** 2001 (3) KLT 838 and **Gopinathan v. Raman** 2004 (2) KLT 511, that the documents produced before the original authorities namely, the Deputy Commissioner and Commissioner can be relied on in support of the rival contentions. The contention of the appellant/third defendant in the suit, that the plaintiffs had not adduced independent evidence in the suit and therefore they cannot rely on the documents already produced before the original authorities, was repelled. The court below thereafter proceeded to consider the case of the plaintiffs on the merits and held relying on the evidence tendered by the plaintiffs and the witnesses examined before the Deputy Commissioner as also the documents already on record before the Deputy Commissioner, that the plaintiffs are hereditary Keezhsanthies of the temple. The suit was accordingly decreed as prayed for. The said judgment is under challenge in this appeal. 6. We heard Sri. Mahesh V. Ramakrishnan, learned counsel appearing for the appellant and Sri. Jawahar Jose, learned counsel appearing for respondents 1 and 2. We have also gone through the pleadings and the materials on record. It is evident from the impugned order itself that the court below has decided the issue based on the documents already produced before the Deputy Commissioner and the Commissioner. This court has consistently taken the view that though the Civil Court can in a filed suit under M.F.A. No. 142 of 2013 -5- Section 61 of the Act independently examine the question before it on the basis of oral and documentary evidence adduced before it, the evidence already adduced before the Deputy Commissioner or the Commissioner cannot be eschewed on the ground that the suit is one instituted against the orders passed by them. In such circumstances, we are of the considered opinion that the appellant cannot contend for the position that as the plaintiffs have not adduced independent evidence before the trial court, the impugned judgment is liable to be set aside for the reason that the findings in the impugned judgment are based on the evidence already adduced before the Deputy Commissioner and the Commissioner. 7. That take us to the question whether the finding entered by the court below on the merits, that the plaintiffs are the hereditary Keezhsanthies of the temple is sustainable in law. It is relevant in this context to note that there was overwhelming evidence before the Deputy Commissioner and the court below to show that the first plaintiff, his father and paternal grand father were hereditary Keezhsanthies of the temple. The evidence also discloses that the second plaintiff, his father and his father's brother were also Keezhsanthies of the temple. It has been proved that from 1924 onwards, the predecessors-in-interest of the plaintiffs had been employed as Keezhsanthies on hereditary basis in the temple. It is relevant in this context to note that Sri. Sankara Rao, the Fit Person M.F.A. No. 142 of 2013 -6- had, in the written statement dated 18.03.1981 filed in O.S. No. 2 of 1989, admitted in paragraph 9 thereof that the first plaintiff's grand father was appointed as Keezhsanthi in the year 1924 by the receiver then in management of the temple. In the same written statement, he has also conceded the fact that the second petitioner's father was appointed as Melsanthi in the year 1932. Besides the said document, the plaintiffs had also relied on X1(o) letter dated 06.01.1978 sent by the hereditary trustee examined as PW3 to the first plaintiff's father, wherein there is a specific statement to the effect that the plaintiffs and their predecessors have been working in the temple as hereditary keezhsanties. The Deputy Commissioner, however, declined to act on the said document on the ground that the person to whom the letter was addressed, namely the first plaintiff's father Vasudeva Kalluraya was not at that point of time employed as a Keezhsanti in the temple. The court below has relied on the said document as also other documentary evidence to come to the conclusion that the plaintiffs have proved that they and their predecessors-in-interest (for three generations) have been keezhsanties of the temple. The court below accordingly held that the plaintiffs have proved that they and their family members have hereditary right to work as Keezhsanties in the temple. 8. The court below has also taken note of the fact that in tune with the stipulations contained in the rules framed under Section 100 M.F.A. No. 142 of 2013 -7- (2)(y) of the Act, the father of the first plaintiff had joined as a keezhsanti in the temple in the year 1924 when he was 15 years old. The court below has also referred to the fact that under Rule 4(2) of the Rules thus framed under the Act, only a person having a hereditary right could have been appointed as Keezhsanthi before attaining the age of 25 years. In the light of the abundant documentary evidence on record, we are not persuaded to hold that the finding entered by the court below that the plaintiffs have proved that they have hereditary right to work as keezhsanties in the temple is in any way infirm or illegal. Though it was contended before the court below that the services of the predecessors- in-interest of both the plaintiffs were terminated for misconduct and therefore they cannot claim any hereditary right, the court below has repelled the said contention relying on Section 48 of the Act, which recognizes the right in the members of the family, which enjoys the hereditary right to work as a substitute in the place of the person facing disciplinary action. In the instant case, no other member of the plaintiff's family has put forward any better right than the plaintiffs. The contention of the defendants is that the members of the plaintiff's family have no hereditary right. In such circumstances, we find no merit in the challenge to the finding entered by the court below that the mere fact that the disciplinary action was initiated against the predecessors-ininterest of the plaintiffs is not a reason to hold that the family of the M.F.A. No. 142 of 2013 -8- plaintiffs have no hereditary right. 9. The court below has also taken note of the fact that the defendants had not complied with the order passed by the Deputy Commissioner in O.A. No. 2 of 1981, whereby they were called upon to produce the records kept in the temple relating to the appointment and service conditions of the employees appointed during the period 1956-1979. The court below has also taken note of the fact that the hereditary trustees/the fit persons have not maintained the records required to be maintained under Section 25 of the Act and therefore no reliance can be placed on Exts.B4 and B6 prepared after Sri.Sankar Rao was appointed as the fit person, to deny the hereditary right claimed by the plaintiffs. It is also relevant in this context to note that Sri. K. Sankar Rao, the fit person appointed in the year 1976, who was an Advocate practising in Kasargod, had appeared against the plaintiffs' family in civil litigations to which they were parties. The court below has also taken note of the fact that it was having regard to the said fact that the plaintiffs had filed an application before the Deputy Commissioner in O.A. No. 2 of 1981 for an order directing the fit person to produce the documents kept in the temple relating to the appointment and service conditions of employees appointed during the period 1956-1979. Though the said application, which was produced and marked as X2(a) was allowed, the documents referred to therein were not produced before the Deputy Commissioner. The M.F.A. No. 142 of 2013 -9- court below has, having regard to the said conduct of the fit person, drawn an adverse inference against him. After hearing learned counsel appearing on both sides and after going through the materials on record, we find no reason or justification to hold that the finding entered by the court below on the evidence available before it that the plaintiffs have proved their hereditary right to work as Keezhsanties in the temple is a perverse finding warranting interference in appeal. We, accordingly hold that there is no merit in the appeal. The appeal fails and is dismissed. No costs. Sd/- **P.N. RAVINDRAN, JUDGE.** **Sd/-** **DAMA SESHADRI NAIDU, JUDGE.** _kp/rv_