Thrikkur Mahadeva Temple v. Thrikkur Mahadeva Temple Bhakthajana Sankhadana & Paliyam Group Devaswom Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 13TH POUSHA, 1940** **FAO.No. 356 of 2010** **AGAINST THE ORDER DATED 19-07-2010 IN I.A NO.1776(a)/2010 IN O.S NO.299 OF 2010 ON THE FILE OF PRINCIPAL SUB COURT, IRINJALAKUDA.** ## **APPELLANTS/PETITIONERS/PLAINTIFFS :** - **1 THRIKKUR MAHADEVA TEMPLE - REPRESENTED BY NEXT FRIEND OF THE IDOL GOPALAKRISHNAN, S/O.GOPALANKUTTY MARAR, CHEMBALIPURATH MATATH, THRIKKUR VILLAGE & DESOM, MUKUNDAPURAM TALUK.** - **2 GOPALA KRISHNAN, S/O.GOPALANKUTTY MARAR, CHEMBALIPURATH MATATH, THRIKKUR VILLAGE & DESOM, MUKUNDAPURAM TALUK.** - **3 AJITHKUMAR, S/O.VADKKEPURAKKAL NARAYANAN, THRIKKUR VILLAGE & DESOM, MUKUNDAPURAM TALUK.** **BY ADVS. SRI.P.VIJAYAKUMAR & SRI.C.R.REGHUNATHAN.** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS :** **1 THRIKKUR MAHADEVA TEMPLE BHAKTHAJANA SANKHADANA, REP. BY SECRETARY, GIRI.P., S/O.KOZIPRA VEETTIL ARAVINDAKSHAN, THRIKKUR VILLAGE, P.O., MUKUNDAPURAM TALUK, THRISSUR (DT), PIN - 680 314.** - **2 THRIKKUR MAHADEVA TEMPLE BHAKTHAJANA SANKHADANA, PRESIDENT, PRASURAMAN, PUTHENMADHOM, P.O.THRIKKUR,, THRISSUR (DT), PIN - 680 314.** **3 PALIYAM GROUP DEVASWOM TRUST, PALIYAM KOVILAKAM, P.O.CHENDAMANGALAM, NORTH PARAVOOR, ERNAKULAM (DT) - 683 512.** **BY ADVS. SRI.G.SREEKUMAR (CHELUR) AND SRI.K.RAVI (PARIYARATH)FOR R1& R2** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O No.356 OF 2010 2 ## A.HARIPRASAD, J. -------------------------------------- ## F.A.O No.356 OF 2010 -------------------------------------- Dated this the 9th day of January, 2019 ## J U D G M E N T Challenge in this appeal is against the order passed by the Principal Subordinate Judge, Irinjalakuda, on I.A No.1776(a) of 2010 in O.S No.299 of 2010. The appellants approached the court below with a suit purported to be filed under Section 92 of the Code of Civil Procedure, 1908 (in short 'the C.P.C'). Along with the suit, an application for leave under Section 92 of the C.P.C was also filed. The court at the first instance granted leave. After appearance of the defendants, they raised objections against the grant of leave and on consideration of the objections, the leave granted to the appellants was revoked. Hence, they are before this Court. 2. Heard the learned counsel for the appellants and respondents. 3. The suit is filed for framing a scheme for the administration of F.A.O No.356 OF 2010 3 Thrikkur Mahadeva temple and for a direction to the defendants to file accounts of all the movable and immovable properties belonging to the idol and also for such other reliefs. 4. Learned counsel for the respondents raised a primary objection that the first plaintiff is the idol of the temple represented by a next friend and the plaintiffs 2 and 3 are the so called worshipers of the temple. According to him, the frame of the suit itself is bad because the first plaintiff is seeking to vindicate his private interest and the plaintiffs 2 and 3 are coming forward by invoking a public interest under Section 92 of the C.P.C. However, that question was not considered by the court below in the impugned order. 5. The court below revoked the leave mainly on two grounds. First of all, it was found that the temple in question is a private trust and therefore, Section 92 of the C.P.C is not applicable in such a situation. This finding by the court below appears to be patently illegal for the reasons that the averments in the plaint would show that the relief claimed is in respect of a public religious trust. The test to be applied for determining whether a trust is F.A.O No.356 OF 2010 4 a public trust or a private trust has been stated elaborately by the Supreme Court in Deoki Nandan v.Murlidhar and others (AIR 1957 SC 133). The court below has to consider that aspect. 6. It is a well settled proposition of law that whether leave under Section 92 of the C.P.C has to be given or not should be ascertained merely looking into the averments in the pleadings. No extraneous matter can be considered for deciding the question of leave. This proposition is also covered by various binding precedents. The court below has not applied its mind correctly to this aspect. 7. Another reason for revoking the leave stated by the court below is that the remedy of the plaintiffs is to approach a competent court under Section 25 of the Travancore - Cochin Literary, Scientific & Charitable Societies Registration Act, 1955 (in short 'the Act'). Section 25 of the Act reads as follows : ## “ 25. Application to court for dissolution, framing a F.A.O No.356 OF 2010 5 scheme, etc. - (1) When an application is made by the State Government or ten per cent of the members on the rolls of a society to the District Court within the jurisdiction of which the society is registered, the court may, after enquiry and on being satisfied that it is just and equitable, pass any of the following orders :- - (a) removing the existing governing body and appointing a fresh governing body; or - (b) framing a scheme for the better and efficient management of the society; or - (c) dissolving the society. - (2) Where the application under sub-section (1) is by the members of the society, the applicant shall deposit in court along with the application the sum of one hundred rupees in cash as security for costs.” 8. From the pleadings, it is seen that the plaintiffs 2 and 3 seek framing a scheme for the administration of a public religious trust. F.A.O No.356 OF 2010 6 Going by the principle laid down by the Full Bench of this Court in Kesava Panicker v. Damodara Panicker and Others (1975 KLT 797 (F.B) ), it has to be found that the court below has not applied its mind correctly to the facts of the case. The full bench says in the following terms : “ 7 . Counsel very strongly relied on the decision in G. Chikka Venkatappa and another v. D. Hanumanthappa and others 1970 (1) M.L.J. 296. The decision is authority for the proposition that the formation of a society under the Societies Registration Act to carry out any charitable or useful or social purpose cannot be regarded as amounting to creation of a trust for the application of S.92 of the Civil Procedure Code. The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated. So it was urged that even if the properties F.A.O No.356 OF 2010 7 were acquired by the Keralasseri High School Society there was no trust which would enable a suit being instituted in accordance with the provisions of S.92 of the Civil Procedure Code. If we may say so, with great respect, the position stated in the decision is the correct one. That was stated with reference to the facts of that case and the conclusion arrived at after discussing the facts is seen from Para.21 of the judgment which we shall extract. "21. On the evidence, therefore, there cannot be the slightest doubt that the construction of this building was purely and exclusively an activity and concern of the registered society called the Devanga Sangha. It was not and cannot be described as a matter in which the entire Devanga Community as community took any interest or any steps in such a way as to make it possible to suggest that a specified item of property was dedicated by it. or some members thereof, to public purpose, viz. some welfare of the community at large." " 9. A learned Single judge of this Court in Sukumaran v. Akamala F.A.O No.356 OF 2010 8 ## Sree Dharma Sastha Idol (1992(1) K.L.T 432) has held thus : “ The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated.... if there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties .which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character." 10. The same question was considered by another learned Single Judge of this Court in Abhaya v. Raheem (2005(3) K.L.T 891) . Therefore, if the plaintiffs establish that they are vindicating their public right as worshippers in a public temple, their remedy against the defendants should fall under Section 92 of the C.P.C and not under Section 25 of the Act. F.A.O No.356 OF 2010 9 However, as pointed out by the learned counsel on both sides, the court has not considered many vital aspects arising in this case. Hence, I am constrained to set aside the impugned order and remand the matter to the court below. In the result, the appeal is allowed. The impugned order is set aside. The court below shall consider the plaintiffs' right to institute a suit under Section 92 of the C.P.C afresh. Parties shall appear before the court below on 4th February, 2019. The court below shall dispose of the matter within a period of two months from the date of appearance of the parties. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. amk