IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH OCTOBER 2007 / 23RD ASWINA 1929 RFA.No. 349 of 2006(E) ---------------------- OS.4/1978 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... APPELLANT/ADDL.11TH DEFENDANT ------------------------------ MURALEEDHARAN NAIR,SON OF MADAVAN NAIR, RESIDING AT ETTIRUTHI VEED, KATTAKADA, NEDUMANGAD TALUK, THIRUVANANTHAPURAM. (Appellant is exempted from the necessity of substituting the L.Rs. of the deceased R2 and R9 as per order dated 15/10/07 in I.A.185/2007) BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENTS: PLAINTIFFS 7 DEFENDANTS 2,4,TO 10 & 12 TO 15 --------------------------------------------------------- 1. KATTAL SREEBHADRAKALI DEVI TEMPLE, KATAKADA MURI,KATTAKADA, NEDUMANGAD. 2. PARAMESWARAN NAIR, OORACHAL VEEDU, KULANGARA MURI, KULATHUMMAL VILLAGE, DO.DO. 3. PURUSHOTTAMAN NAIR, PONGARAKONATHU VEEDU DO. DO. 4. MADUSOODANAN NAIR,LEKSHMI NIVAS, DO.DO. 5. KRISHNA NAIR, DO. DO. 6. KESAVAN NAIR, DO.DO. 7. KRISHNA PILLAI GOVINDA PILLAI, MADATHU VEEDU, DO. DO. 8. KRISHNA PILLAI RAMACHANDRAN NAIR, KANJIRAKATTU VEEDU, DO. DO. 9. NEELAKANTA PILLAI BHASKARAN NAIR, KEEZHE PULLUVILAKOM, DALAKONAM, THOTTUMPARA WARD, VEERANAKAVU. 10. N.PADMANABHAN NAIR, KRISHNAVILASOM, KATTAKADA WARD, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM. -2- R.F.A.No.349/2006 11. RAJESWARI, ANANDA BHAVAN, THALAYAL, BALARAMAPURAM, THIRUVANANTHAPURAM. 12. M.MOHANAN NAIR,ETTIRUTHI PUTHEN VEEDU, KATTAKADA. 13. SREEKUMAR, THANNIVILA VEEDU, NARUVAMOODU P.O., THIRUVANANTHAPURAM. 14. VASANTHA MANJARI, ETTIRUTHI PUTHEN VEEDU, KATTAKADA P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS SRI.M.RAJASEKHARAN NAYAR SMT. MANJUSHA MOHANDAS SMT.ANILA PETER THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Raman, J. When the matter was taken up, none appears. Name of the parties called. Absent. Dismissed for default. Sd/- P.R.RAMAN,JUDGE. 15th October, 2007 Sd/- V.K.MOHANAN, JUDGE. ORDER ON I.A.NOS.2177 & 3742/2006 ------------ Dismissed Sd/- P.R.RAMAN, JUDGE. 15/10/2007 Sd/- V.K. MOHANAN, JUDGE. True Copy P.A. TO JUDGE. K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 349 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the Additional 11th defendant in O.S.No. 4 of 1978 on the file of the II Additional District Court, Trivandrum. Respondents 1 to 3 herein are the plaintiffs 1 to 3 in that suit. The other respondents are defendants 2, 4 to 10 and 12 to 15 in that suit. 2. O.S. No. 4 of 1978 is a suit filed under Section 92 C.P.C. for removing defendants 1 and 2 from the office of the President and Secretary of the first plaintiff temple, to prepare a scheme for management of that temple and for other reliefs. 3. The suit was filed in respect of the deity Kattal Sree Bhadrakali Devi, who figures as the first plaintiff in the suit. R.F.A.No. 349 of 2006 2 The 2nd plaintiff alleged that he is the President of the Executive Committee of the temple and the 3rd plaintiff is the Secretary. Originally there were only two defendants. Consequent to Order 1 Rule 8 publication, defendants 3 to 20 were impleaded as the persons interested in the subject matter. 4. The first plaintiff is Kattal Sree Bhadrakali Devi in the temple situated in the plaint schedule property. There are other buildings, inclusive of shop rooms, Madapally and such other structures which also belong to this temple. The temple is a very ancient one, the original survey number of the property, in which the temple is situated, is Sy.No.1617 and resurvey No. 876/1 of Kulathummal Village . The property has been dedicated to this temple from time immemorial. The Chitta, and pattas stand in the name of four individuals, namely Kesavan Thanuvan of Oorachal veedu, Kumaran Govindan of Ettiruthi veedu, Krishna Govindan of Kanjirakkattu veedu and Aiyappan Kannan of Nadu R.F.A.No. 349 of 2006 3 veedu. These pattadars represented four separate Nair families in that locality. 5. The temple though originally was a private temple of above four pattadars, has in course, became a public temple. Originally the members of the Nair community alone worshiped in the temple, but for the past 50 years every Hindu is admited in the temple. Every year during the month of Meenam on the Bharani day, there was a festival attended by all the people of that locality. A committee was elected for the proper conduct of this festival. Entertainments were also held and were attended by all Hindus in the locality. The managing committee was elected for a period of one year by the general body of the Nair community of that locality. Notice was given to all the people in that locality by affixing the same in a conspicuous place, which was clearly visible by all the people. The President, Secretary and the Treasurer are also annually elected in the general body. R.F.A.No. 349 of 2006 4 6. The general body of this committee was convened on 3.3.74 and managing committee was elected, including the office bearers. The first defendant was elected as the President and 2nd defendant as the Secretary for a period of one year. The defendants, after they have been elected as the President and the Secretary, began to mismanage the affairs of the temple. They wilfully restrained from submitting accounts before the general body and the managing committee for a period of three years. This recalcitrant attitude on the part of the defendants created resentment among the worshippers in the temple and they insisted for fresh election of the managing committee. 7. After proper notice, the general body was convened on 2.5.1976. In that general body, a new managing committee was elected, consisting of 21 members. The 2nd plaintiff was elected as the President and the 3rd plaintiff as the Secretary. This infuriated the defendants. They refused to hand over the records. The first R.F.A.No. 349 of 2006 5 defendant thereafter was taking a very hostile view in the management of the temple and he even began to assert exclusive title to this temple for himself. The first defendant or his family or even his father's family has absolutely no title to this temple and he was managing the affairs of the temple only in his capacity as the elected President. The tax in respect of this temple was paid in the name of the deity and not in the name of an individual or a family. 8. There are 14 shop rooms and 4 bunks, which are tenanted, and the first defendant is issuing receipts to them as President of the managing committee. The amount due to the temple are at present with them. The patta in respect of this property, as already submitted, is in the name of 4 distinct families and this being the puthuval land, patta is the only title conferring ownership over the property. So the unilateral execution of any document by the members of the first defendant's father's family R.F.A.No. 349 of 2006 6 would not in any way derogate the title of the members of the other families mentioned in the patta or that of the worshippers of the temple. It is undesirable to leave the management of the temple in the lands of the defendants. There are serious allegations against the defendants and it will be absolutely unsafe to allow them to continue in office as President and Secretary. The plaintiffs pray that a scheme for the management of the temple may be drawn by the court so that there may not be disputes with regard to the management of the temple thereafter. 9. The defendants 1 and 2 filed written statements stating that the suit is filed to vindicate the personal vengeance against the defendants and are claiming to be the President and the Secretary of the temple. They further stated that plaintiffs 2 and 3 have no interest in the alleged trust as evident from the plaint itself. They also challenged the right and locus standi of plaintiffs of 2 and 3 to represent the deity of the temple. It is further stated that the temple R.F.A.No. 349 of 2006 7 belongs to the family of the first defendant and the family is known as Etturithy veedu and the temple is the family temple. It is further stated that in the year 1090, a partition took place in the sakha tarward, in which the temple properties and the temple was allotted to the defendant's father's sakha. In the subsequent partition deed of 1106, specific provision is made for the management of the temple and the properties of the temple. 10. The first defendant's father Kumara Pillai Prameswara Pillai was managing the entire affairs of the temple and before him his elder brother was managing the temple. On the death of Kumara Pillai Parameswara Pillai, the temple and properties were under the administration of defendants. The first defendant resigned from government service and managing the administration of the temple. The first defendant has constructed shop rooms, terraced buildings and other buildings. The first defendant is paying all taxes, including tax for the buildings to the R.F.A.No. 349 of 2006 8 local authorities. There was an earlier litigation. Further it is stated that there was no record to show that plaintiffs 2 and 3 or any person in the locality have been in the management of the temple or the temple was dedicated to the public. 11. It is further stated that the plaintiffs rely on a patta, where the 3 persons are added to get their co-operation during festival time. To conduct the festival, his family wanted the co- operation of the 3 families as such their names were in the patta. The properties are not puthuval land as contended by the plaintiffs. They were registered in the name of the temple, which originally belonged to the first defendant's father's family. They further disputed the election allegedly held on 2.5.1976 by a general body. They also denied the election of the first defendant on 3.3.1974. 12. The 3rd defendant appeared after converting the O.P. as O.S. 4 of 1978 and allowing to proceed under Order 1 Rule 8. Defendant No.3 is asserted that the plaint property, in which the R.F.A.No. 349 of 2006 9 Kattal Sree Bhakrakali Devi Temple situates, exclusively belongs to Ettiruthy family. He also asserted that from time immemorial the affairs of the temple were managed by the said family alone. It is further asserted that neither plaintiffs 2 and 3 nor any of the plaintiff have any right, except to worship. It is also stated that since 1948, Ettiruthy Madhavan Nair, to the satisfaction of all concerned, is managing the temple. 13. It is further stated in the written statement that for the proper conduct of the annual festival for 10 days ending on Bharani during month of Meenam, the first defendant used to elect trustworthy persons in the locality. This selected body has nothing to do with the management of the temple, but only to co-operate with the first defendant. The additional 3rd defendant is included in the said body for the last 15 years. For the last 3 years the 3rd defendant is in charge as the treasurer of the utsava committee. The 2nd and 3rd plaintiffs have never taken any interest in the affairs R.F.A.No. 349 of 2006 10 of the temple and they have filed this suit with some bad motives best known to themselves. There was no valid reason to remove defendants 1 and 2 from their office. 14. The first defendant has constructed number of shop rooms in the property, for which he obtained loans and advances from strangers. Eventhough plaintiffs 2 and 3 and their men had no interest in the temple, at a time when there was financial difficulties to manage with temple affairs, they want to assume management, as there is income from the shop rooms. Some of the tenants are also interested in seeing that there is no proper management of the temple property. 15. Defendants 4, 5 and 6 filed a joint written statement contending that the temple and the land belonged to Ettiruthy family. They also stated that strangers of the tarward has no right at any time. R.F.A.No. 349 of 2006 11 16. Defendants 7 to 10 filed a written statement, where they supported the pleadings of the plaintiffs and it is asserted that the temple belongs to the public in the locality. 17. In the Additional District Court, PWs. 1 to 7 and DWs. 1 to 5 were examined and Exts. A1 to A16 and B1 to B7 were marked. The learned additional District Judge, on considering the evidence, dismissed the suit on 24.7.1980 on finding that the temple in question is not a public trust and as such the suit will not lie under Section 92 C.P.C. Against that judgment and decree the plaintiffs filed A.S.No.1 of 1981 before this Court, which was allowed as per judgment dt. 17.10.1988 and the case was remanded to the trial court for fresh trial after affording the parties a reasonable opportunity to amend their pleadings. After referring to Exts.A12 and A14, the Court held, inter alia, as follows: “5. ..............The significance of these two documents appears to have been lost sight of by the R.F.A.No. 349 of 2006 12 court below. In the absence of any contrary evidence, particularly evidence regarding the instruments under which the assignment was granted by the State pursuant to which the Thandaper was issued, it must be presumed that the four persons were entrusted by the State with the property and the temple for and on behalf of the idol. These four persons presumably, therefore, are not the beneficial owners, but only trustees or agents or managers holding the property on behalf of the idol. It is for them or their successors to establish by evidence, if they wish, that what was ostensibly an endowment was in effect and essence not an entrustment of property by the State for the benefit of the idol, but a simple assignment of property without condition, and an unconditional acceptance of the same by the four persons, who subsequently, on their own volition, dedicated the same to the temple. This is a matter for specific plea and proof by the defendants who alone can have special knowledge of the circumstances in which their predecessors came into possession of the property. The defendants must R.F.A.No. 349 of 2006 13 clearly and categorically plead and prove that what otherwise appears to be an entrustment and acceptance of property for and on behalf of an idol was not so at its inception and that the dedication was made only subsequent to these four persons obtaining the property from the Government.” 10. Even at the risk of repetition, we emphasise that in the absence of any further evidence, which it is indeed the responsibility of the defendants to let in, it must be assumed that Ext.A12 evidenced entrustment by the State with four persons belonging to four families of property in dedication to an idol. Whether such entrustment and acceptance constituted a private or public endowment is another matter. 11. Whether these four persons belonging to four families accepted the property solely for the benefits of the members of their families is a matter for the defendants to prove. In the absence of any evidence on the point, the history of Regulation III of R.F.A.No. 349 of 2006 14 1079 and the provisions of Section 3 thereof, particularly the proviso to the Section, must be considered. The effect of entrustment with four persons not belonging to a single family, but to four families, not being branches by decision among members of the original family, must be considered. Whether any such entrustment in the light of the background of Regulation III of 1079 and its provisions and the subsequent legislation, i.e., Act 15 of 1950 must be examined to find out whether property of this nature with a temple standing thereon assigned in favour of four persons, belonging to four separate families, for and on behalf of the idol can constitute in law anything other than a public trust. If on examination of all these factors, the court were to conclude that the temple in question and the property on which it stands constitute public trust, then the suit must necessarily be decreed, subject, of course, to any valid objections which the defendants may take as regards the applicability of Section 92 of the C.P.C. to the facts in question. On the other hand if the court R.F.A.No. 349 of 2006 15 were to come to the contrary conclusion, that is, that the temple was at its inception a private endowment, then the burden would indeed be upon the plaintiffs to let in sufficient evidence to establish their contention that it became by subsequent user a public endowment”. 12. Needless to say that we have expressed no final view on any of the questions. These are matters for the court to decide upon examination of the evidence with reference to the pleadings. Unfortunately the pleadings on either side are neither clear nor sufficient. The evidence let in by either side is meagre. It is true that the initial burden is upon the plaintiffs. But as we stated earlier, Ext.A12 and Ext.A14 have come to light. What has been brought to light by these two documents places the burden squarely upon the defendants to establish that the temple and the property had been entrusted with them by the Government solely for their individual benefits R.F.A.No. 349 of 2006 16 or for the benefits of their own families, and not for the benefit of the public or a section thereof.” 18. After the remand, the plaintiffs filed an application to amend the plaint, which was allowed. After the remand, PWs.8 and 9 and DW6 were examined and Exts.B8 and B9 were marked. The learned Additional District Judge, on considering the matter, found that the temple in question is a public temple and a scheme was framed for the administration of the temple on decreeing the suit. Against that judgment and decree, the additional 11th defendant, who was impleaded as the legal heir of the deceased first defendant, filed this appeal. 19. Heard the learned counsel for the appellant and the learned counsel for the contesting respondents. 20. The learned counsel for the appellant submitted that as per the remand order of this Court in A.S.No.1 of 1981, this Court R.F.A.No. 349 of 2006 17 directed denovo trial and to dispose of the case in accordance with law and there was no finding by this Court that the disputed temple is a public temple and that after the remand the lower court assumed that the character of the temple as public temple was decided by this Court. On going through the judgment in A.S. 1 of 1981, it is seen that the remand was for the express purpose of ascertaining the nature of the temple, whether it is a private or public temple on the basis of the pleadings and evidence. Therefore, the assumption of the lower court that this Court determined the character of the temple is not correct. 21. The tests to determine religious endowment, whether public or private trust, are laid down in the decision of the Apex Court in the following decisions. 22. In the decision reported in Radhakanta Deb & anr. v. The Commissioner of Hindu Religious Endowments, Oriss (AIR1981 SC 798) it was held: R.F.A.No. 349 of 2006 18 “ There can be religious trust of a private character under the Hindu Law which is not possible in English law. It is well settled that under the Hindu law it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to instal a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founder and his descendants and to perpetuate the memory of the founder. In such cases, the property does not vest in God but in the beneficiaries who have installed the deity. In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body of individuals as a result of which the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by the beneficiaries in a private trust. The members of the public may not be debarred from entering the temple and worshipping the deity but R.F.A.No. 349 of 2006 19 their entry into the temple is not as of right. This is one of the cardinal tests of a private endowment. The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. The following tests may provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) 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. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, R.F.A.No. 349 of 2006 20 however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the 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, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” 23. In the decision reported in State of W.B. & ors. v. Sri Sri Lakshmi Janardhan Thakur & ors. ((2006) 7 SCC 490) it was held: R.F.A.No. 349 of 2006 21 “Religious endowments are of two kinds, public and private. In a public endowment, the dedication is for the use or benefit of the public at large or a specified class. But when property is set apart for the worship of a family god, in which the public is not interested, the endowment is a private one. It is a question of fact whether a temple is a private or a public one. The extent of properties belonging to the temple, the course of conduct of the devotees, the supervision exercised by the founder and his descendants, whether the rents and profits are exclusively utilised for the temple for a long period as also public visiting the temple for darshan and worship, appearance of the temple, association of members of public with the management and earlier statements or admission of parties, are relevant factors to be taken into consideration as to whether a temple is a public one or a private one. In order to ascertain whether a trust is private, the following factors are relevant: R.F.A.No. 349 of 2006 22 (1) If the beneficiaries are ascertained individuals. (2) If the grant has been made in favour of an individual and not