IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 RSA.No. 769 of 2008(G) --------------------------------- (AS.NO.79/2006 OF ADDL.DISTRICT COURT,KOTTAYAM, OS.NO.35/2003 OF PRINCIPAL MUNSIFF'S COURT, KOTTAYAM) .................... APPELLANT/APPELLANT/3RS DEFENDANT: --------------------------------------------------------------- SANTHOSH.C. WARRIER, AGED 30 YEARS, MADHAVI SADANAM HOUSE, THIRUNAKKARA KARA, KOTTAYAM. BY ADVS. SRI.R.PARTHASARATHY, SRI.ROY GEORGE. RESPONDENTS/RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 & 2: ---------------------------------------------------------------------------------------------------------------------- 1. T.S. KUMAR AGED 50 YEARS, S.K.VILAS, THIRUNAKKARA KARA, KOTTAYAM. 2. TRAVANCORE DEVESWOM BOARD, REPRESENTED BY THE SECRETARY, NANDANKODE, THIRUVANANTHAPURAM. 3. ASSISTANT DEVASWOM BOARD COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUNAKKARA KARA, GROUP, KOTTAYAM VILLAGE. R1 BY ADV. SRI.LIJI.J.VADAKEDOM. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON 06/08/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 769 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2010. JUDGMENT The third defendant in O.S. 35 of 2003 before the Munsiff's Court, Kottayam, who suffered a decree at the hands of the trial court and whose appeal was dismissed by the District Court, Kottayam is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Fortunately, most of the facts are not in dispute. Thekkedath Wariam is holding the right to perform kazhakam services in Thirunakkara Puthiyathrikkovil Sreekrishnaswamy Temple. According to the plaintiff, till July 1996 kazhakam was being performed by his maternal uncle and a vacancy arose on his retirement from service. The senior most member of the family Sri. Sankara Warrier then nominated the plaintiff to perform kazhakam in the temple. The plaintiff RSA.769/2008. 2 made necessary application. An year and a half thereafter the third defendant approached defendants 1 and 2 and made a claim for performing kazhakom in the temple in preference to the plaintiff. He was armed with a letter from the senior most member of the tarwad. It is not in dispute that the third defendant was thereafter appointed in the temple to perform kazhakom service. That brought the plaintiff to the court. 3. Before the trial court, the main allegation was that having nominated the plaintiff for doing kazhakam, there was no power with the senior most member of the tarwad to nominate another person till the plaintiff is either removed from service or retired from service. He accused the first and second defendants for having unduly favoured the third defendant, who according to him, has no right to perform kazhakam in the temple. He therefore sought for necessary reliefs. 4. Defendants 1 and 2 resisted the suit. They pointed out that the plaintiff had not filed a proper RSA.769/2008. 3 application for being considered to perform kazhakam in the temple, and his application was never accepted. The third defendant is said to have filed a proper application and therefore according to the defendants, he was appointed. 5. Third defendant in turn tried to justify his appointment in the temple. 6. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and the documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants examined D.Ws. 1 and 2 and had Exts. B1 to B5 marked. The trial court on an appreciation of the evidence in the case came to the conclusion that the act of defendants 1 and 2 in appointing the third defendant was illegal and that the plaintiff was entitled to continue to perform kazhakam in the temple. A decree in favour of the plaintiff followed. 7. Defendants 1 and 2 and the third defendant filed separate appeals before the District Court, Kottayam. The District Court considered the materials on record RSA.769/2008. 4 independently and found that there were no grounds to interfere with the judgment and decree of the trial court. Accordingly, the appeal was dismissed. It seems that the Board has given up chase and the third defendant alone has come up in appeal before this court. 8. The following questions of law have been formulated by this court: “1. When the consent given for nomination of the plaintiff was withdrawn and consent was given for the nomination for third defendant as kazhamam, which was accepted by the Travancore Devaswom Board whether courts below were justified in rejecting the nomination of third defendant on the ground that third defendant did not plead in the written statement that he had filed a nomination when the plaint itself discloses that said nomination paper was submitted? 2. Whether the courts below were justified in rejecting Ext.B1, the application filed by third defendant, for non-production of the entire file, in the light of the plaint allegations? 3. When the authority to nominate kazhakam is vested in the senior most member of the family RSA.769/2008. 5 and he exercised that authority, is the Civil court entitled to unsettle the nomination? 4. Whether first appellate court was right in relying on ROC4832/78/Misc. dated 28.10.1977 when it was neither produced nor exhibited nor its contents brought to the notice of third defendant?” 9. Learned counsel appearing for the appellant pointed out that both the courts below have erred on facts and in law in accepting the case put forward by the plaintiff. Counsel went on to point out that even assuming that there was a proper nomination of the plaintiff, that had not been accepted by the Board and there is nothing to show that his appointment was approved. It was while the application was pending consideration that the third defendant was nominated. Therefore, the nomination of the third defendant was before the acceptance of the nomination of the plaintiff and therefore there was no illegality in the acts done by the Board. It was also contended that nothing prevented the senior most member from withdrawing the RSA.769/2008. 6 nomination of a person and nominating another person in his place. It is the discretion of the senior most member of the tarwad of the family. The contention is that the nominee remains in the temple to perform kazhakam services at the pleasure of the senior most member and the senior most member of the family can at any time substitute him. According to learned counsel, the person who is nominated does not get any vested right and he has to vacate when the senior most member nominates another person. 10. Per contra, learned counsel appearing for the respondents pointed out that the courts below have correctly understood the law on the subject and has applied it properly. It cannot stand to reason that the nominee holds right to perform kazhakam service at the whims and fancies of the karanavan, who can withdraw the nomination at any time without justification or reason. The moment one is nominated to perform kazhakam services, certain rights accrue to him. He is treated as an employee of the Board RSA.769/2008. 7 and he is subject to disciplinary control of the Board. It was pointed out that in the case on hand, the application filed by the plaintiff was kept pending for more than four years and it was thereafter all of a sudden approval is issued to the nomination of the third defendant. At no point of time before that the Board has pointed out that the plaintiff was either incompetent or unqualified to perform kazhakam service in the temple. It was also contended that there is no appointment of the nominee by the Board and unless there are compelling reasons, the nomination cannot be turned down. Therefore, there is no substance in the contention that nomination of the third defendant was made before approval. 11. Learned counsel referred to the various provisions of the Act and the Rules and pointed out that it is not as if that the person nominated acquires no independent status and that he is simply to move out as soon as the senior most member nominates another person. RSA.769/2008. 8 12. The issue that arises for consideration is whether the act of the Board in accepting the nomination of the third defendant while the plaintiff was already nominated and performing kazhakam in the temple can be justified. Before going into the facts, the relevant statutory provision referred by both the counsel may be referred to. 13. Section 28 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 reads as follows: “28. Board's control over karanma services.- (1) The Board shall have absolute control over the holders of all Karanma services and also over all the properties, Thiruppuvarams and other emoluments attached thereto. (2) Whenever it is reported that owing to incompetency, negligence or other cause, any Karanma service is not being regularly performed, or that an alienation of Karanma service or of the property, thiruppuvaram or other emolument attached thereto, has been effected by the Karanma holder or by any member or members of the Karanma family, the Board shall give due notice of the charge to the head of the family and RSA.769/2008. 9 the next senior member, and also to such other members of the Karanma family as the said Board may deem necessary, and if after hearing their objections, if any, the Board is satisfied that there has been an alienation of the karanma service of the property or of the Thiruppuvaam or of the other emoluments attached thereto or that there has been a failure to perform the service properly or regularly, the Board shall suspend, remove, determine, cancel or deal with any other manner the Karanma right of the family to the service. (3) All alienations of Service Inam lands attached to specific services which have been or which may hereafter be made contrary to past usage shall be treated as null and void. The Board shall have power to resume Service Inam lands attached to specific services if such lands are alienated or if the holders of such lands make default in the performance of the services: Provided that the Board may in its discretion deal with such lands and the services connected therewith in any other manner as it may deem fit. (4) Any person deeming himself aggrieved by any decision passed under sub-sections (2) and (3) may, within a period of one year from the date RSA.769/2008. 10 of such decision, institute in the District Court within whose jurisdiction the property is situate suit to establish the right which he claims in respect of the property. Provided that, subject to the result of the suit, if any, the decision of the Board passed under sub-section (2) and (3) of this section shall be final.” 14. Rules have been framed under Section 28 of the Hindu Religious Institutions Act, 1950 regarding karaima rights. The relevant rules are Rules 1, 2, 3, 4, 10, 12, 13 and 14. 15. Rule 1 states that the Devaswom Board shall have absolute control over the holders of karaima services and all the properties. Rules 3 and 4, which have some significance, read as follows: “3. The responsibility for the proper discharge of the work and the right of deputing members from the Karanma family to do the services rest with the senior male member of the family. Where the main family consists of a number of sub-families, divided or undivided, such RSA.769/2008. 11 right shall be exercised by the most senior male member for the time being among the individuals of all the sub-families. 4. Whenever the senior member arranges the work to be done by a member of the family other than himself he will give his consent in writing to such proxy to do the service and such written consent should be produced before the pay or other emoluments, if any, attached to the post is disbursed to the person who actually dos the work. Payment may thereafter be made to such person until the senior member cancels the arrangement in writing.” Rule 5 enables the Board to temporarily fill up posts in certain contingencies. Rule 10 deals with a situation where a proxy attends to the duty. Rule 12, which has some relevance, reads as follows: “12. Karanma employees will be subject to the disciplinary control of the Devaswom Board and the officers of the Devaswom Department as any other employee. They may be fined in case of misconduct, by the officers under the Board duly empowered in that behalf but for suspending or RSA.769/2008. 12 dismissing them the orders of the Devaswom Board are necessary. They may, however, be placed under suspension pending enquiry by competent authority the circumstances of the case being immediately reported to the Board. karanma employees should not be transferred to other institutions.” Rule 13 enables the Board to take action against the person, who is performing the karanma service in case of misconduct, indiscipline etc. Rule 14, which has some relevance, reads as follows: “14. Whenever it is reported that owing to incompetence, negligence or other cause, any Karanma service is not being regularly performed, or that an alienation of Karanma service or of the property, Thiruppuvalam or other emolument attached thereto, has been effected by the Karanma holder or by any member or members of the Karanma family, the Board shall give due notice of the charge to the head of the family and the next senior member, and also to such other members of the Karanma family as the said Board RSA.769/2008. 13 may deem necessary, and if after hearing their objection, if any, the Board is satisfied that there has been an alienation of the Karanma service or of the property or of the Thiruppuvaram or of the other emoluments attached thereto or that there has been a failure to perform the service properly or regularly the Board shall suspend, remove, determine, cancel or deal with in any other manner the Karanma right of the family to the service. (Section 28(2) of the Act)” 16. Before going further, one aspect may be noticed. The lower appellate court has relied on ROC No.4832/78/Misc. issued by the Devaswom Board dated 28.10.1977. That, being only an executive order, may not have much relevance in the light of the specific rules in the matter. 17. Learned counsel appearing for the respondents relied on the decision reported in Travancore Devaswom Board v. Chellappan Pillai (1988(1) K.L.T. 16) for the proposition that a person who performs karanma service is the employee of the Board and is bound by the RSA.769/2008. 14 rules framed under Section 35 of the Act. He also relied on the decision reported in Vishnu Narayanan Namboodiri v. Travancore Devaswom Board (2001(3) K.L.T. 888) relating to the continuance of karanma right which is protected by the Travancore Devaswom Board. The above decisions may not have much relevance in the case on hand except that the karanma right holders and the person, who deputed to perform karanma service will be under the control of the Board. 18. The crux of the contention taken by the learned counsel for the appellant is that the nomination of a person of the family by the senior most member is only an arrangement between the members of the family and cannot confer any right on the member, who is so nominated. In the case on hand, the specific contention is that since the nomination of the plaintiff has not been accepted by the Board till the third defendant was nominated, it is pointed out that there is no illegality in the appointment of the third defendant. RSA.769/2008. 15 19. It may be noticed that the application filed by the plaintiff was on 30.1.1998 and that was accompanied by the nomination by the senior most member of the family. Of course, both the Board and the third defendant have a case that since the nomination was not in the stamp paper, it is not valid. But that contention is not pursued before this court. The application by the third defendant was after one and a half years. There is nothing to show that either the Board had rejected the application of the plaintiff or that he was found to be undesirable or unsuitable. It cannot be disputed that he had been performing the services till the third defendant was appointed. 20. One may now recall Rules 3 and 4, which have already been extracted. Rule 3 of the Rules regarding karanma service deals with the case where the senior most male member of the family deputing a person to perform karanma service in the temple. Rule 4 deals with a case where the senior most member recommends proxy for doing the work. There may be a distinction between Rules 3 and RSA.769/2008. 16 4. In the case of deputation under Rule 3, it could be said that once a person is deputed and nominated by the senior most member, it follows that on entering service, he acquires certain rights. In the case of a proxy as contemplated under Rule 4, it is only an authorisation by the senior most member to perform karanma in his absence. Authorization of a proxy differs considerably from deputation of a member. As rightly pointed out by the learned counsel for the respondent, once a person is deputed and enters the service, then he is under the disciplinary control of the Board. In the case of a proxy, it is quite clear that the remuneration payable to him is subject to the written consent obtained from the senior most member. In the case of a proxy contemplated under Rule 5, the Rule specifies that such a person can continue until the senior most member cancels the arrangement. It would appear that Rules 3 and 4 contemplate different situations. Rule 4 would indicate that normally the senior most member is to perform the kazhakam, if he is indisposed, he may send a proxy. RSA.769/2008. 17 21. Rule 10 has some significance in this context. It specifies that in the case of a proxy as mentioned in Rule 4, it is mentioned that both the proxy as well as the karanma family and its properties will be answerable for the faults of the proxy. As already noticed, the Board retains disciplinary control over the person who performs kazhakam in the temple. Rule 14 in fact enables the Board under certain circumstances to suspend, remove, determine or cancel or deal with in any other manner the karanma rights of the family to the service. 22. It does not stand to reason to hold that having deputed a person to perform karanma rights, without any justification or reason whatsoever, the senior most member can nominate another person to perform karanma rights. Certainly, it cannot depend upon the whims and fancies of the senior most member. There has to be some certainty and consistency. Unlike in the case of a proxy, the person nominated or deputed stands on a better footing. RSA.769/2008. 18 23. No reason whatsoever is given either by the Board or by the karanavan for nominating third defendant in the place of the plaintiff. Board had no answer before the courts below as to why they had kept the application filed by the plaintiff for more than one and a half years without acting on it. Quite surprisingly enough, the Board was quite fast in acting on the application received from the third defendant. The reason is available from a reading of the judgment of the lower courts. 24. There is even an allegation that there was infact no application from the third defendant at all. It is significant to note that there was no averment in the written statement filed by the third defendant regarding Ext.B1. At the appellate stage, the written statement was sought to be amended incorporating the plea regarding Ext.B1. The lower appellate court was of the opinion that Ext.B1 is open to serious doubt. Both the courts below have found that the application filed by the plaintiff was accompanied by a valid nomination and defendants 1 and 2 had no explanation to RSA.769/2008. 19 offer as to why it was not acted upon. The courts below have also found that the plaintiff is a senior member of the family and he is senior to third defendant. 25. A reading of Ext.B1 shows that the senior most member Sri.Sankara Warrier had infact nominated the plaintiff for the post. But Ext.B1 says that that was because the third defendant was at the relevant time studying in Bombay and he had the right to be appointed to perform kazhakam in the temple. 26. No rule or any provision is brought to the notice of this court to show that the third defendant has preferential right to the post. All that Rule 3 says is that the senior most member may depute any person to perform kazhakam service in the temple. 27. The contention that since the nomination and deputation of the plaintiff had not been accepted by the Board, or approved by the Board till the third defendant had filed his application, and therefore there was no valid appointment of the plaintiff cannot be accepted in the facts RSA.769/2008. 20 of the case. As noticed by the courts below, no explanation whatsoever has been offered by the Board as to why the application was kept pending. There is nothing to show that the plaintiff was disqualified or there is any infirmity in his application. At any rate, the Board did not point out any defect in his application at all. The contention that a person, who is nominated or deputed by the senior most member to do kazhakam services holds office at the pleasure of the karanavan cannot be accepted for reasons already mentioned. The result is that this appeal is without merits and it is liable to be dismissed. I do so with costs to the first respondent throughout. P. BHAVADASAN, JUDGE sb.