IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 SA.No. 800 of 1998(C) -------------------------- AS.138/1996 of ADL.SUB COURT, THALASSERY OS.355/1994 of MUNSIFF COURT, THALASSERY .................... APPELLANT(S): APPELLANT/PLAINTIFF ---------------------------------------------- CHERUVARI BALAKRISHNAN, S/O. KUNHI KANNAN, SAJIV NIVAS,PALAYAD, THALASSERY TALUK, KANNUR DISTRICT. BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE ADV. SRI.K.MOHANA KANNAN RESPONDENT/RESPONDENT/DEFENDANT 1 & SUPPL. DEFENDANTS 2 --------------------------------------------------------------------------------- 1. NALLERI PARU ALIAS PARVATHI, W/O.GOPALAN, PARAYIL HOUSE, (P.O.)PINARAYI,THALASSERY TALUK, KANNUR DISTRICT. 2. THAYAKATKANDY MUHAMMED HARIS, S/O.MAMU, THIRUVANGAD AMSOM, THALASSER TALUK, KANNUR DISTRICT. R2 BY ADV. SRI.A.MOHAMED MUSTAQUE R1 BY ADV. SRI.P.V.SURENDRANATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 800 of 1998 --------------------------------- Dated this the 7th day of April, 2011 JUDGMENT The plaintiff in O.S.No.355/1994 before the Munsiff's Court, Thalassery, who was non-suited by both the court below, is the appellant. 2. The suit was laid on the basis of a clause in Ext.A1 will said to have been executed by one Chandu Poosari. As per the said clause item No.5 was bequeathed to Kunhappu, one of the nephews of Chandu Poosari. In the will, it is specifically mentioned that the income from that property is to be utilized for conducting the daily rituals including the lighting of lamp in the temple, constructed by Chandu Poosari in Kalathil Parambu. After the death of Kunhappu, his wife was discharge the obligation of lighting the lamp. in the temple, utilising the income from the plaint schedule property. After her death, the property came to be in the possession of the defendants, but they are not spending any amount towards the rituals to be conducted in the temple. Therefore, the suit was laid for recovery of money towards expenses incurred for lighting the lamp. 3. The defendants resisted the suit. They denied that there was any charge created on the property in relation to the lighting of lamp S.A.No. 800 of 1998 2 in the temple. According to them, it was a personal obligation of Kunhappu and consequent to the death of Kunhappu, that obligation ceased and the property cannot be said to be under a charge for that purpose. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. Ext. B1 is marked from the side of the defendant. 5. Considering the relevant recital in Ext.A7, both the courts below found that there was no charge created over the property set apart to Kunjappu by Chandu poosari under Ext.A7. Accordingly, the suit was dismissed and it was confirmed in appeal. 6. Notice is seen issued on the following substantial questions of law: 1. Whether the Ext.A5 evidences - a dedication with an obligation attached thereto ? 2. Whether the obligation continues with the holder of the property ? 3. Whether the charge prayed for is not grantable ? 7. The learned counsel appearing for the appellant relying on the particular clause in Ext.A7, contended that the courts below have S.A.No. 800 of 1998 3 erred in law in holding that no charge is created in respect of the property set apart to Kunjappu for the purpose of lighting lamp in the temple set up by Poosari. According to the learned counsel, any person who holds the item given to Kunjappu as per Ext.A7 will subsequently, will be under an obligation to light the lamp in the temple at his expense. 8. The learned counsel appearing for the respondent relying on the subsequent recitals in the document pointed out that the courts below were perfectly justified in coming to the conclusion that the obligation to light the lamp ceased with the death of Kunjappu and did not survive thereafter. May be that the wife of Kunjappu might have continued the practice under a moral obligation. 9. On going through the document, it would appear that the learned counsel for the respondent is right in his submissions. Ext.A1 is the partition deed produced by the plaintiff, which shows that temple and 5 cents have been set apart as common property. Later on by Ext.A4 document, the plaintiff was given the right to manage the affairs of the temple. He would now claim that the temple which finds a place in Ext.A7 will is the temple made mentioned of in Ext.A1. 10. First of all, there is no evidence in that regard at all. Apart from the above fact as rightly noticed by the court below, there is nothing to show that lighting of the lamp was to be continued by the S.A.No. 800 of 1998 4 persons who came into possession of the property subsequent to the death of Kunjappu and that any charge was created over the property bequeathed to Kunjappu as per Ext.A7 deed. 11. The learned counsel for the appellant pointed out that wife of Kunjappu namely Kunhimatha had executed a will and that has been deliberately withheld with ulterior motives. Whatever that be, as per the materials now available before the courts, there is nothing to show that any trust or any charge or any obligation is created over the property bequeathed to Kunjappu as per Ext.A7 will by Chandu Poosari. One could say that the Kunjappu had only a personal obligation to light the lamp in the temple. 12.One cannot omit to note that as per Exts.A1, 5 ½ cents was set apart to temple and it is as per Ext.A4 the plaintiff got the right to manage the affairs of the temple as per the power of attorney. There is nothing to show that any of the executant of Ext.A1 succeeded to the estate of Kunjappu. No grounds are made to interfere with the judgment and decree of the courts below. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln