IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).NO. 19042 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN IA 2016/09 IN OS.120/2006 OF SUB COURT, MANJERI PETITIONER(S): ---------------------- EZHUVATH RAJAN MENON,"SREEVALSAM", KALLAI,PANNIYANKARA.P.O,KOZHIKODE DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): ------------------------ 1. KAKATT MANAKKAL NARAYANAN NAMBOOTHIRI S/O.SUBRAMANIAN NAMBOOTHIRI.P.O.POOKKOTTUR, POOKKOTTUR,AMSOM DESOM,PIN-676517. 2. KAKKATT MANAKKAL SUBRAMANIAN NAMBOOTHIRI S/O.SUBRAMANIAN NAMBOOTHIRI,POOKKOTTUR.P.O, POOKKOTTUR,AMSOM DESOM,PIN-676517. 3. EZHUVATH JAYASREE,C/O.RAGHAVAMARAR, KOTTILIL HOUSE,THEKKE MADAM ROAD, THRISSUR-680 001. 4. NILAMBUR KOVILAKAM REPRESENTED BY PRESENT KARANAVAR VIJAYAVARMAN THIRUMULPAD, NILAMBUR KOVILAKAM,P.O.NILAMBUR.PIN-679 329. 5. SMT.SULOCHANA AMMA,W/O.E.P.NARAYANAN NAIR,POOKKOTTUR AMSOM DESOM,P.O.POOKKOTTUR, PIN-676517. ADV. SRI.K.SHRIHARI RAO FOR R5 SRI.K.M.SATHYANATHA MENON FOR R3 SRI.T.V.SHAJI FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.120 OF 2006 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, MANJERI. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24.1.1939 IN O.P. NO.114 OF 1936 OF THE COURT OF THE DISTRICT COURT JUDGE, SOUTH MALABAR. EXHIBIT P3 TRUE COPY OF COMMON ORDER DATED IN I.A. NOS.2016, 1468, 1469, 2091 OF 2009 AND 338 OF 2010 IN O.S. NO.120 OF 2006 OF THE COURT OF SUBORDINATE JUDGE OF MANJERI. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.19042 of 2010 ==================================== Dated this the 20th day of September, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P3, common order passed by the learned Sub Judge, Manjeri to the extent it concerned I.A. Nos.2016 and 2091 of 2009 and 338 of 2010. Parties are referred to as plaintiffs and defendant as in the trial court for convenience. 2. Plaintiff Nos.1 and 2 who claimed to be Poojaris of a private temple filed the suit for direction to entrust the articles in their possession (belonging to the temple) to the real owner of the said temple. Plaintiffs proceeded on the basis that defendant Nos.1 and 2 are the owners of the temple which belonged to a Kovilakam of which defendant Nos.1 and 2 are also members. While the suit was pending respondent No.5 who is not a party to the proceeding filed I.A. Nos.1468 and 1469 of 2009 to implead her as additional defendant No.4 and to appoint her as guardian of the Idol. Defendant No.2 on his part filed I.A.No.2016 of 2009 to appoint him as guardian of the Idol. In the meantime plaintiffs filed I.A. No.2091 of 2009 to appoint a court guardian for the idol. W.P(C) No.19042 of 2010 -: 2 :- Learned Sub Judge framed an issue as additional No.3 whether the temple in question is a public temple. Defendant No.2 filed I.A. No.338 of 2010 to delete that issue since according to him no such issue arose from the pleadings of the parties. Learned Sub Judge considered the applications and disposed of the same by Ext.P3, common order; I.A. No.2091 of 2009 was allowed and a court guardian was appointed for the Idol. All other applications were dismissed. Defendant No.2 is aggrieved by the order on the applications first above mentioned. Plaintiffs have not challenged the orders against them. It is argued by learned counsel for defendant No.2 that on the pleadings of parties no issue regarding public nature of the temple arose and hence learned Sub Judge was wrong in framing an issue regarding that as issue No.3. It is also contended that in the light of the pleadings and admitted facts defendant No.2 being the person most competent to represent the temple should have been appointed as guardian of the Idol. Learned counsel contended that finding of the learned Sub Judge that defendant No.2 has interest conflicting with that of the temple and Idol is erroneous. It is therefore prayed that I.A. Nos.2016 of 2009 and 338 of 2010 be allowed. Learned counsel for respondent No.5 has contended W.P(C) No.19042 of 2010 -: 3 :- that even on the face of the plaint averments an issue regarding public nature of the temple was required and hence there is no reason to delete the issue regarding that. It is contended that defendant No.2 was not competent to represent the Idol even on the pleadings he has raised in the written statement and hence there is no reason to interfere with the order under challenge. 3. I have been taken through the pleadings of parties. Exhibit P1 is the copy of the plaint. Learned counsel for respondent No.5 has placed reliance on the averments in paragraph 3 of the plaint. What is stated in paragraph 3 is that the temple which is in existence from time immemorial belonged to Nilambur Kovilakam (of which defendant Nos. 1 to 3 are members) and that the temple is vested with Shri C.N.Udayavarman Tirumulpad as if it is a family temple and after his death it devolved with defendant Nos.1 and 2 as his legal heirs. It was pleaded in O.S. No.84 of 2005 (filed by respondent No.5 and others) that temple belonged to the family and it was so found. But, later, to manage affairs of the temple defendants sought the assistance of the devotees and accordingly a Temple Welfare Committee was formed with defendant No.2 as its President to assist other defendants. Defendant No.1 in her W.P(C) No.19042 of 2010 -: 4 :- written statement claimed that temple is a family temple and that it is not a public temple (obviously in answer to the statement in the plaint that Temple Welfare Committee was formed to assist defendant No.2 to manage the temple). She claimed that temple is under the ultimate control of herself and defendant No.2. Defendant No.2 also raised similar contentions. Different was not the contentions raised by defendant No.3 as well. When respondent No.5 filed I.A. Nos.1468 and 1469 of 2009 she raised certain contentions as to the ownership of the temple in denial of claim made by defendant Nos.1 and 2. However, learned Sub Judge has dismissed I.A. Nos.1468 and 1469 of 2009 and refused to implead respondent No.5 as an additional defendant in the suit. It follows that there is no pleadings on the side of respondent No.5 to be taken into account for framing issue. 4. What remained is only whether from the averments in the plant which I have referred to above that to assist defendants to manage affairs of the temple a Temple Welfare Committee was formed with the assistance of devotees and that defendant No.2 is its President, it could be said that temple is public in nature. The mere fact that contributions are received from the W.P(C) No.19042 of 2010 -: 5 :- devotees and they are permitted to offer worship in the temple cannot convert a private temple to a public temple. I am not satisfied that there is any plea which required learned Sub Judge to frame an issue regarding the public nature of the temple. In the circumstances learned Sub Judge was not correct in framing issue No.3. That issue has necessarily to go. But I make it clear that if any question as to the public nature of the temple arises in the pleadings in future it will be open to the learned Sub Judge to consider that and frame appropriate issue then. 5. The next question is whether defendant No.2 should be permitted to represent the temple or as the learned Sub Judge has done a court guardian should represent the Idol. If there is any person competent to represent the Idol as guardian it is not necessary to appoint a court guardian. So far respondent No.5 is concerned learned Sub Judge has rejected her claim to be guardian of the Idol for the reason that she has an interest conflicting with that of temple as revealed from the fact she has filed O.S. No.84 of 2005 claiming right of access through properly of temple and that was found against. Respondent No.5 has not challenged dismissal of I.A. No.1469 of 2009. Hence the claim made by respondent No.5 no more survives. W.P(C) No.19042 of 2010 -: 6 :- 6. Coming to the claim of defendant No.2, learned Sub Judge has rejected his claim since he was a party in O.S. No.84 of 2005. It is not very much in dispute that there was a partition in the Kovilakam as per which the temple was allotted to the share of C.N. Udayavarman Tirumulpad, predecessor-in-interest of defendant Nos.1 and 2. Question of acceptability of the partition if it arises from pleadings is a matter which learned Sub Judge has to decide at the appropriate stage. I stated that it is not disputed that temple belonged to the Kovilakam of which defendant No.2 is admittedly a member. Only reason on which learned Sub Judge has disqualified defendant No.2 from being guardian of the Idol is that he was a party in O.S. No.84 of 2005 and thus he has an interest conflicting with that of the Idol. But it is pertinent to note that O.S. No.84 of 20054 was filed by respondent No.5 claiming right of access and defendant No.2 only resisted the claim and ultimately succeeded in his objection to the suit. That does not disentitle defendant No.2 from representing the Idol. It is not shown that he has any interest conflicting with to that of the Idol. In that situation and in view of the circumstances I have stated above learned Sub Judge should have appointed defendant No.2 being most suitable to W.P(C) No.19042 of 2010 -: 7 :- represent the Idol. 7. It is pointed out by learned counsel for respondent No.5 that even as per the version of defendant No.2 in his written statement he is sick and has difficulty to travel. That, I do not think would disentitle him from representing the Idol as its guardian. If at all any circumstance arises in future which disentitles defendant No.2 from representing the Idol it is open to the learned Sub Judge to consider the same then and pass appropriate orders. In the light of my above discussion the common order to the extent it concerned disposal of I.A. Nos.2016, 2091 of 2009 and 338 of 2010 cannot be sustained. Resultantly, this Writ Petition is allowed in the following lines: (i) Exhibit P3, common order dated March 20, 2010 to the extent it concerned I.A. No.2016 and 2091 of 2009 and I.A.No.338 of 2010 is set aide. (ii) Consequently I.A.No.2091 of 2009 W.P(C) No.19042 of 2010 -: 8 :- is dismissed and I.A. No.2016 of 2009 is allowed. (iii) Petitioner-defendant No.2 is appointed as guardian of the Idol subject to the observations made above as to the right of court to remove him from guardianship if any circumstances warranting that arose in future. (iv) I.A. No.338 of 2010 is allowed and issue No.3 whether temple is public in nature is deleted. Learned Sub Judge shall rearrange other issues involved in the suit. THOMAS P. JOSEPH, JUDGE. vsv