IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 6610 of 2008(J) ------------------------------------- O.P.NO.77/2005 OF DISTRICT COURT, MANJERI. .................... PETITIONER: ------------------- AJITH KOLADI,S/O. KOLADI GOVINDANKUTTY KOLADI HOUSE THRIKKAVAU, PONANI, TROUGH HIS POWER OF ATTORNEY HOLDER KRISHNANKUTTY, S/O.KUNNATH KARAPPAN, AYIROOR AMSOM AND DESOM, PONANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRIC.M.MOHAMMED IQUABAL, SRI.RAJESH SIVARAMANKUTTY. RESPONDENTS: ------------------------ 1. K.SATHI DEVI, D/O.KOCHUKUTTY AMMA, 'POOJA' BTS LANE, EDAPALLI, KOCHI. 2. DR.K.JAYAKRISHANAN, S/O.KUNHILAKSHMI AMMA, P.O. POONKUNNAM, THRISSUR. 3. K.SOUDAMINI @ JAYANTHI, D/O.KUNHILAKSHMI, P.O. POONKUNNAM,THRISSUR. 4. K.SARALA VIJAYAN, D/O.PARUKUTTUY AMMA, FLAT NO. 41, MUTHOOT ROYAL SQUARE, JOSE JUNCTION, ERNAKULAM. 5. K.PRASANNA GOPALAN, C/O.MR.M.P.GOPALAN, 14 B-RHENISH MANSION, 84,BRNTON ROAD, HONG KONG. 6. K.SYAMALA PRABHAKARAN,C/O.LT.COL. P.K.P.MENON, EI RATHAN PARK, FACE II, S U S ROAD, PUNE- 41100. BY ADV. SRI. S.V. BALAKRISHNA IYER (SR.), ADV. SMT.GEETHA P.MENON, ADV. SRI.T.C.KRISHNA, ADV. SRI.PRATAP ABRAHAM VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2008,ALONG WITH RP NO.235/2008 & CRP NO.180/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). No. 6610 OF 2008 & R.P. No. 235 OF 2008 IN W.P.(C) No. 5082/08 & C.R.P. No. 180 OF 2008 --------------------- Dated this the 28th day of March, 2008 JUDGMENT WPC NO 6610/08 is preferred to set aside Ext.P9 order whereby the court granted permission to K.Jayakrishnan to sell the properties after preparing three draft sale deeds. 2. R.P. No. 235 OF 2008 is filed against the order of this court whereby this court directed the respondents not to execute any document in respect of the properties mentioned in K schedule of partition deed, for a period of six weeks. 3. C.R.P. 180 /08 is preferred against the original order passed by the District Judge, Manjeri, in OP 77/05 whereby the learned District Judge has granted permission to the second petitioner in the original petition namely K.Jayakrishnan to sell the petition B schedule properties and to deposit the sale proceeds in a nationalised bank in fixed deposit in the name of the trust and further permission is granted to withdraw the amount from the bank WPC NO 6610/08 & Conn. Cases 2 periodically for performing the objects of the trust. 4. It is desirable to understand few facts before dealing with the matter. The Koladi Tarawad is an ancient Marumakkathayam Nair family having considerable extent of properties. Five brothers and sisters and the children of a pre-deceased sister and children of executant No.4 entered into a partition deed on 20.8.57. We are only concerned about the K schedule of the partition deed. Recitals in para 3 would reveal that the family, after dividing the property among themselves, decided to keep the K schedule property in common and also L schedule property. The intention of keeping the K schedule property in common had been dealt in para 12 of the document. It is stated therein that Item No.1 to 16 of K schedule property is to be managed without alienating and to use the profits for the purpose of conducting Navami Vilakku at Guruvayoor Temple. Item No. 17 to 19 were to be used for performing the Sradh ceremonies of two ancestors namely Krishna Menon and Govinda Menon. Item 20 to 24 were reserved for the purpose of giving Dharmakanji. It is very clearly recited in that para that the property has to be managed without alienating the same and it has to be done by the senior most member of the family at that relevant point of time. Items 20 to 24 WPC NO 6610/08 & Conn. Cases 3 were to be managed by the senior most female member of the family. So the recitals with respect to K schedule would indicate that the said properties were left undivided with certain obligations to be performed for the family by the senior most male member and the senior most female member, which is specifically recorded in para 12 of the document. 5. There are two schedules to OP 77/05, which are shown as A schedule and B schedule. A schedule is having an extent of 27.22 acres and B schedule is having an extent of 3.83 acres. B schedule represents the actual property now in possession of the Thavazhi or Tarawad, as the case may be. OP 77/05 was filed by the three petitioners before the District Court, Manjeri, making three other members of the family as the respondents under Sec.34 of the Indian Trust Act seeking permission to sell the properties for the reason that the income derivable from the property is so meager that it is not sufficient to conduct the obligations, which is enshrined in para 12 of the document. It has also to be stated that the three respondents, who were arrayed, had not contested the case but agreed for the same. Thereafter the court passed an order granting permission. WPC NO 6610/08 and CRP 180/08 are filed by one Ajith Koladi, who WPC NO 6610/08 & Conn. Cases 4 is the son of Advocate Koladi Govindankutty, who was the senior most male member of the family at that relevant point of time. He has challenged this order that granting of permission by the District Court in the original petition is against the law and a petition under Sec.34 of the Act is not maintainable and therefore this court should interfere with the order passed by the court below. 6. Learned counsel for the revision petitioner as well as the writ petitioner would contend that the District court does not have any jurisdiction to entertain an application of this nature under Sec.34 of the Act for the reason that the property covered by the document does not come under the subject matter that is provided under the Indian Trust Act. Learned counsel has brought to my attention the savings clause embodied in Sec.1 of the Act which specifically refers to extension of public or private religious or charitable endowments. He would also submit before me that it is a private religious endowment which according to him is a trust as reported in the decision of this court in Shanmughan v. Vishnu Bharatheeyan [2003 (3) KLT 901]. Being a private religious endowment, it is carved out on account of the savings clause and therefore the Indian Trust Act will not apply and so, Sec 34 cannot have any application. This WPC NO 6610/08 & Conn. Cases 5 point was met by the other side on the ground that it is incorrect to say that unless, one is able to establish that it is a private religious endowment or a public religious endowment, the savings clause provided under Sec.1 will not apply and therefore there is no embargo for the District Judge to entertain an application under Sec.34. Learned counsel would therefore contend that the court below was right in entertaining the application. 7. I had only referred to this contention of both parties for the reason that the present writ petitioner / civil revision petitioner is not a party before the court below and this contentions had not been raised and it had not been considered by the court. Then the question whether it is a private or public religious endowment, as the case may be, is a matter that has to be considered by the court below. Therefore it may not be possible for this court sitting under 227 jurisdiction to decide the question, which requires analysis of the factual matrix that is yet to be supplied before the court. 8. Now the next contention is regarding the necessity to transfer the properties. A reading of the document would reveal that there is no power for alienating. Learned counsel for the respondents would submit that the object of the clause may come to WPC NO 6610/08 & Conn. Cases 6 the rescue. It is submitted that in a situation where the object, intend and purport of executing the document cannot be attained with the present set up and modalities then necessarily the court has to put its hand to see that the intention of the executors of the documents are given effect to. According to him out of 27 and odd acres, which was there in K schedule of the document, the only available land in possession comes to about 3.83 acres out of which there is some wet land, which cannot be properly cultivated and some area which is covered by the serpent temples etc. and therefore until and unless the property is sold for the market value, it may practically become difficult for implementing the mandate of the 1957 document. 9. These are all matters which requires consideration at the hands of the court below and appreciation of materials placed by both parties. I make it clear that these discussions are made only for the purpose of pointing out that there are valid and tenable contentions for both parties, which has to be looked into by the court for proper determination of the case. Therefore I find from the above discussions that the judgment passed by the learned District Judge is to be interfered with and it has to be set aside and the matter is to be remitted back to the court below for fresh consideration with WPC NO 6610/08 & Conn. Cases 7 permission to the revision petitioner Sri. Ajith Koladi to get himself impleaded as a party in the original petition and to file the objections. Since the matter has assumed larger dimensions, I permit the petitioners to amend the petition, in case of necessity, and make necessary interested parties also as party to the proceeding. Thereafter, permit both parties to adduce evidence and then dispose of the matter in accordance with law. I make it clear that the court below has to consider the legal points which are raised and which are sought to be raised in the proceeding. The District Judge, considering the importance of the matter, is directed to dispose of the matter within three months from the date of reopening of the court after summer holidays. I also make it clear that the legal entitlement of the petitioner to challenge the action can also be considered at the time of final determination of the matter. The writ petition, review petition and civil revision petition are disposed of accordingly. Parties are directed to appear before the court below on 11.4.08. M.N.KRISHNAN, JUDGE vps WPC NO 6610/08 & Conn. Cases 8 WPC NO 6610/08 & Conn. Cases 9 WPC NO 6610/08 & Conn. Cases 10