IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 RSA.No. 8 of 2005(A) -------------------- AS.94/1998 of I ADDL. DISTRICT COURT, KOLLAM OS.87/1996 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANTS/R-1,2,4 & 5/D-1,2,4 & LRS D3 ----------------------------------------------------------- 1. SUBHADRA PANICKATHI SANTHAMMA, THOTTATHIL VEEDU, NANGIARKULANGARA MURI, PALLIPPADU VILLAGE, KARTHIKAPPALLY TALUK FROM THURAYIL VETTIKUTTIYADATHU VEEDU, ATHINAD NORTH MURI, KULASEKHARAPAURAM VILLAGE. 2. SANTHAMMA LAKSHMIKUNJU OF DO.DO. * 3. KUNJUMMINI PANICKATHI SUBHADRA PANIKATHI, VETTIKUTTIYADATHU VEEDU, FROM THURAYIL, ATHINAD NORTH MURI, KULASEKHARAPURAM VILLAGE. (died. Recorded) 4. SYAMAPRASAD, S/O.LETHA RAGHAVA PANAICKER KADAMPANATTU, KOIKKAL PADINJARE VEEDU, KAITH SOUTH MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK. * It is recorded that 3rd appellant died and there is no legal heirs to be impleaded as per the order dtd.17/3/2008 vide memo C.F.455/08 dtd. 15/1/2008 BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN RESPONDENT(S): APPELLANTS/PLAINTIFFS ------------------------------------ 1. PULICKAMADAM KSHETHRATHIL MAHADEVAR THURAYIL KUDUMBAM, ADINAD NORTH MURI, KULASEKHARAPAURAM VILLAGE, KARUNAGAPPALLY (VIA). 2. FIRST RESPONDENT REPRESENTED BY SANKARAN PANICKER RADHAKRISHNAN, THURAYIL CHAMPAKADAVIL VEEDU FROM THURAYIL, ATHINADU NORTH MURI, KULASEKHARAPURAM VILLAGE, (VIA) KARUNAGAPPALLY. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.8 OF 2005 --------------------------------------------- Dated 4th April, 2011 JUDGMENT First respondent is the idol of Pulickamadam Keshethrathil Mahadevar of a private family temple. Second respondent instituted O.S.87/1996 representing the first respondent, as a member of the family. The appellants are the defendants in the suit. Third appellant died subsequent to the filing of the appeal and it is recorded that there is no legal heir to be impleaded. Respondents instituted the suit for a declaration that plaint schedule property belongs to the first respondent temple, as it was gifted under Ext.A2 by the appellants in favour of the temple. Appellants subsequent to Ext.A2, RSA 8/05 2 have no right over the said property. Respondents also sought a consequential relief of a decree for injunction restraining the appellants from interfering with the possession of the property. A decree was also sought to remove the entry in the settlement register to the effect that first appellant is also the owner of the property. Appellants resisted the suit contending that though Ext.A2 gift deed was executed, the gift deed was not accepted or acted upon and the property continued to be in the possession of the appellants and therefore, respondents have no right or possession of the property. The appellants also contended that the temple is being managed by a committee constituted under Ext.B1, and second respondent has no right to institute a suit, as it is for the treasurer to institute the suit. It is also contended RSA 8/05 3 that as against the misuse of the property of the temple, the Committee through the Treasurer instituted O.S.313/1975 to cancel a sale deed executed by the second respondent as if the property belongs to him and by Exts.B2 and B3, the said document was cancelled declaring the right of the temple to the property and at that time second respondent was the Secretary of the Committee and the suit is instituted due to the grievance of the second respondent against the Committee for obtaining a decree against him. 2. Learned Munsiff on the evidence of Pws.1 to 3, DW.1, Exts.A1 to A10, B1 to B5 and C1 and C1(a) dismissed the suit upholding the contentions of the appellants, though it was found that the suit is maintainable. Respondents challenged the judgment before First Additional District Court, Kollam in RSA 8/05 4 A.S.94/1998. Learned Additional District Judge on re-appreciation of the evidence, granted a decree declaring the title of the temple to item No.2 of the plaint schedule property and also granted a decree deleting the name of the first appellant from the thadaper account and a permanent prohibitory injunction restraining appellants from trespassing into the plaint schedule property. Second appeal is filed challenging the judgment. 3. Second appeal was admitted formulating following substantial questions of law. a) Can a beneficiary of a private Trust file a suit and maintain it when there is a scheme which provides for the authority to institute a suit on behalf of the Trust, in violation of Order 1 Rule 8 and RSA 8/05 5 Section 92 of the Code of Civil Procedure; b) Is the condition in Ext.A2 (B5) repungnet to the grant therein. Is Section 10 of the Transfer of property Act applicable to the case in the face of Sections 21 and 23 thereof; c) Did Ext.B5 gift take effect in absence of acceptance; d) Did the plaintiff perfect title to item No.2 of the plaint schedule by adverse possession; e) Is a suit for setting aside proceedings under Survey and Land Records Act maintainable; Can a proceedings under that act be set aside in a suit when the Government is not a party and without a notice under Section 80 of the Code of Civil Procedure. RSA 8/05 6 4. Learned counsel appearing for the appellants and respondents were heard. 5. Though courts below found that the suit is maintainable, learned counsel appearing for the appellants vehemently argued that the suit is not maintainable as under Ext.B1 scheme, it is for the Treasurer of the Committee, who alone is entitled to institute the suit on behalf of the temple or to protect the properties of the temple and when it is admitted that a Committee is functioning as provided under Ext.B1, and managing the temple, second respondent as a member of the family is incompetent to institute the suit for the first respondent temple, especially when there is no allegation that the Committee is not properly managing the temple or is not instituting suit for safeguarding the interest of the temple. Learned counsel relying on the decision of RSA 8/05 7 the Honourable Supreme Court in Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri Som Nath Dass and others (AIR 2000 (3) SC 1421) argued that though deity of a public temple is a legal entity, deity of a private temple is not a legal entity and hence first respondent is not entitled to institute the suit without proper representation. Learned counsel also argued that though second respondent is a member of the family, to which the temple belongs, when Ext.B1 scheme is constituted by all the members of the family, a suit on behalf of the temple could be instituted only as provided under Ext.B1 and therefore, the suit could be instituted only by the Treasurer. It was also pointed out that when the second respondent has no case that the temple is not properly managed by the Committee constituted under Ext.B1 or is not safeguarding RSA 8/05 8 the properties belonging to the temple, second respondent is not entitled to represent the temple and institute the suit on behalf of the temple as has been done in this case. It is therefore argued that on that sole ground the suit should have been dismissed. Learned counsel pointed out that O.S.90/1993 was earlier instituted by the second respondent himself representing the temple, for the Committee constituted under Ext.B1 and obtained Ext.A7 decree and in such circumstances, second respondent is not entitled to institute the suit in violation of the provisions of Ext.B1 and Exts.B2 and B3 establish that second respondent has no interest in preserving the properties of the temple as he has alienated the property belonging to the temple as if it is his personal property which was cancelled by the RSA 8/05 9 Court in O.S.313/1975, a suit instituted by the Treasurer of the Committee constituted under Ext.B1. Therefore, the decree granted by the first appellate court is unsustainable. 6. Learned counsel appearing for the respondents argued that though the trial court found that the suit instituted by the second respondent by a member of the family to preserve the property of the temple is maintainable, it was not challenged by the appellants and they did not even prefer a cross objection and therefore, they are not entitled to challenge the maintainability of the suit in the second appeal. Learned counsel also argued that when second respondent is admittedly a member of the family to which the temple belongs and in spite of Ext.A2 gift deed, Committee constituted under Ext.B1 has not taken action to preserve that property to RSA 8/05 10 the temple by protecting it from trespass, the suit instituted by a member on behalf of the temple is perfectly maintainable. Learned counsel also argued that first appellate court on proper appreciation of the evidence found that under Ext.A2 gift deed, the property vests with the temple and therefore, to preserve the properties of the temple, a decree was granted and it may not be interfered. 7. Crucial question is whether the deity of a private temple is a legal entity and if not when there is a Committee constituted under Ext.B1, whether a suit could be instituted on behalf of the temple by a member of the family to which the private temple belongs, against the provisions under Ext.B1. 8. The Honourable Supreme Court in Jogendra Nath Naskar v. Commissioner of Income RSA 8/05 11 Tax (AIR 1969 SC 1089) analysing the earlier decisions declared that a deity once consecrated is a legal entity. It is the settled position that deity of a public temple is a legal entity who can sue and be sued, without represented by any shebait. But the said principal cannot be extended to a deity of a private temple. Honourable Supreme Court in Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri Som Nath Dass and others (AIR 2000 (3) SC 1421) considered the concept of juristic person in detail and held; “23. The aforesaid conspectus visualises how "Juristic Person" was coined to subserve to the needs of the society. With the passage of time and the changes in the socio-political scenario, collective working instead of individualised working became RSA 8/05 12 inevitable for the growth of the organised society. This gave manifestation to the concept of Juristic Person as an unit in various forms and for various purposes and this is now a well recognised phenomena. This collective working, for a greater trust and unity gave birth to co- operative societies, for the success and implementation of public endowment it gave rise to public trusts and for purpose of commercial enterprises the juristic person of companies were created, so on and so forth. Such creations and many others were either statutory or through recognition by the Courts. Different religions of the world have different nuclei and different institutionalised places for adoration, with RSA 8/05 13 varying conceptual beliefs and faith but all with the same end. Each may have differences in the perceptive conceptual recognition of god but each religion highlights love, compassion, tolerance, sacrifice as a hallmark for attaining divinity. When one reaches this divine empire, he is beholden, through a feeling of universal brotherhood and love which impels him to sacrifice his wealth and belongings, both for his own bliss and for its being useful to a large section of the society. This sprouts, charity, for public endowment. It is really the religious faith that leads to the installation of an idol in a temple. Once installed, it is recognised as a juristic person. The idol may be revered in homes but its RSA 8/05 14 juristic personality is only when it is installed in a public temple.” Their Lordships therefore held that it cannot be argued that every idol at private places, or carrying it with one self each would become a juristic. It was held that, “This is a misconception. An 'idol' becomes a juristic person only when it is consecrated and installed at a public place for public at large. Every 'idol' is not a juristic person.” Hence it can only be held that first respondent being an idol of a private temple is not a juristic person, as there is no case that it was consecrated. Therefore, first respondent is not competent to institute the suit as a legal entity. It could only be the reason why the second respondent instituted the suit on behalf RSA 8/05 15 of the first respondent. 9. Ext.B1 is Yoga Udambady admittedly executed by the members of the family which provides for maintenance of the temple Ext.B1 provides that a Committee is to be constituted and that Committee is to manage the temple and its properties. Ext.B1 specifically provides that a suit on behalf of the temple could be instituted only by the Treasurer of the Committee. It also provides that the temple could be sued through the Treasurer. Exts.B2 and B3 the decree and judgment in O.S.313/1975 establish that when the second respondent had transferred the property of the temple claiming that it is private property, suit was instituted by the Treasurer of the Committee on behalf of the temple to preserve the properties of the temple. Ext.B2 judgment shows that second respondent in that suit contended that RSA 8/05 16 the suit cannot be instituted by the Treasurer but only by the Committee. By Ext.B2 judgment relying on the provisions in Ext.B1, the said contention was repelled and it was held that Treasurer is competent to institute the suit on behalf of the temple. A decree was granted setting aside the document executed by the second respondent. Ext.A7 decree in O.S.90/1993 on the file of Munsiff court, Karunagappally instituted by the second respondent for the temple establishes that, that suit was instituted by the second respondent representing the Committee constituted under Ext.B1 on behalf of the temple. In such circumstances, it is clear that even the second respondent, who instituted the present suit, is aware that a suit can be instituted only as provided under Ext.B1 by the Treasurer. RSA 8/05 17 10. When Ext.B1 establishes that there is a Committee to manage the temple and its properties and it provides that it is the Treasurer of the Committee to sue on behalf of the temple, a suit cannot be instituted by a member of the family in the absence of a case that the Committee is not acting in the interest of the temple. There is no such case in the plaint. In such circumstances, the courts below were not justified in holding that the suit is maintainable. When the suit was dismissed by the trial court, it is not necessary for the appellant who succeeded in the suit, to challenge that finding by preferring a cross objection. While supporting the findings of the trial court, they are entitled to contend that the findings against them is not correct. For that purpose a cross objection is not necessary. Hence for the RSA 8/05 18 reason that no cross objection was preferred in the first appeal, appellants are not barred from raising a contention that the suit as such is not maintainable. As the second respondent is not entitled to institute the suit, when the Committee constituted under Ext.B1 is managing the property in the absence of an allegation that, that Committee is not managing the temple and its properties or acted against the interest of the temple, the suit cannot be instituted by the second respondent. Hence it is not necessary to consider other questions raised in the suit. Appeal is allowed. The decree and judgment granted in favour of the respondents in A.S.94/1998 by Additional District Judge, Kollam is set aside. O.S.87/1996 on the file of Munsiff court, Karunagappally stands dismissed as not maintainable. It is made clear that RSA 8/05 19 question whether Ext.A2 was accepted and acted upon is not settled in the suit and that question is left open to be decided in appropriate proceedings. No costs. M.SASIDHARAN NAMBIAR, JUDGE. uj.