IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 AS.No. 682 of 1995(C) --------------------- OS.28/1990 of SUB COURT, KASARAGOD .................... APPELLANTS/PLAINTIFFS: 1. K.CHARADAPPA NAYAK, S/O.LATE VASUDEVA NAYAK, AGED 42, RESIDING AT SARADA SADAN, NEAR LAKSHMI NARAYANA TEMPLE, KUMBLA, KEIPADY VILLAGE, KASARAGOD TALUK. 2. K.VASUDEVA NAYAK, S/O.LATE RAMA NAYAK, RSIDING NEAR UMA NURSING HOME, ADKATHABAIL VILLAGE, KASARAGOD TALUK (DEAD) BY ADV. SRI.A.RAMA PRABHU SRI.R.LAKSHMI NARAYAN RESPONDENTS/DEFENDANTS: (*)1. DEVADAS KAMATH, S/O.SREENIVAS KAMATH, AGED 71, RESIDING NEAR MARUTHI TEMPLE, KUMBLA, KEIPADY VILLAGE, POST KUMBLA, KASARAGOD. (DIED. LEGAL HEIRS IMPLEADED) 2. NIRMALA, W/O.ANNAPPA KAMATH, AGED ABOUT 53, RESIDING NEAR MARUTHI TEMPLE, KUMBLA, KEIPADY VILLAGE, POST KUMBLA, KASARAGOD. 3. MANJUNATHA, S/O.ANNAPPA KAMATH, AGED ABOUT 29, RESIDING NEAR MARUTHI TEMPLE, KUMBLA, KEIPADY VILLAGE, POST KUMBLA, KASARAGOD. 4. AMMANI, D/O.ANNAPPA KAMATH, AGED ABOUT 28 YEARS, RESIDING NEAR MARUTHI TEMPLE, KUMBLA, KEIPADY VILLAGE, POST KUMBLA, KASARAGOD. 5. RAGHUVEERA, S/O.ANNAPPA KAMATH, AGED ABOUT 26, RESIDING NEAR MARUTHI TEMPLE, KUMBLA, KEIPADY VILLAGE, POST KUMBLA, KASARAGOD. 6. ACHUTHA KAMATH, S/O.ANNAPPA KAMATH, AGED ABOUT 64, RESIDING NEAR GOVINADAS COLLEGE, SURATHKAL, MANGALORE-D.K. 7. RATNA BAI, W/O.LATE MAHAVA SHENOY, AGED ABOUT 84, KONCHAY, AYYADAYAPADAVU, MANGALORE -D.K. AS NO.682/1995 2 8. SUNANTHA, W/O.LATE GOVINDA SHENOY, AGED ABOUT 68, RESIDING NEAR DURGA HIGH SCHOOL, KANJANGAD, HOSDURG TALUK, KASARAGOD DISTRICT. 9. SANTHA BAI, AGED ABOUT 54, W/O.LATE MADHAVA KAMATH, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 10. RAVEENDRA KAMATH, S/O.LATE MADHAVA KAMATH, AGED ABOUT 43, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 11. SHALINI, D/O.LATE MADHAVA KAMATH, AGED ABOUT 41, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 12. PADMINI, D/O.MADHAVA KAMATH, AGED ABOUT 33, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 13. ANNAPPA, S/O.LATE MADHAVA KAMATH, AGED ABOUT 30, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 14. PREMA, D/O.LATE MADHAVA KAMATH, AGED ABOUT 24, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 15. DEVARAYA, S/O.LATE MADHAVA KAMATH, AGED ABOUT 23, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 16. LEELA BAI, W/O.LATE UPENDRA KAMATH, AGED ABOUT 69, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 17. VIDHYA BAI, D/O.UPENDRA KAMATH, AGED ABOUT 50, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 18. NARASIMHA KAMATH, S/O. MADHAVA KAMATH, AGED ABOUT 48, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 19. VIJAYA BAI, D/O.MADHAVA KAMATH, AGED ABOUT 43, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 20. CHANDRAKALA,D/O. MADHAVA KAMATH, AGED ABOUT 41, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. AS NO.682/1995 3 21. NAGESH KAMATH, S/O. MADHAVA KAMATH, AGED ABOUT 39, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 22. SASHIKANTHA KAMATH, S/O. MADHAVA KAMATH, AGED ABOUT 36, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 23. RAJARAMA KAMATH, S/O. MADHAVA KAMATH, AGED ABOUT 33, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 24. GOKULAS KAMATH, S/O. MADHAVA KAMATH, AGED ABOUT 30, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 25. SHANTHI KAMATH, D/O. MADHAVA KAMATH, AGED ABOUT 27, RESIDING AT SHETIKAVU, KEIPADY VILLAGE, KUMBLA POST, KASARAGOD. 26. SREE MUKHYAPRANA TEMPLE, KUMBLA, REP. BY ITS TRUSTEES: (1) K.RAMADASA NAYAK, S/O.LATE K.GANAPATHY NAYAK, AGED ABOUT 71, RESIDING AT NO.16, SUKRAT APARTMENTS, VITHOBA TEMPLE ROAD, MANGALORE. (2) K.ANANTHA NAYAK, S/O.UPENDRA NAYAK, AGED ABOUT 46, MERCHANT, RESIDING AT KUMBLA, KEIPADY VILLAGE, KASARAGOD. (3) LAXMINARAYANA NAYAK, S/O.VITTAL NARASINGA NAYAK, AGED ABOUT 41, RESIDING AT GOLLERKERY, MANGALORE TOWN, MANGALORE-1. (4) NARASINGA RAMA NAYAK, S/O.RAMA NARASINGA NAYAK, AGED ABOUT 47, RESIDING AT COURT ROAD, KASARAGOD. (5) K.UPENDRA RAMA NAYAK, S/O.UPENDRA NAYAK, AGED ABOUT 50, RESIDING AT KUMBLA, KEIPADY VILLAGE, KASARAGOD. ADDL.RESPONDENTS: 27. SMT. MEERA BAI, W/O.LATE S..KAMATH, AGED 56 YEARS, RESIDING NEAR SRI MARUTHI TEMPLE, GADDEMUTT, P.O.KUMBLA - 671 321, KASARAGOD DISTRICT. 28. SRI S.SRINIVASA KAMATH, S/O.LATE S..KAMATH, AGED 40 YEARS, RESIDING NEAR SRI MARUTHI TEMPLE, GADDEMUTT, P.O.KUMBLA - 671 321, KASARAGOD DISTRICT. 29. SRI S.SADANANDA KAMATH, S/O.LATE S..KAMATH, AGED 35 YEARS, RESIDING NEAR SRI MARUTHI TEMPLE, GADDEMUTT, P.O.KUMBLA - 671 321, KASARAGOD DISTRICT. AS NO.682/1995 4 30. SRI BABURAYA KAMATH, S/O.LATE S..KAMATH, AGED 31 YEARS, RESIDING NEAR SRI MARUTHI TEMPLE, GADDEMUTT, P.O.KUMBLA - 671 321, KASARAGOD DISTRICT. 31. SMT. NALINI KAMATH, D/O.LATE S..KAMATH, AGED 37 YEARS, RESIDING NEAR SRI MARUTHI TEMPLE, GADDEMUTT, P.O.KUMBLA . 32. SMT. POORNIMA PRABHU, D/O.LATE S..KAMATH, AGED 33 YEARS, RESIDING NEAR SRI MARUTHI TEMPLE, GADDEMUTT, P.O.KUMBLA, KASARAGOD DISTRICT. (*)ADDL.R27 TO 32 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED FIRST RESPONDENT VIDE ORDER DATED 3.4.2009 ON CMP NO.76 OF 1996 ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R27,R29 & R30 SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- A.S.No.682 of 1995 -------------------------------------- Dated this the 3rd day of April, 2009. JUDGMENT This appeal arises from the judgment and decree of the Sub Court, Kasaragod. Parties are referred to as plaintiffs and defendants as in the court below for convenience. 2. Plaintiffs claimed that they, along with the defendants are members of the Kumbla Nayak family and that plaint A schedule properties which belonged to that family was partitioned in the year 1867 as per Ext.A1. The entire property belonging to the family was partitioned into six schedules. Schedule Nos.1 to 5 were allotted to different sharers and schedule No.6 (F schedule in Ext.A1) which is plaint A schedule herein was set apart for the temple to be used for performance of viniyogas. According to the plaintiffs, there was a total dedication of plaint A schedule in favour of the temple and hence neither alienable nor partiable. Plaintiffs prayed for a declaration in that way and decree for prohibitory injunction restraining the defendants from committing waste in the property, alienating or partitioning the same. Defendants resisted the suit challenging the locus standi of the plaintiffs to file the suit. According to them, plaintiffs are not even members of the said family. They claimed that there was no total dedication of plaint A schedule properties in favour of the temple but only a charge was created in favour of the temple for performance of viniyogas. AS No.682/1995 2 Learned Sub Judge found that plaintiffs are members of the family but took the view that there was no absolute dedication of the properties in favour of the temple and instead, only a charge was created and hence, the contention that it is not partiable or alienable cannot be accepted. Holding so, the suit was dismissed. Hence this appeal at the instance of the plaintiffs. 3. According to the learned counsel for appellants/plaintiffs, the view taken by the learned Sub Judge is not correct. It is also contended that some of the members of the family had filed O.S.No.493 of 1989 in respect of the suit properties where decree against the sale of the properties was granted. Counsel for the defendants contended that in earlier proceedings it was consistently found that there was no absolute dedication of the properties in favour of the temple and that decision is binding on the parties. According to the learned counsel evidence also did not disclose that there was total dedication of the properties. 4. Ext.B3 is the copy of the decree in O.S.No.493 of 1989 relied on by the appellants/plaintiffs. A copy of the judgment in that suit is not produced. It is not shown that all the members of the tharawad were parties in that case or, that the suit was filed in a representative capacity binding the family as such. Moreover, no contention is taken up that the decision in O.S.No.493 of 1989 would operate as res judicata against any of the defendants. On the other hand, it is seen from Ext.B5 that in O.S.No.14 of 1977 question whether plaint A schedule properties were absolutely dedicated to the temple as per Ext.A1 was AS No.682/1995 3 specifically considered and found against. It was held that it is a family property burdened with a liability which is made a charge over them and there is no bar in partitioning the property among the sharers subject to the charge created as per Ext.A1. Properties were found to be partiable subject to that charge. That judgment was challenged in A.S.No.177 of 1980. Ext.B7 is the C.C. of judgment. It is stated in paragraph 7 of Ext.B7 that the direction to divide the properties in B and C schedules (in Ext.B5 case) which takes in plaint A schedule properties herein also cannot be said to be wrong, there was no complete dedication and that the said properties are available for division. 5. Apart from Exts.B5 and B7, it is seen from the judgment under challenge that learned Sub Judge has referred to the relevant clause in Ext.A1. As per Ext.A1, Padmanabha Nayak who was put in possession of plaint A schedule properties was burdened with the liability to measure 24 mudies of raw rice and 48 kutties of coconut oil every year to the temple (D26). The children of Padmanabha Nayak executed Ext.A5, partition deed of the year 1901. As per Ext.A5, plaint A schedule properties were allotted to Vaikunta Nayak and Chandu Nayak. They executed Ext.A6, partition deed of the year 1918. It is that partition deed which was upheld in Ext.B5 case. Learned Sub Judge has referred to Ext.A6 and found that there was no total dedication of the property in favour of the temple. On a consideration of the evidence and the relevant provisions of law as to dedication, I am in agreement with the view taken by the learned Sub Judge that there is no total dedication of plaint A schedule AS No.682/1995 4 properties in favour of the temple and that Ext.A1 only created a charge over the properties in favour of the temple. No interference is therefore required. Appeal fails. It is dismissed. No costs. THOMAS P.JOSEPH, Judge. cks AS No.682/1995 5 Thomas P.Joseph, J. A.S.No.682 of 1995 JUDGMENT 3rd April, 2009.