IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 769 of 2008()
1. SANTHOSH.C. WARRIER, AGED 30 YEARS,
... Petitioner
Vs
1. T.S. KUMAR AGED 50 YEARS,
... Respondent
2. TRAVANCORE DEVESWOM BOARD
3. ASSISTANT DEVASWOM BOARD COMMISSIONER,
For Petitioner :SRI.R.PARTHASARATHY
For Respondent :SRI.LIJI.J.VADAKEDOM
The Hon'ble MR. Justice P.BHAVADASAN
Dated :06/08/2010
O R D E R
P. BHAVADASAN, J.
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R.S.A. No. 769 of 2008
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Dated this the 6th day of August, 2010.
JUDGMENT
The third defendant in O.S. 35 of 2003 before
the Munsiff’s Court, Kottayam, who suffered a decree at
the hands of the trial court and whose appeal was
dismissed by the District Court, Kottayam is the
appellant before this court. The parties and facts are
hereinafter referred to as they are available before the
trial court.
2. Fortunately, most of the facts are not in
dispute. Thekkedath Wariam is holding the right to
perform kazhakam services in Thirunakkara
Puthiyathrikkovil Sreekrishnaswamy Temple. According
to the plaintiff, till July 1996 kazhakam was being
performed by his maternal uncle and a vacancy arose on
his retirement from service. The senior most member of
the family Sri. Sankara Warrier then nominated the
plaintiff to perform kazhakam in the temple. The plaintiff
RSA.769/2008. 2
made necessary application. An year and a half thereafter
the third defendant approached defendants 1 and 2 and
made a claim for performing kazhakom in the temple in
preference to the plaintiff. He was armed with a letter from
the senior most member of the tarwad. It is not in dispute
that the third defendant was thereafter appointed in the
temple to perform kazhakom service. That brought the
plaintiff to the court.
3. Before the trial court, the main allegation was
that having nominated the plaintiff for doing kazhakam,
there was no power with the senior most member of the
tarwad to nominate another person till the plaintiff is either
removed from service or retired from service. He accused
the first and second defendants for having unduly favoured
the third defendant, who according to him, has no right to
perform kazhakam in the temple. He therefore sought for
necessary reliefs.
4. Defendants 1 and 2 resisted the suit. They
pointed out that the plaintiff had not filed a proper
RSA.769/2008. 3
application for being considered to perform kazhakam in the
temple, and his application was never accepted. The third
defendant is said to have filed a proper application and
therefore according to the defendants, he was appointed.
5. Third defendant in turn tried to justify his
appointment in the temple.
6. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws. 1 and 2 and the documents marked as Exts.A1 to A11
from the side of the plaintiff. The defendants examined
D.Ws. 1 and 2 and had Exts. B1 to B5 marked. The trial
court on an appreciation of the evidence in the case came to
the conclusion that the act of defendants 1 and 2 in
appointing the third defendant was illegal and that the
plaintiff was entitled to continue to perform kazhakam in the
temple. A decree in favour of the plaintiff followed.
7. Defendants 1 and 2 and the third defendant
filed separate appeals before the District Court, Kottayam.
The District Court considered the materials on record
RSA.769/2008. 4
independently and found that there were no grounds to
interfere with the judgment and decree of the trial court.
Accordingly, the appeal was dismissed. It seems that the
Board has given up chase and the third defendant alone has
come up in appeal before this court.
8. The following questions of law have been
formulated by this court:
“1. When the consent given for nomination
of the plaintiff was withdrawn and consent was
given for the nomination for third defendant as
kazhamam, which was accepted by the
Travancore Devaswom Board whether courts
below were justified in rejecting the nomination of
third defendant on the ground that third defendant
did not plead in the written statement that he had
filed a nomination when the plaint itself discloses
that said nomination paper was submitted?
2. Whether the courts below were justified in
rejecting Ext.B1, the application filed by third
defendant, for non-production of the entire file, in
the light of the plaint allegations?
3. When the authority to nominate kazhakam
is vested in the senior most member of the family
RSA.769/2008. 5
and he exercised that authority, is the Civil court
entitled to unsettle the nomination?
4. Whether first appellate court was right in
relying on ROC4832/78/Misc. dated 28.10.1977
when it was neither produced nor exhibited nor its
contents brought to the notice of third
defendant?”
9. Learned counsel appearing for the appellant
pointed out that both the courts below have erred on facts
and in law in accepting the case put forward by the plaintiff.
Counsel went on to point out that even assuming that there
was a proper nomination of the plaintiff, that had not been
accepted by the Board and there is nothing to show that his
appointment was approved. It was while the application was
pending consideration that the third defendant was
nominated. Therefore, the nomination of the third
defendant was before the acceptance of the nomination of
the plaintiff and therefore there was no illegality in the acts
done by the Board. It was also contended that nothing
prevented the senior most member from withdrawing the
RSA.769/2008. 6
nomination of a person and nominating another person in
his place. It is the discretion of the senior most member of
the tarwad of the family. The contention is that the
nominee remains in the temple to perform kazhakam
services at the pleasure of the senior most member and the
senior most member of the family can at any time substitute
him. According to learned counsel, the person who is
nominated does not get any vested right and he has to
vacate when the senior most member nominates another
person.
10. Per contra, learned counsel appearing for the
respondents pointed out that the courts below have
correctly understood the law on the subject and has applied
it properly. It cannot stand to reason that the nominee holds
right to perform kazhakam service at the whims and fancies
of the karanavan, who can withdraw the nomination at any
time without justification or reason. The moment one is
nominated to perform kazhakam services, certain rights
accrue to him. He is treated as an employee of the Board
RSA.769/2008. 7
and he is subject to disciplinary control of the Board. It was
pointed out that in the case on hand, the application filed by
the plaintiff was kept pending for more than four years and it
was thereafter all of a sudden approval is issued to the
nomination of the third defendant. At no point of time
before that the Board has pointed out that the plaintiff was
either incompetent or unqualified to perform kazhakam
service in the temple. It was also contended that there is no
appointment of the nominee by the Board and unless there
are compelling reasons, the nomination cannot be turned
down. Therefore, there is no substance in the contention
that nomination of the third defendant was made before
approval.
11. Learned counsel referred to the various
provisions of the Act and the Rules and pointed out that it is
not as if that the person nominated acquires no independent
status and that he is simply to move out as soon as the
senior most member nominates another person.
RSA.769/2008. 8
12. The issue that arises for consideration is
whether the act of the Board in accepting the nomination of
the third defendant while the plaintiff was already
nominated and performing kazhakam in the temple can be
justified. Before going into the facts, the relevant statutory
provision referred by both the counsel may be referred to.
13. Section 28 of the Travancore-Cochin Hindu
Religious Institutions Act, 1950 reads as follows:
“28. Board’s control over karanma services.-
(1) The Board shall have absolute control over
the holders of all Karanma services and also over
all the properties, Thiruppuvarams and other
emoluments attached thereto.
(2) Whenever it is reported that owing to
incompetency, negligence or other cause, any
Karanma service is not being regularly performed,
or that an alienation of Karanma service or of the
property, thiruppuvaram or other emolument
attached thereto, has been effected by the
Karanma holder or by any member or members of
the Karanma family, the Board shall give due
notice of the charge to the head of the family and
RSA.769/2008. 9
the next senior member, and also to such other
members of the Karanma family as the said Board
may deem necessary, and if after hearing their
objections, if any, the Board is satisfied that there
has been an alienation of the karanma service of
the property or of the Thiruppuvaam or of the
other emoluments attached thereto or that there
has been a failure to perform the service properly
or regularly, the Board shall suspend, remove,
determine, cancel or deal with any other manner
the Karanma right of the family to the service.
(3) All alienations of Service Inam lands attached
to specific services which have been or which may
hereafter be made contrary to past usage shall be
treated as null and void. The Board shall have
power to resume Service Inam lands attached to
specific services if such lands are alienated or if
the holders of such lands make default in the
performance of the services:
Provided that the Board may in its discretion
deal with such lands and the services connected
therewith in any other manner as it may deem fit.
(4) Any person deeming himself aggrieved
by any decision passed under sub-sections (2) and
(3) may, within a period of one year from the date
RSA.769/2008. 10
of such decision, institute in the District Court
within whose jurisdiction the property is situate
suit to establish the right which he claims in
respect of the property.
Provided that, subject to the result of the
suit, if any, the decision of the Board passed under
sub-section (2) and (3) of this section shall be
final.”
14. Rules have been framed under Section 28 of
the Hindu Religious Institutions Act, 1950 regarding karaima
rights. The relevant rules are Rules 1, 2, 3, 4, 10, 12, 13 and
14.
15. Rule 1 states that the Devaswom Board shall
have absolute control over the holders of karaima services
and all the properties. Rules 3 and 4, which have some
significance, read as follows:
“3. The responsibility for the proper
discharge of the work and the right of deputing
members from the Karanma family to do the
services rest with the senior male member of the
family. Where the main family consists of a
number of sub-families, divided or undivided, such
RSA.769/2008. 11
right shall be exercised by the most senior male
member for the time being among the individuals
of all the sub-families.
4. Whenever the senior member arranges
the work to be done by a member of the family
other than himself he will give his consent in
writing to such proxy to do the service and such
written consent should be produced before the
pay or other emoluments, if any, attached to the
post is disbursed to the person who actually dos
the work. Payment may thereafter be made to
such person until the senior member cancels the
arrangement in writing.”
Rule 5 enables the Board to temporarily fill up posts in
certain contingencies. Rule 10 deals with a situation where
a proxy attends to the duty. Rule 12, which has some
relevance, reads as follows:
“12. Karanma employees will be subject to
the disciplinary control of the Devaswom Board
and the officers of the Devaswom Department as
any other employee. They may be fined in case of
misconduct, by the officers under the Board duly
empowered in that behalf but for suspending or
RSA.769/2008. 12
dismissing them the orders of the Devaswom
Board are necessary. They may, however, be
placed under suspension pending enquiry by
competent authority the circumstances of the case
being immediately reported to the Board.
karanma employees should not be transferred to
other institutions.”
Rule 13 enables the Board to take action against the person,
who is performing the karanma service in case of
misconduct, indiscipline etc. Rule 14, which has some
relevance, reads as follows:
“14. Whenever it is reported that owing to
incompetence, negligence or other cause, any
Karanma service is not being regularly performed,
or that an alienation of Karanma service or of the
property, Thiruppuvalam or other emolument
attached thereto, has been effected by the
Karanma holder or by any member or members of
the Karanma family, the Board shall give due
notice of the charge to the head of the family and
the next senior member, and also to such other
members of the Karanma family as the said Board
RSA.769/2008. 13
may deem necessary, and if after hearing their
objection, if any, the Board is satisfied that there
has been an alienation of the Karanma service or
of the property or of the Thiruppuvaram or of the
other emoluments attached thereto or that there
has been a failure to perform the service properly
or regularly the Board shall suspend, remove,
determine, cancel or deal with in any other
manner the Karanma right of the family to the
service. (Section 28(2) of the Act)”
16. Before going further, one aspect may be
noticed. The lower appellate court has relied on ROC
No.4832/78/Misc. issued by the Devaswom Board dated
28.10.1977. That, being only an executive order, may not
have much relevance in the light of the specific rules in the
matter.
17. Learned counsel appearing for the
respondents relied on the decision reported in Travancore
Devaswom Board v. Chellappan Pillai (1988(1) K.L.T. 16)
for the proposition that a person who performs karanma
service is the employee of the Board and is bound by the
RSA.769/2008. 14
rules framed under Section 35 of the Act. He also relied on
the decision reported in Vishnu Narayanan Namboodiri v.
Travancore Devaswom Board (2001(3) K.L.T. 888)
relating to the continuance of karanma right which is
protected by the Travancore Devaswom Board. The above
decisions may not have much relevance in the case on hand
except that the karanma right holders and the person, who
deputed to perform karanma service will be under the
control of the Board.
18. The crux of the contention taken by the
learned counsel for the appellant is that the nomination of a
person of the family by the senior most member is only an
arrangement between the members of the family and
cannot confer any right on the member, who is so
nominated. In the case on hand, the specific contention is
that since the nomination of the plaintiff has not been
accepted by the Board till the third defendant was
nominated, it is pointed out that there is no illegality in the
appointment of the third defendant.
RSA.769/2008. 15
19. It may be noticed that the application filed by
the plaintiff was on 30.1.1998 and that was accompanied by
the nomination by the senior most member of the family. Of
course, both the Board and the third defendant have a case
that since the nomination was not in the stamp paper, it is
not valid. But that contention is not pursued before this
court. The application by the third defendant was after one
and a half years. There is nothing to show that either the
Board had rejected the application of the plaintiff or that he
was found to be undesirable or unsuitable. It cannot be
disputed that he had been performing the services till the
third defendant was appointed.
20. One may now recall Rules 3 and 4, which have
already been extracted. Rule 3 of the Rules regarding
karanma service deals with the case where the senior most
male member of the family deputing a person to perform
karanma service in the temple. Rule 4 deals with a case
where the senior most member recommends proxy for doing
the work. There may be a distinction between Rules 3 and
RSA.769/2008. 16
4. In the case of deputation under Rule 3, it could be said
that once a person is deputed and nominated by the senior
most member, it follows that on entering service, he
acquires certain rights. In the case of a proxy as
contemplated under Rule 4, it is only an authorisation by the
senior most member to perform karanma in his absence.
Authorization of a proxy differs considerably from deputation
of a member. As rightly pointed out by the learned counsel
for the respondent, once a person is deputed and enters the
service, then he is under the disciplinary control of the
Board. In the case of a proxy, it is quite clear that the
remuneration payable to him is subject to the written
consent obtained from the senior most member. In the case
of a proxy contemplated under Rule 5, the Rule specifies
that such a person can continue until the senior most
member cancels the arrangement. It would appear that
Rules 3 and 4 contemplate different situations. Rule 4 would
indicate that normally the senior most member is to perform
the kazhakam, if he is indisposed, he may send a proxy.
RSA.769/2008. 17
21. Rule 10 has some significance in this context.
It specifies that in the case of a proxy as mentioned in Rule
4, it is mentioned that both the proxy as well as the karanma
family and its properties will be answerable for the faults of
the proxy. As already noticed, the Board retains disciplinary
control over the person who performs kazhakam in the
temple. Rule 14 in fact enables the Board under certain
circumstances to suspend, remove, determine or cancel or
deal with in any other manner the karanma rights of the
family to the service.
22. It does not stand to reason to hold that having
deputed a person to perform karanma rights, without any
justification or reason whatsoever, the senior most member
can nominate another person to perform karanma rights.
Certainly, it cannot depend upon the whims and fancies of
the senior most member. There has to be some certainty
and consistency. Unlike in the case of a proxy, the person
nominated or deputed stands on a better footing.
RSA.769/2008. 18
23. No reason whatsoever is given either by the
Board or by the karanavan for nominating third defendant in
the place of the plaintiff. Board had no answer before the
courts below as to why they had kept the application filed by
the plaintiff for more than one and a half years without
acting on it. Quite surprisingly enough, the Board was quite
fast in acting on the application received from the third
defendant. The reason is available from a reading of the
judgment of the lower courts.
24. There is even an allegation that there was
infact no application from the third defendant at all. It is
significant to note that there was no averment in the written
statement filed by the third defendant regarding Ext.B1. At
the appellate stage, the written statement was sought to be
amended incorporating the plea regarding Ext.B1. The lower
appellate court was of the opinion that Ext.B1 is open to
serious doubt. Both the courts below have found that the
application filed by the plaintiff was accompanied by a valid
nomination and defendants 1 and 2 had no explanation to
RSA.769/2008. 19
offer as to why it was not acted upon. The courts below have
also found that the plaintiff is a senior member of the family
and he is senior to third defendant.
25. A reading of Ext.B1 shows that the senior
most member Sri.Sankara Warrier had infact nominated the
plaintiff for the post. But Ext.B1 says that that was because
the third defendant was at the relevant time studying in
Bombay and he had the right to be appointed to perform
kazhakam in the temple.
26. No rule or any provision is brought to the
notice of this court to show that the third defendant has
preferential right to the post. All that Rule 3 says is that the
senior most member may depute any person to perform
kazhakam service in the temple.
27. The contention that since the nomination and
deputation of the plaintiff had not been accepted by the
Board, or approved by the Board till the third defendant had
filed his application, and therefore there was no valid
appointment of the plaintiff cannot be accepted in the facts
RSA.769/2008. 20
of the case. As noticed by the courts below, no explanation
whatsoever has been offered by the Board as to why the
application was kept pending. There is nothing to show that
the plaintiff was disqualified or there is any infirmity in his
application. At any rate, the Board did not point out any
defect in his application at all. The contention that a person,
who is nominated or deputed by the senior most member to
do kazhakam services holds office at the pleasure of the
karanavan cannot be accepted for reasons already
mentioned.
The result is that this appeal is without merits and
it is liable to be dismissed. I do so with costs to the first
respondent throughout.
P. BHAVADASAN,
JUDGE
sb.