IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19042 of 2010(O)
1. EZHUVATH RAJAN MENON,"SREEVALSAM",
... Petitioner
Vs
1. KAKATT MANAKKAL NARAYANAN NAMBOOTHIRI
... Respondent
2. KAKKATT MANAKKAL SUBRAMANIAN NAMBOOTHIRI
3. EZHUVATH JAYASREE,C/O.RAGHAVAMARAR,
4. NILAMBUR KOVILAKAM REPRESENTED BY
5. SMT.SULOCHANA AMMA,W/O.E.P.NARAYANAN
For Petitioner :SRI.P.CHANDRASEKHAR
For Respondent :SRI.K.SHRIHARI RAO
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/09/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.19042 of 2010
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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.
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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
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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
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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
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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.
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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
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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
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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