Allowed

Ms. K. v. Kumari v Sri. K. Shivaprasad

Karnataka HC22 Mar 2024WP/4294/2021

Case brief

AI extract

What is this about?

Plaintiff-administrator of a temple challenged rejection of her application to construct new toilets on suit property for devotees' convenience during a title dispute over the temple's administration. The High Court held providing toilet facilities was the administrator's duty and allowed construction from temple funds, subject to the suit's outcome.

What did the court decide?

Impugned order dated 07.01.2021 set aside; I.A. No.IX allowed permitting construction of new toilets (80 ft x 24 ft) from temple funds, subject to suit outcome.

Ms. K. v. Kumari Vs Sri. K. Shivaprasad — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 4294 OF 2021 (GM-CPC)

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BETWEEN:

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MS. K.V. KUMARI AGED ABOUT 54 YEARS, D/O SRI VENKATASWAMY, UTTARADHIKARI/ADMINISTRATOR, SRI KOTILINGESHWARASWAMY TEMPLE KAMMASANDRA VILLAGE BETHAMANGALA HOBLI K.G.F TALUK, KOLAR DISTRICT-563116

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…PETITIONER

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(BY SRI. G. PAPIREDDY, SENIOR ADVOCATE FOR SRI. VARUN P., ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. K. SHIVAPRASAD AGED ABOUT 45 YEARS, S/O SRI KAMALA SAMBAVA (PRE-SANYASATHVA) SRI SRI N KAMALASAMBAVA @ SAMBASHIVA MURTHY SWAMIJI (AFTER SANYASATHVA) SAI SAI SHIVAPRASAD MULTISPECIALITY CLINIC, ORTHOPAEDIC, NO.213, 7^TH CROSS, 6^TH BLOCK, 3^RD PHASE, BANASHANKARI 3^RD STAGE, NEAR KAMAKYA (SIGNAL) BENGALURU - 560 085

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SMT. ANURADHA AGED ABOUT YEARS, R/A NO.7, GROUND FLOOR,

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3^RD A MAIN, 9^TH CROSS, HANUMAN HILLS LAYOUT, RAMANJINAGAR CHICKAKALLASANDRA BENGALURU - 560 061

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…RESPONDENTS

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(BY SRI. ABHISHEK N.V., ADVOCATE FOR RESPONDENT NO.1; NOTICE IS SERVED ON RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07-01-2021 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND PRINCIPAL J.M.F.C., K.G.F ON I.A. NO.IX IN O.S. NO.25 OF 2019 VIDE ANNEXURE-G AND CONSEQUENTLY ALLOW I.A NO.IX PERMITTING THE PETITIONER TO PUT UP NEW TOILETS/WASH ROOMS IN THE SUIT SCHEDULE PROPERTY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiff in O.S. No.25/2019 on the file of the Senior Civil Judge and Prl. JMFC., KGF (henceforth referred to as ‘the Trial Court’) has filed this petition challenging an order dated 07.01.2021 by which an application (I.A

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No.IX) filed by her under Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to put up new toilets / washrooms in the suit schedule property in an area measuring East to West 80 feet and North to South 24 feet for the convenience of the devotees / tourists visiting the temple, was rejected.

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The suit in O.S. No.25/2019 was filed for the relief of declaration that the plaintiff is the Utharadhikari / successor of temples installed in the suit schedule properties as per the Will dated 08.01.2004 and consequently, to grant perpetual injunction restraining the defendants from interfering with the possession of the suit properties as well as the day-to-day activities of management / administration of the temple by the plaintiff and not to cause any nuisance vitiating the atmosphere in the temple.

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The plaintiff claimed that Sree Samba Shivamurthy Swamiji (for short, 'Swamiji') constructed Kotilingeshwara Swamy temple (‘temple’ for brevity) and

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other temples in the suit schedule properties. Swamiji inducted the plaintiff as a Secretary of the temple and she was looking after the temple and its administration and was contributing her time and energy along with Swamiji for the development of the temple. She claimed that prior to Swamiji renouncing worldly life, he had married Smt. Rukmaniyamma from whom he had a son and a daughter. She claimed that Swamiji gave up all the properties at Bengaluru to his wife and children and a family settlement in that regard was drawn up on 08.03.2000.

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The plaintiff claimed that a Trust was registered on 19.03.2011 for the betterment and management of the temple, and she was the Secretary of the Trust. She contended that Swamiji had executed a Will dated 08.01.2004 in terms of which he had appointed her as Uttaradhikari of the temples constructed by him during his life time. She contended that Swamiji had earlier executed a Will dated 12.04.2002 by which he bequeathed all the temple properties to the State Government which

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was cancelled by his subsequent Will dated 08.01.2004 by which, she was appointed as the Uttaradhikari. The plaintiff claimed that she was functioning as the Secretary of the Trust and was administering the Temple as its Uttaradhikari. She claimed that no person including the defendant had any right, title or interest in the temple or its administration or management. She contended that the defendant No.1 taking advantage of the fact that he was son of the Swamiji was attempting to trespass into the suit properties and was interfering with the day-to-day administration and management of the affairs of the temple. Therefore, she sought for the aforesaid reliefs.

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The suit was contested by the defendants who denied the averments made in the plaint and contended that Swamiji had constructed temples both in his ancestral and joint family properties at Kammasandra village out of the income derived from the joint family nucleus and had made it a pilgrimage centre. They claimed that the Swamiji never severed his family ties with the defendants,

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but led a ascetic life and had taken steps to save the properties in his name and fought various litigations before various Courts to establish his right in respect of the properties. The defendants alleged that Swamiji was attached to the worldly possessions and never became a Sanyasi as contended by the plaintiff. They contended that the Swamiji had developed lands by constructing temples and installing Shivalingas with a view to achieve his goal to install one crore Shivalingas. They alleged that the Swamiji had founded a Trust on 23.08.1996 named “Bhu Kailasa Sri Valmiki Ashrama Kotilinga Temple Trust” to look after the entire administration of the temples at Kammasandra village. They claimed that the Swamiji was the Chairman, defendant No.1 was the Vice Chairman while the wife of the Swamiji was the Secretary and the plaintiff and the daughter of the Swamiji were the Trustees. They contended that the Trust was active and functioning and was looking after the welfare of the temple. Therefore, they contended that the Will dated 08.01.2004 set up by the plaintiff was created and got up

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and was not valid. They contended that the Swamiji had no intention to execute a Will in favour of the plaintiff or anybody. They further contended that the Trust deed dated 19.03.2011 did not disclose that the properties mentioned therein belonged to the Trust. They claimed that the plaintiff had included the properties of the defendant in the suit schedule in order to make a wrongful gain over the suit properties. They claimed that the khata of suit item Nos.2, 3, 5, 6, 7, 9, 10 and 11 stood in the names of the defendants by inheritance. Thus, they claimed that they as successors of Swamiji and as office bearers of the Managing Committee of the Trust, they had succeeded to the properties as well as the management of the temple. Therefore, they claimed that the plaintiff is not entitled to any of the reliefs sought.

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An order dated 18.09.2019 passed on an interlocutory application in the aforesaid O.S. No.25/2019 came up for consideration before this Court in W.P. No.49400/2019 connected with W.P. No.49995/2019. This

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Court in terms of the order dated 05.11.2019, appointed the plaintiff herein / petitioner to continue “at the helm of affairs of administration and management of the suit temples and properties, with the servient association of the defendant Sri K. Shiva Prasad”. This was an ad hoc arrangement during the pendency of the suit. An order of restraint was passed that the properties of the Trust shall not be alienated and no structural alterations shall be undertaken by the plaintiff without the leave of the Trial Court. This order was challenged before the Hon’ble Apex Court in Special Leave to Civil Appeal (C) Nos.19261927/2020. The Hon’ble Apex Court in terms of the order dated 27.01.2020, in addition to the directions issued by this Court issued further direction that the plaintiff/petitioner herein shall maintain accounts of the suit temple and its properties and file them before the Trial court on a quarterly basis, commencing from 1^st April 2020 and that the defendants would be entitled to inspect the accounts. The plaintiff was also directed to convene a meeting on the seventh day of every month to apprise the

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defendants of all matters pertaining to the management of the affairs of the temple and its properties. In this background, the plaintiff filed an application (I.A. No.IX) under Section 151 of CPC seeking permission of the Trial Court to put up new toilets and washrooms in the suit schedule property in an area measuring east to west 80 feet and north to south 24 feet for the convenience of the devotees / tourists visiting the temple. In the affidavit accompanying the application, the plaintiff claimed that toilet facilities available in the temple premises was not sufficient and was also not hygienic but was in a damaged condition and not suitable for the use. She claimed that it was imminent to construct new toilets in an area measuring east to west 80 feet and north to south 24 feet with all modern amenities to maintain hygiene. This application was contested by the defendants who contended that all the suit properties are not the properties of the temple and the plaintiff cannot construct toilets and washrooms in the private property belonging to the defendants. They contended that the plaintiff alone

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had no right to take any decision and proceed with construction but she had to notify the defendants. They further contended that the construction, if any, has to be done only by inviting tenders. Therefore, they contended that the plaintiff has no right to seek permission to put up toilets as sought in the application.

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The Trial Court in terms of the impugned order dated 07.01.2021, rejected the application on the ground that: (i) if the temple had many foot falls, then the plaintiff must have put up adequate toilets and washrooms in the temple premises as there was no dispute between the plaintiff and defendants regarding the management of the temples and the properties during the lifetime of the Swamiji; (ii) that the plaintiff was claiming exclusive right over the temples and its properties as a uttaradhikari of deceased Swamiji; (iii) that the defendant No.1 was claiming hereditary right over the temple and was also claiming that a portion of the property where temple existed exclusively belonged to him and (iv) when both

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the parties were claiming right over the temple and its properties the plaintiff and the defendants are not entitled to meddle with them.

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Being aggrieved by the said order, the plaintiff is before this Court in this writ petition.

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Learned senior counsel for the plaintiff contended that the existence of the toilets, washrooms in the vicinity of the temple is not disputed by the defendants. He contends that the defendants do not dispute that the existing toilet facility is in a dilapidated condition and is unfit to be used by the pilgrims/tourists. He contended that the defendants did not dispute the fact that toilets in the temple were unhygienic and were incapable of being used by the large number of tourists who visited the temple. He contended that since the plaintiff is now invested with the responsibility of maintaining and managing the temple and also to administer the temple, it is her duty to ensure that the visiting tourists are not put to any inconvenience. Further,

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he contends that providing toilet facilities is a fundamental responsibility of any institution and therefore, the Trial Court must have been more pragmatic while considering the application (I.A. No.IX) filed by the plaintiff for permission to construct new toilets.

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Per contra, the learned counsel for the defendant No.1 contends that the suit is for declaration of status of the plaintiff as a uttaradhikari of the temple and does not relate to any claim to the properties of the temple and therefore, any order that may be passed by this Court permitting the plaintiff to put up the construction of a toilet in any portion of the property of the temple should be an ad hoc arrangement as the question whether the suit properties are the properties of the temple or whether they are the independent properties of the defendant No.1/defendants needs to be examined. He, therefore, submits that the impugned order passed by the Trial court does not warrant interference.

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When this Court directed the defendants to identify a suitable place where the toilet facilities could be provided to the visiting tourists, learned counsel for the defendant No.1/respondent No.1 filed a memo with documents and in the memo, he has stated that the defendant is willing to dedicate a portion of the land belonging to him in Sy. No.60 for the purpose of construction of the toilets/washrooms for the devotees of the temple. The photographs of the place suggested by the defendant No.1 are also placed on record. He, however, contended that the temple administration may be granted permission to construct the toilet complex in an area measuring 80 feet East to West and North to South 24 feet as indicated in the application (I.A. No.IX) filed by the plaintiff.

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I have considered the submissions made by the learned senior counsel for the plaintiff/petitioner and the learned counsel for the defendant No.1/respondent No.1.

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As rightly contended by the learned senior counsel for the plaintiff, providing toilet facilities is a fundamental duty of any institution, more particularly, when several pilgrims/tourists congregate at the temple. It is not the case of the defendant No.1 that there was no toilet facility within the temple premises and it is not even his case that the existing toilet is in a usable condition. There is no serious objections filed by the defendant/s to the application (I.A. No.IX) filed by the plaintiff for permission to construct new toilets / washrooms in the suit schedule property in an area measuring East to West 80 feet and North to South 24 feet. If the existing toilets

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are not usable or in a dilapidated condition or is unhygienic, it is the responsibility of the plaintiff being the administrator of the temple to provide good, clean and hygienic toilet facility to the devotees visiting the temple. The Trial Court instead of putting the plaintiff on terms and permitting her to put up construction of a new toilet, nearby or adjacent to the existing toilets and if need be by demolishing the existing toilets went off on a tangent to

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hold that the defendant No.1 has laid a claim to the property belonging to the temple. At any rate, since defendant No.1 has claimed that he too was interested in the administration of the temple, in view of he being appointed as Vice Chairman of the Trust, he owed a duty to provide toilet facilities to the visiting tourists / devotees. Therefore, the impugned order passed by the Trial Court warrants interference.

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Consequently, this petition is allowed. The impugned order dated 07.01.2021 passed by the Senior Civil Judge and Prl. JMFC., K.G.F., on I.A. No.IX in O.S. No.25/2019 is set aside and the application (I.A. No.IX) filed by the plaintiff under Section 151 of the Code of Civil Procedure, 1908 for permission to construct new toilets in the suit schedule property in an area measuring East to West 80 feet and North to South 24 feet deserves to be allowed and is accordingly allowed. It is, however, made clear that the new toilets shall be constructed by the plaintiff from out of the funds of the temple. The plaintiff is also at

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liberty to demolish the existing toilets / reconstruct new toilets, if need be. This arrangement is always subject to the outcome of the suit.

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Sd/JUDGE

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SMA List No.: 1 Sl No.: 42

Ms. K. v. Kumari v Sri. K. Shivaprasad

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Ms. K. v. Kumari v Sri. K. Shivaprasad

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