This appeal challenges the appellate court's decision to remand a suit regarding hereditary trusteeship of a temple for fresh disposal to ensure strict proof of custom, proper joinder of statutory authorities, and consideration of limitation. The high court held there was no merit in the appeal and dismissed it.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 10TH DAY OF MARCH 2015/19TH PHALGUNA, 1936
FAO.No. 229 of 2013 ()
AS 97/2009 of II ADDL. DISTRICT COURT, KOZHIKODE. OS 359/2007 of ADDL. MUNSIFF - I, KOZHIKODE
APPELLANT(S)/APPELLANT/DEFENDANT NO.1:
SREE AZHAKODI DEVI TEMPLE REP. BY ITS EXECUTIVE OFFICER, THIRUTHIYAD P.O.PUTHIYARA, KOZHIKODE, PIN-673 004.
BY ADVS.SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.GEORGE JOSEPH PULIMOOTTIL SRI.ROVIN RODRIGUES SRI.VETTATH EAPEN MATHAI
RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 4 AND DEFENDANT NO.2:
S/O.LAKSHMIKUTTY AMMA, KORICHAN PARAMBATH HOUSE P.O.PUTHIYARA, KOZHIKODE, PIN-673 004.
S/O.MADHAVI AMMA, KOLAPURATH HOUSE, MANASSERY.P.O. KOZHIKODE, PIN-673 602.
FAO.No. 229 of 2013
R1,R2,R4 BY ADV. SRI.V.V.SURENDRAN R1,R2,R4 BY ADV. SRI.P.A.HARISH
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.B.SURESH KUMAR, J.
F.A.O. No.229 of 2013
Dated 10th March, 2015
J U D G M E N T
The decision of the II Additional District Court, Kozhikode in A.S.No.97 of 2009, by which the suit O.S.No.359 of 2007 on the file of the Additional Munsiff Court I, Kozhikode was remitted for fresh disposal, is under challenge in this appeal. The first defendant in the suit is the appellant.
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thavazhies of the joint family and therefore, they are entitled to be the hereditary trustees of the temple. They have claimed in the suit, a declaration that they are the hereditary trustees of the temple and a mandatory injunction directing the defendants to include them as hereditary trustees of the temple.
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them as hereditary trustees in the Trustee Board of the temple.
the trial court in appeal. It seems that the second defendant had taken up a contention in the appeal that the suit is barred by limitation. It appears, on account of the said reason, the plaintiffs have filed two interlocutory applications in the appeal as I.A.Nos.2654 of 2012 and 2655 of 2012. I.A.No.2654 of 2012 was one seeking leave of the court to amend the plaint to incorporate the dates on which the plaintiffs became senior most male members in their respective thavazhies and a few facts to claim exemption from the period of limitation. I.A.No.2655 of 2012 was one seeking directions to the defendants to produce the minutes book of the Trustee Board of the temple from 1.1.2005 to 31.12.2005 to disprove the plea of limitation taken by the defendants.
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relief claimed by the plaintiffs in the suit was based on custom and usage, the trial court did not insist strict proof of the custom and usage pleaded by the plaintiffs. For all the aforesaid reasons, the appellate court took the view that the suit needs to be remitted to the trial court for fresh disposal. Consequently, the appellate court set aside the decision of the trial court and remitted the suit to the trial court for fresh disposal, after allowing I.A.Nos.2654 and 2655 of 2012 filed by the plaintiffs. The appellate court also permitted the plaintiffs to implead the authorities under the Act in the suit. The second defendant is aggrieved by the said decision of the appellate court.
“(a) Whether the senior most members of an erstwhile Marumakkathayam Thavazhy/Tarwad can seek a declaration that they are entitled to be the hereditary trustee of the ancestral temple which belonged to the Tarward after the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975?
(b) By virtue of section 3(9) of the Madras Hindu Religious and
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Charitable Endowment Act, succession as hereditary trustee can be established only so long as the scheme of succession is in force and when plaintiffs are claiming hereditary trusteeship as per the scheme of succession under the Marumakkathayam system of law, the very system having abolished, can the plaintiffs claim the hereditary right in the ancestral temple which belonged to their erstwhile Tarwad?
(c) When on the face of the pleadings and the evidence disclosed, the suit is barred by limitation, is the lower appellate court justified in remanding the suit to plead and prove on fresh grounds to save the limitation for the suit framed?”
9. As noticed above, the appellate court found that
the trial court did not insist strict proof of the custom and usage based on which the reliefs were claimed in the suit. In other words, the suit was remitted to the trial court for fresh decision as to the right of the plaintiffs to claim the reliefs, after insisting strict proof of the custom and usage pleaded by them. The appellate court has also found that the suit was not properly instituted in so far as the authorities under the Act were not made parties therein. The appellate court further found that the trial court did not consider the question as to whether the suit is barred by limitation or not. Questions (a) and (b) framed in the appeal are questions which would arise for consideration once the plaintiffs establish the custom and usage pleaded in the
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plaint. Since the appellate court has not rendered any final decision as to the custom and usage pleaded in the plaint, the said questions do not arise for consideration in this appeal. Coming to question (c), there was no issue in the suit as to whether the suit is barred by limitation or not. The impugned judgment indicates that the plea of limitation in the instant case is a mixed question of law and facts and it is on account of the said reason, the appellate court allowed the application for amendment of the plaint. As such, question (c) framed in the appeal also does not arise for consideration at this stage. On an evaluation of the materials on record, I am of the view that the appellate court is justified in remitting the suit for fresh disposal. There is, therefore, no merit in the appeal and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs
(true copy)
3 issues framed by the court
Whether the first appellant appeal against the dismissal of the suit challenging the remission for fresh disposal is justified.
Whether the appellate court was justified in remitting the suit for fresh disposal to insist on strict proof of custom and usage.
Whether the question of bar by limitation and absence of necessary parties raised in the appealavares for consideration since the subordinate appellate court had not finally decided on these matters.
1 provisions across 1 enactments
Sree Azhakodi Devi Temple Rep. by its Executive Officer
Board of Trustees Sree Azhakodi Devi Temple
Ponmili Velayudhan Nair
Panoli Jayaraman
Cheruthala Komalarajan
Kollat Rarichanparambath Sankaran Nair
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
