Partly allowed

Oachira Kshethra Bharana Samithi v. Kesavan Unnithan Damodaran Unnithan

Kerala HC4 Mar 2015RFA/767/2014

Case brief

AI extract

What is this about?

The High Court set aside the final decree to the extent it directed defendants to pay plaintiffs share on disputed temple income heads. The court held that since nature of income was not established by evidence, a fresh decree is needed after affording plaintiffs an opportunity to adduce evidence, leaving the impleadment application dismissed.

What did the court decide?

Final decree set aside to the extent of payment on disputed heads; fresh final decree directed after opportunity to adduce evidence; impleadment application dismissed.

Oachira Kshethra Bharana Samithi Vs Kesavan Unnithan… — Specific Performance | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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WEDNESDAY, THE 4TH DAY OF MARCH 2015/13TH PHALGUNA, 1936

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RFA.No. 767 of 2014

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IA.NO.1309(A)/1989 IN OS 281/1983 & OS 97/1984 OF SUB COURT, KARUNAGAPPALLY.

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APPELLANT(S) IN RFA-RESPONDENTS IN IA.DEFENDANTS 1 TO 4 IN SUIT:

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1. OACHIRA KSHETHRA BHARANA SAMITHY, OACHIRA - 690 526.

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2. V.P.S.MENON, PRESIDENT, OACHIRA PARABRAHMA KSHETHRA BHARANA SAMITHI, OACHIRA - 690 526.

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3. KSHETHRA BHARANA SAMITHI SECRETARY V.SADASIVAN SECRETARY, OACHIRA - 690 526.

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4. V.SUNIL KUMAR, TREASURER, KSHETHRA BHARANA SAMITHI, OACHIRA - 690 526.

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(APPELLANTS 2 TO 4 ARE THE PRESENT OFFICE BEARERS OF APPELLANT NO.1, WHO TOOK CHARGE ON 26.10.2009.)

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BY SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) ADV. SRI.N.D.PREMACHANDRAN

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RESPONDENT IN RFA - PETITIONER NO.3 IN IAPLAINTIFF NO.3 SUIT:

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KESAVAN UNNITHAN DAMODARAN UNNITHAN, MALAYANKANDATHINAL THEKKETHIL, ULAVAKKATTUMU, MAVELIKKARA FROM PALLIYAMBIL, MADATHIL KARASHMA MURI, FROM KRISHNAPURAM - 690 508.

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BY ADV. SRI.G.S.REGHUNATH

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2015 ALONG WITH RFA.784/2014 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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P.B.SURESH KUMAR, J.

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R.F.A. Nos.767 of 2014, 784 of 2014,

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135 of 2015 &

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O.P.(C) No.2941 of 2014

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Dated 4^th March, 2015.

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J U D G M E N T

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R.F.A. Nos.767 of 2014, 784 of 2014 and 135 of 2015

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are against the final decree and order passed by the Subordinate Judge's Court, Karunagappally, in O.S.Nos.281 of 1983 and 97 of 1984 dated 6.2.2014. Among the said appeals, RFA.No.135 of 2015 was one filed before the District Court, Kollam which was withdrawn and renumbered as per order on I.A.No.279 of 2015 in R.F.A.No.767 of 2014.

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When these appeals were taken up for hearing, the learned counsel for the appellants in R.F.A.No.784 of 2014 pointed out that the appellants in the said appeal filed I.A.No.231 of 2014 before the court below seeking review of the impugned order on the ground that the concessions claimed to have been made by their counsel before the court below as recorded in the order were not concessions made by them. It

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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was also pointed out that the said application was dismissed by the court below and the order passed by the court below on the said application is under challenge in O.P.(C).No.2941 of 2014 before this Court and the same is pending. Accordingly, O.P.(C). No.2941 of 2014 is also called for and heard along with these appeals.

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O.S.Nos.281 of 1983 and 97 of 1984 were suits instituted mainly for recovery of the income of Oachira Parabrahma Kshethram, hereinafter referred to as 'the temple', for short. The plaintiffs are members of two families namely, Palliyambil and Arivannoor Kizhakkekara. According to the plaintiffs, they are entitled to a share of the income of the temple as per the terms of the compromise decree passed in an earlier suit namely, O.S.No.620 of 1973. A composite preliminary decree was passed in the suits on 28.3.1989 by which it was directed that an account of the 'kanikka' income of the temple as provided for in the compromise decree in O.S.No.620 of 1973 shall be taken and the plaintiffs shall be

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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permitted to recover half share of the same from defendants 1 to 4 in the suit, who were the Managing Committee of the temple and its office bearers. It was, however, clarified that the defendants will be entitled to place hundies for specific purposes not affecting the income directly from the source of 'kanikka' income. The decreetal portion of the common judgment reads thus :

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“An account of the 'kanikka' income as contemplated in Ext.A2 compromise in O.S.620/73 of the Munsiff's Court, Karunagappally shall be taken for the period from the date of suit O.S.No.253/80 of the Sub Court, Quilon and the plaintiffs shall be entitled to recover half share in such income from defendants 1 to 4. The plaintiff families shall authorise two representatives to receive such amounts and to distribute it among the family members. Defendants 1 to 4 are restrained by a decree of permanent injunction from placing new vanchies in front of the eastern althara so as to directly affect the income from the 'kanikka' vanchies. It is made clear that the decree of permanent injunction will not debar defendants 1 to 4 from placing vanchies for specific purposes not affecting directly the income from the source of 'kanikka'. In other respects the plaint reliefs are not granted. Both the suits are disposed of on identical terms as mentioned above. The plaintiffs will apply for passing a final decree on settlement of accounts and for

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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appointing a Commissioner assisted by a competent auditor for the purpose within 3 months from the date of the preliminary decree. On payment of court fees, the plaintiffs shall be entitled to recover the amounts if any found to be due to them. Considering the circumstances of the case, the parties are directed to suffer their costs.”

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The temple consists of a bunch of banyan trees, of which a banyan tree on the east and a banyan tree on the west are the prominent places of worship. The place of worship at the eastern banyan tree is called eastern althara and the place of worship at the western banyan tree is called western althara. It is not in dispute that the 'kanikka' income provided for in the compromise decree in O.S.No.620 of 1973 is the 'kanikka' income from the eastern althara of the temple. The relevant portion of the compromise decree in O.S.No.620 of 1973 reads thus:

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“KL\ÿ]r W]uS¨ SƒNf¾]Rs WLe]à 1 oOf¤ 4 vRq Nkf]W¥ Nkf] j]iLjU R\áOÐ nqe yo]f]pOU vLh]pOU 5 oOf¤ 8 vRq Nkf] WtOU WPŸLp] CSÕLuR¾ q}f] AjOyq]\ÿV k]q]¨OÐf]jOU a] fOWp] ¤ KÐO kWOf] SƒNfLvw|¾]jO Svº] nqe yo]f]pOU mL¨]

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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kWOf] vLh]pOU 5&U, 6&U Nkf]W¥ D¥RÕŸ kç]pÒ]¤ WOaOUm¨LqOU WPaOf¤ 7-&U, 8&-U Nkf]W¥ D¥RÕŸ Aq]vÐP¡ W] uS¨¨q WOaOUm¨LqOU v}f]R\ÿaO¨OÐf]jOU vLh] Nkf]W¥ yÚf]\ÿ]q]¨OÐfjOyq]\ÿV Sos]¤ CNkWLqU jaÐO RWLçLRoÐO vLh] Nkf]W¥ yÚf]\ÿ]q]¨OÐO.”

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Pursuant to the decree, I.A.No.1309 (A) of 1989 was

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filed by the plaintiffs 3 and 4 in O.S.No.281 of 1983 for passing a final decree in accordance with the preliminary decree. In the said application, based on the report submitted by the Advocate Commissioner, a final decree was passed by the trial court holding that the plaintiffs in the suits are entitled to a sum of Rs.3,41,166.20 towards their share of the 'kanikka' income from the eastern althara. The said final decree was challenged by the petitioners in the application for final decree, in A.S.No.22 of 1997 before this Court, on the ground that the entire income liable to be reckoned as 'kanikka' income have not been taken into account by the court below while passing

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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the final decree. This Court held that the 'kanikka' as referred to in the preliminary decree includes all income available by way of offerings at the eastern althara, both cash and kind. The relevant finding rendered by this Court reads thus:

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“I hold that ''kanikka'' is to be construed as the one available, not only from the hundi placed at the gate of the eastern 'Alathara', but also all other income available, which are made as offerings at the eastern 'Althara', both through cash and kind.”

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In the light of the said finding, this Court set aside the final decree impugned in the appeal and directed the trial court to pass a fresh final decree. This Court also directed that if necessary, an expert Accountant can also be deputed to aid and help the Commissioner in bringing about the true account.

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Pursuant to the decision in A.S.No.22 of 1997, the the Advocate Commissioner appointed by the court verified the accounts of the temple and submitted a fresh account of the income of the temple along with her report dated 24.7.2013. As both sides pointed out mistakes in the report, the court

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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below directed the Commissioner to rectify the mistakes in the accounts and accordingly yet another statement of the account of the income of the temple was submitted by the Commissioner along with her report dated 22.1.2014. In the statement of accounts produced along with the report, the income of the temple was furnished under different heads.

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Thereafter, the matter was taken up for hearing. At the time of hearing, on behalf of the plaintiffs, it was argued that they are entitled to 50% share of the twenty-seven heads of income shown in the statement of accounts submitted by the Commissioner. According to them, the income on all the said heads come within the purview of 'kanikka' referred to in the decree as explained by this Court in A.S.No.22 of 1997. On behalf of the defendants, it was contended that the plaintiffs are entitled to share only from the income received by the temple by way of hundi collection at the eastern althara and other offerings made at the said althara.

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The court below found that the plaintiffs are entitled

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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to share only from the income under ten heads namely, 'East kanikka', 'Adima Veppum Poovum', 'Gold, Silver, Prathimakal', 'Kavady Abhishekam', 'Mattinam Vazhipadu', 'Mattu Loha Sadhanangal', 'Nalikera Vila', 'Special Vazhipadu', 'Thulabharam & Choroon', 'Thulabharasadhanavila' and consequently passed a final decree holding that the plaintiffs are entitled to Rs.66,31,763.60. As far as the remaining heads are concerned, the court below held that they would not come within the meaning of 'kanikka' as referred to in the decree. In relation to some of the said items of income, the court below observed that the learned counsel for the plaintiffs has also conceded that the plaintiffs are not entitled to a share on the said incomes. As indicated above, it is in relation to the said concession, the plaintiffs 3 and 4 have filed I.A.No.231 of 2014 before the court below. As far the remaining items are concerned, the court below found that the the plaintiffs could not substantiate that the same would come within the purview of 'kanikka' as referred to in the decree. Both the plaintiffs and

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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the defendants are aggrieved by the final decree. R.F.A.No.767 of 2014 is filed by defendants 1 to 4 and R.F.A.No.784 of 2014 is by plaintiffs 3 and 4.

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In R.F.A.No.784 of 2014, one Sanil Kumar filed I.A.No.264 of 2015 seeking orders to implead him as an additional respondent in the appeal. He is the son of the eighth defendant in O.S.No.620 of 1973, who is one of the members of Arivannoor Kizhakkekara family. According to him, plaintiffs 3 and 4 in O.S.No.281 of 1983 who have applied for passing of the final decree are not entitled to appropriate the proceeds of the decree and that their attempt is to appropriate the proceeds of the decree.

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Heard the learned Senior counsel for the Managing Committee of the temple and the learned counsel for the applicants in the final decree proceedings.

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Going by the preliminary decree and order, the plaintiffs are entitled to only a share of the 'kanikka' income as provided for in the decree in O.S.No.620 of 1973. What is

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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provided for in the decree in O.S.No.620 of 1973 is a share of the 'kanikka' income from the eastern althara of the temple. The preliminary decree clarifies that the defendants are entitled to appropriate the income received for specified purposes not affecting the income by way of offerings made at the eastern althara. In A.S.No.22 of 1997, this Court has clarified that the 'kanikka' income from the eastern althara is the income from the hundies placed at the eastern althara as also other income received by way of offerings at the eastern althara. Though various categories of income of the temple are mentioned in the accounts filed along with the report by the Commissioner, there is no explanation about the nature of the income. It is not discernible from the nomenclature of the heads of the income shown by the Commissioner as to whether the same would come within the meaning of 'kanikka' as referred to in the preliminary decree as explained by this Court in A.S.No.22 of 1997. It is all the more so, in respect of the heads of income which are disputed by the defendants, namely, “Adima Veppum

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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Poovum', 'Gold, Silver, Prathimakal', 'Kavady Abhishekam', 'Mattinam Vazhipadu', 'Mattu Loha Sadhanangal', 'Nalikera Vila', 'Special Vazhipadu', 'Thulabharam & Choroon' and 'Thulabharasadhanavila'. The same is the situation with reference to the various heads of income over which the plaintiffs are staking a claim. As referred to above, the claim of the plaintiffs over a few items of income was turned down by the court below on the basis of the concession alleged to have been made by their counsel which is disputed by the plaintiffs and the claim of the plaintiffs over the remaining items of income was turned down on the ground that the plaintiffs have not established that the same would come within the definition of 'kanikka' as referred to in the preliminary decree. It is not clear from the impugned order as to how the court below came to the conclusion that the plaintiffs have not established that the said heads of income would not come within the ambit of the 'kanikka'. There is nothing on record to indicate as to the nature of the various heads of income. It is conceded by both

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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sides that the parties have not let in evidence in the matter. In the nature of the claim, it is for the plaintiffs to establish by adducing evidence that they are entitled to a share of the various heads of income referred to by the Commissioner in the statement of accounts. True, there is no dispute as to the right of the plaintiffs to get a share over the hundi collections of the eastern althara and there is no appeal also in so far as the said part of the final decree is concerned.

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The grievance highlighted by the petitioner in I.A.No.264 of 2015 is a grievance to be raised before the final decree court at the appropriate stage and the petitioner is, therefore, not entitled to get impleaded in these appeals preferred against the final decree and order passed by the court below.

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In the result, the impugned final decree and order in R.F.A. Nos.767 of 2014, 784 of 2014 and 135 of 2015 to the extent it directs the defendants 1 to 4 to pay to the plaintiffs half of the income under various heads except the income from

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R.F.A. Nos.767 of 2014, 784 of 2014, 135 of 2015 & O.P.(C) No.2941 of 2014

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the eastern 'kanikka' viz., Rs.55,59,532.78, is set aside and the court below is directed to pass a fresh final decree after affording the plaintiffs an opportunity to adduce evidence. The appeals are disposed of as above. In the light of the decision in the appeals, O.P.(C).No.2941 of 2014 is closed. In view of the finding that the grievance highlighted by the petitioner in I.A.No.264 of 2015 is a grievance that has to be raised before the final decree court at the appropriate stage, the said application is dismissed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Oachira Kshethra Bharana Samithi v. Kesavan Unnithan Damodaran Unnithan

Case brief

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Oachira Kshethra Bharana Samithi v. Kesavan Unnithan Damodaran Unnithan

Case brief

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