Allowed

Parameswara Poduval v. Krishnan Thangal

Kerala HC19 Sept 2022WP(C)/38793/2015

Case brief

AI extract

What is this about?

The Court held that the states Deputy Commissioner erroneously set aside the order appointing the 2nd respondent as fit person since the 1st respondent continued to discharge his functions as hereditary Trustee without any specified infirmity justifying intervention under Section 47(3) of the HR & CE Act.

What did the court decide?

Set aside order dated 10.09.2015 appointing the 2nd respondent as fit person.

Parameswara Poduval Vs Krishnan Thangal — Property and Title | Kerala HC (2022)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 19^TH DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944

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WP(C) NO.38793 OF 2015

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PETITIONER:

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PARAMESWARA PODUVAL

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S/O. DHAMODARAN PODUVAL, HEREDITARY TRUSTEE, MAKRERI DEVASWOM, THODAYIL ELLAM, MAKRERI P.O, KANNUR DISTRICT-670622.

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BY ADVS. SRI.P.R.SREEJITH SMT.MAYA CHANDRAN SRI.M.PROMODH KUMAR

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RESPONDENT/S:

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1 KRISHNAN THANGAL AGED 82 YEARS

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S/O. MADHAVAN THANGAL, HEREDITARY TRUSTEE, MAKRERI DEVASWOM, RESIDING AT KUNNIRIKK AKATHUT ILLAM, P.O. PATHIRIYAD, VIA PINARAY, KANNUR DISTRICT-670741.

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2 JAYACHANDRAN NAMBOODIRI, S/O. NARAYANAN NAMBOODIRI, AGED 63 YEARS, KURINGOTT ILLAM. PURAMERI P.O, VATAKARA, KOZHIKODE DISTRICT-673101

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3 THE DEPUTY COMMISSIONER MALABAR DEVASWOM BOARD, KOZHIKODE-673006

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W.P.(C) No.38793 of 2015

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4 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, ERANHIPPALAM, KOZHIKODE DISTRICT-673006.

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BY ADVS. SRI.NIDHI BALACHANDRAN SRI.P.D.PAULY SRI.SABU GEORGE SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD SMT.P.K.RADHIKA, SC, MALABAR DEVASWOM BOARD

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 26.08.2022, THE COURT ON 19.09.2022 DELIVERED THE FOLLOWING:

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W.P.(C) No.38793 of 2015

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J U D G M E N T

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Ajithkumar, J

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The petitioner is the hereditary Trustee of Sree Makreri Devaswom in Thalassery Taluk. The 1^st respondent is the other hereditary trustee; he is the successor in seniority of Akathitta Kesavan Thangal of Kunnirikka Desom. The temple is now administered under the scheme framed as per order No.478 of the 4^th respondent dated 23.12.1952. A copy of which is Ext.P1.

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The 1^st respondent nominated the 2^nd respondent who is his Power of Attorney as a fit person in his place for the administration of the temple. The 3^rd respondent as per the order dated 04.03.2003, accepted the nomination. But later as per Ext.P2, the 3^rd respondent cancelled that order. Respondent Nos.1 and 2 preferred an appeal under section 47(4) of the Madras Hindu Religious and Charitable Endowments Act, 1951 and the 4^th respondent as per order dated 10.09.2015 set aside Ext.P2 by allowing the appeal. Ext.P3 is a copy of that order. The petitioner filed this writ petition under Article 226 of the Constitution of India

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W.P.(C) No.38793 of 2015

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seeking to set aside Ext.P3 saying that it is arbitrary, illegal and ultravires the powers of the 4^th respondent.

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This Court on 21.12.2015, issued an interim order

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staying the operation of Ext.P3. Despite serving notice, none of the respondents chose to file any counter.

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Heard the learned counsel appearing for the petitioner and also the learned standing counsel appearing for the Malabar Devaswom Board.

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When a permanent vacancy in the office of a hereditary Trustee of a religious institution under the supervisory control of Malabar Devaswom Board arises, the next in line of succession shall be entitled to succeed to the office. Section 47(3) of the HR & CE Act empowers the Deputy Commissioner of the Board to appoint a fit person to discharge functions of a Trustee when the Trustee by reason of unsoundness of mind or other mental or physical defect or

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infirmity becomes unfit to discharge his functions. The Deputy Commissioner while making such an appointment shall give due regard to the claims of the members of the family, if any, entitled to the succession.

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Here is a case where the 2^nd respondent was

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W.P.(C) No.38793 of 2015

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appointed as a fit person on the nomination of the 1^st respondent. Regarding the Trusteeship of the 1^st respondent, there is no dispute. If he is unable to discharge his functions for any of the reasons mentioned in 3^rd paragraph of Section 47(3) of the HR & CE Act, it was possible for the 3^rd respondent - Deputy Commissioner to appoint a fit person. It is seen from Ext.P2 that the 2^nd respondent was appointed as a fit person on 24.03.2003. The 3^rd respondent issued Ext.P2 on 13.01.2015 by observing that the order appointing

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the 2^nd respondent as a fit person had never been implemented. Throughout this period, the 1^st respondent has been discharging his functions as the Trustee.

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On the appeal preferred by respondent Nos.1 and 2, the Commissioner has interfered with Ext.P2 order and allowed the 2^nd respondent to function as the fit person. As pointed out by the learned counsel appearing for the petitioner, since the operation of Ext.P3 has been stayed by this Court, the functions of the Trustee have been duly discharged by the 1st respondent and not by the 2^nd respondent. That, being the state of affairs, there is no

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W.P.(C) No.38793 of 2015

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justification for the 3^rd respondent or for that matter, the 4^th respondent to invoke the provisions of Section 47(3) of the HR & CE Act.

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As pointed out above, an occasion to appoint a fit person arises only if a hereditary Trustee is unable to discharge his functions by reason of unsoundness of mind or another mental or physical infirmity. At the time when the 2^nd respondent was appointed as fit person in 2003 or hitherto, there has not been such a situation. The 1^st respondent has been discharging his function as hereditary Trustee of Sree Makreri Devaswom Temple without any inconvenience or break.

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In such circumstances, Ext.P3 does not sustain in law. The reasons stated in Ext.P3 are insufficient and not legal for setting aside Ext.P2. Hence, we allow this writ petition, and Ext.P3 order is set aside.

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Sd/-

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ANIL K.NARENDRAN JUDGE, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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W.P.(C) No.38793 of 2015

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APPENDIX OF W.P.(C) No.38793 of 2015

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PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE MODIFIED SCHEME FOR SREE MAKRERI DEVASWOM FRAMED AS PER ORDER NO.478 DATED 23.12.1952 OF THE COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS MADRAS Exhibit P2 A TRUE COPY OF THE 3RD RESPONDENT'S ORDER DATED 13.01.2015 CANCELLED THE ORDER ILLEGALLY APPOINTING THE 2ND RESPONDENT AS THE FIT PERSON Exhibit P3 A TRUE COPY OF THE 4TH RESPONDENT'S ORDER DATED 10.09.2015 SETTING ASIDE EXT.P2 ORDER OF THE 3RD RESPONDENT

Parameswara Poduval v. Krishnan Thangal

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Parameswara Poduval v. Krishnan Thangal

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