ESWARAN OONNITHAN SANKARAN OONNITHAN Vs. BHAGEERATHI ITTY BHARGAVI ITTY
LAWS(KER)-1968-7-50
HIGH COURT OF KERALA
Decided on July 01,1968

Eswaran Oonnithan Sankaran Oonnithan Appellant
VERSUS
Bhageerathi Itty Bhargavi Itty Respondents

JUDGEMENT

M.MADHAVAN NAIR,J. - (1.) THE appellants in these appeals are the 2nd defendant and defendants 4 and 11,in a suit for removal of the 1st defendant,their karnavan,from management of a temple,said to belong to the family as a private endowment,on account of mismanagement and misconduct on his part,and to frame a scheme for its management.
(2.) BY the preliminary judgment of the Additional Subordinate Judge,Quilon,delivered on January 31,1959 it has been found: " ;.... the temple site 33.75 cents in plaint item 1 and the temple buildings therein and also items 2 to 5 and 6 to 13 alone belong to the temple as trust properties and that they are treated as such by the members of Ammachi Veedu....."( Para 9) "First defendant admits in para 18 of his written statement that the income from the temple is also being given to the members of the family...........He states an ...[VERNACULAR TEXT OMITTED]... (The surplus amount used to be given as donation to the members of the family every week ).Such a distribution of temple funds cannot be characterised as an act of charity in relation to the temple trust as contended on behalf of the 1st defendant.Hence I hold that the income of the temple was being utilised by 1st defendant for purposes not appertaining to the temple trust."( Para.14 ). " ;.... As trustee the temple income could be utilised only for temple purposes.( Para.15) "In regard to the management of the temple it is admitted by pw.1 that 1st defendant is properly conducting the ceremonies and Poojas in the plaint temple and that 1st defendant has effected considerable improvements in the plaint temple.There is also absolutely no evidence to show that 1st defendant is guilty of misappropriation of temple funds for his own purposes or that he is guilty of any misconduct.But the fact remains that he is not keeping any accounts in regard to the income and disbursement of the temple funds.That the prior karnavans were not keeping accounts is no valid defence for the 1st defendant.It is also an admitted fact that he is distributing the surplus income among the members of the family and not for temple purposes.........The distribution of surplus income among the members of the family is certainly detrimental to the interests of the plaint temple."( Para 17) "Though as stated above Ist defendant is not guilty of any misconduct or dishonest misappropriation of temple funds,it is clear that he has not been diligent in the matter of accounting the temple income.It is therefore necessary for the interests of the plaint trust that certain limitations and restrictions have to be imposed upon the Ist defendant in the matter of the collection of the income of the temple and the disbursement of the same.The evidence of the 1st defendant shows that the other members of the family are causing obstruction in the matter of collecting the temple income.It is therefore justifiable that Ist defendant should be relieved of his duties of collection and expenditure of the temple income.Hence I find that subject to the Ist defendant's absolute rights of management of the temple affairs,in so far as they relate to the conduct of the ceremonies in the temple,a scheme has to be formulated for the proper collection of the income and disbursement of the temple funds.T also find that 1st defendant is not liable to be removed from the management of the temple as 'Kshethra Kariasthan 'for the limited extent indicated above and that he has to account for the items as found in Para.18 " ;.( Para.19 ). "In the result,a preliminary decree is passed as follows:Subject to the Ist defendant's rights of management as 'Kshethra Kariasthan ' ;,to the extent they relate to the performance of religious ceremonies and conduct of the Poojas in the plaint temple as claimed by him in para 22 of his written statement,a scheme will be framed in regard to the collection of the temple income and the disbursement thereof for temple purposes.The scheme will provide(a)For nominating an efficient person on a remunerative basis either some one among the member? of the family or stranger for the purpose of the collection and disbursement of temple income.( b)For keeping of accounts regarding the income and expenditure of temple funds and also for auditing the same once in a year........ The existing arrangement for the collection and disbursement of the temple income through the Receiver will continue till the final decree is passed in this case........ The plaintiffs and contesting defendants will submit draft schemes in the lines indicated above in two weeks time " ;.( Para.25 ). Pursuant to the preliminary decree,parties submitted draft schemes.The Additional Subordinate Judge held in his final judgment dated April 1,1959,thus: " ;...... It cannot be said that Ist defendant has effected these improvements and made the purchase with the surplus of the temple income alone,as it is seen that the temple income was being distributed among the members of the family.It is not possible therefore to impose any liability on the Ist defendant merely because he is not now in a position to state the specific item of the temple purpose for which the sum of Rs.400/ - is spent by him.On a consideration of the above facts and circumstances I am inclined to believe the Ist defendant when he swears that he has spent the amount under Ex.P -14 only for temple purposes.Hence I hold that Ist defendant is not liable to the plaint Devaswom for any amount in respect of the items mentioned in the preliminary decree "( Para.3) By that judgment the Additional Subordinate Judge framed a scheme for the management of the temple and its properties and directed "the receiver appointed in this case.....will continue to work as manager of the plaint temple hereafter under the above scheme."The plaintiffs took the matter in appeal before the Additional District Judge,Quilon,where they submitted a draft scheme.The Additional District Judge,Quilon,accepted the same by his judgment dated March 4,1964,with these observations: " ;...... the appellants want to incorporate an additional provision in the scheme viz .,to direct the manager to utilise 25% of the surplus income for the educational advancement of the members of the family and that too to be done with the approval of the court.It was submitted that as the surplus income was accumulating a portion of the amount thus accumulated was divided among the members as per the orders of the execution court.According to the appellants 'learned counsel instead of dividing the income among the members without any basis,it would be better to utilise a portion of the surplus income for the educational advancement of the members of the family.This was not opposed by any of the respondents and in my view also it appears to be a reasonable suggestion.Hence I accept it and Clause.29 in the draft scheme will also be incorporated to the scheme.Clause.30,31 an0 32 in the draft scheme are also additional provisions suggested by the appellant.As these proposals were not also opposed by any of the respondents T accept those suggestions.The draft scheme submitted by the appellant was perused by me minutely and some changes also are seen to have been made in the wording of other clauses.As the wording of the clauses in the draft scheme are better than the wording of the existing scheme,I accept the draft scheme in its entirety and it will be substituted in the place of the scheme that was approved by the lower court.The draft scheme submitted by the appellant will form part of the final decree " ;. It is against this decree that the aforesaid defendants have preferred these second appeals.
(3.) THE preliminary judgment finds the temple to be a private endowment belonging to a family.But,under the scheme a paid manager is to collect the income of the temple and its properties and disburse it,and Advocate Shri K.P.Vasudevan Pillai,who is a stranger to the family but was receiver of the temple and its properties during the pendency of the suit,was appointed as such manager.It is represented at the bar that when he died in 1965 another Advocate has been appointed manager of the suit temple.This is real ouster of the karnavan from management of the temple.The question here is not whether the person appointed as manager is a commendable person;the question is whether appointment of a stranger to manage the family endowment is justified by the circumstances of this case.Pertinent is the following observation in Mulla's Hindu Law: "Important legal consequences flow from the distinction between private and public endowments and they have a material bearing on the question as to what remedies are open to the parties in cases where there is maladministration of the endownment by the manager or trustee.A private endowment lies outside the purview of the Religious Endowments Act of 1863,and the Charitable and Religious Trust Act of 1920,and what is more,S.92 of the C.P.Code cannot be invoked unless the endowment is of public character " ;.( 13th Edn .,Page.458)" It has been held in Kunhukutty Amma v.Ravunni Menon 1959 KLJ 158 that the right of Ooraima of a tarwad in a public temple is a "personal right "of the Karnavan and that the other members of the tarwad,though may be entitled to succeed him in office,have no right to interfere in his management.Though the instant one is a family endowment,the normal remedy for maladministration of the endowment by a karnavan of the family is his removal and the appointment of the next competent member in his stead - much the same way as in case of maladministration of tarwad affairs - and not the taking over of its management by the Court or by its appointee.The findings(quoted above)show that in this case there was absolutely no maladministration or misconduct on the part of the 1st defendant.No legal ground for the court's interference with its management has therefore been made out in the case.The appointment of a stranger manager in this case seems only to illustrate the fable "when two cats quarrel,the bread shall be taken by the monkey."When no ground has been made out for interference in the management of a private endowment the Court ought to have withheld its hands from the affair and even if 1st defendant expressed reluctance to continue in management of the temple,the next senior member of the family ought to have been allowed to assume its management.Even though the preliminary decree passed has become final,the introduction of a stranger manager has no warrant in it.The provision for "nominating an efficient person on a remunerative basis,either some one among the members of the family or stranger,for the purpose of the collection and disbursement of the temple income "can mean only that such manager shall be from the members of the family,and that when one is not available in the family a stranger may be appointed.The alternatives are not on a par,particularly as the case relates to the management of a private endowment.Even in the case of a public Hindu endowment,it is trite law,the office of the Shebait normally devolves in the line of succession of the founder under the rules of Hindu Law.It must be more strictly so in the case of private endowments.I am afraid,the courts below have misunderstood the scope of judicial interference in the affairs of a private endowment when they appointed strangers,in succession,to manage the suit temple.;


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