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2005 DIGILAW 338 (KER)

R. Rajendran Unnithan v. Mahadevan

2005-06-02

S.SANKARASUBBAN

body2005
Judgment :- The CMA is filed against the order dated 10.8.1999 in O.P. No.103 of 1998 on the file of the District Court, Kollam. Original Petition No.103 of 1998 was filed for leave under Section 92 of Code of Civil Procedure. 2. The brief facts are as follows: Sree Mahadevar Temple of the Mulavana Mahadevai Devaswom in Mulavana Cherry in Mulavana Village of Kollam Taluk is an ancient temple of repute. The temple is the principle place of worship of Hindus of the Mulavana Village and nieghbouring places. The temple is a place of public worship and the Hindus are entitled to enter the said temple and worship there as of right. The Kadalayi Mana had hereditary urainma right for managing the affairs of the temple and the property belonging to it. The urainma right was being exercised by the eldest male member of the said Illom. The urainma is the trustee for managing the temple and its properties. It is further stated that since it became difficult for the Illom to manage the temple, an Udampadi dated 28.6.1985 was entered into between the Karanavan of the Illom and nine representatives of Hindus of the locality making provisions for the management of the temple and its properties. It was specifically stated that the temple and its assets constituted a Hindu Religious Endowment and Trust of public nature and that the first executant, namely, the senior most male member of the Illom above mentioned was the hereditary trustee and executants 2 to 10 both inclusive were persons rendering service for the Devaswom. The document made provisions which were at that time thought sufficient to manage the affairs of the Devaswom. The document stated that executants 2 to 10 will function as a Board of Trustee for the management of the Devaswom that the said Board of Trustee took over the management of the Devaswom from the first executant on the date of the document and that the Board of Trustee will manage the affairs of the Devaswom from the date of the document. There were provisions for retirement of members, etc. 3. The allegation made in the petition is that there is no Board of Trustee now functioning as contemplated in the Trust Deed. The defendants have no right to continue as members of the Board of Trustees. There were provisions for retirement of members, etc. 3. The allegation made in the petition is that there is no Board of Trustee now functioning as contemplated in the Trust Deed. The defendants have no right to continue as members of the Board of Trustees. Their continuance is in violation of clauses 1 to 5 of the Trust Deed. There is gross mismanagement and misappropriation of Devaswom funds. The Devaswom accounts have not been properly maintained. They are not being maintained as contemplated in the Trust Deed. Accounts are not passed after 1994. Accounts for the periods 1994-95, 95-96, 96-97, and 97-98 have not been audited. The third defendant was removed from the office of the President. The fourth defendant is still continuing as the Secretary. The Bhandaram collections of the Devaswom are being taken away by the fifth defendant. They are not being properly accounted. Substantial amounts are received by way of Money Orders, Demand Drafts and Cheques from devotees. They are not being correctly entered in records. Hence the petition was filed for leave under Section 92 of the CPC. 4. The petition was objected by defendants 4 to 6, 9, 10 and 12. Their case was that there was no dedication of the temple or Devaswom to the public and hence no leave can be granted for filing the suit. It was further contended that the temple and the Devaswom is a private trust created by the Udampadi above mentioned. 5. The Court below considered the matter and held that it is not a public trust and hence leave under Section 92 of the CPC cannot be granted. 6. The only question to be decided is whether the temple in question is a public or private temple. This is clear from Exhibit A1. Exhibit A1 is the document executed by the then Karanavan of the Illom and the representatives of the local Hindus. The agreement is styled as “Kaimatta Udampadi”. It is stated therein as follows: MALAYALAM Subsequently the document stated thus: MALAYALAM (emphasis supplied) 7. The statements in the agreement would show that prima facie the Trust is a Public Trust and that it is clearly stated that it is for the benefit of the Hindu public that the trust is made. The agreement is styled as “Kaimatta Udampadi”. It is stated therein as follows: MALAYALAM Subsequently the document stated thus: MALAYALAM (emphasis supplied) 7. The statements in the agreement would show that prima facie the Trust is a Public Trust and that it is clearly stated that it is for the benefit of the Hindu public that the trust is made. The court below has gone in detail to the various provisions in the agreement and came to the conclusion that the it is a private trust. According to me it is not correct. At this time it has to be seen that whether there is a prima facie case. The provisions which have been stated in the agreement will show that the Trust in question is a Public Trust and the petition under Section 92 is maintainable against the Trust. Hence it is not necessary for me to consider the question in detail and what is now to be done is to find out whether there is a prima facie or not. According to me there is a prima facie case to show that the Trust in question is a public Trust. If that be so leave under section 92 of the CPC can be granted. In the above view of the matter, I allow the petition for leave. The CMA is thus allowed.