KRISHNAKUMAR Vs. COCHIN DEVASWOM

JUDGEMENT

(1.) THE following substantial questions of law are framed for a decision.

(2.) SHORN off frills and embroideries, the dispute concerns right to perform 'Malakazhakam' (preparation of garlands for the deity) in the Peruvanam Sree Mahadeva Temple (for short, "the Temple") which is under the governance of the 1st respondent, the Cochin Devaswom Board (for short, "the Board"). According to the appellants/plaintiffs the right to perform Malakazhakam is vested with the Thekkepisharath Family, of which they are the senior most members. Appellants and 4th respondent are Pisharadies by caste and followed the Marumakkathayam law of succession. It is alleged that remuneration for performance of Malakazhakam was being received from the Board by the then Karanavan of the joint family. While so, Ext.A1, partition deed No.1758 of 1103 ME was executed in the family as per which the right to perform Malakazhakam in the Temple was directed to be performed by the then existing four Thavazhies by rotation for a period of six months each. Name of the senior most male member was shown in the Board records as the person entitled to perform Malakazhakam. On his shifting to Kadampur, in Palakkad District, the name was changed to the name of the late Rama Pisharady, father of the 4th respondent. Two of the four thavazhies represented by respondents 5 to 10 abandoned their right to perform Malakazhakam by waiver. Thereafter the said rite was being performed by the two thavazhies of appellants and the late, Rama Pisharady. After Rama Pisharady who was performing the rite, the next turn was for the appellants. While so, the Board appointed 4th respondent as the person to perform Malakazhakam. Hence the suit for a declaration of right of the appellants to perform Malakazhakam, a mandatory injunction directing the Board to permit 1st appellant to do so and for other reliefs. The Board and its officials (respondents 1 to 3) contended that the right originally vested with the Thekkepisharath Family but after the advent of Act 30 1976, that right has ceased to exist with the said Family as joint family has ceased to exist. Rama Pisharady was performing the rite and after him, the 4th respondent, his son is entitled to be appointed to perform Malakazhakam. The 4th respondent also raised similar contentions.

(3.) APPELLANTS have filed I.A. Nos.104 and 614 of 2012 to receive additional evidence under Rule 27 of Order XLI of the Code of Civil Procedure (for short, "the Code"). Certain documents are also produced. Learned Senior Advocate for the appellants contended that findings of the first appellate court are erroneous. It is contended that, that the right to perform Malakazhakam which is a Karaima right was vested with the Thekkepisharath Family is admitted by respondents 1 to 3 also in their written statement, their only contention being that by Act 30 of 1976 joint family has ceased to exist and hence the family ceased to have that right. It is contended that the said stand of respondents 1 to 3 is not correct. Reliance is placed on the decision in Sreedharan Nair v. State of Kerala (2002 [3] KLT 307) to contend that though the joint family system is abolished by Act 30 of 1976 and it is converted into tenants-in- common, joint family in all other respects remained unaffected. It is also contended by the learned Senior Advocate that Malakazhakam is a Karaima right which is vested with Thekkepisharath Family and hence that right must be confined to the members of that family. My attention is drawn to the decision in Vishnu Narayanan Namboodiri v. Travancore Devaswom Board (2001 [3] KLT 888) in support of the said contention. It is argued that Rama Pisharady, as a member of Thekkepisharath Family had the right to perform Malakazhakam but that right cannot be inherited or passed on to his son, the 4th respondent who is not a member of the said family. The post is not hereditary. Learned Senior Advocate has drawn my attention to the documents produced along with I.A. Nos.104 and 614 of 2012 to contend that with respect to certain other Kazhakams in the (same) temple, those rights are vested with certain families even as recognised by the Board. It is argued that though appellants had a specific contention that the 5th respondent and following him, Rama Pisharady (who were members of the the family) were authorised by the members of the family to receive remuneration in accordance with the direction in Ext.A1, members of the thavazhies referred to in Ext.A1 were performing the right by rotation and to prove that, appellants had filed I.A. No.144 of 2003 to direct respondents 1 to 3 to produce the relevant files relating to Malakazhakam and the order appointing Rama Pisharady to perform the rite, respondent 1 to 3 have not produced the files. My attention is drawn to Ext.B3 to show that the right was vested with the family. It is pointed out by the learned Senior Advocate that what happened is that on Rama Pisharady giving a letter to respondents 1 to 3 that he is unable to continue performance of Malakazhakam and on his request, his son, 4th respondent was appointed as if it is a right conferred on Rama Pisharady alone. That, according to the learned Senior Advocate is not correct and these aspects were not taken into account by the learned Additional District Judge.