UNNAMMAN NAYANA Vs. KUNHIRAMEN NAMBIAR

JUDGEMENT

(1.) THE suit properties belong to Pulimpidavu Devaswom of which the plaintiff and the 1st defendant are the hereditary trustees. The 1st defendant's tarwad having been in management of the Devaswom in 1042 M. E. leased the suit properties to Thavarool Puthiyedath tarwad on rent of 1750 seers of paddy per annum. In O. S. No. 297 of 1923 the tenants' rights were brought to sale and purchased by one Othenan Nambiar, who assigned the same to the plaintiff's tarwad. Treating the plaintiff as the lessee of the property under him the 1st defendant obtained decrees for rent in O.S. Nos. 307 of 1951, 312 of 1954, 992 of 1955 and 266 of 1956 and had realised the amounts under the first two decrees. The latter two decrees remain to be executed. In the present suit the plaintiff seeks declaration that he is now the managing trustee of the Devaswom entitled to collect the rent of the suit properties and that the 1st defendant has no 'saswatham' right in the properties as claimed by him, to restrain the 1st defendant from executing the decrees any further, and to realise from him the rent of the Devaswom properties collected by him and not been spent for the Devaswom. The defendants claim the suit properties in 'saswatham' right under the Devaswom and the plaintiff a lessee thereof, deny the plaintiff's being the managing trustee of the Devaswom and assert the income of the properties to have been spent for purposes of the Devaswom. The court below found the plaintiff and the 1st defendant co-trustees of the Devaswom, and the 1st defendant to have saswatham right in the suit properties and dismissed the suit. Hence this appeal by the plaintiff.

(2.) THE finding of the court below that the plaintiff and the 1st defendant are the present hereditary trustees of the Devaswom is not challenged before me by either side. The 1st defendant claims a Saswatham right in the suit properties under the Devaswom and that has been found by the court below. The claim is that the tarwad of the 1st defendant has to conduct certain daily poojas in the temple and as consideration thereof has been granted the suit properties in saswatham right, and that it is by virtue of that right that he has demised the properties to Thavarool Puthiyedath tarwad of whom the plaintiff is the present assignee.

(3.) THAT the 1st defendant himself is aware of this well-established proposition of law is clear from the evidence on record. Ext. A21 is an objection moved by the 1st defendant to the attachment of the suit properties in execution of a decree against him. His contention there was that he had no interest of his own in the suit properties of which he is only a trustee. That objection was upheld by the executing court and the properties released from attachment. The finding of the court below that the 1st defendant has saswatham right in the suit properties has to be and is vacated.