RAJASEKHARAN NAICKER Vs. GOVINDANKUTTY NAICKER

JUDGEMENT

(1.) In this Second Appeal, the plaintiff complains that in spite of the concurrent findings by the courts below of gross mismanagement of a private religious endowment belonging to the family of himself and defendants 1 to 5, by its manager, the 1st defendant, no relief was granted for the preservation of the endowment and its properties. The plaintiff and defendants 1 to 5 belonged to a common marumakkathayam tarwad. As per Ext. A1 partition of the year 1914, the six items of extensive properties shown in the B schedule to the plaint were dedicated and set apart as a religious endowment for the family dieties installed in item 6. Religious ceremonies, poojas and maintenance of the temple are to be met from out of the income from the B schedule properties. Executent No. 3 in Ext. A1, Kuppa Naicken belonging to the 3rd branch was to manage the schedule properties and administer the private devaswom until his death and after him any branch other than branches 1, 2 and 3 is to manage the devaswom and its properties. There is also a provision in Ext. A1 that if during the lifetime of Kuppa Naiken he gives up management any other member of the third branch is to be in management of the endowment and its properties. There are specific provisions in Ext. A1 that the properties endowed cannot be alienated or encumbered and the manager is interdicted from inducting third parties into possession of the properties. The Manager is authorised to cut the requisite number of trees from the endowed properties for the purpose of rennovation of the temple. The 1st of defendant, also belonging to the third sakha is the present Manager of the Devaswom. He had been guilty of gross-mismanagement and had created several documents in favour of defendants 6 to 17, in total disregard of the provisions of Ext. A1. The 6th defendant is the wife of the 1st defendant. Even though the plaintiff had prayed for partition of the A schedule properties as belonging to the tarwad, of himself and defendants 1 to 5 that prayer was rejected by the Trial Court for the reason that the A schedule properties had been partitioned in 1969 as per Ext. A3 to which the plaintiff is also a party. At the appellate stage however the plaintiff had confined relief only with respect to the B schedule properties. In this Second Appeal, therefore, this Court is not B concerned with prayer A in the plaint relating to the A schedule properties.

(2.) Prayer B in the plaint is to terminate the 1st defendant's management of the B schedule immovable properties and of C schedule movables belonging to the Devaswom and to recover the same with future profits. Prayer C in the plaint was for recovery of possession of the B schedule properties from defendants 6 to 17 in case it is found that the 1st defendant had fraudulently or collusively created documents in their names and put them in possession of the properties. The plaintiff later filed I.A. No. 811975 to delete prayer C for the reason that he was not able to pay court fee as directed by the Trial Court. In the affidavit in support of I.A. No. 8 of 1975 the plaintiff states that the B schedule properties are in the actual possession and management of the 1st defendant himself and there is no need for prayer C. The Trial Court by order dated 31-3-1975 allowed the amendment and prayer C was deleted from the plaint. Prayer B requiring the 1st defendant to account for the income and expenses relating to the endowment for the period of his management was renumbered as prayer C. The defendants contended that the plaintiff is not competent to seek the reliefs prayed for in the plaint, he is not entitled to be in management of the Devaswom and its properties and the suit is defective for the non impleadment of all the members of the tarwad. Defendants 6 to 17 claimed leasehold right in the B schedule properties as having been obtained from the 1st defendant the Manager of the private devaswom. Issue No. 8 in the suit was as to whether defendants 6 to 17 have any leasehold right in the B schedule properties. The Trial Court in Para.32 of its judgment states that the issue does not arise for consideration in view of the amendment of the plaint deleting prayer C. The Trial Court found that the entire B schedule properties are outstanding in the possession of defendants 6 to 17 and since prayer C had been deleted the plaintiff is not entitled to any relief in the suit. It is also found that the lease Ext. B5 in favour of his sons by the 1st defendant and the later assignment of the leasehold right by the sons to the 6th defendant the wife of the 1st defendant under Ext. B6 are sham and nominal and the 1st defendant himself is in possession of Ext. B6 properties. Exts. B5 and B6 were found to be not genuine and that those documents were created by the 1st defendant to defeat the Devaswom and the other members of the tarwad. The 1st defendant was found guilty of mismanagement of the Devaswom and its properties in having created documents to defeat the rights of the family dieties. The suit was however dismissed on the finding that the plaintiff being a member of the third branch is not entitled to be in management of the Devaswom as per Ext. A1 and no effective relief can be granted in the suit for the reason of the deletion of prayer C in the plaint and also for the reason that the suit is defective for the non impleadment of all the members of the tarwad interested in the Devaswom and its management.

(3.) In appeal by the plaintiff the lower appellate court found that the third branch of the tarwad is not disqualified to be in management of the devaswom and its properties, the 1st defendant himself is a member of the third branch, he is guilty of mismanagement and the leases granted by him are all improvident and against the interests of the devaswom. The plaintiff was however found not entitled to a decree for the removal of the 1st defendant from management and seek his own appointment as Manager for the reason that it. has become impossible for him to furnish security of the entire properties allotted to the third branch as required by Para.11 of Ext. A1. Thus for the sole reason that 1st defendant will not be able to furnish security of the entire properties allotted to the third branch the lower appellate court has confirmed the decree of the Trial Court dismissing the suit. It is against that the plaintiff has come up in Second Appeal.