GURUVAYOOR DEVASWOM MANAGING COMMITTEE Vs. P.K. VARKEY

JUDGEMENT

(1.) Guruvayoor Devaswom Managing Committee, the plaintiff in a suit for declaration and recovery of possession, is the appellant.

(2.) Parameswara Iyer and Chellammal, a couple, executed Ext.A2 (Ext.B8) Will dated 8.2.1954 under which after the lifetime of their heir apparent Parvathi Ammal, the property would go as a dedication to Lord Krishna of Guruvayoor. For convenience, we would refer to that document hereinafter as Ext.A2. Chellammal predeceased Parameswara Iyer. Ext.A2 Will dealt with two items. The plaint schedule property is item No.1 in that document. After Chellammal's death on 15.8.1957, Parameswara Iyer executed Ext.B9 Will dated 10.3.1967 cancelling his previous bequest as per Ext.A2. Ext.B9 Will stipulated that if the testator does not alienate the property during his lifetime, it will devolve on the heir apparent Parvathi Ammal and if she decides to sell it, 1/4th of the sale price in the event of such sale has to be given to Guruvayoor Devaswom, with the direction to utilise the interest derived from it for performing pooja in the Mandalam season. Parameswara Iyer died on 24.6.1969. The sole heir, Parvathi Ammal came into possession. Thereafter, she assigned the plaint schedule property to the first defendant as per Ext.B11 dated 18.4.1977. Later, she died on 5.1.1991.

(3.) Guruvayoor Devaswom Managing Committee filed the suit seeking a declaration that it has absolute title with respect to the plaint schedule property and for recovery of possession on the strength of such title after demolition and removal of the buildings and structures thereon, with mesne profits. Alternatively, it was sought that if the Court finds that the assignment deed in favour of the first defendant is only voidable, a decree may be passed setting aside that document and allowing recovery of possession of the property on the strength of the title of the plaintiff. It sued contending that Ext.B9 Will is void and Ext.A2 being a joint and mutual Will, could not be cancelled by a co-testator who survived the other and had accepted the legacy. Plaintiff contended that the intention of the testators as per the terms of Ext.A2 Will is that the plaint schedule property would go as a dedication to Lord Krishna of Guruvayoor after the lifetime of the testators and their heir apparent Parvathi Ammal. Plaintiff pleaded that it did not take steps to recover the property during the lifetime of Parvathi Ammal since she had a life estate as per Ext.A2 joint Will of her parents. According to the plaintiff, Parvathi Ammal thereafter left the place and her whereabouts were not known and it was only on 13.2.1997 that plaintiff came to know that Parvathi Ammal was dead. Later, they enquired and on 17.9.1999, they came to know that Parvathi Ammal had died on 5.1.1991. Plaintiff pleaded that upon the death of Parvathi Ammal, the dedication in favour of Lord Krishna of Guruvayoor as per Ext.A2 stood absolute and the plaintiff, as the Guruvayoor Devaswom Managing Committee was, therefore, entitled to have the plaint schedule property recovered as the duly authorised trustee - Guruvayoor Devaswom.