A SUBRAMANIAN ASARI Vs. THIRUNAYANARKURICHY DESIVINAYAGAM

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. Thirunayanarkurichy Desivinayagam Pillayar Devasthanam Temple (hereinafter referred to as "the Temple") and its trustees have filed the suit in O.S.No.18 of 1982 for declaration of title in reference the suit property of an extent of 2.12 acres in Sy.No.5392 (R.S.No.242/3) of Kadiyapattnam Village, Kanyakumari District and for a permanent injunction to restrain the first defendant from executing the decree in O.S.No.210 of 1980 in reference to the suit property. The suit was decreed by the learned Subordinate Judge, Padmanabhapuram. Aggrieved by the judgement and decree, defendants 1 and 2 have preferred the above appeal.

(2.) The facts are as follows:- The temple is a public temple. The suit property of an extent of 2.12 acres originally belonged to the ancestor of the second defendant, who dedicated it to the temple, and the same was under the management of the kariasthan of the temple. The case of the plaintiffs is that in the year 1040 Malayala Era (1865), the then administrators of the temple and its property executed an otti and Kuzhikkanam in favour of a stranger and his heirs were in possession of the suit property as mortgagees. The second defendant was managing the affairs of the temple and its property as a trustee for some period prior to 1964. The temple was brought under the control of the Tamil Nadu Hindu Religious and Charitable Endowments Department and the second defendant was appointed as trustee of the temple. He was removed from the trusteeship and one K. Padmanabhan Nadar was appointed as fit person with effect from 04.06.1976, who took over the administration of the temple and its property from the second defendant on 10.08.1976. Thereafter, the second defendant appears to have executed a sale deed in respect of the suit property in favour of the first defendant on 04.09.1978. Thereafter, the first defendant, on the basis of that sale deed, filed a suit in O.S.No.210 of 1980 before the District Munsif's Court, Padmanabhapuram against the fourth defendant-mortgagee and obtained a decree dated 22.06.1981 and was taking steps to recover possession of the suit property from the mortgagee. On coming to know of this decree, the above suit in O.S.No.18 of 1982 came to be filed. According to the plaintiffs, 84 cents of the plaint schedule property was in possession of the Receiver appointed in O.S.No.250 of 1975 and the fourth defendant got possession from the Receiver on 26.11.1982 after surrendering possession of 42 cents of paddy field and the second plaintiff has filed a suit in O.S.No.199 of 1985 in respect of the same.

(3.) The case of the temple is that the second defendant, having been removed from the trusteeship in the year 1976, has no authority to transfer the property of the temple, and the sale was brought into existence by fraud and collusion and therefore, it is void ab initio. The further case of the plaintiffs is that defendants 1 and 2 in collusion with the fourth defendant, have obtained a fraudulent decree without impleading the real owner, namely, the temple, for redemption of mortgage and recovery of the property. The said decree is not binding the plaintiffs.