SALLIJIB KOTAKAL MANAKAL NEELAKANDAN NAMBUDRI Vs. SALLYIL KOTTAKAT MANAKAL, KARNAVAN AND MANAGER NARAYANAN NAMBUDRI

JUDGEMENT

(1.) This is a suit for a declaration that a Saswatham granted to the family of the 2nd defendant in 1897 is not binding on the Devaswom of which the 1st defendant, the managing member of the plaintiff s tarwad and the 2nd defendant, the manager of the family of defendants Nos. 2 to 9, are the Uralans. The Saswatham was granted by a karar executed between the 1st defendant and the 2nd defendant. Admittedly, the 2nd defendant s family did not possess any Saswatham rights in these properties before. The grant of a Saswatham is prima facie an improper act. It has been upheld in this case by the lower Courts on the ground that the Devaswom was not in a position to establish its title to atleast four out of the six items of the properties comprised in the Saswatham. This finding is not open to any legal objection. With regard to item 2, one of the remaining two items, the jenmam title of the Devaswom was admitted by the Karnavan of the 2nd defendant s tarwad about the year 1863. According to the admission, the tarwad was then holding it on a Kanom under the Devaswom.

(2.) Whether in 1897 the Davaswom was in a position to recover the property by proving that the Kanom was not made more than sixty years before 1863, the date of the admission, appears to be very doubtful According to the finding of the Subordinate Judge, there is nothing to show what the date of the Kanom was.

(3.) With respect to item 6, however, the case stands on a different footing. The Devaswom had actually obtained a decree in ejectment against the 2nd defendant s tarwad. The 2nd defendant, though a minor at the time of the suit in which that decree was passed, was apparently a party to the suit and he could not have recovered the property back except by establishing that the decree was not binding on him on the ground of fraud or collusion. The position of matters then may be taken to be this: there were five items of property which it is not shown that the Devaswom could have recovered from the family of defendants Nos. 2 to 9. The 1st defendant, who was the Uralan representing the plaintiff s branch, entered into a karar by which he got an acknowledgment of Devaswom s jenmam title to these five items by giving a Saswatham over those five items as well as over the 6th item, the Devaswam s title to which had been established. The plaintiffs have not shown how much loss the Devaswom has sustained by grant of the Saswatham over the 6th item. We are not prepared to differ from the lower Courts and to hold that the circumstances, on the whole, do not warrant the finding that the Saswatham was for the benefit of the Devaswom. We cannot, however, conclude this judgment without expressing our strong disapprobation of the grant of a Saswatham to a family, the Karnavan of which is one of the Uralans. Any transaction by which a trustee obtains an interest in properties belonging to the trust is much to be deprecated; and, in our opinion, it is equally vicious to allow the members of a tarwad, the Karnavan of which is a trustee, to acquire an interest in the properties of the trust. We have no doubt that where transactions of this character could be set aside without injury to the trust, the Courts would be much disinclined to upheld them. The circumstances of this case, however, are rather peculiar. The tarwad of the 2nd defendant was apparently in possession of the properties for a long time before the grant of the Saswatham and the result of setting aside the karar which created the Saswatham s right might be injurious to the Devaswom, as the 2nd defendant s tarwad might then be in a position to assert its own jenmam right to the properties. Mr. Anantakrishna Iyer contends that the 2nd defendant s tarwad itself was the trustee and that any previous possession on its part would be of no avail as against the Davaswom. In the plaint apparently, there was an allegation that the tarwads of the plaintiffs and the 1st defendant, on the one hand, and of the 2nd defendant, on the Other hand, were the Uralans of the temple. This allegation was denied in the written statement and it was stated that it was the Karnavans of the two tarwads that had the Uraima right. No issue was framed on this question. It is contended that the Subordinate Judge proceeded on the footing that the Uraima right was vested in the two tarwads. We do not think this argument is correct. The Subordinate Judge does, no doubt, use the language referred to; but we cannot help thinking that the language used was loose and was intended to signify no more than that the head of each tarwad was the Uralan. It is, of course, possible that all the members of two tarwads might be trustees of a temple. But where the Uraima right is said to be in several tarwads, the fact usually is that it is vested in the senior member of each of the tarwads. Very serious and anomalous consequences might follow, with respect to a temple in which there is a plurality of Uralans, who get their rights by virtue of their being the heads of tarwads, if it should be held that all the members of each of the tarwads are trustees. As the plaintiffs did not ask for an issue to establish their allegation, we do not think we should frame an issue at this stage. The result is that the second appeal must be dismissed with costs.