PRAMATHAN THUPPAN NAMBUDRIPAD (SON OF PATHAIKARA MANAKKAL THUPPAN PRAMATHAN NAMBUDRIPAD) Vs. CHOORAKKAPATTI MINDEKOTTIL ITTICHIRI AMMA AND ELEVEN ORS

JUDGEMENT

(1.) The suit out of which this Second Appeal arose was instituted by Pathaikara Pramathan Thuppan Nambudripad, the Manager of a Nambudri Illom, to recover possession of certain lands demised on kanom in 1866 to the first defendant by the plaintiff s father. At the time of the suit the lands were in the possession of the second defendant. The original demisee, the first defendant, assigned his rights to one Krishnan Nair in 1894. He subsequently in 1901 attorned to one Kodalur Nambudri who claimed the lands as the property of a temple Kizhuthir kovil Devasvam. The second defendant subsequently, obtained an assignment of the rights of Krishnan Nair. The second def en d ant denied the plaintiff s right to redeem the mortgage and set up the right of the Devasvam to the lands and his holding under the Devasvam. He denied the genuineness of the demise sued on; but both the lower Courts have held it to be genuine. In view of the findings of the Appellate Court it is unnecessary to refer to certain other contentions raised by the second defendant. In the kanom deed, Exhibit VII, the lands in question are described as belonging to the temple and the counterpart-Kychit, Exhibit A, provides that the annual rent should be paid at the Devasvam Office.

(2.) Both the lower Courts have found that the lands belong to the Kizhuthir kovil Devasvam.) The District Munsif gave the plaintiff a decree for possession. He said, "I find that the plaint properties are attached to the $azhuthir kovil Devasvam properties and belong to the plaintiff/and that they are held under the plaint Kychit, Exhibit A. He was of opinion that the second defendant who was an assignee from the assignee of the original kanoindar was estopped from denying the plaintiff s title to recover the properties and was bound to surrender them. One of the two defendant s contentions was that it had been finally decided between the plaintiff and Kodalur Nambudri that the latter was the trustee of the temple and not the former; but the District Mnnsjif decided this issue in the negative in plaintiff s favour.

(3.) On appeal, the Subordinate Judge held that the plaintiff s claim to the trusteeship of the temple was negatived long before the suit and that he was not the present trustee of the temple. He also held that as the lands were demised by the plaintiff s father as the property of the temple and as the plaintiff was not the present trustee thereof, he could not claim to recover the land and dismissed the suit. The District Munsif s judgment is rather confused. While holding that the lands belong to the temple, he also observes that they might have been kept apart as property belonging to the plaintiff s family when the temple itself was made over to the Kodalur Nambudri in 1848 by a member of the plaintiff s family. It is not quite clear whether he intended to decree the lands to the plaintiff as the private property of his Illom or as the property of the temple. His judgment must be regarded, as based on his finding that the second defendant was estopped from denying the title of the plaintiff from whose father the kanora was originally obtained by the first defendant. It is quite clear that if the lands still belong to the temple and if the plaintiff is no longer its trustee, the principle of estoppel would not apply inasmuch as the demise was made by the plaintiff s father as trustee of the temple. The temple being the virtual demisor, the second defendant could be estopped from denying only the title of the temple, and would not be estopped from denying the plaintiff s right on the ground that he was not the trustee at the date of suit.