PATTAIKARA MANAKKAL KUPPEN Vs. CHVORAKKAPATTI MUNDE KOTTIL

JUDGEMENT

(1.) The suit out of which this second appeal arose was instituted by Pattaikara Pramathen Kupen Nambudripad, the manager of a Nambudri Illom, to recover possession of certain lands demised on kanom in 1866 to the 1st defendant by the plaintiff s father. At the time of the suit, the lands were in the possession of the 2nd defendant. The original demisee, the 1st 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 Kisuthri Kovil Devasom. The 2nd defendant subsequently obtained an assignment of the rights of Krishnan Nair. The 2nd defendant denied the plaintiff s right to redeem the mortgage and set up the right of the devasom to the lands and his holding under the devasom. He denied the genuineness of the demise sued on, but both the lower Courts have held it to be genuine. In view of the finding of the Appellate Court, it is unnecessary to refer to certain other contentions raised by the 2nd 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 devasom office. Both the lower Courts have found that the lands belong to the Kisuthri Kovil devasom. The District Munsif gave the plaintiff a decree for possession. He said: "I find that the plaint properiies are attached to the Kisuthri Kovil devasom properties and belong to the plaintiff and that they are held under the plaint kychit Exhibit A. He was of opinion that the 2nd defendant, who was an assignee from the assignee of the original Kanomdar, was estopped from denying the plaintiff s title to recover the properties and was bound to surrender them. One of the 2nd defendant s contentions was that it bad 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 Munsif decided this issue in the negative in plaintiff s favour.

(2.) 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 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 2nd defendant was estopped from denying the title of the plaintiff from whose father the Kanom was originally obtained by the 1st 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 2nd 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.

(3.) Mr. T.R. Ramachandra Iyer, the learned Vakil for the appellant, contends that the temple itself is treated in the demise as the property of the demisor and that, therefore, the plaintiff s father must be treated as having demised the property as his own. This proposition clearly cannot be upheld. Even assuming that there is foundation for the appellant s argument that the temple was a private one in which the public had rights, it is quite clear that it was still trust property, though the beneficiaries might be only members of the Pattaikara famiy. The lands demised would also be trust property attached to the private temple. It is argued that the stipulation for payment of rent at the temple office merely described the place where the rent was to be delivered and did not indicate the ownership of the temple over the lands, but taken along with the clear description of the lands in the Kanom deed as belonging to the temple, we have no hesitation in confirming the finding of the Subordinate Judge that the lands in question were demised by the plaintiff s father as the trustee of the temple. No attempt has been made at the hearing to dispute the correctness of the finding that the plaintiff, at the date of the suit, had no right whatever over the temple. It would, therefore, follow that the decree dismissing the suit must be upheld.