DC, KALPETTA O P 16 of 2019 PETITIONERS

DC, KALPETTA O S 1 OF 2019 PLAINTIFFS

SC, S. BATHERY O S 1 OF 2021 PLAINTIFFS

CHRONOCHART

Date Event Remark

15.06.2019 OP 16 of 2019 filed in DC, Kalpetta.
IAs for injunction ag conducting
Devaprasnam and for urgent
Commission
Suit numbered as O S 1 of 2019
28.06.2019 Respts filed counter in IA 277
Inj application heard
18.07.2019 I A 277 allowed confirming interim
injnction
Hg in Chambers. [Mr John]
S 92 permission granted
Interim injunction allowed
Urgent commission issued
I A 277 Injunction
IA 278 Commission
Not a public trust raised
Direct finding that it is a public trust

00.07.2019 I A 333/2019 Interrogatories By Plffs to D2

04.09.2019 Cr filed in IA 333
I A 333 allowed. D2 directed to answer [Mr Harris]
16.10.2019 Reply filed by D2
17.10.2019 Defts filed written statement
16.11.2019 I A 571 filed by Plffs for Viva Voce examination of D2
26.11.2019 Defts filed Cr in IA 571
10.12.2019 IA 662 by Plffs for issue of And report additional particulars
Commission to submit Plan
16.12.2019 Cr filed in IA 662 by Defts
18.12.2019 I A 571 allowed Also IA 662
04.03.2020 Commr Report II filed with plan and Get copy of report
photos
14.01.2020 Plffs filed I A 1 of 2020 to Permit questions on C, D, F
05.02.2020 D2 examined as Rw1
24.02.2020 Do
04.03.2020 Do
07.03.2020 Commissioner inspected Defts absent –

14.03.2020 Defts filed OP 805 of 2020 ag sanction given under S 92

17.03.2020 Defts filed Cr in IA 1/2020

24.03.2020 Court closed due to Covid

I A 5 /2020 filed by Plffs in vacation For inj ag tree cutting and planting
court – online Hg cash crops
30.04.2020 Defts filed Cr in IA 5
06.05.2020 Vacation court granted Provisional injunction order

18.05.2020 I A 2 /2020 by Plffs to direct D2 to produce accts etc before

Commissioner
IA 2 allowed
21.06.2020 Commissioner inspected Work memo given
28.06.2020 Commissioner inspected Receipts etc checked
03.07.2020 Provisional order of Vacn court in I A Confirmed after hearing by DC
5 /2020
.08.2020 I A 6 /2020 by Plffs to Implead Padmini as P4

.08.2020 I A 7 /2020 to amend plaint Impleading & corrections

17.09.2020 Comm Report III filed
09.2020 I A 8 /2020 by Plaintiffs to Remit CR III

09.2020 I A 9 /2020 by Plaintiffs for Auction of ginger by Amin

19.10.2020 Cr afft in IA 6 & 9 /2020 Filed on 21.10.2020
21.10.2020 IAs 6, to 9 of 2020 heard IA 7 and 8 allowed
Also IA 1 of 2020 Other IAs OR
Adj due to Stenographer Tested positive for Covid
IA 1, 6 and 9 reopened
P1 passed away
Statement filed in re P1 LRs are P2 and P3
21.12.2020 Case transferred suo motu to Sub Court, S Bathery

05.01.2021 Parties to appear in Sub Court S Bathery Defts absent – Plff's Adv
explained history of case Posted
to 08.01.2021
08.01.2021 IAs 1, 2 and 6 heard
19.01.2021 I A 1 allowed - Amin appointed to harvest Expenses from sale of produce
19.01.2021 I A 2 allowed in part – no oral evidence R2 to file further affidavit
11.02.2021 I A 6/2021 filed by plaintiffs To appoint a proper pujari
23.02.2021 R2 filed additional affidavit answering Interrogatories
01.03.2021 Defts filed Counter in IA 6 Heard
17.03.2021 I A 6 dismissed Suit to 27.05.2021 for Issues
Suit listed for trial to 09.08.2022
04.08.2022 OP brought up for admission Dias J Stay of trial allowed
OP heard by Somarajan J Dismissed
Plffs filed IA in SC to list the suit. No Cr Listed to
Defts filed IA to consider S 92 and Barof as preliminary issues before trial
HR & CE Act Suit adjourned
Plffs filed Cr in IA
SC order to consider the issues only Suit listed to
during trial after evidence
OP by defendants against order listing suit
14.01.2024 OP heard by Jayachandran J and dismissed
P3 examined as Pw1
appln by plffs to summon Pw2 and Pw3
Pw2 Krishnamohan and Pw3
Narayanan Thirumeni examined
D2 examined as Dw1 A13 to marked
A22 series also marked
Appln by defts to summon Dw2 & Dw3
Plffs filed counter opposing summons
Court order to summon only Pw3 Document Writer
Appln by defts to recall Dw1 allowed
Dw1 recalled and examined B marked
In cross A24 and A25 marked
Dw2 and Dw3 examined
27.02.2024 Formal posting Arguments 13.03.2024
SC, S. BATHERY OS 1 OF 2021 EXHIBIT NUMBERS

M.A. NEELAKANDAN [DEAD] AND OTHERS VS PRABHAKARAN AND

OTHERS

DOCUMENTS OF PLAINTIFFS

NO DATE DESCRIPTION

A1 28.10.2002 Charth of Second Daivaprasnam

A2 19.09.2003 Minutes of public meetings

A3 2003 Counterfoil of Pushpanjali receipts

A4 2006 – 2008 do
A5 2008 – 2010 do

A6 2005 – 2006 Counterfoil of Divsa Pooja receipts

A7 2006 – 2009 do
A8 2009 – 2010 do

A9 2004 – 2006 Counterfoil of Vazhipaadu receipts

A10 2006 – 2008 do
A11 2008 – 2010 do

A12 01.07.2008 Notice in re Prathishtadinam

A13/B1 31.08.2010 CC of Gift deed by P1 to D3

A14/B2 31.08.2010 CC of Gift deed by P2 to D3

A15 30.06.2016 Mediation agreement between P1, D2 and

President of D3 in OS 334 of 2016

A16 Receipt Book of defendants

A17 do Partly burnt
A18 do Partly burnt

A19 2007 Poojavidhikal prescribed by Thanthri

A20 17.06.2020 Affidavit of Thanthri with photograph of Devi
A21 27.06.2022 Afffidavit of Thanthri

A22 30.05.2022 Notice published by D3 in re Prathishtadinam

A23 2009, 2010 & 2 Revenue receipts for RS 117/1 in the name
SERIES 2023 of P1, and one receipt in the names of P2/P3

A24 Photograph of the Name Board in the temple

A25 Photograph of the old name board of temple
 DCOUMENTS OF DEFENDANTS

B1 14.06.2016 Plaint in OS 334 of 2016

B2/A13 31.08.2010 Original Gift deed by P1 to D3
B3/A14 31.08.2010 Original Gift deed by P2 to D3

B4/A15 30.06/2016 Mediation agreement in OS 334 of 2016

B5 23.09.2019 Powrohitya Certificate issued to D2

B6 10.06.2009 Byelaws of D3

B7 07.02.2024 Revenue receipt issued to D3

B8 11.07.2023 Order of Somarajan J

B9 13.12.2023 Order of Jayachandran J

COMMISSION REPORTS

C1 29.06.2019 First report of Commissioner with sketch

C2 04.03.2020 Second report of commissioner with

Annexure 1 to 26

C3 17.09.2020 Third report of Commissioner in re accounts

with Annexure A1 to AA22
C4 Affidavit of D2 – first answer to interrogatories
C5 Deposition of D2 as Rw1
C6 Second affidavit of R2 answering interrogatories

DEPOSITIONS OF WITNESSES

PW1 05.12.2023 Deposition of the Third Plaintiff in OS 01/2021

PW2 23.01.2024 Deposition of Krishnamohan in OS 01 of 2021

PW3 23.01.2024 Deposition of Narayanan Embrandiri

DW1 06.02.2024 Deposition of D2 in OS 01 of 2021

DW2 12.02.2024 Deposition of Velayudhan

DW3 12.02.2024 Deposition of C S Rajan

Dated February
2024

Advocate for
Plaintiffs
 Citations

CITATION Ratio
S.92 SANCTION
1 1991 KHC 7 [SC] Leave u/s 92 can be given without notice to the
respondent
2 1998 [3] MLJ 554 Follows 1991 SC
3 2004KHC 918 [SC] S. 92 permission can be granted without notice to
respondents – No request for revocation here
4 2018 [2] KHC 35 SC revocation application has to be filed in original court

5 1975 KHC 486 SC Maintainability of suit depends only on plaint

allegations
6 AIR 2020 SC 1257 Suit decreed reversed by HC again decreed by SC
7 2014 KHC 435 Scheme clubbed with other reliefs suit maintainable
8 AIR 1990 ALL 283 Pleadings – Trustees de son tort
9 AIR 1976 SC 1569 Trustee de son tort
2021 [1] KHC 51 worshipper can challenge action of shebait
2001 KHC 435 suit can be filed in DC without S 92
1994 KHC 139 inherent right for court to protect temple patria potestas
DEDICATION
1969 KHC 288 Oral dedication sufficient to create public trust
1991 [1] GLR 454 implied dedication
2017 [1] KHC 916 Public Trust can be created without a deed-
Proof of intention alone is sufficient
1906 [33]CAL 1290 Implied dedication arises by operation of law and not by
actual grant

URALAN
AIR1934 PC 230 Uralan is trustee and not owner
1979 KHC 615 SC Shebait rights and duties
ILR 1883 [7] MAD Uraima right cannot be sold – person in possession
337 holds it as a trustee – accountable for income – can be
removed for breach of trust
1876 [4] IND APP Uralan cannot transfer his uraima right
76 PC
AIR 1928 MAD 879 uralan cannot transfer his duties
1972 [4] SCC 502 Property possessed by Uralan is not his personal
property – no estate duty payable by his legal heirs

2000 KHC 609 worshipper can challenge sale deed – KR & CE act no
bar Para 13,15, and 18
2014 KHC 439 Pannivizha temple – alienation is void – alinee can be
evicted by Man Inj
2015 [1] KHC 409 Void document. No decaration need be paryed for
1871 [14] MIA 289 even transferee can challenge illegal alienation
PUBLIC TEMPLE
AIR 1980 ALL 283 Public temple what is ? Conditions for applying S 92.
AIR 1957 SC 133 True test is intention of founder and usage by public
1991[1] GLR 454 Temple for deity other than family deity if publi
AIR 1924 PC 44 Private temple can become public temple
2010 [4] KHC 668 Temple in private property can be public if open to worship Para 3
2012[4]KHC 725 DB approves 2010[4] khc
AIR 1957 SC 133 Test is number of beneficiaries
1956 MAD 522 Hundi is an indicatioon of public temple
1974 [2] MLJ 133
1988 [2] ALT 540
2012 [1] KHC 162
AIR 1915 CAL 161 Accepting offerings from public makes temple public

NO VALUE OF IMPROVEMENTS
AIR 1978 MAD 244 Alienee from trustee not entitled to value of improvements, when
alienation is illegal
AIR 1965 SC 1812 No value of improvements to be given when the person knew he
had no right to the property

archaka/poojari
Archaka different from Purohit
AIR 1973 KARN 280 Poojari can be removed for misconduct
2000 [3] MLJ 211 Appointemnt of Archaka is purely secular not religious
ILR 2005 [3] KER 663 Shanthi can be removed for misconduct

thanthri
2005 KHC 709 Para 20 Thanthri is alter ego of deity – gives moola manthra to
archaka; final authority in religios matters – his decision is final
2014 KHC 439 Thanthri position and powers
2014 [4] KHC 341 Thanthri’s objection to Katahkali of Sree Narayana Guru in Rama
temple upheld by court
2014 KHC 435 Not on individual but vested in family – cannot be changed by
society managing temple
2013 KER 11908 Para 8 Rituals prescribed at Prathishta have to be performed
meticulously – reference to text books
2006 KHC 1745 Para 13, 14, 17, 18, 24 to 35 Devaprasnam Thanthri is the only
competent person – statutory intervention also considered
1998 KHC 349 Permission of Thanthri essential for changes

Devaprasnam
1993 KHC 523 Findings in devaprasnam have to be implemented

Nivedyam
1954 SC 282
AIR Nivedyam or Naivedyam is a religious ritual Para 19
2009 [1] KHC 493 Alteration of Dittam prohibited
1959 KHC 156 Only Thanthri & Shanthi can enter Thidappally to prepare it –
Keezhsanthi cannot

Rituals importance
2002 KHC 843 SC Importance of Aagamas, rituals Para 10,11,and 17
AIR 1973 MAD 264 importance of rituals
AIR 1973 MAD 264 Praakaaram is sacrosanct – No commercial use
2003 KHC 442 Temple pond cannot be used for swim sports

temple polluted
1914 [27] MLJ 253 Even a brahmin who is not initiated cannot touch the deity

1967 KHC 502 Declaration de hors S 42 permissible Worshippers can question

compromise decree
HR & CE Act
1999 KHC 384 Jurisdiction of DC HR & CE limited to notified temples
2013 [3] KHC 535 Powers of DC and need for notification
2003 KHC 4095 similar suit
1979 KHC 1633
2011 [4] KHC 119 Trustee de son tort
SC, S Bathery O S 01 of 2021 Plaintiffs
DC, Wayanad O S 01 of 2019 do
Do O P 16 of 2019 Petitioners

1. DR. M. A. NEELAKANDAN 1. PRABHAKARAN

2. MRS LALITHA NEELAKANDAN 2. SIVAN M.V.
3. MS. MENAKA RAMANAN VS 3. VISWAKARMA SAMSKARA
4. MS. PADMINI KENDRAM, MEENANGADI

HISTORY OF THE CASE

DISTRICT COURT

1. Plaintiffs 1 to 3 in OS 1 of 2021 here filed an application under

Section 92 of the Code of Civil Procedure before the District Court
of Wayanad at Kalpetta, numbered as O P 16 of 2019, by which
permission was sought to file this suit in respect of the plaint
schedule property against the three defendants. The last prayer in
the suit was for the framing of a scheme for the management of the
temple in the plaint schedule property;

2. As a prelude to the said prayer, the plaintiffs also prayed for [A] a
declaration that the defendants have no right to manage the temple
situated in the Plaint A & B schedule lands [B] for recovery of
possession of the Plaint property from the defendants for and on
behalf of the public trust as its beneficiaries and [C] for a
prohibitory injunction restraining the defendants from exercising
any right to manage the temple in pursuance to A13/A14 deeds

3. Along with the application, the petitioners filed IA 02 of 2019

[renumbered as IA 277 of 2019 in the suit] for an ex parte
injunction restraining the Respondents from conducting a
Devaprasnam, proposed to be conducted by the defendants.

4. Along with the OP, the petitioners had produced six documents.
Appreciating the contents of the documents produced along with
the petition, and hearing the arguments of the counsel for the
petitioners, the District Court granted permission under Section 92
and also granted an interim injunction as prayed for by the
Petitioners.

5. The Respondents entered appearance through an Advocate and

filed a counter statement contending that by virtue of A13/A14
they are the owners of the plaint land and the temple thereon. It is
significant to state that the Respondents did not file any
application to revoke the sanction granted by the District
Court under Section 92 in favour of the Petitioners.

6. Considering the contentions of the defendants, the gift deeds relied

on by them and the documents produced by the petitioners, the
District Court, after having heard the injunction application in
detail, confirmed the ex parte injunction order. There was no
appeal against that order.
7. The plaintiffs then preferred IA 333 Of 2019, for permission to
serve interrogatories on the defendants, which was allowed. The
 second defendant alone filed an affidavit giving vague answers to
hide the unpalatable truth from the Court.

8. Therefore the plaintiffs prayed for a viva voce examination of the

deponent in open Court by I A 571 of 2019, regarding the answers
given in the affidavit, which was allowed. The second defendant
was examined as RW1 on 05.02.2020, 24.02.2020, and
04.03.2020. As per the provisions of Order 11 Rule 22 the affidavit
in answers to the interrogatories and the deposition so recorded are
ipso facto evidence against the defendants in the suit. The
deposition may be marked as deposition of RW1 in this suit. The
original answers dated 16.10.2019 and the additional answers dated
22.03.2021 [as per the order of this court in I A 02 of 2021] may be
marked as Exhibit X1 and X2

COMMISSION

9. Simultaneous with the filing of the suit, the plaintiffs had applied
for the issue of an emergent commission to apprise the Court the
factual scenario relating to the plaint schedule property. The first
report of submitted by the Commissioner dated 29.06.2019 with a
sketch is marked as Exhibit C1. D2 had then told the
Commissioner that the account books of the temple were stored in
the two Steel almirahs in the temple premises, which had been seen
and reported by him.

10. That report was remitted at the instance of the plaintiffs by the
order in IA 662 of 2019 to furnish further particulars. A work
memo was filed by the plaintiffs. The Commissioner inspected the
property on 08.02.2020 and filed his second report dated
04.03.2020 with a plan and several photographs Annexed to the
report, which is marked as Exhibit C2 series.

11. On 08.02.2020 when the Commissioner came to the plaint property

for inspection, by a deliberate design, defendants one and two were
absent. A person who is not a party to the suit, claiming to be the
representative of the second defendant, informed the
Commissioner that the keys to the two almirahs where the records
were stored, [vide C1 report] are in the custody of the second
defendant, and that since D2 was away, the almirahs cannot be
opened. For the same reason, the Thidappally which was also
locked by D2, could not be opened.This is reported in para 12 of
C2. Since the Almirahs and Thidappally could not be opened the
Commissioner could not inspect the accounts on that occasion, nor
check the contents of the Thidappally

12. Almost one month later, when D2 was examined as RW1 on

04.03.2020, he had stated that the account books and all other
papers in the Steel Almirahs in the temple premises have been
shifted to his house, for safe custody, to prevent possible theft. The
prompt application I A 02 of 2020 by the plaintiffs was allowed
and the Court directed the defendants to produce the account books
before the commissioner in the plaint property
13. On 28.06.2020, the rescheduled date of inspection, when the
Commissioner reached the plaint schedule property, the second
defendant who was personally present, had the audacity to tell the
Commissioner a preplanned false story which is narrated below.
The fantastic story spinned by him to fool the Commissioner was:
that on the very morning of the date of inspection fixed by the
Commissioner, a burglar has committed theft by opening the
Thidappally and the Almirahs; and that the thief had taken away
only two things: 2 bronze Urulis and one account book.

14. Any man of ordinary intelligence would naturally wonder at the

veracity of this version. The following facts will expose the falsity
of this imaginary theft. The Court may consider the alleged theft of
one account book from the temple premises first. RW1 in his
evidence on 04.03.2020 had stated that fearing possible theft, all
the account books which were stored in the almirahs in the temple
compound had been shifted to his house. It is impossible to believe
that when all the account books had been shifted to the house of
D2, in March 2020, one book alone was left in the Almirah in the
temple compound for the burglar to purloin in June 2020. Further
it is totally unbelievable that a thief would take away an account
book, which can be of no value to him.

SECOND INJUNCTION

15. Returning to the narrative of this suit, during the summer vacation
of 2020, the defendants cut down two trees of religious importance
from the temple premises: one was a Mandaram and the other was
a Banyan tree. The defendants were also seen making preparation
for planting some short-term cash crops, like ginger in the temple
property. The plaintiffs moved the vacation Court on 06.05.2020
and obtained an injunction order against the defendants prohibiting
further cutting of trees and the planting of any cash crop in the
temple property.

16. Though the defendants denied the tree cutting in the counter filed
to I A 05 of 2020, in the light of the report of the Commissioner,
the regular District Court disbelieved their denial and by order
dated 06.07.2020, after hearing both sides, confirmed the
injunction order issued by the Vacation Court.

17. On account of the contumacious conduct of the defendants the

plaintiffs prayed for the immediate listing of the suit for trial. The
District Judge in open court stated that due to the steady stream of
accumulated sessions trials, it was not possible for him to ensure
speedy the trial of the suit, and suggested transfer of the suit to one
of the additional district courts for quick trial. The plaintiffs’
counsel pointed out that only the Sub Court is empowered to deal
with S 92 cases, vide 1980 KHC 170. The case was then
transferred to this court, for expeditious trial. The suit has been
renumbered as O S 01 of 2021

P4 IMPLEADED
18. P4, a non-Brahmin lady, who was holding the responsible post of
the branch postmaster at Mylampadi, and who after her retirement,
was running a ration shop there, as an ARD licencee for several
years, filed I A 03 of 2021 to be impleaded as P4. Her affidavit
narrates the true facts from the perspective of a respectable
member of the public. Though the application was opposed tooth
and nail by the defendants, this court allowed her impleadment
recognising her as an interested party in this suit.

DEFENDANTS COMMIT CONTEMPT OF COURT

19. In brazen violation of the second injunction order not to plant any
cash crops in the temple property, the defendants planted ginger in
the temple compound. The plaintiffs then filed IA 09 of 2020,
requesting this Court [Sub Court] to depute an Amin to harvest the
ginger, sell the same in auction, and to deposit the amount in
Court. This was vehemently opposed by the defendants.

20. After full hearing this court allowed the application by order dated
19.01.2021 wherein this court has entered the finding in Para 7
that the defendants have violated the injunction order. The
Amin deputed by this court harvested the ginger, auctioned the
same and the amount so realised is in Court deposit.

21. Unfazed by the finding that they have violated the injunction order
the contumacious defendants continued the deliberate desecration
of the temple by attempting to perform religious rituals, not
prescribed by the Thanthri, and that too in blatant breach of the
timing for worship prescribed by the Thanthri. They published a
notice A22[a].

THIRD INJUNCTION

22. The plaintiffs rightly apprehended that the performance of such

illegal rituals would not only invite the wrath of the deity on them,
but is also likely to erode the existing power of the deity. They
moved this Court by IA 11 of 2022 for an injunction prohibiting
the defendants from carrying out their nefarious activities in the
temple. In support of that application the plaintiffs produced
Exhibit A 22 from the Thanthri approving the application of the
plaintiffs. After hearing both parties, and relying on the affidavit of
the Thanthri, this Court allowed the application and granted an
injunction order dated 04.07.2022 prohibiting the illegal
programme proposed by the defendants on the Prathishta divas am.

23. It may be noticed that the successive injunction orders against the
defendants at the instance of the plaintiffs were issued by different
judges at different stages of the suit: the earliest was by Mr K P
John; the next was by Mr. Haris followed by Ms. Anit Joseph; and
the last order was by Mr Joy.

DELAYING TACTICS BY DEFENDANTS

24. At the request of the plaintiffs, this court included this suit in the
special list on 08.08.2022. The defendants who had on 14.03.2020
filed OP [C] 805 of 2020, challenging the grant of sanction under S
92, waited for two years brought up the OP for hearing just before
the listed date and managed to get a stay of the trial of the suit. It
was only by the order dated 11.07.2023 that High Court dismissed
the OP, by B8 order, holding that no writ is maintainable against
the ex parte order The trial of the suit was delayed by a whole
year due to this frivolous exercise

25. On the dismissal of the OP, the plaintiffs’ again prayed for the
early listing of the suit. Without filing any counter in that
application, the cantankerous defendants sought to thwart the trial
by filing IA 18 of 2023 requesting this court to consider the
maintainability of the suit as a preliminary issue. This Court
disallowed the delaying tactics and the suit was listed to
06.01.2024.

26. The defendants tried to repeat their dastardly tactics by filing OP

2684 of 2023 which was heard and dismissed by the High Court by
order dated 14.12.2023, marked as B9. That order contains a clear
exposition of the law regarding ex parte sanction under Section 92
and the procedure to be followed by an aggrieved defendant.

27. The order in OP 805 of 2020 did not delve deep into the law on the
point. The observation in that order about a final order u/S 92 is
unwarranted. S 92 does not contemplate the duality of a
preliminary sanction to be followed by another final sanction,
similar to a partition decree. If sanction Is not granted initially, the
application will be heard on merits after the appearance of the
defendants resulting in an order, either allowing or dismissing the
application. But when the Court grants ex parte sanction, the law
does not require any confirmation after appearance of the
defendants. This is clarified by the High Court in B9 in OP 2684 of
2023.

PUBLIC TRUST CREATION

28. The crux of the case depends on the question whether the plaint
schedule property is a public trust or not. While the plaintiffs
postulate that the plaint property is a public trust, and
therefore A13 and A14 are void, the defendants contend that
the plaint property was the private property of plaintiffs one
and two, and that by virtue of the two gift deeds A13 and A14, the
third defendant has become the owner of the said property.

29. Public trust and its consequence can be split up into six segments:
(a) what is a trust (b] what is a public trust [c] how does a public
trust come into existence [d] what is meant by the term Uralan vis-
à-vis a Malabar temple [e] what are the powers and duties of an
Uralan and [f] is the alienation of the plaint property by P1 and P2
valid in law

30. The classic definition of the word Trust, is that it is an obligation

annexed to a property, created by a person called the author of the
 trust, for the benefit of persons called the beneficiaries, which
property is to be administered by a person called the trustee. The
Indian Trusts Act deals only with private trusts and has no
application to public trusts.

31. What is the factor that differentiates a public trust from a private
trust. According to the direct ruling on the point by the Supreme
Court in 1957 KHC 567, the only difference between the two is
in the number and nature of the beneficiaries. A trust is private
if the beneficiaries are either ascertained or ascertainable at any
point of time. If the beneficiaries are wide so that they are not
ascertainable, then the trust is public. The question is the plaint
temple a public trust or not has to be rephrased as who are the
beneficiaries of the temple ? This ruling also refers to a temple for
the family of the maker vis-à-vis the intention of the creator to
benefit the public.

32. The formation of both private and public trusts are similar : it can
be by the execution of a trust deed; it can also be by without any
deed whatever. A public trust can be spelt out by conduct of
parties, without any formal deed or ceremonius dedication. A trust
can be implied by law from the conduct of the concerned parties.
2017 [1] KHC 916

33. Temples in the former Madras State, then called the Madras
Presidency, were presumed to be public trusts. But that
presumption has been held to be inapplicable to the erstwhile
Malabar area of the Madras Presidency, consisting of the present
Districts of Palakkad, Malappuram, Kozhikode, Kannur, Kasargod
and Wayanad. In the Malabar area there was no presumption either
way and the nature of the Trust had to be determined on the
evidence available in each case.

34. The public being merely permitted to worship, does not make a
temple public; Offerings to the temple by the devotees in the form
of Vazhipaadu being accepted may not make the temple a public
trust. But if the public are not merely permitted but have the
right of worship, and are entitled to perform Vazhipaadu that
alters the entire scenario. The following rulings highlight the
various factors in favour of a temple considered as Public: AIR
1980 ALL 283; 2010 [4] KHC 668; 2012 [4] KHC 725;

HUNDI IS CRUCIAL TEST

35. Pan India, Precedential law, not merely of Malabar, have

recognised one critical component which operates as the
undisputable indication of a temple being a public trust. That is the
existence of a Bhandaram known in Hindi as a Hundi. The
rationale behind this rule is that by placing a Bhandaram, the
public are invited to contribute to the coffers of the temple, which
in turn confers on them the right of worship in return. The private
nature of the temple can be preserved only if there is no
Bhandaram or Hundi.
 AIR1956 MAD. 522; 1974 [2] MLJ 133;
1988 [2] ALT 540; 2012 [1] KHC 162

36. A conspectus of the facts of this case, in the backdrop of the

relevant rulings leads to the inescapable conclusion that this temple
is a public temple and not the private property of P1 and P2 to be
gifted by them to D3.

37. Para 6 of the plaint expressly avers about the Bhandaram. That is
not denied in the Written Statement. It has been reported by the
Commissioner in para 4 of Exhibit C1. Rw1 at page .. of his
deposition admits the existence of the Hundi. Annexure L to C3
report relates to Bhandaram collections.

38. Moreover Annexure D1 to D4, and T1 to T8, attached to C3 refer

explicitly to money being collected from the Public as contribution
for the construction effected by the defendants That also militates
against the contention that the temple is not a public trust.

39. Why should a board be exhibited in the Praakaaram, showing not

only the names of different Vazhipaadu but also the cost of
different Vazhipaadu items, unless it was an open standing
invitation to the public to ask for them as of right. Para 7 of C2 and
photo proves this,

40. Obviously the denial of the public nature of the temple by the
defendants was in abject ignorance of the legal consequences of
the Hundi and collections from the public. Even without any other
evidence, the plaintiffs submit that this Court will be fully justified
in giving a finding that the plaint property is a public trust on this
ground alone.
OTHER INDICATIONS

41. A fortiori, there are other smaller but definite parcels of proof that
the plaint temple is a public trust. Paragraph 3, 4 and 6 of the plaint
spell out the process of creation of the temple. It is stated that a
Prasnam [which can be roughly translated as a religious quest]
revealed the presence of a divinity called the Chandravally Devi in
the plaint schedule property, and the need for a permanent
residence for that Devi in a temple. A place was selected and peg
marked for the temple. A second Prasnam was conducted to check
the correctness of the choice for the temple.

42. A1 is the record of the second Prasnam. This Prasnam revealed that
the site of the proposed temple had to be changed. A1 record of
the second Prasnam reiterates the earlier findings resulting in the
peg marking of the site and makes a clear distinction between the
Kudumbadevatha of the plaintiffs and the new Goddess to be
installed in the new temple. While the Kudumbadevatha is a Bhava
of Goddess Lakshmi, the new Goddess was Chandravalli
associated with the natives of Wayanad.

43. A1 is the record of a Thaamboola Prasnam. From the questions put

to PW1, and Pw3 it seems that the defendants are intending to
 contend that to ascertain the wishes of the deity, an Ashtamangalya
Prasnam, and not a Thaamboola Prasnam has to be conducted,
perhaps to belittle the efficacy of A1. The simple answer to this
anticipated objection is that the plaintiffs by A1 were not
attempting to ascertain the wishes of the Devi, who was yet to be
installed, but were only desirous of determining whether their
action in selecting the site for the temple is proper. The Prasnam or
query was about the propriety of their action in the selection of the
site and not about the wishes of the Devi. A1 only reiterated what
was disclosed by the previous Prasnam in which the desire of the
Devi had been disclosed. So it was sufficient to have only a
Thamboola Prasnam and the efficacy of A1 is in no way affected
by it being a Thamboola Prasnam. The findings at all
Devaprasnams, have to be implemented, according to 1993 KHC
523

Member of the Public joins as Plaintiff

44. P4 a respected member of the local public reiterates the narration

in her affidavit in support of IA 06 of 2020, her impleading
application which has been allowed by the court in spite of the
objections by the defendants.

Chandravally not family deity

45. It is a matter of common knowledge that Chandravally Devi is not

one of the deities recognised by all the Hindus, unlike goddesses
like Lakshmi, Saraswathi, Parvathi, and Durga. PW2, a native of
Mylampaadi, which is the name of the local area in which the
plaint temple is situated, and PW3, another resident of Wayanad
have expressly affirmed under oath that Chandravally is a
particular embodiment of the concept of Devi prevalent only in
Wayanad. It has also been stated that there is a temple for this
particular divinity in Kolagappara in Wayanad. There is no
evidence forthcoming from the side of the defendants to contradict
the above evidence.

46. PW1 had also asserted that this Chandravally is not their family
deity, adding that this Deity is known only in Wayanad. Para six of
the plaint and PW1 refer to the existence of the family deity of the
plaintiffs within their house, adjacent to the plaint schedule
property. A1 also refers to the family deity as different from
Chandravally.

47. These facts amply illustrate that the intention of plaintiffs one and
two in creating the temple was not for their private benefit, or for
the benefit of their family, a Brahmin family, and that the
beneficiaries of the temple envisaged by P1 and P2 were the public
of the locality. The ruling reported in 1991 [1] GLR 454 supports
the stand that such temples are public and not private

PUBLIC COMMITTEE FORMED

48. PW1 had spoken about the convening of the public meeting by her
father immediately after the installation of the deity in the plaint
schedule temple and the selection of the committee from among
the public to manage the temple. PW2 has not only supported these
statements, but has also proved Exhibit A2, the minutes of the
public meeting on 19.09.2003 at which a managing committee of
thirteen persons was elected from among members of the public.
The minutes also record the election of the office bearers of the
managing committee, with Pw2 being named as the joint secretary.

49. The defendants have attempted to discredit the above evidence by

pointing out that the name of PW2 has been inserted after striking
of the name of Surendran, against the serial number twelve. This
ostensible defect appears to be immaterial on a reading of the
following entries in the same page. There is no correction as far as
the name of PW2 against the post of joint secretary. It is also seen
that Surendran and one Kunhiraman Nair were nominated as
special invitees to the managing committee.

50. The names of the participating members of the public meeting

establishes that persons from different communities among the
Hindus were present at the meeting. The minutes also shows that
the first plaintiff was accorded only the status of an Uralan and is
not shown as the owner.
51. The book contains the minutes of the next meeting of the managing
committee on 21.11.2003, in which the name of Surendran with his
correct initials K and V are entered. In the previous deleted entry
the letter M appeared before the name of Surendran. That meeting
records the decision of the committee to get printed receipt books
for two denominations of ₹ 10 and 25, a letterhead and a seal. A2
also shows that the effective functioning of the public committee,
evident from the newly created Well, at the north-eastern corner of
the land in accordance with the Aagama prescriptions.

52. A2 was produced along with the S 92 OP. It formed part of the
plaint as seen from the list of documents. This book was also listed
as one of the exhibits relied on by the District Court in the order in
the injunction application. Definitely it must have been a relied
upon by the Court in granting the ex parte sanction also. It is
significant to state that though Exhibit A2 had been produced at the
time of the initiation of the Court proceedings, and was also listed
in the plaint, the defendants have not chosen to question the
veracity of that document specifically in their written statement.

53. What is the legal effect of the defendnat failing to challenge the
validity of a document produced with the plaint ? The effect of
such an omission, is equivalent to admission of the genuineness
and validity of that document, similar to the lack of denial of a
positive averment in the plaint. That is the law laid down in 2017
[1] KHC 620. If the defendant does not deny the genuineness of a
document produced along with the plaint, in his Written
Statement, that amounts to an admission of the contents and
validity of the document.
54. It may be seen that this rule was applied not to an original
document but to a Photostat copy which would have been normally
inadmissible. Belated suggestions to Pw1 and Pw2 during the
cross examination that A1 and A2 are unreliable have no value
and will not enable the defendants to escape from the deemed
admission that they are true and correct.

Intention of P1/P2

55. The express usage of the term Uralan in A2 to refer to P1 is

another clinching piece of evidence that he had abdicated the
erstwhile ownership of the land by himself and his wife,
voluntarily and willingly accepting the role of a manager in 2003,
long before the gift deeds of 2010.

56. Para 1 of the plaint is explicit that the suit is being filed by P1 and
P2 not as owners, but as Uralans as also in their capacity as
worshippers. P3 also projects her role as a worshipper. The
junction of P4 reinforces the representative character of the suit, as
one instituted on behalf of the beneficiaries, who are the general
public, as opposed to the family of P1 and P2.
57. PW2 has also proved Exhibits A3 to A12 which are counterfoils of
the receipts issued on behalf of the public managing committee for
Pushpanjali, Divasa Pooja and Vazhipaadu over a fairly long
period. An objective look at these exhibits, and especially the
nature of the paper, the colour of the ink, and the details like date,
amount and names denoted therein will debunk the reckless
suggestion on behalf of the defendants that these books have been
fabricated for the purpose of this case. These documents are
contemporaneous with the creation of the temple.

58. At the risk of repetition the plaintiffs would reiterate their earlier
contention that even without consideration of Exhibits A1 to A13,
and the oral evidence of PW1 and Pw2, the undisputed existence of
a Bhandaram or Hundi, [admitted by RW1, reported by the
Commissioner and entered as an item of income in … as reported
by the Commissioner, as a standalone evidence is sufficient to
establish that the plaint temple is a public trust.

Uralan and Uraima right

59. The word Uralan denotes a manager and not the owner of a temple.
The drastic denial of the status of P1 to P3 as the Uralans of the
plaint temple in the Written Statement and their assertion in all
their affidavits in the several applications repeated ad nauseam,
that P1 has no right whatever over the plaint property and the
temple after the gift deeds, have to be discarded as shameless
shibboleth and an arrant falsehood in the face of the express
recitals in A13, A14 and B4.

60. A13 and A14 which form the foundation for the ownership claim
of the defendants, and are their only source of right over the plaint
land, contain intrinsic evidence in Para 6 and 7, which clearly
contradicts that claim by protecting and preserving the status and
 powers as Uralan not only for P1 but also for P2 and P3 who are to
succeed him.

61. Again in the year 2016, six years after the gift deeds, which are
claimed to have conferred absolute rights on D3 over the plaint
land and temple, B4 signed by D2, records an intimate connection,
control and power over the temple in favour of P1 in para I, II, V,
and VI. Read out. No prudent person can say that these terms are in
consonance with the alleged ownership of D3.

62. It is settled law that an Uralan is only a trustee entrusted with the
duty to manage the temple, and that he cannot transfer the temple
or his duties and status to anyone other than his successor. When
transfers even for valuable consideration have been held to be void,
gift stands on a worse footing, and is non est in the eye of law. The
relevant rulings are:

ILR 1876 [1] MAD 235; 1914 [27] MLJ 253

1972 [4] SCC 502; 1979 KHC 615;

GIFT DEEDS SCRUTINISED

63. An objective look at the gift deeds raises the following pertinent
questions. Did P1 really intend to transfer full ownership of the
land and temple to D3 ? The implied consideration for a transfer
of property by way of gift is love and affection. Dw3, the
experienced document writer has candidly stated that an essential
phrase in all gift deeds will be “ സ്നേഹ വാത്സല്യം മാത്രം പ്രതിഫലമായി”
which words are conspicuous by their absence in both A13 and
A14. So in the eye of the law, there is no consideration for the
transfer by way of gift.

64. Another tell-tale indication that the gift deeds were concocted by
the defendants with ulterior motives and did not represent the true
transaction is the entry in the Form I A accompanying it. Through
Pw3 it has been brought out that the building therein was built in
1999. The building not having any number and tax assessment as
seen from the same form, can refer only to the Temple and
Thidappally. No one including the defendants have a case of any
building having been constructed in the plaint land in 1999.

65. The Prasnam that revealed the presence of the Devi was only in
2002; that the temple was built in 2003, following the astrological
asking is unquestioned and uncontradicted. If P1 was instrumental
in executing A13 such an absurd affirmation and colossal blunder
that the building was built in 1999 would not have occurred. No
questions were put to Dw3 as to who instructed him to prepare the
gift deeds and who paid the expenses. The general practice is for
the document to be prepared by the person getting the benefit of
the deed, which is D3, whose then Secretary was none other than
D2. Obviously the wrong information was given by D2 to Dw3 for
preparing the gift deed.

MUTATION
66. Another relevant circumstantial evidence militating against the
genuineness of the gift deeds, is the absence of mutation. If a real
gift was intended and had been brought into existence, the first
thing that any ordinary sensible donee would do is to change the
Jama and pay the revenue for the land. Initially Dw1 pretended
ignorance about applying for change of Jama even though A13 and
A14 specifically referred to that. To the direct question that the
plaintiffs are paying the revenue for the land till 2024, he candidly
confessed that it is true. A23[a] revenue receipt shows that the
revenue for the land in RS 17/1 for 0.4000 [1 acre] was being paid
by P1 in 2009. This remained unchanged in 2019 vide A23[b]. On
the death of P1, the Jama was changed to the names of P2 and P3
who paid the revenue for one acre in 2023 as seen from A23[c].

67. By the time of the reexamination by an angry counsel, realising the

effect of his spontaneous answers in the cross examination, Dw1
by his crooked intelligence invented a story that revenue was not
paid as it was not accepted. On the very next day after his
examination, he managed to bamboozle the village officer to issue
a revenue receipt in the name of D3 apparently by misleading him
to by the production an authentic copy of the registered gift deeds.

68. When he was recalled and examined on 12.02.2024, B7 was

marked. But his cross examination on B7 revealed a yawning gap
in his yarn. While his answer in the re-examination gave the
impression that revenue was not paid for the entire period after
2010 because the VO refused to receive the revenue, the story now
changes dramatically: revenue was paid by D3 for some years and
thereafter the VO refused to receive it. This version cannot hold
water for more reasons than one: [a] the non-production of the
alleged revenue receipts is fatal [b] the failure of Dw1 to say this
on 12.02.2024 [c] and the first spontaneous answer that he does not
remember if revenue had been paid by D3; if the later version is
true, he would have definitely remembered it on 06.02.2024.

DW2 IS UNRELIABLE

69. The saga of the gift deeds will not be complete without a critical
reference to Dw2. It is after the completion of the evidence on the
side of the plaintiffs, that for the first time in the chief affidavit of
Dw1 that the convenient imaginative fantasy fronted by one
Velayudhan is projected. At the outset, it cannot be forgotten that
Velayudhan is a carpenter by profession, and is a long time
member of the third defendant society, who will naturally be
inclined to favour and help D3 to get valuable property. He
remained anonymous in the Written Statement, the numerous
counters, and even in the two OPs field by the defendants.

70. When the attention of Dw1 was drawn to this in his cross
examination as to why his name and his alleged role in the making
of the gift, was not mentioned anywhere before, he had no
explanation for the crucial omission, which leads to the inevitable
inference that this version is a clear afterthought, taking undue
 advantage of the unfortunate death of the first plaintiff before the
trial of the suit commenced.

71. There is absolutely no iota of evidence to show that this Dw2

[Velayudhan] had ever worked for the plaintiffs. Even going by his
own claim, he had done some carpentry work for the first plaintiff,
nearly forty years ago [1975] and has not done any work at or near
2010, the date of the gift deeds. It is impossible to believe that P1 a
doctor by profession would have gone in search of an ancient
carpenter to request for his help in finding out someone to whom
the doctor can make a gift of valuable property.

72. There is no rational answer to the pertinent question as to why the

plaintiffs would want to make a gift of the temple at all to any
person, and more so why they would ask DW2 to find out a donee.
In the ordinary course of events they would not have selected D3
as the donee, because D3 is admittedly an association of a small
community of artisans, started only in 2009, consisting of persons
who have migrated to Wayanad from far off places, like Kaladi,
who have no connection or experience in the administration of any
temples and not having any other known social activity.

73. It cannot be imagined that the first plaintiff, a doctor, was not
aware of the registered body named Kerala Kshetra Samrakshana
Samithi, which is in the forefront of renovating temples and
running several temples efficiently, which had an office in Kalpetta
from 1990 onwards. Judged in terms of probabilities there is no
scope for the plaintiffs to have selected a guild of artisans in wood,
stone and metals, with no experience of running temples to be
conferred full ownership of the plaint temple and its valuable land.

74. Harking back to the gift deeds, if they were intended by the
plaintiffs as permanent divestment of all their rights over the
temple and its properties, there would not have been any reference
in the gift deed to an Uralan. Para .. of A13 expressly reserves the
Uraima right not only of the first plaintiff but also that of his
family members in future. This is an unmistakable indication that
no absolute transfer by way of gift was intended by the plaintiffs.
On the other hand the express reservation of the rights of the
plaintiffs 1 to 3 as Uralans is a necessary pointer that the
executants really intended only a temporary arrangement

Non-production of the minutes of D3

75. In this context the non-production of the minutes of D3 relating

to the two gift deeds and their conduct preceding and succeeding
the execution of the gift deeds assumes critical importance. If the
version of D2 is true, the proposal of running a temple on
acceptance of a gift by D3, must have been discussed at least by
the Executive Committee of D3 society [if not by its General
Body]. The financial liability, by way of salary of the Poojari, the
interse rights of D3 vis-à-vis P1 as Uralan, plus the details of the
Poojas to be performed and the festivals to be celebrated, arranging
 procurement of articles for Vazhipaadu [offerings] will certainly
have been decided upon and recorded in the minutes.
76. When D2 claims that the additions by way of a Nadapandal,
Annadaana Hall. And Deepasthambam were made with the
knowledge of the Thanthri and Uralan and after getting their
consent. [Refer to relevant passages]. the minutes of D3 must
reflect and record these details.

77. Before 1991, the law was that a party to a suit need not produce
relevant documents in its possession unless the opposite party
summons the production of the same. But the Supreme Court in
1968 KHC 492, SC [the pioneering ruling in this regard], laid own
that a party in possession of material documents relating to the
controversy to be resolved by a court is duty bound to produce the
documents for the scrutiny of the court, without waiting for any
summons by the opposite party to produce them.

78. The consequences of non-production of the documents has also

been indicated by the SC. It entails an adverse inference being
drawn against the party suppressing the documents, that if the
documents are produced they will not support the pleaded story.

Death of P1

79. In this context the death of P1 assumes great importance. If the suit
had been taken up trial earlier when he was alive, he could have
and would have spoken about the fraud committed by D3 through
D2, in getting the gift deeds. But as Pw1 has painfully pointed out,
the plaintiffs are forced by fate to give up the plea of fraud due to
the demise of P1.

80. The plaintiffs hasten to add that they are not attacking the gift
deeds on the ground of fraud or any other similar reason. The
plaint proceeds only on the legal proposition that and alienation of
the temple by its Uralan is void. The anamolies in the gift deed are
pointed out only to disprove the false claim of the defendants that
P1 and P2 were the owners and their gift is valid

A13 AND A14 ARE VOID

81. 2014 KHC 439 holds that alienation by a trustee Uralan is void
and is not merely voidable. No declaration that the deeds are void
is necessary is the ratio of 2015 [1] KHC 409. As far as a temple
is concerned any worshipper can challenge the alienation to protect
the interests of the temple and the deity 2000 KHC 609. Even the
transferor can challenge such alienation says 1871 [14] MIA 289

Scheme Essential and Necessary

82. When this court finds that alienation of the public

trust by its Uralan is prohibited and is ipso fact
void, defendants have no right to manage the
 temple any longer. The question naturally arises
as to who has to manage the temple

83. The plaintiffs have not filed this suit to recover

possession of the plaint land from the defendants
for their private possession or enjoyment. It is not
for any selfish reason that this suit has been filed.
Plaintiffs 1 to 3 have been motivated only by
public interest to seek the ouster of the
defendants. Junction of P4 a responsible citizen
of that locality as Plaintiff reinforces this aspect.
The framing of a scheme becomes imperative
because of the intolerable mismanagement of the
temple by the defendants, details of which are set
out below:

PROVEN MISCONDUCT OF DEFENDANTS

84. The plaint averment that the temple was built by

P1 for the Chandravally Devi is not denied by the
defendants. They cannot deny it also because
they had nothing to do with P1 to P3 or the
temple when it was created in 2003. D3 came into
existence only in 2009. D2 as Dw1 has also
admitted he did not know P1 to P3 before 2010.
Dw2 does not say anything about the origin of the
temple.

85. Devi is a generic term representing the feminine

gender of all living objects. It is even claimed that
she was the first Parashakthi who produced
Brahma, Vishnu and Maheswara. Hindu religion
recognises multiple manifestations of Devi and of
other Gods as well. Each have their own distinct
shape and qualities. They have close similarity to
the Greek Gods. Naturally the mantras, and
rituals for the different Bhaavas as they are
known are different.

86. The most authoritative text enumerating various religious details

and prescribing the mode of worship is the Thanthrasamuchayam,
written in 1428, in three volumes, each detailing different aspects.
This text in Sanskrit was translated into Malayalam and that book is
named Kuzhikkattu Pacha. Besides these books, courts have
recognised other texts as authorities on the subject. Some of them
are Saparivaara Poojakal, Saparivaaram Bhagavathi Pooja,
Poojavidhikal, Dhyana Slokangal, Kriyaa Deepika and Kshetra
Chaithanya Rahasyam by eminent authors. Based on these texts, the
 following facts reveal the desecration of the temple by the
defendants.

87. There is no Vigraham in this temple. It is having a Kannaadi

Prathishta. That means there will be only a granite stone cut in a
particular shape. Pw3 qualified from Thantra Vidya Peedham,
Alwaye an institution recognised by the Devaswom Board, has
explained the concept of Prathishta, as adumbrated in the Aagamas.
Quote para 3 to 17 and 19 to 21 of his chief affidavit. Not a single
question is put to this witness about any of these details and so the
deposition has to be accepted as correct and binding on the
defendants.
88. The evidence of Rw1 explicitly exemplifies the blatant breach of not
one but many of the religious tenets in this temple.

CHANDRAVALLI DEVI DISPLACED BY DURGA

89. The plaint assertion that the name of the temple

was Manikkallukaappu Chandravally Devi
Kshetram is not denied. The receipts A3 to A12
all bear that name. Pw2 has spoken about the
name board of the temple showing that name.
Why did D3 remove that Board and install another
Board, omitting the name of Chandravally
altogether? What right have they to name the
temple as a Durga temple ? When Chandravally is not
Durga, the name of the temple ought not to have been changed into
Durga. This is the beginning of a series of several
sacrilegious actions by the defendants.

90. The Thanthri in A20 has not only described the details of the
Prathishta performed by him in this temple but has also depicted the
Devi he visualised as Chandravally. She is shown as
shaanthaswaroopini, with only four hands, without any weapons.
Her two hands are having the Abhayamudra and Varadamudra,
signifying safety from danger and benediction. See photo with A20.

91. Para 4 of the plaint gives the original name of the temple as
Chandravally Kshetram. Para 15 [c] of the plaint refers to the
abandonment of the original name board by the defendants. Both are
not specifically denied in the Written Statement. So they must be
deemed to be admitted under Order 8 Rule 5. No further proof is
necessary. The numerous receipts A3 to A12 also have the original
name printed on them.

92. At the first inspection the Commissioner did not notice any board in
the property. On his second inspection he finds A24 board there. He
has stated in para 2 of C2 report that this is a new board. DW1 has
admitted that before A24 Board, there was another board which is
seen in A25. in that also placed by the defendants, the name of the
Devi is altogether absent. Only the name of D3 is there. This is
positive proof of the intention of D3 to obliterate the Devi and
 convert the temple into an asset of the society. This justifies the last
line in para 20 of the chief affidavit of Pw1.

93. Becoming aware of the atrocity in deleting the name of the deity
from the Board, A25 was replaced with A24 by the defendants.
From the frying pan into the fire aptly describes this action. This
Board gives prominence not to the temple but to D3 society. The
name of D3 is depicted in bold letters three times larger than the
small type in which the temple name is written. The office address
of D3 and the phone number of D2 are prominently projected on the
board.

94. This board not only abandons the real name of the goddess installed
in that temple but substitutes it with the wrong name of Durga
Bhagavathi. Durga is the name of Devi in her Roudra Bhaava as
Mahishaasura Mardini and is never applied to a shanthaswaroopa of
the Devi. The manthras and mode of worship for the two Bhaavas
are entirely different. The small picture of the Devi on the right
hand lower corner of the Board, is shown as an enlarged image of
the goddess in the poster below the Board.

95. The worst part of the picture, depicting the Devi is Her being shown
as Durga the ferocious Bhaava of Devi, sitting astride a tiger with
eight arms bearing a variety of weapons. A comparison of this photo
with A20 photo will show the callous disregard of the defendants to
the proper form of the presiding deity in this temple. This viciously
distorted picture of the Devi is repeated in all the subsequent
posters, receipt books and notices.

SARVA MANGALA MAANGALYE …

96. The crowning affront irresponsibly insulting the deity in utter

disregard of the Bhaava and roopa of the Devi installed in this
temple, is the inscription of this pernicious picture just above the
sanctum sanctorum the Sreekovil, with the added reproduction of
the sloka beginning with Sarva mangala maangalye …. Each
Bhaava of the Devi has a specific sloka associated with that Bhaava
and Roopa. Pw3 has stated that this sloka is associated only with
Durga in the Roudra Bhaava. There is no cross examination on this
aspect. 2020 KHC 6690 AND 2015 KHC 3929

97. D2 admits that the Pooja in this tem ple was being performed by a
Namboodiri in 2010. Pw1 in Para 10 of her chief affidavit had stated
that her father had employed Eswaran Namboodiri as the Poojari.
There is no cross examination on this aspect. So it is deemed to be
proved. It is admitted by D2 that he started doing the Pooja from
2012 onwards.

98. According to the plaintiff, he was terminated because the defendants

wanted him to perform Pooja for Viswakarma which he refused. But
D2 claims that there was no termination and he ceased to come.
How and why Eswaran Namboodiri was terminated is irrelevant.
The relevant fact is that the qualified priest was succeeded by D2 as
Poojari in 2012.
POOJA BY D2 IS PERNICIOUS

99. There can be no two views that Pooja is a religious function that can
be performed only by persons with the requisite knowledge not only
of the Manthras but also the elaborate detailed procedure prescribed
by the Aagamas. Plaintiffs are not postulating that only
Namboodiris are competent to conduct Pooja in a temple. The
Supreme Court has held that anyone irrespective of caste distinction
can perform the Pooja, if he satisfies the condition of having the
essential knowledge of all the rituals and manthras.

100. Rw1 admits that the deity of each temple will have a Moolamanthra
which is to be recited repeatedly for any Pooja. He also admits that
the Moolamanthra is not uniform but that it varies depending on the
deity and also its particular Bhaava. To the specific question in the
interrogatories served on D2, as to what is the Moolamanthra of this
temple, D2 filed his affidavit in answer. He did not disclose what
was the Moolamanthra but contended that it cannot be divulged to
anyone including the court. It was this arrogant answer that made
the District order a viva voce examination of D2 as RW1.

101. Anyone hearing the testimony of D2 as RW1, would agree

wholeheartedly and unhesitatingly that D2 is incompetent to
perform the Pooja in this temple. Two passages from RW1 that
attests his abysmal ignorance are : It is a matter of common
knowledge that all the Manthras are in the Sanskrit language. So
without a thorough knowledge of Sanskrit, no one can understand
and recite the manthras properly. It has to be remembered that the
proper pronunciation of the words is imperative. A telling example
is that of Yesudas singing the sloka Yogeendraanaam ….

102. Though D2 claims that he has obtained postgraduate training in

Sanskrit, there is no scintilla of evidence to support that tall claim.
Kaalidaasan’s Shakunthalam is acclaimed as one of his best
compositions and anyone with the basic knowledge of Sanskrit
should be able to understand that poem. Fortunately this classic
poem has also been translated into Malayalam by Rajaraaja Varma.
That translation named Abhijyana Shakuntalam is a staple subject
for all Malayalam students. One sloka from that celebrated poem
describing the heroine was recited in open court and D2 was asked
what is the meaning of the simple word “madhuranam” . D2
thinking that he could get away with a bluff, facilely said it means
“sweet”. Obviously he thought that since “Madhuram” in
Malayalam meant sweet, he could get away with his answer.

103. What sealed his fate was the translation by Raajaraaja Varma of that
sloka from which the real meaning of that words could be known:
Maduraanaam meant “beautiful” and not ‘sweet”. Confronted with
the Malayalam equivalent of the word in the translation, D2
shamelessly confessed his ignorance. When he does not understand
even a simple word like “madhuraanaam” his claim of deep
knowledge of Sanskrit implicit in having a post graduate degree in
Sanskrit can only be termed a green lie.
MOOLAMANTHRAM

104. Asked about the Moolamanthram, of this temple, he claimed that

Moolamanthram is included in his “Pooja kriyaa padhanam”
wherein he was taught the rituals prescribed by the
Thantrasamuchayam for Pooja of 10 deities naming them as
Ganapathi, Sivan, Vishnu, Sankaranarayanan, Durga, Kaali,
Saraswathi, Subramanyan, Sasthaavu, and Bhuvaneswari and that
they have different Moolamanthrams.

105. At Page 12 RW1 said that the Moolamanthrams are described in the
Thanthrasamuchayam. His bluster and blunder were exposed when
he was given the three volumes of Thantrasamuchayam in Sanskrit
and asked to point out at least one Moolamanthram. Those three
volumes did not have even one Moolamanthram. Further when it
was suggested to him that the Thanthrasamuchayam deals only six
gods and one Goddess alone [and not with the ten named by him],
he was forced to backtrack and admit that. He does not know which
book dealt with the remaining three deities out of the ten named by
him. He goes on to say that it may be true that the three are dealt
with in the book called Seshasamcuhayam. These answers reveal
that he has no regard for truth and is prepared to perjure in court on
material matters.

106. At page 8 of Rw1 he says he cannot deny the suggestion that the
Devi installed here is Chandravally. What cannot be denied is
deemed to be admitted. To wriggle out of the quagmire at Page 9 he
adds that the name of Durga installed here may be Chandravally.
But again at P 10, he says he cannot deny the suggestion that it is
not Durga who is installed but a different Goddess called
Chandravally. This shows his irresponsible attitude to the presiding
deity of the temple which cannot be condoned on nay ground
whatever.

107. In view of the temple being renamed as Durga temple questions

were put to him about Durga. At P15 D2 says that Durga has only
one Bhavam. That answer was followed by the enlargement of one
to nine. But he is ignorant of the nine Bhaavas of Durga. He cannot
also say which Bhava of Durga is installed here. The nine Bhaavas
of Durga as known to real scholars are easily identified by the
different forms worshipped during the Navaraatri.

108. When D2 was questioned as to why the Moolamanthra cannot be

divulged to the Court, he said it is to be preserved as a secret.
However he is not able to name the text that makes it a secret. In the
next breath at Page 17 he says that he has read Pooja Vidhikal by
Kanippayyoor in which the Moolamanthram of Durga is given. At
Page 19 he admits that the Moolamanthrams of other deities
including their proper enunciation are available in the Wikipedia. At
page 20 he admits that the different Bhaavas of Durga will have
different number of hands, may be 4, or 8 and can go up to 64. The
Durga depicted by the defendants has eight hands. That is improper
and another sacrilege to the real deity.
109. A20 affirms that the Moolamanthram of the Chandravally Devi has
not been imparted [no Upadesam is the actual words used] to D2 by
the Thanthri. The Moolamanthram is to be spoken into the ear of the
Archaka alone without anybody else hearing it. In the absence of
such initiation by the Thanthri no one can perform archana in a
temple. This has been decided in 1914 [27] MLJ 253. It may be
noticed that the embargo is on a Brahmin so that no question of
community or caste consideration is involved in the prohibition.

PRATHISHTA

110. Pw3 has spoken about the principle behind a Prathishta and about
the prescription of the Poojas by the Thanthri at that time. Refer
details: There has been no cross examination on any of the religious
tenets spoken to by him in the chief. His views have not been
contradicted by reference to any text or ruling. There was no
allegation that he has not undergone the training testified to by him.
The non-production of his certificate alone was highlighted. That
doubt is cleared by the production of the certificate before the next
hearing of the cae.

111. The only person competent to give the authentic information

regarding Prathishta is the Thanthri. A21 gives the details of the
Prathishta here. The Thanthri has not only described the Goddess he
has installed here but has also provided a visual image of the vision
of the Goddess that he had at the time of the Prathishta. The
Goddess installed here has only four arms, with no weaponry in any
of them. Two of the arms exhibit the Abhayamudra and
Varadamudra which are absent in the image of Durga prominently
displayed by the defendants as the image of the Devi here.

112. Coming back to the Moolamanthra without which no Pooja can be

performed, at P 22 D2 says that Chandravally may be a Bhaava of
Vanadurga. But at Page 23 he admits that he does not know the
Moolamanthram of Vanadurga.

113. At page 8 of Rw1 D2 admits that he does not know the

Moolamanthram of Chandravally Devi. That means he cannot
perform any Pooja for that Devi. Yet he had the temerity to swear to
an affidavit in the second answer to the interrogatories dated
22.02.2021 that he was reciting the Moolamanthra, which he did not
know. Obviously he was chanting some Moolamanthra not
pertaining to this Devi. The worst part is that Pooja performed by
him using any wrong manthra, is pernicious and erodes the sanctity
and the divine power of the Devi. Pw3 has categorically stated that
use of the wrong manthra invites divine wrath and there is no cross
examination on this aspect at all.
114. Pw3 has explained how the Moolamanthram of any temple comes
into existence. In addition to the basis manthra which is available in
the texts, the Thanthri adds some letters or words on his own to
form the Moolamanthra of that temple. By the process called
Upadesam, the Thanthri conveys the special Moolamanthram of the
deity installed by him to the Poojari. This is where the secrecy
 comes in. According to the Aagama texts anyone who is to do the
Pooja of any deity must get this Upadesam from the particular
Thanthri of the temple before he can conduct any Pooja. As D2 has
not received any such Upadesam from Mazhuvannur Kunhikesavan
Embrandirti, the Thanthri of this temple, he is prohibited from
conducting any Pooja in this temple.

THANTHRI

115. The depths of degradation to which the defendants are prepared to

stoop can be seen from the evidence of D2 regarding the Thanthri.
Plaint para asserts that the Thanthri of this temple is MKE. That is
not denied in the Written Statement. But in view of the antagonistic
attitude of this Thanthri to the defendants usurping the performance
of the Pooja in the temple which he has consecrated, apparent from
A21 and A22, he had the audacity to say at P 24 of Rw1 that the
Thanthri of the temple is Phaneendran Embrandiri of Vellamkolly
Illam. This is not only false but is also impossible in law.

116. The status of the Thanthri of a temple vests not in the individual
who performed the Prathishta but in his family. That status is
immutable. Even the Thanthri cannot transfer that status to anyone
outside his family. He alone can prescribe the rituals to be
performed in the temple. Nothing can be done in the temple without
his permission – be it a new construction, performance of Pooja or
Vazhipaadu, addition of any other God, etc

117. The following judgments elucidate the religious role, of the

Thanthri, and enumerate his position and powers:

2005 KHC 709; 2013 KER 11908;

2014 KHC 435;3 2014 [4] KHC 341

118. At this stage the answers of D2 at P 25 are significant. He says that

his teacher is some Karumathra Vijayan whom he calls Thanthri. He
had no connection whatever with the Prathishta in this temple and
hence he cannot be the Thanthri of this temple.

119. Moreover there is no Illam named Karumathra and it is the name of

a place alone. Vijayan is not and cannot be a Thanthri because only
Namboodiris can be Thanthris. Namboodiris of Tulu origin are
called Embrandiris. All Namboodiris do not qualify as Thanthris.
Only the designated families can be thanthris. The SC ruling relates
only to persons to perform ordinary Pooja in the temples and not to
perform Prathishta which is still limited to Thanthris.

120. Pw3 has stated that the prescriptions of the Thanthri regarding the
timings and the rituals have to be performed meticulously. He has
also admonished that those specified Poojas alone should be
conducted. This position is supported by court rulings also. D2 is
committing flagrant breach of this rule both by not performing some
of the prescribed rituals and by doing some rituals not permitted by
the Thanthri.
121. A19, signed by the Thanthri, [and repeated by him in A20 affidavit]
enumerates the prescribed items. Pw1 has sworn that it was dictated
by the Thanthri and written in the handwriting of P2, known to her.
It was suggested that there is some difference in the signature of the
Thanthri there and in the affidavits. A19 has intrinsic evidence of
having been prescribed in 2007 after the Punaprathista and the
Naagaprathishta. The slight difference if any, seen in the two sets of
signatures is perfectly natural because of the time gap of 14 years
between 2007 and 2021. What is relevant is that there is no cross
examination of the contents of A19. The Dittam prescribed by the
Thanthri is unalterable by anyone else vide 2009 [1] KHC 493

DESECRATION OF TEMPLE BY D2

122. The Aagamas are to be obeyed and prescribed rituals are to be

performed meticulously is the dictum in 2002 KHC 843 Which was
preceded by AIR 1973 MADRAS 264. When A19 is juxtaposed
with the evidence of D2 as Rw1 and Dw1 the following fatal
differences are noticeable:

No A19 RW1 and DW1

Temple to be opened at 7 am
Paal and Elaneer Abhisekham
Malar Nivedyam alone mentioned
Kadumpayasa Nivedyam and
Sahasra Pushpanjali to be done
No Usha Pooja permitted
Temple to be closed at 11 am
Special Poojas are to be done
only on Thiruvonam, Ashtami
Rohini, Sapthami of Navarathri,
Deepaavali, 41st day of
Mandalam, Makara Sankramam,
Vishu and Prathishtadinam
Ganapathi Homam alone on the
Prathishtadinam
Pooja with Padmam for the
Upadevans
A 22 proposed rituals on
Prathishtadinam
Temple is being opened at 05.30 am
Says he does abhishekam without
stating with what. Abhisekham means
pouring of a liquid over the image; could
be any liquid like water, honey, ghee,
sandal paste. Gingili oil
He performs some other nivedyams
Nivedyam is a religious ritual
1954 KHC 463
No kadumpayasam being done. Sarkara
payasam is different.
Only poorna pushpanjali different from
Sahasra Pushpanjali
He does that See 2 nd answers to the
interrogatories
He performs Madhyaanna Pooja which
can only be at 12 Noon and then closes
the temple. 12.30 is seen in first answer
No Pooja on Ashtami Rohini
3 days in Navarathri not 7th alone
[See first answer]
Visheshal Pooja on Rishipanchami – Not
permitted Nada cannot be opened. D2 in
second answer says Poomoodal of Devi
is done on Rishipanchami day
P 9 of DW1 Does Mrityunjaya Homam
also
Not done at all
Conduct Maha Mrityunjaya Homam
Evening opening at 5.30 pm
thaalasweekaranam

NIVEDYAM

123. 1954 SC has held that Nivedyam is a religious ritual. Who should
prepare it and how it should be prepared are also very important.
1959 KHC 156 says Nivedyam has to be prepared only from the
 Thidappally and that too only the Thanthri and the qualified and
initiated Archaka or Shanthi can enter the Thidappally when it is
being prepared. Here Rw1 at P… has admitted that Nivedyam is
being prepared by him with the assistance of one Mahesh, who is
described by D2 as Keezhshanthi. This is another violation which
would seriously affect the sanctity of the offering.

THIDAPPALLY

124. Nivedyam has to be prepared from the Thidappally alone. The

location of the Thidappally is fixed as per Aagama rules as
southeast of the Sreekovil. See Wikepdia. C1 report in para 4 says
the inner walls of the Thidappally were found whitewashed at the
time of the inspection. This means that there were no smoke stains
on the walls at that time. When the Nivedyam is prepared using
traditional firewood, and not by any microwave oven, soot stains are
inevitable, if any cooking was being done there.

125. On the other hand the kitchen in the Annadaana Hall contained a
stock of firewood and definite signs of cooking as reported in Para 9
of C2. The possible inference is that the Nivedyam was being
prepared from that kitchen and not from the Thidappally. But that
inference will be belied by para 4 of C2 report and Photo 9 showing
another primitive open hearth

126. A reference at this stage to the case of the curious thief dealt with
earlier is appropriate. According to the statement by d2 to the
Commissioner and reported by him in para 48 of C3, the thief is said
to have taken away two bronze Urulis, on the morning of the
inspection by the Commissioner. [along with one account book]. C1
report based on the first inspection by the Commissioner
immediately after the filing of the suit, shows only the existence of
one small Uruli in the Thidappally. C3 report immediately after the
alleged theft says that two small Urulis were found in the
Thidappally. It also says that he saw many other valuable metallic
articles in the Thidappally.

127. Mystery surrounds the whole episode. How did the number of
Urulis increase from 1 to 4 ? Why should the burglar take away just
the two bronze Urulis leaving all the other similar metallic objects
of value ? During the grilling of D2 as Rw1 in the District Court, it
must have been clear to him, that questions were being put to him
about various rituals with minute details, based on authentic texts.
According to the texts, the Nivedyam must be prepared only in a
bronze Uruli and that too from the Thidappally alone. Anticipating
that the Commissioner will report the absence of any big bronze
Uruli in which alone the Nivedyam can be prepared, the story of a
theft was invented by the warped intelligence of D2

D2 not qualified as Poojari

128. B5 has been produced to show that D2 is qualified to conduct Pooja

in the temple. It is issued by VIswa Hindu Parishad which is only a
registered society based at Ernakulam. The only certification
 recognised by the Devaswom Board is that of Thanthra Vidyalaya at
Kaladi and none else.

129. A critical look at this certificate will also its adverse effect on D2 as
far as this temple is concerned. The second line of B5 says Archak
Purohit Vibagh which means that there are two divisions named
Archak and Purohit. Archaka means Poojari AIR 1973 KARN 280
PARA 20. Poojaari is different from Purohit. 2020 KHC 6521; 2012
KHC 955

130. D2 has received this certificate to carry out Pourohitya Karmam.

What is that ? Purohit is one who instructs another person to
perform a ritual. Wikipedia says Purohit is equivalent to a family
priest or Pundit. Archaka on the other hand is the one who performs
the Pooja in a temple. Only if D2 had obtained an Archaka
certificate can he perform the Pooja in a temple. The Pourohitya
certificate only enables him to instruct laymen to perform religious
rituals in their homes or business premises.

131. Even without this palpable distinction, the date of B5 is critical. D2

gets the certificate only on 23.09.2019. D2 as Dw1 says he started
Pooja in this temple in 2012. So undoubtedly he was performing
Pooja in this temple for seven years from 2012 to 2019 without the
necessary knowledge in the rituals. This is atrocious and attests to
the contempt with which D3 has been using the temple and its
premises. D2 has also desecrated the idol by touching it [see second
answering affidavit]. This one circumstance alone would justify this
court granting the declaration sought for.

Religious trees cut down

132. It has been stated earlier that during the summer vacation in 2020,
two trees of religious importance were cut by the defendants one of
which was a banyan tree The importance of the cut tree is:

133. A very popular Hindu motif is the picturisation of Lord Krishna as

an infant reclining on a banyan leaf, floating in solitary splendour
over the tumultuous waters of Pralayam. Known as
Vatapatrashayana [വടപത്ര ശയനാ] in Sanskrit, the mythology, about
this is noted in scriptures like the Mahabharata, the Matsya
Purana and the Bhagavat Purana, : During the dissolution of the
universe, the sage Markandeya witnesses the horror of the great
deluge, as humanity disappears under water. Suddenly, he spots a
little child floating on a banyan leaf on the dangerous torrents,
sucking his lotus-like toe of the right leg. Markandeya finds himself
sucked into the baby’s body and, to his surprise, discovers the whole
world, with all its realms, safely tucked inside the child, quite
oblivious to the calamity outside. The great sage then realises that
the baby is the God, who has withdrawn the world into himself
before recreating the universe. The banyan tree is often planted and
nurtured in temples. It is such a banyan tree that defendants
callously uprooted, for planting ginger and making money

COMMERCIALISATION OF TEMPLE LAND

134. Another disgraceful conduct of the defendants is their attempt to
commercialise the plaint property, in total disregard of its religious
objective. Right in front of the Shreekovil, within the praakaaram of
the temple, they built a roofing calling it Nadapandal, with the
nefarious purpose of conducting classes in Vaastu shilpa, collecting
hefty fees from the artisans. It will surprise this court that a table
and regular benches were arranged, with a black board, just opposite
the Sreekovil for the tuition classes. The Commissioner has reported
this in para 4 and 6 of C2 with tell tale photographs. The use of any
part of the Praakaaram for any non-religious purpose is strictly
prohibited : AIR 1973 MADRAS 264. [already cited]

135. But during the summer vacation, the defendants thought they could
get away with a money making scheme by utilising the temple
property to grow ginger on a large scale. It is for this that several
trees were cut down. In flagrant violation of the court order in IA 05
of 2020, not to plant any cash crops, the defendants planted a large
quantity of ginger seeds in the temple land. The vigilant plaintiffs
brought this to the notice of the court and prayed for an order to
have the ginger harvested and auctioned, by an Amin and to have
the proceeds deposited in court. This court by its order in IA 09 of
2020 observing in Para 7 of the order that the violation of the
injunction by the defendants cannot be tolerated allowed the
application and the amount is in court deposit.

ILLEGAL CONSTRUCTIONS

136. The defendants are also guilty of two more irreligious actions. One
is the construction of a hall called the Annadaana Hall near the
temple and the placing of a Deepastambham, without the knowledge
and consent of the Thanthri. Though D2 has perjured by claiming
that consent of the Thanthri had been obtained and that they have
not done anything without the consent of the Thanthri, there is no
proof before this court of any such consent. The absence of positive
proof of consent is complemented by the positive assertion of the
Thanthri that he has not consented to the construction of the
Nadapandal, the Annadaana Hall and the Deepastambham.

137. The temple pond as reported by the Commissioner in para 10 of C2

is not maintained properly as required. The importance of the pond
can be understood from 2003 KHC 442

138. The defendants have also committed the crime of trying to install
Viswakarama as a God opposite the Sreekovil on a mandapam built
by them for that purpose. It may be recalled that irrespective of the
first Prathishta, all additional installations can be done only with the
prior consent of the Thanthri and after ascertaining the wishes of the
existing God/Goddess by a Prasnam.

INSTALLATION OF PHOTO OF VISWAKARMA

139. It has to be noted that the plaintiffs contend that Viswakarma is not
a God at all but is only the carpenter of the Gods. There are two
 versions about him: one is that he is the son of Brahma who helped
Brahma in the creation of the seven worlds. The other is that he is
the son of Vasu Prabhas. Sons of Gods do not automatically become
Gods. Take the case of Devendra or Lord Krishna. If he is not the
son of Brahma but of a Vasu, who is himself not a God,
Viswakarma can never be considered to be a God.

140. A distinction has also to be made between Vedic Viswakarma and

Puranic Viswakarma. See brochure. The Viswakarma Welfare
Association of Bangalore restricts his Godship to the five
communities of artisans only. Anyway he is not one among the
pantheon of Gods generally recognised by the Hindus as a whole.

141. If he is not a God he cannot be installed in the plaint property. Even

if he is a God as claimed by the defendants he cannot be installed in
the plaint property without the consent of the Thanthri and without
divine approval by a Prasnam

142. The various acts of commission and omission by the defendants

stamps them as irreligious usurpers and brands them as destroyers of
the chaithanyam of the Chandravally Devi with the obscene object
of converting the plaint temple into a Viswakarma temple.

ACCOUNTS AND MISAPPROPRIATION

143. Coming down from the heavenly heights of Hindu religion, to the
mundane murky world of mankind, the plaintiffs will now
substantiate their charge of misappropriation of money and financial
indiscipline of the defendants.

144. What is a trustee de son tort ? 2011 [4] KHC 119 explains this term.
Here plaintiffs 1 and 2 have created this temple not of their family
deity nor for the benefit of their immediate family and hence the
temple is ipso facto a public trust. The defendants intermeddling in
the management of that public trust albeit under colour of the void
gift deeds, cannot avoid the shackles associated with a public trust.
They are not only bound to account for the entire income and
expenses of the Trust from 2010 onwards [there is no limitation as
far as a Trust is concerned] but are liable for all the three torts:
nonfeasance, misfeasance and malfeasance. The first is the failure to
do a legal duty, the second is the illegal performance of a duty
without knowledge of the illegality and the third is the intentionally
illegal conduct.

145. The following general principles regarding accounting of Trust

funds have to be borne in mind in this context : Trust funds have to
be kept separate from all other amounts; there must be strict
accounting of the income and expenditure of a trust; the Trust
should not resort to raising any income by illegal means.

146. It has already been proved that, where the public trust happens to be
a temple, it is the exclusive domain of the Thanthri to determine and
prescribe what Vazhipaadu can and may be performed in the
temple. It is seen that the pubic committee was arranging for the
 performance of some Vazhipaadu by a qualified priest, Eswaran
Namboodiri, on a payment basis by the Public issuing receipts for
the same.

147. After 2010, when the defendants sidelined that public committee
and undertook the management of the temple on the strength of A13
and A14 [illegal and void gift deeds], they have exhibited a Board in
the temple cataloguing the forms of Vazhipaadu with the rates for
each item. There is absolutely no proof that this was done with the
prior approval of the Thanthri as mandated by the law.

148. D2 as RW1 had admitted that besides the announced items other
money was collected from the public for other Vazhipaadu not
announced in the Board. That is plainly illegal as it amounts to
cheating the public. The ordinary worshipper does not know of the
existence of these special items, and partiality is implicit in the few
persons being permitted to have a personal privilege of performing
some Vazhipaadu. As no rates are prescribed for these hidden items,
the door is wide open for whoever collects the amount [in this case
D2 and his assistant Mahesh as there is no other staff for the temple]
to demand arbitrary amounts and to account part of the said amount
alone, as there is no way to check the correct amount paid by the
worshipper.

149. For the classes in Vaastu, which is part of art of carpentry work,
conducted in the Praakaaram of the temple [illegally] D3 used to
collect unspecified amounts for an unknown period of time without
any prefixation of the amount, the course and the period of study.

150. Though there is a Bhandaram or Hundi, it is not known nor is it

proved when and who opens it, so that the possibility of easy
misappropriation is rampant.

151. How the proposed inspection of the accounts apparently available in

the temple premises within two almirahs, was avoided due to the
absence of the keys, when the accounts were alleged to have been
shifted not to the office of D3 at Meenangadi but to the personal
residence of D2, and the falsity of the alleged theft of the account
book on the date of inspection have been narrated earlier. These
circumstances call for a finding that the defendants are trying to
cover up the absence of accounts

NO DAY BOOK

152. Accounts are self serving documents. They are prepared and
maintained by persons who want to rely them in support of their
own case. Ordinarily such self serving documents will not have any
probative value and will be eschewed from evaluation. An exception
is made in the case of accounts, if the court is satisfied on three
counts: [a] that they have been written continuously in the
chronological order [b] without any space for interpolation and [c]
without erasures, interlineations and corrections.
153. There are two types of accounting: single entry and double entry.
While firms and companies are compelled by law to have double
entry accounts, small business and non-corporate institutions follow
the single entry system. The difference between the two systems is
explained in simple terms.

154. The basic book in a single entry account is the daybook, in which
both income and expenses are written in seriatim strictly following
the calendar dates. If there are no erasures, corrections, and
interlineations, such an account is given credence and evidentiary
value because of the assurance that it reflects the transactions as
they took place. The end balance on every page, at the end of the
month and of each financial year assures its credibility. This is the
primary evidence u/S 34 of the old Evidence Act.

155. The various entries in the daybook will be sorted into groups and
will be entered in the Ledger, which will reflect the nature of the
transactions item-wise or qua each person. The ledger being a
reproduction of the entries in the daybook, the ledger is not primary
evidence of any transaction. Without the corresponding daybook,
the ledger is inadmissible in evidence and has no probative value at
all. 2012 [4] KHC 271

156. The defendants have not produced any daybook pertaining to the
temple or the society which means that are not complying with the
basic minimum requirement of accounting. Receipts and vouchers
by themselves do not amount to accounting as long as they remain
independent of being entered in a Daybook on the respective dates.
Files containing some vouchers cannot validate the absence of a
proper account

157. There is only a monthly Pooja in this temple, and no daily Poojas.
The possible income and expenses of this temple are therefore
limited to 12 days in a year, plus the special Poojas only on the nine
days enumerated by the Thanthri. As the temple is closed on all the
other days, proper accounting is a simple task of entering the
transactions on 21 days. Of course other collections by way of
donations have also to be accounted date war. Failure to maintain
proper accounts, and that too of a religious institution, especially
when huge amounts are collected from the public is a serious
dereliction of duty.

158. The deposition of D2 as RW1 reveals the following anomalies:

PAGE STATEMENT BY WITNESS
29 Income and expenditure of
the temple are separately
maintained
Accounts have not been
approved by the Thanthri or
Uralan. That is not necessary
It is not necessary to show
the accts to the devotees
also
30 Items of income of the
temple are:
Maasa Pooja, Pushpaanjali,
Neyvilakku and
Annadaanam.
There are no other income
sources
There is a Bhandaaram and
also donations
33 Ashtadravya Maha
34 Ganapathy homam is an
item of Vazhipaadu. That will
be done only at the time of
the Poomoodal. That will not
be seen in the list of
Vazhpaadu.
35 Other than what is
mentioned above no other
amounts have been
collected for the temple
Have you collected any
money in the name of
Viswakarma Kshetra
Baalaalaya Nirmaanam –
Not in that name – collection
for mandapam alone –
receipts were issued for it
36 Three receipt books shown-
Admitted as issued by him.
Marked as A1 to A3
Some old receipts have been
burned
Amounts shown in the burnt
book are substantial. A1 and
A2 were also left to be
burned but they were
salvaged by the plaintiffs.
REMARKS
No account book showing
the income and expenses
for the temple have been
produced
Collections have been made
by D3 under various other
heads as seen from the
receipts noted by the
Commissioner
Annadaanam is also not
shown in the list. Rate for
Annadaanam is also not
fixed Nor is it shown on the
Board
I am prepared to produce all
the receipts from the time
that I took charge.
Impossible as many have
been burnt
Falsified by the answer to
the next question
Portion of A3 is seen burnt
After suit, before the
accounts were seen by
Commissioner
Common sense inference is
that they were destroyed as
the amounts covered by
those receipts were not
entered in the accounts.
As Dw1 he denies having
burnt any receipt books
FINANCIAL IRREGULARITIES REPORTED BY COMMISSIONER

159. The following specific defects in the realm of finance can be noticed
from the third report of the Commissioner:

AA10 FILE Ashta Dravya Maha 40 receipts. Not Permitted

Ganapathy Homam, by Thanthri
Poomoodalum 2014-2015
expenses voucher

A13 /A134 Pushpaanjali receipts

A13/B8 Rose cover Amount not shown
B9/A134 Yellow cover

C1/C7 Palavaka receipts How can there be palavaka

E MSDBK Annadaana receipts
J MSDBK Prathista Dina
Mahotsavam receipts
L MSDBK Prathista Dina
Mahotsavam 2012
June 25,26
AA1 MSDBK Prathista Dina
Mahotsavam 2013-2014
K MSDBK Maasa Pooja
O Palavaka poojakal
which corresponds to
Miscellaneous
Amount not mentioned
C3 report says that D2 told
the Commissioner that these
are receipts for the Sale of
temple produce
C3 says D2 said this is
actually Kshetra Bhandaara
varavu
Bhandaram is a covered
vessel. How can receipts be
issued
Both Date and amount
missing
1 to 13 only issued
Date not given
How can there be any
miscellaneous Pooja

P do
Z1 –Z29 MSDBK Poomoodal Amount and serial No of
receipts missing
W MSDBK Annadaanam receipt Not permitted by Thanthri
AA11 FILE Chandikaa Homam 366 Not permitted. Against the
receipts shantha swaroopam of
Chandravally Devi
G1 – G3 Viswakarma Vaastu Vidyaa Tuition fee & Admission fee
Peedham collected using temple
Praakaaram
T1-T8 MSDBK Annadaana Hall Public collection
building donation fund
AA22 Ledger 10.05.2011 to Entries only in P 1 to 70
20.03.2020 No supporting Daybook

SCOPE OF THE SUIT

160. The plaintiffs have filed this suit not as the owners of the land and
temple. Though P1 to P3 are the Uralan of the temple this suit is not
filed by them in that capacity alone. Para .. of the plaint has
expressly asserted that this suit is filed by P1 to P3 in their capacity
as worshippers also. Addition of P4 who is a native of Wayanad,
and who is a socially accepted citizen, having held the responsible
post of the local postmaster and familiar to the common people due
to her role of running the ration shop as the authorised retail
distributor, reinforces the representative capacity in which the suit is
initiated to protect the interests of the deity and of the worshipping
public.
 Defence contentions-
OS 334 of 2016

161. The suit OS 334 of 2018 is irrelevant as far as this suit is concerned.
As explained by Pw1, when the defendants attempted to trespass
into the remaining land of P1, near the temple, P1 was forced to file
the suit for injunction against D2 and the then President of D3. The
plaint in that suit was marked through Pw1 in her Cross as A13.

162. That plaint was filed by P1 in his personal capacity alone, not as
Uralan of the temple. D3 society is not a party to that suit. It is to be
noted that no Written Statement was field in that suit by the
defendants. If the defendants had contended that they are the owners
of the B schedule land and the temple thereon on the strength of the
gift deeds, the suit would have been dismissed. If this Court were to
ask them why the gift deeds were not produced and a Written
Statement claiming ownership of B schedule was not filed then, it
will be seen that they have no logical answer.

163. That the defendants did not file any Written Statement and did not
produce the gift deeds, is proof positive of their realisation that they
had not acquired ownership of the land and temple. So they wanted
a compromise. By a procedure unknown to law, the suit is seen to
be referred to mediation, where B4 settlement was arrived at
between the three parties

164. The defendants will be attempting to argue that the averments in

that plaint disprove the present case of the temple being a public
trust. A reading of the plaint shows that no such inference is
possible. There is no admission by P1 in that plaint regarding the
nature of the temple: whether it is private or public.

165. The reference to the deity installed in the plaint temple as his
Kudumbadevatha by P1 is opposed to the present case that
Chandravally is not their Kudumbadevatha. Even if the deity
installed is the Kudumbadevatha of P1, that will not alter the pubic
nature of the temple when its administration is seen to have been
handed over to a pubic committee in 2003.

166. Pw1 who has given the name of the Kudumbadevatha of the
plaintiffs as the Chittilancheri Bhagavathi in Palakkad, the origin of
all Brahmins of South Malabar, from where the plaintiff’s family
migrated to Wayanad. Her evidence is supported by Pw2 and Pw3
who have asserted that Chandravally is not one among the
pantheons of Gods recognised by the Hindus in general and the
Brahmins in particular, and that she is a Goddess of the Wayanad
people alone. Dw1 does not contradict this direct assertion.

167. Even if the wrong admission that the deity installed in the plaint
temple is the Kudumbadevatha of the plaintiff, when that plaint
projects P1 as the Uralan of the temple, that shows unequivocally
that he is not claiming any ownership right over the temple. When
he says that the gift deed was given retaining and reserving his
 Uraima rights over the temple, it is apparent that no ownership right
was intended to be conveyed by the gift deed. The plaintiff there
was asserting his right as an Uralan who can control the actions of
the defendants in spite of the gift deeds. That claim is seen to have
been accepted by the defendants in B4 compromise. B4 expressly
recognises the rights of P1 as the Uralan of the temple, which cuts at
the root of the claim of ownership by the defendants. Since in law
the right to manage a temple is vested in its Uralan, the defendants
cannot contend that they obtained absolute ownership by virtue of
the gift deeds.

168. The settler of a public trust has no right in law to countermand or

resile from the creation of a public trust. It is apparent that P1 was
unaware of the law when the gift deeds were executed. His
ignorance of the law compounded by the ignorance of D3 as the
donee, cannot confer ownership rights on the defendants. The plaint
would have legal weight only if the gift deeds had preceded the
creation of the public trust by way of implied dedication in 2003.

169. The conduct of P1 and P2 long before the suit OS 334, [thirteen
years ago] of having dedicated the property to the deity and to the
public, established by A1 to A12 and the evidence of Pw2, proving
that the property is a pubic trust, even if he were to make any
subsequent contrary statement that will have no legal value. Neither
in that plaint nor in B4 does P1 admit that the defendants are owners
of the temple.

170. By the averments in the present plaint, signed by P1 also, it is clear

that he is not retracting from any alleged admission, but is pleading
the proper legal effect of the implies dedication.

171. P1 is not estopped from doing so because there is no estoppel

against law. When the law implies the creation of a public trust and
that public trust has been effectively functioning for seven years
[from 2003 till 2010], even if there is an admission to the contrary,
it has only to be ignored.

172. Pw1 had stated in the chief affidavit that the suit was filed urgently
to get an immediate relief of injunction against trespass and that
there are mistakes in that plaint. That means that P2 to P4 in the
present suit do not accept the correctness of the averments in that
plaint and are projecting the true facts and correct legal position
proved by the documents and witnesses.

173. B4 compromise in fact recognises the continuing interest of P1 over

the temple and the temple land; recognises and confirms his status
as the Uralan and imposes restrictions on the powers of the
defendants in derogation of their alleged claim of ownership.

Technical pleas:
No sanction u/S 92

174. When the defendant has no valid defence, on facts, there is the
tendency to raise technical pleas to avoid a decree. The Kerala High
 Court had noticed this pernicious practice and condemned it in 1972
KHC 19. [Para 4]

175. The defendants are apparently banking on B8 and B9, the High
Court orders, to question the maintainability of the suit, on two
grounds: [a] the suit is not maintainable u/S 92 and [2] the suit is
barred by the HR & CE Act. These two points have been raised in
the Written Statement and hence are bound to be answered by this
court, even without the High Court rulings.

176. B8 is the earlier ruling in which the challenge was to the ex parte
sanction granted by the District Court to the plaintiffs u/S 92. The
defendants were under the delusion that the court has no power to
grant sanction, without notice to them and without hearing them. B9
the second OP, was laid contending that the two grounds raised
regarding the maintainability of the suit should be tried before the
trial, before the recording of the evidence. While the two OPs were
dismissed naturally the High Court has held that the two questions
have to be dealt with during the trial. The plaintiffs have no quarrel
about the necessity to consider the two points now.

177. The ruling of the Supreme Court in 1991 KHC 7 has laid down the
law in a clear and concise manner. Para … of that ruling is self
explanatory and needs no annotation. The same principle is
reiterated by the Apex Court in 2004 KHC 918 SC. It has been
specified in 2023 KHC 906 that the revocation application has to be
filed in the very court that granted the sanction. If the defendants are
persisting in their contention that the suit is not maintainable due to
the initial grant of sanction being ex parte, without hearing them,
that contention is liable to be rejected as unwarranted in law.

178. 1975 KHC 486 SC has held that the maintainability of a suit
depends only on the plaint allegations. The defendants squarely
come within the definition of Trustees de son tort. The position of
such a trustee de son tort vis-à-vis S 92 is approved in 1976 KHC
1015 at Para 65 2021 [1] KHC 51 empowers any worshipper to
challenge the wrongful action of the Shebait through court. Prayer
for Scheme can be combined with other reliefs is also laid down in
the ruling cited supra 2014 KHC 435. Under the inherent
jurisdiction of patria potestas vested in all courts, there is a duty on
every court to protect all temples and temple properties, irrespective
of the format of the suit, the position of the plaintiffs, and the status
of the defendants vide 1994 KHC 539

179. This court has to answer the issue whether the plaint property is a
public trust on the basis of the oral and documentary evidence
before the court. That issue has already been answered by the
plaintiffs earlier pointing out the overwhelming evidence in favour
of a public trust, and hence is not being repeated again.

Bar by the HR & CE Act

180. The next question is the alleged bar on account of the HR & CE Act
and the formation of the Malabar Devaswom Board by the 2008
 amendment of that Act. The HR & CE Act, 1951 passed by the
Madras Legislature was in force in the erstwhile Malabar area of
Kerala, while the another TC Act governed the temples of
Travancore Cochin. The provisions of the two Acts have wide
variations. Hence in this case this court has to confine its attention
to the HR & CE Act, 1951 ignoring the subsequent amendments of
that Act by the Madras legislature.

181. Before 2008 such of those temples in Malabar to which the HR &
CE Act, 1951 applied were controlled and supervised by the HR &
CE Board. By the 2008 amendment the powers of the former Board
were transferred to the Malabar Devaswom Board [hereafter
referred to as MDB]. Except for the change of name the powers and
duties of the former Board remain unaltered by the amendment.

182. The defendants are labouring under a misconception that all the
temples in Malabar are subject to the control and supervision of the
MDB. Actually only those temples which have been notified under
S 38 of the Act alone come under the purview of that Act. The
provisions of that Act apply only to those temples alone. 1999 KHC
384.

183. As a matter of practice the Board used to notify only those temples
that were capable of making the required annual contribution to the
Board and afford to pay the salary of an Executive Officer to be
appointed by the Board. The plaint temple, without daily Poojas, has
not been notified under the Act. No area committee is appointed for
this temple.

184. The MDB’s own website states that it has jurisdiction only over the
notified temples. The notification made under the Act divides
temples under the MDB, in Malabar into five divisions, Kasargod,
Kozhikode, Thalassery, Malappuram and Palakkad. Wayanad is
divided into, with S Bathery and Vythiri as part of Kozhikode
Division and Mananthavady as part of Thalassery division. The
plaint temple was not notified under the original HR & CE Act nor
is it included as a temple coming under the MDB. Temples notified
under the Act in S Bathery Taluk are:

Bathery Mahaganapathy Temple, S.Bathery

Chamappara Subrahmanya Swami Temple, Padichira
Kattayattu Perikallur Temple, Kidanganadu
Manikavu Temple, Purakkadi
Marottukandampuli Temple, Noolpuzha
Pazhupathur Devaswom, S.Bathery
Pongini Bhadrakali & Arimba Ayyappan, Cheekalur
Pulpally Temple, Pulpally
Purakkadi Temple, Purakkady
Thethana Bhagavathy Temple, Vengapally

185. The HR & CE Act does not bar a suit by a worshipper to challenge
an alienation of temple property by the Shebait. Vide 2000 KHC
609 . S 93 is not a general bar against the jurisdiction of the civil
court. 2013 [3] KHC 535 says the DC has no power to declare a
 temple as a public trust. Other rulings on this point are : 1967 KHC
5; 1967 KHC 502; and 2023 [3] MHLJ 529

186. The general principles regarding exclusion of the jurisdiction of the

civil court are : that the civil court has the jurisdiction to deal with
all civil disputes, unless its powers are specifically taken away; and
that any such exclusion requires strict interpretation. In addition to
these aspects, it is settled law that only a civil court can grant a
declaration of the right and title over immovable property; and that
no other statutory authority can grant a declaration. AIR 1937 Mad
303; and 2012 [3] KHC 419 Here the very first prayer is a
declaration regarding the right of the defendants over the plant
property claimed by them under A13 and A14 deeds. The Dy
Commissioner under the HR & CE Act has no power to allow that
declaration. Without the declaration destroying the colour of right
conferred on the defendants by A13 and A14 prayers for recovery of
possession and injunction cannot be granted.

187. Even assuming that this temple is a private trust intended only for
the members of the family of P1, in view of the undisputed public
participation, not only in worship and Vazhipaadu, but also by way
of contribution solicited from them in the form of a Bhandaram,
and donations, the Court in its patria potestas jurisdiction over all
temples has a legal duty and absolute power to ensure a proper
transparent administration of the same by framing a scheme. 2007
[4] KHC 374

188. The plaintiffs pray that a preliminary decree may be passed

denabling them to submit a draft scheme, which has to be published,
calling for objections from the public and the final scheme is to be
settled by the Court in the final decree.

Dated March 2024

Advocate for Plaintiffs