Libertatem Magazine

A Suit of Recovery of Possession of Temple Property by a Worshipper Can Not be maintained: Kerala High Court

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The High Court of Kerala allowed a second appeal on the principle that a worshipper cannot maintain a suit for recovery of possession of properties which are dedicated to a temple.

In the judgment delivered by Justice P B Suresh Kumar in the second suit which was filled by the defendant against the decree of lower courts it was stated that a suit of recovery of possession cannot be maintained by a worshipper.

The problem was related to the properties of the temple which belonged to the Namboothri family and their possession to the property was traced to a lease deed executed for an undefined term by the karanavar of Namboothri family and the purchase certificates were issued under the Kerala Land Reform Act were issued on the basis of possession.

The plaintiff one of the member of family filed the suit for the recovery of the temple’s property on the basis that the alienation of property done by the Karanavar was contrary to the terms of the partition deed of the family.

The trial court gave the decree in the suit that the lease deeds given by the Karanavar were not valid and were contrary to the partition deed, which gave the properties to the temple and it was also stated that the temple properties under the Land Reform Act are exempted and therefore the purchase certificates had no validity.

After Kerala Joint Hindu Family System (Abolition) Act 1975 the joint family (illom) was not inexistence and the plaintiff was only entitled to sue in the capacity of a co- owner of the properties, which was later disaffirmed by the appellate court.

The defendant appealed against the decree of the lower court and the appellate court found that partition deed gave the properties to the temple and hence the properties cannot be treated as the joint family’s property and hence the appellate court sustained the decree on the basis that the plaintiff could seek recovery as a worshipper and this reasoning or the basis of sustaining the decree was further challenged by the defendants in the High Court, the High Court stated that the appellate court was found to be right and the plaintiff cannot seek recovery.

Now the question was whether the plaintiff can seek the recovery of the properties as a believer, the High Court disagreed with the first appellate court and said that once the properties is dedicated to the temple the property will only vest with the deity therefore only the deity can seek the recovery of the possession of the suit which can be instituted by a ‘next friend’ or through the shebait or the trustee and where the shebait and the trustee are in the adverse to the interest  of the property the ordinary worshipper can seek to represent the idol.In this suit neither the shebait nor trustee was made a party to this suit, the HC also disagreed with the lower court on that the lease deeds made by the Karanavar were not valid because there were no restriction in the partition deed on leasing out by the Karanavar of the temple properties. Therefore the second appeal was allowed.

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