Warrier Vs. Santha Varassiar & Anr  INSC 1298 (11 October 1996)
Jeevan Reddy, K.S. Paripoornan
O R D
plaintiff in O.S. No. 178 of 1958, Additional Munsiff Court, Ernakulam -- appellant in S.A. No. 669 of 1976 --
is the appellant in this appeal. The appellant belongs to Edappally Padinjare Warriam.
His main prayer in the suit was to declare that the appellant's family is
entitled to do Kazhakam services in the two temples as the family has
hereditary rights in that regard. The trial court held that the plaintiff or
his family had no Karaima right (hereditary right) in the temples as claimed.
It is stated in the appeal memorandum that both the courts held thus:- "(i)....the
plaintiff's family has been performing the Kazhakam (2) the plaintiff's family
had been given Mala Virthy by the swaroopam, (3) that the plaintiff's family
has been performing the Kazhakam in the two temples from time immemorial for
which they had been given viruthy tenure.
after recording all these findings concurrently the courts also held that the
plaintiff's family has no hereditary right for the performance of Kazhakam and
that the plaintiff could be hired and fired at the sweet will by the defendant
appellant filed S.A. bio. 669 of 1976 and assailed the
judgments and decrees of the courts below. The learned single Judge of the High
Court, in paragraph 2 of the judgment, observed thus:- "2. So far as the
main relief of granting a declaration that the plaintiff's tarward has got the
right to do kazhakam service in the two temples in question is concerned, it
appears to me that that relief is now irrelevant in view of the Kerala Joint
Hindu Family System (Abolition) Act 1975, Acc 30 of 1976. That Act abolishes
the joint tenancy of tarward and it can no more. to be said that marumakkathayam
tarward with joint tenancy as its feature exists any move. In that view no
declaration can be given in favour of the tarward as sought for by the
plaintiff. That is the basic relief sought for, the other reliefs are based on
that relief." (emphasis supplied) However, the court granted a decree for
recovery of Rs.100/- from the first defendant and a slight modification was
thus made. The sum of Rs.100/- was paid in lieu of the notice, for the
termination of the service of the appellant.
heard counsel. The appellant has not sought any amendment of the plaint either
in the High Court or in this Court. The main prayer is for grant of declaration
that the appellant's tarwad (family) has the right to perform Kazhakam services
in the two temples. The High Court was right in holding that the Kerala Act 30
of 1976 has abolished the joint family system. The tarwad has become extinct.
No declaration can be given in favour of a non- existing entity. On this
aspect, We concur with the High Court and dismiss this appeal with no order as