@ Kottiyoor Devaswom & Ors Vs. President, Kottiyoor Perumal Seva & Ors
 Insc 463 (6
Babu & Shivaraj V. Patil Rajendra Babu, J. :
scheme framed in respect of the administration of the Tricherumana @ Kottiyoor Devaswom,
appellant No.1 herein, was the subject matter of challenge before the High
Court in Writ Petition No.1066/53. By an order made on 5.8.1954, the learned
Single Judge before whom the writ petition came up allowed the same and set
aside the entire scheme. The matter was carried in appeal.
Division Bench of the High Court of Madras, on 17.10.1955, disagreed with the
learned Single Judge that no part of the scheme can be salvaged and the whole
of it must be set aside. The Division Bench of the High Court observed that so
long as the scheme is necessary even radical alterations of the scheme can be
made by modification of the original scheme and the parties submitted an agreed
scheme for consideration of the High Court. The Division Bench, after
considering the same, set aside the order of the learned Single Judge and
directed the draft scheme, which was attached to that order, would come into
force in supersession of the scheme framed by the District Judge of North Malabar
in O.P.No.2/49. Subsequently certain amendments were made to that scheme in the
of either hereditary or non-hereditary trustee as the Chairman of the Board of
powers of the Chairman of the Board of Trustees to spend the funds of the Trust
of the Commissioner to appoint non- hereditary trustees with the hereditary
trustees. That scheme was in vogue for quite some time.
a suit was filed in O.S.No.489/69 by the Trustees of the appellant No.1 for
permanent injunction against Kottiyur Perumal Seva Sangam and others and
obtained an injunction against the President and the Secretary of the Seva Sangam
and their agents from trespassing into the property of appellant No.1. O.P. No.
5/75 was filed by the Commissisoner of charitable and religious endowments
before the Sub- Court, Tellicherry to amend the existing
scheme resulting in taking away the powers of the hereditary trustees.
O.P.No.153/76 was filed by the President of the Kottiyur Perumal Seva Sangam
for similar relief. The Trial Court on consideration of the entire matter
dismissed the said petitions and the suit. Thereafter, appeals in M.F.A. Nos.
74/88, 208/88 and 923/88 were preferred before the High Court in the year 1987.
The High Court decided all these matters together by an order made on 6.4.1994.
The High Court noticed that the schemes that have been framed earlier had
become out-dated and inadequate to cater to the present situation and after
considering the fact that large number of worshippers had made alternative
arrangements by holding a meeting on 11.10.1964 at Calicut which was attended
by several Madhadhipathies when the Kottiyur Perumal Seva Sangam was formed and
registered and finding that the existing scheme is not sufficient to protect
the interests of appellant No.1 directed modification of the same by inserting
several clauses and in particular in relation to non-hereditary trustees.
leave petitions were preferred before this Court against that order of the High
Court. This Court made an interim order on 12.7.1994 to the following effect:
granted. Issue notice on the stay application. Meanwhile, all the actions taken
by the new Board will be subject to the final outcome of these appeals.
on 26.9.1994, this Court made the following interim order:
interim order made earlier shall continue with the addition that the High Court
would review the action taken by the Board every six months. The stay
applications are disposed of accordingly.
learned Senior Advocate appearing for the appellants, contended that when the
High Court had not upset the findings recorded by the Trial Court on various
complaints made against the hereditary trustees, there is no occasion for the
High Court to have altered the scheme and he pointed out that there have been
good deal of litigation between the appellants and Sri Kottiyur Perumal Seva Sangam
and, therefore, it was inappropriate for the High Court to have nominated the
President and the Secretary of Sri Kottiyur Perumal Seva Sangam as the
Iyer, learned Senior Advocate appearing for the respondents, submitted that
this Court not having granted stay of the impugned order made by the High
Court, the scheme as modified by the High Court has been in operation from 1994
and it would not be proper for us to set aside that scheme and interfere with
the orders of the High Court so as to modify the scheme now framed by it or
even to direct the High Court to frame another scheme. In support of this
contention, he Salambin Mohammad, 1999(1) SCALE 634.
learned Senior Advocate, very strongly contended that the view taken by the
High Court cannot be justified and we also prima facie thought there was force
in his submission. However, on deeper consideration, we find that it may not be
appropriate for us to interfere with the order of the High Court modifying the
scheme which is now in force particularly when the same has been in force for
more than seven years now. Therefore, we decline to interfere with the order of
the High Court. However, we make it clear that it is open to either of the
parties or any other appropriate person, who can file a suit in relation to the
framing of the scheme, to move the High Court for modification of the scheme
framed by it from time to time if any difficulty is found in the working of the
scheme either in the matter of constitution of the Board of Trustees or
otherwise. We also make it clear that if the High Court finds in respect of any
application or petition that it is necessary to hold any enquiry in the matter,
it may transfer the entire matter to the Subordinate Court for disposal or call for a finding.
the aforesaid observations, these appeals stand disposed of accordingly. No
RAJENDRA BABU ] ...J.
SHIVARAJ V. PATIL ] SEPTEMBER