PETITIONER:
R. BALAKRISHNA WARRIER
Vs.
RESPONDENT:
SANTHA VARASSIAR & ANR.
DATE OF JUDGMENT: 11/10/1996
BENCH:
B.P. JEEVAN REDDY, K.S. PARIPOORNAN
ACT
HEADNOTE
JUDGMENT
ORDER
The 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.
But 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 No.1." 2. The 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. 3. We 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 nonexisting entity. On this aspect, We concur with the High Court and dismiss this appeal with no order as to costs. However, as to whether the Karaima right (or the hereditary right ) will devolve on the members of the erstwhile tarward as tenants in common does not arise for consideration in the present appeal. The said issue is left open