Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
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:
O R D E R
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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 non-
existing 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