Trustees cannot acquire adverse possession of trust property without a proper discharge from their fiduciary duties; management rights in a familial context do not confer hereditary ownership.

JUDGMENT :

EASWARAN S., J.

The 1^st defendant in a suit for declaration and permanent prohibitory injunction non-suited concurrently, has come up with the present appeal raising a plea that the suit is barred by limitation. Pertinently, the question of limitation was neither pleaded in the written statement nor raised during the course of arguments before the trial court or before the First Appellate Court.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The respondents/plaintiffs instituted the suit contending that the temple belongs to Paravanvilakom Family, Kollampuzha, Chirayinkeezhu Taluk, Attingal. On 27.11.1100(ME), a partition deed was executed including the plaint schedule property having an extent of 1.06 Acres comprised in Survey No.338A of Attingal Village and 33 cents in Survey No.337/13 of Attingal Village as temple properties and was assigned in the name of Neelan Kumaran, the then ‘Karanavar’ (the eldest member of the Paravanvilakom Family). The name of the temple is Kollampuzha Paravanvilakath Bhagavathy Temple. As per the custom under the Paravarn community, the eldest member of the family has to conduct the management, prayers and rituals of the temple. After the death of the eldest member of the family, namely, Kunju Sankaran, the next eldest member was Raghavan, who executed a deed of management in favour of his sons Chellappan and Damodaran for administration of the temple by document No.127/1991 of SRO Attingal. After the death of Damodaran and Chellappan, the 2nd plaintiff is the eldest member of the family and therefore, he is the only person having right to conduct the management. Since there were litigations pending as regards the question whether the 1^st plainti is a private trust or a public trust, and ultimately O.S No.76/1993 was instituted before the Sub Court, Attingal, which ended only after the disposal of A.S No.35/2002 before this Court, and then the 2^nd plainti asserted his right to manage the temple. However, during the life time of Chellappan, to whom the management of the temple was entrusted through the deed No.127/1991, tried to induct his children into the administration of the temple and that since litigations were pending, and on the culmination of the litigation, the 2nd plaintiff decided to assert his right for management of the affairs of the temple and thus instituted the suit. The defendants entered appearance and contested the suit by raising a plea that consequent to the abolishment of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the concept of management of the temple by the eldest member or the ‘Karanavar’ is no longer in force and therefore, Chellappan, the father of the defendants was entitled to nominate the 1^st defendant as the eldest member entitled to manage the affairs of the temple. It was further contended that the 2nd plaintiff is not the member of the Paravanvilakom Family. The right, if any, of the plaintiffs has since been lost by ouster. On behalf of the plaintiffs, Exts.A1 to A12 documents were produced and PW1 to PW6 were examined. On behalf of defendants, Exts.B1 to B15 documents were produced and DW1 to DW4 were examined. Exts.C1 and C1(a) are the report and rough sketch of the Advocate Commissioner. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the pleadings of the defendants that the concept of karanavar has since been abolished consequent to the promulgation of the Kerala Joint Hindu Family System (Abolition ) Act, 1975 (for short ‘the Act’), is unsustainable and that the further plea that the 2nd plaintiff does not belong to the famil