The establishment of a family trust through a partition deed is valid and unaffected by the Kerala Joint Hindu Family System (Abolition) Act, 1975.

JUDGMENT

This appeal has been directed against the judgment and decree in A.S.No.21/2018 on the file of Subordinate Judge's Court, Chengannur which arose out of the judgment and decree in O.S.No.105/2006 on the file of Munsiff's Court, Chengannur.

2. Appellants are the defendants 1, 4, 6 & 7. The suit was one for declaration, for removal of trustee and for rendition of accounts. The plaintiffs and defendants 2 and 3 and additional defendants 4 to 7 are members of Kaduvinal family. First defendant is the Naluvila Bhagavathy Devaswom Trust, is owned by the Kaduvinal family trust. The temple is situated in the property having an extent of 48.80 Ares, comprised in resurvey No.2/1 and it belongs to the family trust. The members of the family are beneficiaries and are having right to administer the temple. The members of the family executed a partition deed No.4343/1951 of Mannar Sub Registry Office. There is a stipulation in the partition deed that administration of the temple is to be done based on seniority and custom and further that the administration will be carried out by the first party to the Deed, Neelakanda Pillai during his lifetime and thereafter it devolves upon the person next in the order of seniority. Neelakanda Pillai died in the year 1996. Thereafter, Raghavan Pillai administered the temple on the basis of seniority, who is the father of the plaintiffs. Since Raghavan Pillai was incapacitated due to old-age ailments and plaintiffs were also preoccupied with the family affairs, administration of the temple was entrusted with the second defendant, who is the nephew of plaintiffs' father. On the death of the plaintiffs' father, the right to administer the temple vested with the plaintiffs as per the stipulation in the partition deed. But the second defendant is claiming right over the temple and its properties on the basis of a Will executed by Neelakanda Pillai, the former Karnavar, who have no right to execute a Will with respect to the temple and the properties. That Will is void ab initio and is not binding on the other family members. The income from the temple has been increased considerably during the last 10 years and the defendant is appropriating the income without maintaining proper accounts. So the plaint schedule properties are to be declared as the assets of the Trust and administration of the temple is to be entrusted to the first plaintiff after divesting the second respondent from its administration. Though originally a scheme was sought to be framed with regard to the administration of the temple, that prayer was subsequently deleted.

3. The second defendant filed written statement contending that first defendant - temple never functioned as a Trust and its administration is being conducted in accordance with the stipulations in the family documents and title deeds and based on Oorazhma system. The right over the temple and its properties is vested with Karnavar of Kaduvinal family and administration is managed by thavazhy members. It is denied that first defendant is a family trust. It is open for the whole inhabitants in the locality for worship. Plaintiffs are not born out of the legal marriage of the deceased Raghavan Pillai and is not entitled for the administration of the temple. The first defendant is administering the affairs of the temple as Oorazhma right holder based on the Will No.51/91 of Chengannur SRO executed by the karnavar of Kaduvinal family, Sri.Neelakanda Pillai. It is also contended that the plaintiffs' father obtained some property from the Land Tribunal and thereby his right over the Kaduvinal family has been extinguished and he is estopped from claiming to be a senior member of Kaduvinal family. The plaintiffs claiming through him is also having no right over the temple properties. The temple was found to be private property as per the judgment in A.S.No.35/1959 of this Court. Temple and its properties are being managed properly by the second defendant and he has not committ