1. Plaintiffs in a suit for declaration of title, recovery of possession and permanent injunction challenges the concurrent findings rendered against them on the ground that the findings are perverse.

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

                  2.1. The 1st plaintiff, who is the deity of Pazhanchannur Devaswom Subramaniya Temple and the 2nd plaintiff, who is the Chairman of the Board of Trustees managing the affairs of the 1st plaintiff filed a suit (O.S.No.304/2007) claiming recovery of possession in respect of 301/2 cents of property belonging to the idol, which is challenged to have been mortgaged by the erstwhile trustee to the predecessor of the defendants in the year 1936. The claim of the defendants is based on a registered lease deed, which according to them have culminated into a purchase certificate issued by the land tribunal and thus conferring them right, title and exclusive possession over the property.

                  2.2. The plaintiffs contended that the original mortgage – lease in respect of the property is hit by Section 76 of the Madras Hindu Religious Endowments Act, 1926. In fact, the Board of Trustees of Sri. Pazhanchannur Devaswom filed W.P. (C)No.35953/2005 before this Court, seeking a writ of mandamus, directing the authorities to grant permission challenging the order of the RDO under Section 10(ii) of the Malabar Land Registration Act, 1895. A Division Bench of this Court directed the Hindu Religious and Charitable Endowments Department to accord permission to the petitioner to file a suit for recovery of possession and accordingly, the present suit was filed.

                  2.3. In the suit, the plaintiffs contended that the document executed in the year 1936 cannot confer any status of lessee, but rather it was a case of mortgage, which is hit by Section 76 of the Madras Hindu Religious Endowments Act, 1926. The defendants resisted the suit by raising a contention that the plaintiffs are not entitled to any relief because the lessee under the 1936 document had executed a Will in favour of his wife and subsequently, defendants 1 to 3 had obtained the purchase certificate in respect of the property. Before the trial court, on behalf of the plaintiffs, Exts.A1 to A10 documents were produced and PW1 was examined and on behalf of the defendants, Exts.B1 to B21 documents were produced and DW1 was examined. Exts.C1 to C2(b) are the commission reports and plans filed by the Advocate Commissioner. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiffs have failed to show that, as on the date of execution of Ext.A3 lease deed, there was no evidence to show that the property in question was belonging to the temple which was listed under the provisions of the Madras Hindu Religious Endowments Act, 1926. The trial court also found that the lease in question is not hit by Section 3(1)(x) of the Kerala Land Reforms Act, 1963 and accordingly, dismissed the suit.

                  2.4. Aggrieved, the 1st plaintiff preferred A.S.No.140/2012 before the Additional District Court-II, Kozhikode, which was also dismissed by the first appellate court on 30.08.2014 and hence, the present appeal.

3. On 02.02.2015 this Court framed the following substantial questions of law.

                  i) Whether a hereditary trustee of a religious endowment by virtue of provisions in the Hindu Religious Endowments Act, 1926 (in short, 'the Act of 1926') and Hindu Religious and Charitable Endowments Act, 1951 (in short 'the Act of 1951') assign lease or mortgage property belonging to the deity unless in a case of established absolute legal necessity?

                  ii) Whether such an assignment or transaction is to be effected only with the sanction of the competent authority under the Act of 1926?.

                  iii) Whether Ext. A3 lease/mortgage is ab initio void for want of absolute legal necessity of the idol ?

                  iv) Whether Ext.B5 purchase certificate is hit by Section 3 of the Kerala Land Reforms Act, 1963?

4. Heard, Adv.K.P.Sudheer - learned counsel appearing for the appellants and Adv.P.V.Anoop - learned counsel appearing for the respondents.

5. Adv.K.P.Sudheer - learned counsel appearing for the appellants, submitted that the findings of the courts below are perverse, inasmuch the courts below have failed to consider the question as to whether the lease in question was executed after obtaining permission of the competent authority as per the law then existed. At any rate, once it is found that the property belongs to the idol, the courts below ought to have seen that the lease is hit by Section 3(1)(x) of the Kerala Land Reforms Act, 1963, inasmuch as the lease was executed without any necessity of the idol. It is the specific case of the learned counsel for the appellants that, the issuance of the purchase certificate is of no consequence, especially since the purchase certificate was issued on the basis of a void lease deed. It is further contended that, though Ext.A3 cannot be construed as a lease deed but can only be construed as a mortgage deed, even assuming that it is a lease deed, no consequences flow into the hands of the defendants.

6. Per contra, Adv.P.V.Anoop – learned counsel appearing for the respondents/ defendants, supported the findings of the courts below and contended that the concurrent findings rendered by the courts below does not call for any interference of this Court in exercise of its powers under Section 100 of the Code of Civil Procedure, 1908. It is further contended that, the issuance of the purchase certificate is a conclusive proof regarding the right, title and interest over the property in terms of Section 72(k) of the Kerala Land Reforms Act, 1963. It is further contended that, in the failure of the plaintiffs to prove that the temple was a listed temple in terms of the erstwhile Madras Hindu Religious Endowments Act, 1926, the entire edifice of the case built up by the plaintiffs must fail. It is further pointed out that the liberty granted to the appellants by this Court in Ext.A2 judgment is to challenge the order passed under Malabar Land Registration Act, 1895. In the present suit there is no challenge to the said order, but whereas the plaintiffs question the validity of purchase certificate which is impermissible under law, It is further pointed out that the purchase certificate is not challenged and even if it is challenged, there is a bar under Section 125(2) of the Kerala Land Reforms Act, 1963 for the civil court to entertain the same. In support of his contention, he relied on the decisions of this Court in Narayanan v. Sankaran [2024 KHC 497], Sarojini Amma v. Krishnan Nair [2024 KHC 10], Ramachandran Nair P.M. v. Cherukattu Madhavikutty Amma and others [2010(4) KHC 719] and George v. Govindan [2004 KHC 203].

7. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and also the records of the case.

8. In the nature of the peculiar dispute raised in this appeal, this Court finds that it is required to address multifaceted issues which are summarised as follows.

Whether Ext.A3 deed is a mortgage or lease? And what is the nature of right that emanates from the deed ?

9. The dispute germinated from the execution of Ext.A3 deed in the year 1936. A cursory glance at the deed will show that it is a “panayachit” otherwise called ‘mortgage’. The trustee of the temple created the mortgage in favour of the predecessor of the defendants for a sum received by him. Pertinently, the deed requires the mortgagee to surrender the property after a period of one year.

10. The courts below however held that, though the deed is styled as a mortgage, it is in effect a lease. In doing so, they relied on the definition of ‘kanam’ under the Kerala Land Reforms Act, 1963. This Court does not see any difficulty in holding that Ext.A3 is in fact a lease. But it must be remembered that the ‘kanamdar’ in every case does not automatically become entitled to get fixity of tenure. In order to claim the benefit of fixity of tenure, he must show that he was a cultivating tenant.

11. On a close construction of the deed, it is difficult to envisage a situation where, the predecessor of defendants 1 to 3 gets a right of a cultivating tenant because there is complete lack of evidence to show that the predecessor of the defendants 1 to 3 was a cultivating tenant. It must be remembered that the right claimed by the defendants is not that of a ‘kudikidappu’ or ‘kudiyiruppu’. Therefore, unless it is shown that the predecessor was a cultivating tenant, the claim for fixity of tenure will not arise.

12. Normally, this Court would not have discussed the nature of Ext.A3 deed, especially since the defendants 1 to 3 claim rights under Ext.B4 order of the land tribunal and Ext.B5 purchase certificate. However, when a specific plea is raised that Ext.B5 purchase certificate is void, it is imperative for this Court to test the validity of Ext.A3 and the nature of rights flowing out of the same.

13. Moreover, this Court is fortified in doing so, especially since it is called upon to decide whether Ext.A3 is ab initio void. That apart, one must bear in mind that construction of a document by itself forms a substantial question of law.

14. Alternatively, the appellants have a specific case that, under Ext.A3, there was no necessity for the trustee to lease out the temple property. This issue requires to be read carefully, since proprietary rights of the defendants 1 to 3 are involved.

15. In order to test the above contention, let us closely examine the nature of Ext.A3. It is evident that the trustee of the temple has mortgaged the property as security for the amount borrowed by him. A further reading of Ext.A3 shows that, it is purely for his personal needs that the security was created. The period for repayment was fixed as 1 year. The lower appellate court unfortunately mistook the aforesaid clause and held that the term of the lease is for 1 year. The construction of Ext.A3 deed by the first appellate court is thus flawed.

16. It is worthwhile to note that, only because of the statutory fiction, the mortgagee under Ext.A3 is deemed to be a lessee. The definition of ‘kanam’ under the Kerala Land Reforms Act, 1963, includes the mortgagee in possession. But in order to claim fixity of tenure, the burden is on him to show that he was a cultivating tenant. Read as may, this Court could not find any suggestion from Ext.A3 which enables the respondents to claim the status of a cultivating tenant.

17. Be that as it may, even assuming that a semblance of a right of a tenant accrues to the predecessor in interest of the defendants 1 to 3, this Court cannot accept Ext.A3 inasmuch the defendants 1 to 3 have completely failed to prove that the lease was valid and that there was an absolute necessity for the trustee to create a lease. It is trite law that a deity being a ‘perpetual minor’, unless and until the trustee is able to prove that a lease or a mortgage is for an absolute legal necessity of the idol, the consequential lease will partake the character of a void document. That be so, no consequences will flow out of the issuance of the purchase certificate.

Whether Ext.A3 is hit by Section 76 of the Madras Hindu Religious Endowments Act 1926 ?

18. Let us examine whether Ext.A3 is hit by Section 76 of the Madras Hindu Religious Endowments Act, 1926, Section 76 is extracted as under:

                  “(1) No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any [math, temple or specific endowment] shall be valid or operative unless it is necessary or beneficial to the [math, temple or specific endowment] and is sanctioned [by the Board].

                  (2) The trustee of the [math, temple or specific endowment] or any person having interest may, within one year of the date of the order of the Board under sub-section (1), apply to the court for modifying or cancelling such order.

                  (3) The order of the Board under sub-section (1) when no application is made under sub-section (2) and the order of the court when such application is made shall be final.”

                  A reading of the aforesaid provision would show that, any exchange, sale or mortgage for a term exceeding five years belonging to the math, temple or specific endowment shall be valid and operative only if a permission is obtained. The earlier clauses of Section 76 must be read ‘disjunctive’ with the later clause. The first clause provides no exchange, sale or mortgage, whereas the later part says no lease for a term exceeding 5 years shall be executed without the permission of the Commissioner. The error committed by the courts below is evident, since they chose to read the provisions as a whole, whereas, it should have been read disjunctively. The later part of inhibition under Section 76 is confined to a lease exceeding 5 years and that inhibition cannot be carried to the first part i.e. when a mortgage is executed.

19. That apart, there is no gainsay in contending that by applying a statutory prescription when a mortgage is construed as a lease, the restriction under later part of Section 76 must apply with equal force. At the time of execution of Ext.A3, provisions of Kerala Land Reforms Act were never contemplated. Therefore, this Court is inclined to think that Ext.A3 is certainly hit by Section 76 of the Madras Hindu Religious Endowments Act, 1926.

20. Alternatively, it is contended by the learned counsel for the respondents that, even if it is assumed that Section 76 applies to the facts of this case, it is incumbent on the appellants to have proved that the temple is a listed temple so as to attract the rigour of Section 76.

21. At first blush the said argument may find to be appealing, but actually it is not so. Sub Section 12 of Section 9 of the Madras Hindu Religious Endowments Act, 1926, defines the term “Temple” - as a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by, the Hindu Community or any section thereof, as a place of religious worship.

22. Turning to Section 76 of the Madras Hindu Religious Endowments Act, 1926, there is no mention that, to attract the rigour of this section, a temple is required to be a listed temple under the Act. Section 65-A of Chapter VI-A in turns provides for notified temples. At any rate, it is beyond cavil that Section 76 is applicable to both notified and non-notified temples.

23. More pertinently, Sub-Section 5 of Section 9 of the Madras Hindu Religious Endowments Act, 1926, defines an “Excepted temple” - to include a temple, the right of succession to the ofiice of trustee or the ofiices of all the trustees (where there are more trustees than one) whereof has been hereditary, or the succession to the trusteeship whereof has been specially provided for by the founder. Moreover, under Section 49 of Chapter V, it is made clear that the provisions shall not apply to excepted temples. Therefore, when the Act itself creates a distinction among the temples for which the provisions apply, it is difficult for this Court to hold that, in order to apply Section 76, the temple must be a listed or notified temple.

Whether fixity of tenure can be claimed under Section 13(1) of the Kerala Land Reforms Act, 1963 ?

24. The thrust of the argument of the learned counsel for the respondents is that, both the courts below have interpreted Ext.B1 deed and found that the period of lease is for one year and that be so, the lease is taken out of the purview of Section 76 and that by virtue of Section 13(1) of the Kerala Land Reforms Act, 1963, the predecessor was entitled to fixity of tenure and that is the reason why the purchase certificate was issued. It is true that the courts below have found that the period of lease is one year and that the provision of Section 76 of the Madras Hindu Religious Endowments Act, 1926, will not apply and therefore, the respondents’ predecessor was entitled to claim fixity of tenure.

25. This Court cannot remain oblivious of the fact that only by statutory prescription under the Kerala Land Reforms Act 1963, the mortgagee is brought under the definition of “kanamdar” who is entitled to fixity of tenure. Merely because of the statutory prescription, the predecessor of the defendants 1 to 3 cannot claim that he is a cultivating tenant.

26. In fact, this Court had occasion to interpret the word 'cultivate' under the Kerala Land Reforms Act, 1963, while considering a similar plea in Lekshmi v. Hendry [1981 KLT SN 71]. It was held that only a cultivating tenant is entitled for assignment. The entire paragraph is extracted herein below:

                  "A cultivating tenant as per its definition must be a person in possession entitled to cultivate the land comprised in the holding. The expression "cultivate" as defined in the Act makes out the intention of the legislature that the cultivation is relating to land for the purpose of raising the produce of the land. From a reading of Ext. A2 it is clear that the purpose of the lease in the present case, is not for cultivation and the tenant is not a cultivating tenant within the meaning of the Act. It is only the right, title and interest of the landlord in respect of a holding held by a cultivating tenant that would vest in the Government, and it is only in respect of such rights vested that a cultivating tenant is entitled to assignment. Since I find that the tenant in this case is not a cultivating tenant, the right, title and interest of the landlord do not vest in the Government and the tenant is not entitled to apply for assignment of the same." (emphasis supplied)

27. It has come out that the period fixed for the discharge of the mortgage was one year, which is admitted by the respondents herein. That be so, the predecessor of defendants was bound to surrender the vacant possession of the property on payment of the mortgage amount. The terms of Ext.A3 being explicit, it is beyond cavil that the predecessor of the defendants 1 to 3 was not a cultivating tenant. The mere permission to make improvements in the property can only be construed as license. Further reading of Ext.A3 makes it clear that the predecessor of defendants 1 to 3 was bound to pay taxes, if any, levied out of the improvements so made. The above permission cannot be construed as one granting permission to cultivate in the property. That be so, the continuance of the predecessor of the defendants 1 to 3 in the property is clearly that of an encroacher and the purchase certificate cannot have any efficacy of law.

Whether the validity of the purchase certificate can be gone into by the civil court ?

28. The issue assumes significance because, the respondents assert that the plaintiffs cannot question the purchase certificate, since they were parties to the proceedings and that there is a bar under Section 125(2) of the Kerala Land Reforms Act, 1963, for the civil court to consider the validity of the purchase certificate.

29. In support of this contention, the learned counsel for the respondents relied on the following decisions. Narayanan v. Sankaran [2024 KHC 497], Sarojini Amma v. Krishnan Nair [2024 KHC 10], Ramachandran Nair P.M. v. Cherukattu Madhavikutty Amma and others [2010(4) KHC 719]

30. No doubt, this Court has repeatedly held that the civil court cannot test the validity of a purchase certificate. However, the said proposition has no application in cases where the purchase certificate is void ab initio. It must be noted that no purchase certificate can be issued in respect of a temple property and if issued, the same is a nullity (See Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]. Therefore, when the purchase certificate in question is found to be nullity, the civil court can ignore the same and consider the claim for recovery of possession independently.

Whether Ext.A3 purchase certificate is hit by Section 3(1(x) of the Kerala Land Reforms Act, 1963 ?

31. Adv.K.P.Sudheer - learned counsel appearing for the appellants, asserted before this Court that the courts below were at a complete remiss in not adverting to the issue as to whether the plaint schedule property falls within the temple compound. According to the learned counsel, the Kerala Land reforms Act, 1963, does not apply in the case of a property belonging to the temple. Section 3(1)(x) of the Kerala Land Reforms Act, 1963, exempts the application of the Act to the temple property. Section 3(1)(x) reads as under:

                  “3. Exemptions.- ( 1) Nothing in this Chapter shall apply to-

                  (x) tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites on which religious ceremonies are conducted) and sites of ofiice buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such temple, mosque or church:

                  Provided that nothing in this clause shall afiect the rights to which a tenant was entitled immediately before the commencement of this Act under the contract of tenancy or under any law then in force; or “

                  A reading of the aforesaid provision shows that, any lease in respect of a property inside the temple is necessarily to be taken out of the purview of the Kerala Land Reforms Act, 1963. A reading of Ext.B5 purchase certificate clearly shows that one of the boundaries mentioned in the purchase certificate is that of the temple pond. Moreover, it is indisputable that the property now leased out falls within the premises of the temple.

32. The evidence adduced by the plaintiffs in form of the reports of the Advocate Commissioner and Exts.C2(a) and C2(b) plans clearly shows that, the plaint schedule property is within the temple premises. This Court is at loss as to how the first appellate court could hold otherwise despite this clinching evidence. Further, a mere reading of the schedule to Ext.A3 will show that the plaint schedule property is beyond doubt a temple property. If that be so, Section 3(1)(x) of the Kerala Land reforms Act, 1963, squarely applies.

33. The first appellate court however non-suited the appellants on the ground that there is no exemption under the Malabar Tenancy Act, 1929, for claiming fixity of tenure in respect of temple properties. This Court fails to comprehend as to how the first appellate court arrived at such a finding. It is nobody's case that the predecessor of defendants 1 to 3 was entitled to fixity of tenure under the provisions of Malabar Tenancy Act, 1929. That apart, on coming into force of Kerala Land Reforms Act, 1963, the provisions of Malabar Tenancy Act, 1929, was abolished. Section 132(3) provides for the saving clause. Section 132(3) reads as under:

                  “132. Repeal and savings.-

                  (1) * * *

                  (2) * * *

                  (3) Notwithstanding  the     repeal of       the     enactments mentioned in sub-section (2),-

                  (a) any decree passed before the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been efiected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act ;

                  (b) any suit for restoration filed under section 24 or section 26 or sub-section (3) of section 53 of the Malabar Tenancy Act, 1929 or any application for determination of fair rent made under section 16 of that Act or any application for fixation of fair rent made under section 9 of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956, and pending disposal at the commencement of this Act shall be disposed of in accordance with the provisions of the said Acts as if those Acts had not been repealed ;

                  (c) (i) where the decree-holder, plaintifi, appellant or petitioner, as the case may be, is a person entitled to resumption of land under this Act, he shall have the right to apply to the court to allow resumption of the holding or any part thereof to which he is entitled ;

                  (ii) the application under sub-clause (i) shall be made within one year from the commencement of this Act and shall contain a statement of facts in support of the claims of the applicant and also the names and addresses of all persons who have interest in the holding, either as owner, lessee or kudikidappukaran ;

                  (iii) the court shall dispose of the application as if it were an application for resumption before the Land Tribunal under this Act ;

                  (d) notwithstanding anything contained in section 11 of the Code of Civil Procedure, 1908, the right conferred on the decree-holder, plaintifi, appellant or petitioner, as the case may be, under sub-clause (i) of clause (c) shall not be deemed to take away or in any manner afiect his right to apply for resumption under this Act.

34. The aforesaid provision came up for consideration before the Division Bench in Ammukutty Amma v. Viswanatha Iyer [1986 KLT 905], wherein it was held in para 6 as thus:

                  “6. There is another angle from which the learned counsel for the respondent met the contention based on S.43 of the Malabar Tenancy Act. Even assuming that the said Act continued to be in force till the coming into force of the Kerala Land Reforms Act, the legislature has clearly expressed its intention that all the rights created under the Malabar Tenancy Act were not to survive subsequent to the repeal of the Act. All provisions regarding tenancies in the Kerala Land Reforms Act have been included in Chapter II of that Act which starts with S.3. The said section says that nothing in Chapter II shall apply to "tenancies in respect of land or of buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both". This is mentioned in clause (vi) of sub- section.(1). A proviso inserted after clause (vii) is quoted:

                  ''Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons".

                  S.132(3) of the Kerala Land Reforms Act provides that certain actions taken pursuant to the repealed Acts are to continue in the manner specified in that sub-section. It is contended by the learned counsel for the respondent that the legislature, by including the said proviso and by providing that certain actions taken under the Malabar Tenancy Act are to continue, has "manifested its intention" that despite the repeal of the Malabar Tenancy Act, only certain rights which accrued or were acquired under the said Act will survive. Under S.4 of the Kerala Interpretation and General Clauses Act "where any Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed", (emphasis supplied) Dealing with S.132 vis-a-vis S.4 of the Kerala General Clauses Act a Division Bench of this Court has held in Adamkutty v. Damodaran Nambudiri (1970 KLT 321) that

                  "By the enactment of S.132(3) the new legislation manifests an intention contrary to the provisions of S.4 of the Interpretation and General Clauses Act; a different intention such as is contemplated by the Section as being sufficient to prevent the preservation of a right or privilege acquired or secured under a repealed Act may arise by necessary implication and full effect has to be given to the repeal subject to any provision in the repealing statute itself". Whenever there is a repeal of an enactment the consequence laid down under S.4 of the Kerala Interpretation and General Clauses Act will follow unless a different intention appears. In the case of a simple repeal there is hardly any room for expression of a different intention. But when the repeal is followed by fresh legislation on the same subject, provisions of that legislation must be looked into for the purpose of determining whether they indicate a different intention (vide State of Punjab v. Mahar Singh, AIR 1955 SC 84). We respectfully agree with the observations of the Division Bench in Adamkutty's case cited supra. The result is that we hold that no right specified or dealt with under the Malabar Tenancy Act, except those specifically made mention of in S.132(3) read with proviso to S 3 of the Kerala Land Reforms Act, will survive, after the repeal of that Act. A proper understanding of the relevant provisions of the Malabar Tenancy Act, 1929, the Agrarian Relations Act, 1961 and the Kerala Land Reforms Act, 1963, in the light of S.4 of the Kerala Interpretation and General Clauses Act, as explained, by the Supreme Court in State of Punjab v. Mahar Singh (AIR 1955 SC 84) which was followed in T. Barai v. Henry Ab Hoe (AIR 1983 SC 150 at Page 156) and by this Court in Adamkutty's case (1970 KLT 321) fortifies the above view. The decision of the Supreme Court in State of Gujarat v. Shri Ambica Mills (AIR 1974 SC 1300 at page 1307) explains the legal effect of a few provisions of the Act being declared void by the courts.”

35. Further, the first appellate court relied on the decision of this Court in Gopalan Nair v. State of Kerala [1988 KHC 259], wherein it was held that even if a tenancy is in respect of a temple property, since Section 2 of Malabar Tenancy Act, 1929, does not exempt the tenancy from the purview of the Act, proviso to Section 3(1)(x) of the Kerala Land Reforms Act, 1963, will apply and thus the tenancy is taken out of the purview of the provision and therefore, the tenant is entitled to fixity of tenure.

36. This Court is unable to subscribe to the said findings for multiple reasons. Firstly, the decision of the Single Bench in Gopalan Nair (supra) did not take note of the binding precedent of the Division Bench in Ammukutty Amma (supra). Secondly, when the provision of Malabar Tenancy Act, 1929, stands specifically repealed under Section 132(3) of the Kerala Land Reforms Act, 1963, and that the rights which are specifically saved under the provisions alone will survive, it is difficult to hold that the right covered under the proviso to Section 3(1)(x) will still survive despite Section 132(3) of the Act. In other words, the proviso to Section 3(1)(x) cannot control the repeal and saving clause under Section 132(3) of the Act. Therefore, this Court is of the considered view that decision in Gopalan nair (supra) qualifies itself to be decided per incuriam.

37. In the above circumstances, this Court is persuaded to hold that purchase certificate cannot have any legal efficacy and is a nullity. Once it is concluded that the purchase certificate is a nullity, the status of the respondents is that of an encroacher and thus the suit for recovery of possession is clearly maintainable. It is pertinent to mention that though there was an alternate plea of adverse possession, the same was negated by the trial court by stating that the plea of tenancy and adverse possession will not go together and the said finding has become final. Therefore, no further deliberation is required on this point.

38. Resultantly, the substantial questions of law framed by this Court are answered as follows:

                  a. When a hereditary trustee of a religious endowment by virtue of the provisions of the Madras Hindu Religious Endowments Act, 1926, mortgages, assigns or leases the property belonging to the deity, without establishing an absolute legal necessity and without obtaining prior sanction of the authorities, the same is void.

                  b. The assignment or transaction effected without the sanction of the competent authority is void and consequently, any purchase certificate issued will also lose its legal efficacy.

                  c. Ext.A3 is void of ab intio, for want of legal necessity of the idol.

                  d. Ext.B5 purchase certificate is clearly hit by Section 3(1(x) of the Kerala Land Reforms Act, 1963, especially since it forms part of the temple premises.

                  In view of the above discussion, the appellants are entitled to succeed. Accordingly, the appeal is allowed and the judgment of the Additional District Court–II, Kozhikode, in A.S.No.140/2012, affirming the dismissal of O.S.No.304/2007 by the Additional Munsiff Court-II, Kozhikode, is reversed and O.S.No.304/2007 will stand decreed as prayed for with costs throughout the proceedings.