Palanivelayutham
Pillai & Ors Vs. Ramachandran & Ors [2000] INSC 309 (9 May 2000)
U.C.Banerjee,
S.B.Majumdar S.B.Majmudar, J.
This
appeal, on grant of special leave, is moved by Defendant nos. 1-4 in Original
Suit no.341 of 1968 in the Court of the Subordinate Judge of Madurai in the
State of Tamilnadu. The said suit was filed by
Respondent nos. 2 & 3 herein as plaintiffs against number of other
defendants with which we are not concerned in this appeal. The said suit was
filed for partition and separate possession of the plaintiffs undivided share
in the suit properties scheduled A, B & C. It was contended that the
plaintiffs and the 7th defendant were the sons of one Sivasankaran Pillai
through his second wife, while the Defendant nos. 1,5 & 6 were the sons of
the said Sivasankaran Pillai through his first wife. The 8th defendant was the
second wife of Sivasankaran Pillai. Sivasankaran Pillai died on 27th January, 1956. According to the plaintiffs, the
suit properties were the ancestral properties of the said Sivasankaran Pillai
who inherited the same. That the said properties remained as joint family
properties and the plaintiff and Defendant nos. 1,5 & 6 were continuing as
undivided members of the joint family even after the death of Sivasankaran Pillai.
The
contesting Defendant nos. 1, 5 & 6 resisted the suit on various grounds. In
the present proceedings, the dispute centers around schedule C properties only.
Hence we may not dilate on other properties and the nature of dispute between
the contesting defendants qua them. So far as schedule C properties were
concerned, the contention of the contesting defendants was that they were
gifted by the original owner one Palanivelayutham Pillai by a Gift Deed dated 18th February, 1907 in favour of Madurai Devasthanam
Tirupparankundram Andavar Subramaniaswamy and consequently, they were not
liable to be partitioned amongst the descendants of said settlor. It was
further contended that under the said Gift Deed the right of management of the
aforesaid endowed properties was entrusted, on the death of the settlor, to his
second wife who had to continue charitable performances for the deity along
with her heirs and had to act as a trustee qua these properties. That the said
designated trustee, the second wife of the settlor Pitchammal alias Avudai
Ammal, after the death of the settlor, had continued to manage the said
properties as a trustee. That she had executed a General Power of Attorney on
3rd August, 1922 in favour of R. Sivasankaran Pillai whose properties were sought
to be got partitioned in the present suit. That, amongst others, the said
Sivasankaran Pillai was entrusted with the task to manage and maintain schedule
C properties and to perform the charitable activities as per the document
executed by the deceased husband of Pitchammal. That by a Will dated 27th
January, 1924, the said Pitchammal also appointed the very same Sivasankaran
Pillai and his wife Subbammal who pre-deceased Sivasankaran Pillai, as
successor trustees after her death.
He
alone, therefore, remained the repository of the right of management of
schedule C properties. That the said Pitchammal died on 24th June, 1950 and thereafter Sivasankaran Pillai
continued to manage the schedule C properties pursuant to the Will dated 27th January, 1924.
That
the said Sivasankaran Pillai, by his Will (Ex.B-487) dated 1st July, 1955, bequeath the rights of management
and trusteeship to Defendant no.9 - K.Sethuramalingam Pillai, his son-in-law,
so far as schedule C properties were concerned. While on the same day he
executed another Will qua his other properties in favour of Defendant nos. 1, 5
&
6. The
plaintiffs contention was that the aforesaid two Wills of Sivasankaran Pillai
were unauthorised, illegal and inoperative at law. Earlier, the present
appellants resisted the said suit and contended that the Wills were legal and
valid but subsequently by an amended written statement Defendant nos. 1,5 &
6 parted company of Defendant no.9 and submitted that Sivasankaran Pillais Will
(Ex.B-487) dated 1st July, 1955 in favour of Defendant no.9 entrusting the
management of schedule C properties to him after testators death was not
legally proved and, in any case, was inoperative at law as Sivasankaran Pillai
could not Will away the right of management of schedule C properties to a
stranger like Defendant no.9, who was his son-in-law, bypassing his own sons
who were his heirs.
The
learned Trial Judge, after recording evidence offered by the contesting
parties, came to the conclusion that so far as schedule C properties were
concerned, they could not be partitioned being kattalai properties i.e.
consisting
of special grant for religious services in a temple. The learned Trial Judge,
however, held that the Will of 1st July, 1955 (Ex. B-487) entrusting the
management of the aforesaid schedule C properties to his son-in-law, Defendant
no.9, bypassing his own sons was duly proved and was perfectly legal and valid.
The aforesaid decision was rendered by the learned Trial Judge on 30th November, 1976.
Being
aggrieved by the said decision of the learned Trial Judge, the present
appellants along with Defendant no.5 filed first Appeal no. 1058 of 1977 in the
High Court of Judicature at Madras. The
appeal was confined to schedule C properties and two contentions were canvassed
for consideration of the High Court. They are : 1) Whether the Will (Ex. B-487)
dated 1st July, 1955 said to have been executed by
Sivasankaran Pillai favouring Defendant no. 9 was legal and valid and was duly
proved. 2) Whether under the aforesaid Will Sivasankaran Pillai was authorised
to entrust trusteeship and management of schedule C properties, i.e. kattalai
properties, to a stranger like Defendant no.9, who was his son-in-law,
bypassing his own sons. The Division Bench of the High Court, by its impugned
judgment dated 12th
July, 1984, negated
both these contentions and upheld the decision of the Trial Court on these
issues. That is how the appellants-original Defendant nos. 1-4 have landed in
this Court in the present proceedings by obtaining special leave to appeal
under Article 136 of the Constitution of India.
RIVAL
CONTENTIONS: Learned counsel for the appellants Shri Sampath in support of the
appeal vehemently contended that Sivasankaran Pillai, the father of Appellant
no.1 was not having any sound disposing state of mind on the date on which he
is said to have executed the Will (Ex. B-487) i.e.
on 1st July, 1955. That he was almost invalid and was
not having enough mental poise and that the Will was clouded by many suspicious
circumstances. He further submitted that, in any case, the Will was not legally
proved as attesting witnesses to the said Will were not examined in proof
thereof. He alternatively contended that, in any case, the Will could not be
treated as a valid legal document under which the right of management of
schedule C kattalai properties could be entrusted to a stranger to the family
like Defendant no.9, who was his son-in-law, bypassing the appellants, who were
his straight lineal descendants. In support of this alternative contention, it
was submitted that the original endowment of schedule C properties, pursuant to
the Gift Deed of Palanivelayutham Pillai dated 18th February, 1907, created a
life interest or widows estate in favour of his second wife Pitchammal who had
to carry on religious and charitable performances along with her heirs after
the death of the donor; and as Pitchammal had no issues or her legal heirs, on
the death of Pitchammal, the right of management would revert to the
reversioners being the lineal descendants of original settlor -
Palanivelayutham Pillai. That Pitchammal died on 24th June, 1950. Thereafter, Sivasankaran Pillai, as a reversioner, could
continue in management of the Kattalai properties but he, in his turn, could
not have willed away the said right of management in favour of Defendant no.9,
who was a stranger to the family. That right of management would legally enure
in favour of Sivasankaran Pillais lineal descendants - like appellants and
Defendant no.5 and consequently the Will (Ex.B-487) of Sivasankaran Pillai was
legally inoperative even on this ground. It was also contended by Shri Sampath
that pending the suit, even Defendant no.9 has died, and his heir - Defendant
no.10 - his widowed wife, who is the sister of Appellant no.1, was bequeathed
with the right of management of schedule C properties by Defendant no.9 by his
own Will in her favour and that the said Will would fall through if it is held
that the Will (Ex.B-487) dated 1st July, 1955 of Sivasankaran Pillai in favour
of Defendant no.9 itself was inoperative in law.
It was
also contended that by an Order dated 13th September, 1945 of the Board of
Commissioner for Hindu Religious Endowments, Madras, a scheme of administration
was settled under Section 57 of the Madras Hindu Religious Endowments Act, 1926
(Madras Act II of 1927) for administration of the kattalai known as Palani
Velayudham Pillais specific endowments for Uchikalam kamalapatram service and
feeding on Karthigai Monday for Sri Subramaniaswamy Temple, Tirupparankundram,
Madurai. That the said order was passed at the time when Sivasankaran Pillai
was managing the properties under the General Power of Attorney dated 3rd August, 1922 executed by Pitchammal in his
favour. Therefore, the kattalai trustee had to be governed by the said scheme of
administration and that Defendant no.9 who was managing the schedule C
properties, had not complied with the requirements of the said scheme.
Learned
senior counsel for the contesting respondents - Defendant no.9 and Defendant
no.10, being the heir of Defendant no.9 (since deceased), on the other hand,
contended that the decision rendered by the High Court on the aforesaid points
is quite justified and calls for no interference. That the testamentary
capacity of deceased Sivasankaran Pillai has been found to be well sustained on
record. That there were no suspicious circumstances surrounding the Will; that
the Will was legally proved as the scribe was also an attesting witness and was
examined as such. Consequently, the Will was legally proved; that mere presence
of Defendant no.9 at the time of execution of the Will could not be treated to
be a suspicious circumstance when, on the same day, the testator executed two
Wills and got them registered. One Will (Ex. B-487) was in favour of Defendant
no.9 and another Will (Ex. B-488) was executed in favour of contesting
defendants themselves, the appellants herein, and Defendant nos. 5 & 6 so
far as his personal properties were concerned. On the legality of the Will, it
was submitted that by the Gift Deed (Ex. B- 506) the settlor appointed his
second wife Pitchammal as manager and trustee qua schedule C properties,
entrusting her with the duties of carrying on charitable performances indicated
in the Gift Deed and though she had to carry on these performances along with
her heirs, in the absence of her legal heirs, she became entrusted with
absolute right of management and trusteeship and could not be treated as having
widows estate or limited interest. Hence, there was no question of the said
right of management and trusteeship devolving on the reversioners on her death.
That she had every right to appoint her successor manager which she did by
appointing Appellant no.1's father - Sivasankaran Pillai by her Will dated 27th January, 1924 (Ex. B-26) which started operating
on 24th June, 1950, when Pitchammal died.
That
thereafter Sivasankaran Pillai performing the duties of management pursuant to
his appointment by Pitchammal also had equal right to appoint another manager
on his demise as per the impugned Will (Ex.B-487) dated 1st July, 1955 favouring Defendant no.9. That the
settlor had not reserved the right of management to be confined to his own
lineal descendants but had completely parted with the same in favour of his
second wife Pitchammal pursuant to the Gift Deed (Ex. B-506) and consequently
whatever Pitchammal did was binding not only on Sivasankaran Pillai but also to
his successor manager as per his Will (Ex.B-487) dated 1st July, 1955. That
there was no restriction on the right of Sivasankaran Pillai to appoint the
manager of his choice on his demise so far as schedule C properties were
concerned and that is exactly what he had done by the impugned Will (Ex. B-487)
dated 1st July, 1955 and, therefore, the High Court was right in upholding the
said Will in favour of Defendant no.9. Once that conclusion is reached,
Defendant no.9, as a manager of these properties, was equally competent to
entrust the said management on his demise to Defendant no.10 as his successor
manager. So far as the Order dated 13th September, 1945 of the Board of Commissioner for
Hindu Religious Endowments, Madras is
concerned, it was submitted that no reliance was placed on the same during the
trial and, therefore, the appellants cannot raise any contention in that
behalf. However, Respondent no.8, Executive Officer appearing for the
Devasthanam - originally joined as Defendant no.11 in the suit, submitted that
the scheme settled by the Order dated 13th September, 1945 could not be
enforced earlier because of the pendency of this litigation and the said scheme
will be given effect in the light of the decision of this Court, whereunder the
appropriate kattalai trustee will be ascertained and the said trustee will have
to act under the supervision of the Executive Officer for the time being in
force. In the light of the aforesaid rival contentions, the following points
arise for our consideration : 1. Whether the Will (Ex. B-487) dated 1st July, 1955 said to have been executed by
Sivasankaran Pillai in favour of Defendant no.9 was legally proved. 2. Whether
the said Will was surrounded by suspicious circumstances and was required to be
rejected. 3. Whether the aforesaid Will can be treated to be legal and valid in
so far as it tried to entrust the management of kattalai properties in favour of
a stranger to the family, Defendant no.9, bypassing the sons of Sivasankaran
Pillai. 4. Even if the aforesaid points are decided against the appellants and
in favour of Defendant nos. 9 & 10, whether the scheme of administration
settled as per the Order dated 13th September, 1945 of the Board of
Commissioner for Hindu Religious Endowments, Madras is required to be enforced
against the kattalai trustee, now Defendant no.10, who is the legatee of the
management rights as per the Will executed by Defendant no.9 in her favour.
We
shall deal with these points seriatim. POINT NO.1: So far as the proof of Will
(Ex. B-487) dated 1st
July, 1955 is
concerned, a mere look at the said Will shows that apart from two attesting
witnesses S.
Ramachandran and R.
Balakrishnan,
T.K.Sankara Narayanan, who is the scribe of the Will, has also witnessed the
same. The description of Sankara Narayanan mentions that it is written and
witnessed by him and when he was examined in proof of the said Will before the
Trial Court, it cannot be said that the attesting witnesses were not examined
in proof of the said Will. The submission of learned counsel Shri Sampath
appearing for the appellants to the effect that Sankara Narayanan is shown to
be a witness in the other Will (Ex. B-488) dated 1st July, 1955 is now not
shown to be a witness simpliciter so far as the disputed Will is concerned and,
therefore, he should not be treated as an attesting witness to the latter Will,
cannot be countenanced. It is difficult to appreciate this contention. If the
Will (Ex. B-487) had shown Sankara Narayanan only as a scribe, Shri Sampath
would have been right. But the Will shows that Sankara Narayanan ascribed his
signature apart from describing himself as a scribe. It must, therefore, be
held that the disputed Will was attested by three attesting witnesses out of which
one Sankara Narayanan was examined in the Trial Court for proving the said
Will. The Trial Court as well as the High Court were justified in taking the
view that the Will (Ex. B-487) was duly executed. It has also to be kept in
view that on the very same day the testator executed and got the Will
registered along with the other Will (Ex. B-488) in favour of Defendant nos. 1,5
& 6. Point no.1 is, therefore, answered in the affirmative in favour of the
contesting respondents and against the appellants.
POINT
NO.2: So far as this point is concerned, it has to be kept in view that both
the Trial Court as well as the High Court have concurrently held on facts that
the deceased testator was in a sound disposing state of mind and was capable of
executing the Will and that there were no suspicious circumstances surrounding
the Will. Merely because Defendant no.9 was present at the time of execution of
both the wills, it could not be said that it was a suspicious circumstance. It
has also to be kept in view that on the very same day i.e on 1st July, 1955 the
testator Sivasankaran Pillai executed two Wills, one - the disputed Will (Ex.
B-487) in favour of Defendant no.9 so far as schedule C kattalai properties and
their management were concerned. But simultaneously at the same sitting on the
same day, he executed another Will (Ex. B-488) in favour of the appellants
& Defendant nos. 5 & 6, his own sons so far as his personal properties
were concerned. Both the Wills were got registered simultaneously. It is easy
to visualise that if the Will in favour of appellants and Defendant nos.
5
& 6 executed by the testator on the very same day can be found to be legal
and valid though held by the Trial Court to have not been acted upon, it cannot
be held by any stretch of imagination that the same testator, who was in sound
disposing state of mind, while executing a valid Will (Ex. B-488) in favour of
Appellants and Defendant nos. 5 & 6 would loose his testamentary capacity
while executing on the same day at the same time another disputed Will (Ex. B-
487) in favour of Defendant no.9. The appellants cannot be permitted to blow
hot and cold at the same time. Of course, Shri Sampath, learned counsel for the
appellants, submitted that he does not rely upon the Will (Ex. B-488) as it is
not acted upon but that is neither here nor there. Even if the Will in favour
of the appellants might not have been acted upon for reasons best known to them
after the demise of the testator, that would not affect due execution of the
said Will by the testator nor would it affect his testamentary capacity qua the
disputed Will executed on the same day and got registered by the testator
simultaneously with the Will (Ex. B-488) in favour of the appellants and
Defendant nos. 5 & 6. Even though an attempt was made to show that the
testator was unwell and confined to bed and the plaintiffs went to the extreme
and submitted that testator was a lunatic, the evidence on record shows to the
contrary. He might be old and suffering from illness but his testamentary
capacity is not shown to be affected adversely in any manner when on the same
day he executed two Wills and got them registered. The findings reached about
testamentary capacity of the testator by the Trial Court and confirmed by the
High Court are well sustained on evidence and cannot be said to be suffering
from any patent error of law or being perverse which would call for our
interference in appeal under Article 136 of the Constitution of India.
Reliance
tried to be placed by learned counsel Shri Sampath for the appellants on the
three decisions of this Court in Bhagwan Kaur w/o Bachan Singh v. Kartar Kaur
w/o Bachan Singh & Ors., (1994) 5 SCC 135, H. Venkatachala Iyengar v.
B.N.Thimmajamma
& Ors., AIR (46) 1959 SC 443 and Ramchandra Rambux v. Champabai & Ors.,
AIR (52) 1965 SC 354 also cannot be of any assistance to him as the fact
situations which fell for consideration in the aforesaid decisions were
entirely different and suspicious circumstances considered in these decisions
are found to be totally absent, so far as the facts of the present case is
concerned.
Mr.
Sampath tried to highlight certain circumstances, which according to him, were
highly suspicious. We may briefly refer to them. He submitted that under normal
circumstances any reasonable person like the testator, would not disinherit his
own children, i.e the appellant no.1 and his brothers nor would he prefer a
total stranger as a sole legatee of schedule C properties. This contention is
totally devoid of force. The reason is obvious. So far as schedule C properties
were concerned, they were not personal properties of Sivashankaran Pillai. They
were endowed properties belonging to the temple. Mere right of management was
given to him by earlier manager Pitchammal and it is this right of management
which was being entrusted by him to Defendant no.9, who was found to be a
capable manager. So far as the personal properties are concerned, the testator
executed another Will (Ex.B-488) on the same day in favour of his own children,
including the appellants.
He
had, therefore, not disinherited them qua his own personal properties. The
second suspicious circumstance highlighted by Shri Sampath was to the effect
that Defendant no.9, being beneficiary of the Will, had actively participated
in its execution. That is neither here nor there. Even despite his active
participation, Defendant no.9 saw to it that the testator bequeathed his
personal properties in favour of his own sons, namely, the appellants and
Defendant nos. 5 & 6.
It has
also to be kept in view that Defendant no.9 was brother-in-law of Appellant
no.1 and a trusted worldly wise person on whom the testator, his father-in-law,
had full trust. He was not shown to be inimical to the appellants when the
disputed Will was executed. In fact, he was looking after the interest of the
entire family. Thus his presence proved to be beneficial not only to him but
also to the appellants. The next circumstance pressed in service was that the
testator was residing with Defendant no.9 in his house. This, to say the least,
is not a suspicious circumstance but a relevant circumstance which would
persuade the testator to entrust the management of the kattalai properties to
Defendant no.9. The next circumstance tried to be highlighted by Shri Sampath
was that the testator was seriously ill and had undergone abdominal operation
and was unconscious and had no capacity to understand things. It is difficult
to appreciate this contention. Even though the testator might be ill and might
have undergone abdominal operation, he could not be said to be unconscious when
he himself got the Will registered before the authorities when the registering
officer remained present in the house of Defendant no.9 between 8 9 in the
morning and ascertained the willingness and capacity of the testator in getting
the Will executed and registered by the authority. Shri Sampath tried to submit
that the scribe got the Will executed by the testator by exercising undue
influence and coercion. This contention, to say the least, is not at all borne
out from the evidence when the very same scribe became an attesting witness to
the Will (Ex. B-488) in favour of appellants themselves and Defendant nos. 5
&
6. If
he was out to pressurise the testator to disinherit the appellants and
Defendant nos. 5 & 6, he would never have stood as an attesting witness to
the Will (Ex. B-488) in favour of Defendant nos. 1, 5 & 6 on the very same
day on which it was executed by the testator along with the disputed Will.
Resultantly, point no. 2 is also answered against the appellants and in favour
of the contesting respondents.
POINT
NO.3: So far as this point is concerned, we have to trace the genesis and the
nature of the management entrusted to Sivasankaran Pillai by the deceased
Pitchammal.
The
first document, in chronology, is the Gift Deed (Ex.B-506) dated 18th February,
1907. It recites that the donor Palani Velayutham Pillai was donating the
properties in favour of Madurai Devasthanam Tirupparankumdram Andavar
Subramania swamy. These properties were gifted to the temple for the purpose of
performing poojas and Archanas to the deity daily at noon, for performing lotus
archana in every karthigai month and for Bhojanas to Brahmins and others. The
Gift Deed also recited that excluding the payment of government taxes the
remaining income derived out from the under-mentioned properties had to be
utilised for the aforesaid purpose by the management of the trustee and in case
of death of the donor prior to the death of his second wife, she will continue
the said charitable performances along with her heirs and after the amount
spent for the said purpose, an amount of Rs.2/- per month had to be detained by
them and she had to act as a trustee. In the event of any fault on the part of
performing the said charitable performances, the Devasthanam was entitled to
question the same. He also consented for transferring the patta as a trustee of
the properties in the name of the deity. These recitals clearly indicate that the
donor wanted the right of mangement of the donated properties to be entrusted
to his second wife along with her heirs after the lifetime of the donor. It is
obvious that the properties belong to the temple. A mere right of managing the
properties, as a trustee, by collecting income therefrom and for utilising the
same for performing the religious ceremonies and charitable performances as
laid down in the Gift Deed was entrusted to his second wife along with her
heirs. It is pertinent to note that this mere right of management as a trustee
did not confer any proprietary right in the property donated to the temple. The
only proprietary right was to collect an amount of Rs.2/- per month as
remuneration for performing the duties of a trustee entrusted to his second
wife along with her heirs. It is also necessary to note that this mere right of
management as a trustee charged with the duty to perform religious and
charitable performances was the kattalai grant to donors second wife along with
her heirs. It is pertinent to note that the donor, who is the settlor, had not
entrusted the right of management as successor trustees to any of his heirs or
lineal descendants. He, on the contrary, chose to select his own second wife
and her heirs for discharging this obligation. It is, therefore, not possible
to agree with the contention of Shri Sampath, learned counsel for the
appellants, that the aforesaid recitals in the Gift Deed conferred any life
interest or widows estate to the donors second wife, after his demise. On the
contrary, the right of management and to act as trustee for the same without
any proprietary interest in the donated properties was only conferred on his
second wife along with her heirs.
In
this connection, we may usefully refer to the observations of learned author
B.K.Mukherjea on The Hindu Law of Religious and Charitable Trusts - Fifth
Edition by A.C. Sen, Eastern Law House in connection with Kattalai grants in
South India. The learned speaker in one of his lectures reproduced in the
aforesaid book at pages 198-200 observed as under:
XIV.
KATTALAI GRANTS IN SOUTH INDIA 4.55. Kattalai or special grant.- Before I close
this chapter one thing requires to be noticed and that is a special grant for
religious services in a temple which is in vogue in Southern India and is known
by the name of Kattalai. As Muttusami Aiyyar, J. explained in Vythilinga v.
Somasundara, in ordinary parlance, the term Kattalai as applied to temple means
endowments and signifies a special endowment for certain specific service or
religious charity in the temple.
Ardajama
Kattalai or endowment for midnight service is an instance of the former and
Annadan Kattalai or an endowment for distributing food to the poor is an
example of the latter. In this sense the word Kattalai is used in
contradistinction to the endowment designed generally for the upkeep and
maintenance of the temple. Persons who endow properties for kattalais are
entitled to appoint special trustees to administer them, and the general
trustees of the institution have no right to dispossess them. And if under the
terms of the grant, the special trustee has to utilise the income for specified
services in the temple, the general trustee has the right, as the person in
charge generally of the temple, to require the special trustee to hand over the
income to him. But the special trustee is, in respect of the management of the
kattalai properties, under the same obligations as a trustee, and an alienation
by him of those properties would be void, unless it is for necessity or
benefit. In the case of some important temples, the sources of the income are
classified into distinct endowments according to their importance. Each
endowment is placed under a separate trustee and specific items of expenditure
are assigned to it as legitimate charges to be paid therefrom. Each of such
endowments is called also a Kattalai and the trustee who administers it is
called the Kattlaigar or stanik of the particular Kattalai. The import of this
expression was discussed in detail by Sesagiri Aiyyar, J. in Ambala Vana v Sree
Minakshy.
According
to him, this expression is used with reference to three different kinds of
endowments. Properties may be endowed- (a) for the performance of pujas in the
temple, or (b) for the performance of certain festivals in the temple, or (c)
for the performance of Archanas to the deity in the name of the donors. (a)
Ordinarily, the puja is not performed in the name of the donor, and
consequently, supplementary grants are made by pious persons in order that the
service should be more efficiently performed. Instances of this type of grant
are to be found in the famous temple at Chidambaram, where almost all the
necessary daily services are conducted by means of Kattalais endowed by pious
donors. (b) It also happens that where lands for funds in respect of particular
service or festival at temples are not sufficient for conducting them on the
original scale, new donors come forward to supplement these funds. (c) For
Archana, however, no supplementary grant by other donors is possible. It is
intended solely for the spiritual benefit of the grantor and it is not the
concern of third parties to help in his performance if the funds are for any
reason not found sufficient. Whatever the exact nature of Kattalais may be-and
that must depend upon the usages of particular temples-one fact ought to be
remembered in this connection, and that is that when the grant is to the deity
and the income of particular funds is earmarked for special services which are
entrusted to special trustees, if there is a surplus which cannot be spent on
these services, it would be a case for the application of the cy pres doctrine
and the special trustee can, on no account, claim the surplus. This has been
held by the Judicial Committee in an appeal from the Madras High Court.
These
observations clearly indicate that the grantee of such special endowment
derives his or her right of management from the appointment by the settlor and
could not be treated to be having independent proprietary right in the subject
matter of the grant.
Once
this conclusion is reached, it becomes obvious that the right of management as
a trustee which inhered in donors second wife - Pitchammal after his death
could be independently exercised by her along with her heirs. Now it is not in
dispute that she had no issues or lineal descendants. Therefore, the phrase
along with her heirs on that score became redundant and she had every right to
mange on her own the donated properties as a trustee. Even alternatively, as
submitted by learned senior counsel for the contesting respondents, it could be
held that her heirs may even include her testamentary heirs. In either way
Pitchammal, the second wife of the settlor, had every right to select successor
trustee in her place by her Will. That is precisely what she did by executing
her Will (Ex.B-26) dated 27th January, 1924 in favour of Sivasankaran Pillai,
father of appellant no.1. It is not in dispute that even prior to the said
Will, the said Sivasankaran Pillai under the General Power of Attorney dated
3rd August, 1922 from Pitchammal, was managing the trust properties as her
agent.
But on
the death of Pitchammal on 24th June, 1950 the Will (Ex.B-26) became operative
in his favour and he became the successor trustee and manager of these properties
charged with the obligation to carry out the religious and charitable
performances as directed in the Gift Deed of the settlor. It has also to be
kept in view that the said entrustment of trusteeship rights by Pitchammal in
favour of Sivasankaran Pillai by her Will (Ex.B-26) dated 27th January, 1924 is
not in dispute between the parties.
However,
Shri Sampath, learned counsel for the appellants, tried to put a gloss over
this will by submitting that even otherwise Sivasankaran Pillai, the legatee
under Pitchammals Will, was himself the lineal descendant of settlor
Palanivelayutham Pillai and can be said to be the heir of Pitchammal. It is
difficult to appreciate this contention. The Gift Deed of 18th February, 1907
nowhere mentioned, as noted earlier, that the donor wanted trusteeship and
management of properties to go to his lineal heirs. That Sivasankaran Pillai
got the right of management and trusteeship only because of the Will of
Pitchammal who had every right to will away the said trusteeship in favour of
anyone she liked unfettered by any restrictions found in the original Gift Deed
conferring right of management to her for the first time.
In
view of the aforesaid finding of ours, it is equally not possible for us to
accept the contention of Shri Sampath that when Sivasankaran Pillai wanted to
make Will in connection with the right of management of the temple properties,
he ought to have and should have preferred only his own sons and not a stranger
like Defendant no.9. In fact, that was the main contention of learned counsel
for the appellants. He submitted that the Will (Ex.B-487) of Sivasankaran
Pillai, favouring Defendant no.9 dated 1st July, 1955 was, in any case,
unauthorised and illegal as the testator Sivasankaran Pillai could not have
willed away the right of management of temple properties to Defendant no.9 who
was not his lineal descendant but was a stranger to the family being, his
son-in- law. This submission is totally devoid of any force. Sivasankaran
Pillai, by his impugned Will (Ex.B-487) dated 1st July, 1955 in his turn
selected an appropriate manager for the trust properties charged with the
obligation of trusteeship to carry on the charitable performances. The said
Will itself shows that he was acting as per the directions and demands of
Pitchammal and because of his bad health he was unable to continue the said
charitable performances and, therefore, he was bequeathing the said right in
favour of Defendant no.9, his son in law.
It has
to be kept in view that it was a mere right of management and not a proprietary
right which inhered in the testator Sivasankaran Pillai pursuant to the earlier
Will of Pitchammal in his favour. He, as a successor trustee and manager, had
to select the best available person of his choice to act after his demise as
trustee and manager of the temple properties with a view to continue the
charitable performances as originally entrusted by donor in favour of his
second wife Pitchammal and under whose directions he was acting during her
lifetime and had to act under her Will after her demise. To recapitulate, as
the original settlor had not reserved the right of management and trusteeship
of these properties donated by him to the temple for his lineal descendants
and, on the contrary, had handed over that right to his second wife and had
further left the said management to her, along with her heir, such absolute
right being conferred on her by the settlor could be well utilised by her in
selecting a successor of her choice. That is precisely what was done by her by
her Will of 3rd August, 1922 and in exercise of the same right conferred on
Sivasankaran Pillai, he in his turn as her representative validly executed the
impugned Will in favour of Defendant no.9. It cannot, therefore, be held that
the Will (Ex.B-487) of 1st July, 1955 was in any way unauthorised or illegal.
It has to be kept in view that Pitchammal herself was not appointed by her
husband as a shebait of the properties. She had a mere right to manage the
properties on which she had every right to bequeath to any person of her choice
unfettered by any other restrictions in this connection. It is the very same
unfettered right which got transmitted from her to Sivasankaran Pillai by her
Will dated 27th January, 1924 and which further got transmitted by him in
favour of Defendant no.9 by the impugned Will (Ex.B-487) dated 1st July, 1955.
It is, therefore, not possible to agree with the contention of Shri Sampath, learned
counsel for the appellants, that Sivasankaram Pillai was bound to entrust the
management and trusteeship qua the temple properties to any of his sons and
could not have selected a stranger like Defendant no.9. It has to be kept in
view that mere right of management of trusteeship unfettered by any direction
of the original settlor could be entrusted by Sivasankaran Pillai in his turn
to any competent person of his choice, only for the limited purpose of
management not backed up by any proprietary right in connection with the trust
properties which, admittedly, belong to the deity.
Reliance
placed by Shri Sampath, learned counsel for the appellants, in the case of
Kalipada Chakraborti & Anr.
v. Sm.
Palani Bala Devi and Ors. AIR (40) 1953 SC 125 cannot be of any assistance to
him. In that case, B.K.Mukherjea, J. speaking for the three-Judge Bench
observed in this connection about Shebaitship as under:
(b)
Hindu Law Religious endowments Shebaitship.
Whatever
might be said about the office of a trustee, which carries no beneficial
interest with it, a shebaitship, combines in it both the elements of office and
property. As the shebaiti interest is heritable and follows the line of
inheritance from the founder, obviously, when the heir is a female, she must be
deemed to have, what is known, as widows estate in the shebaiti interest. It is
quite true that regarding the powers of alienation a female shebait is
restricted in the same manner as the male shebait, but that is because there
are certain limitations and restrictions attached to and inherent in the
shebaiti right itself which exist irrespective of the fact whether the
shebaitship vests in a male or a female heir.
It
must be kept in view that in the light of the recitals in the Gift Deed of 18th February, 1907, as noted by us earlier, it cannot
be said that the settlor had given any shebaitship rights to his second wife nor
had he laid down any line of inheritance qua such shebaitship in his Gift Deed.
It was a mere right of membership entrusted to his second wife with a further
right given to her to execute the office of trusteeship along with her heirs
and without any reference to the settlor or his heirs. The aforesaid decision,
therefore, on the facts of the present case, does not get attracted. On the
contrary, in an earlier judgment of this Court in the case of Ram Gopal v. Nand
Lal & Ors.
AIR
(38) 1951 SC 139, the same learned Judge B.K.Mukherjea, J., speaking for the
Court, while dealing with the right of hindu widow in connection with the gift
of property, made the following pertinent observations: The mere fact that the
gift of property is made for the support and maintenance of a female relation
cannot be taken to be a prima facie indication of the intention of the donor,
that the donee was to enjoy the property only during her lifetime. The extent
of interest, which the donee is to take, depends upon the intention of the
donor as expressed by the language used, and if the dispositive words employed
in the document are clear and unambiguous and import absolute ownership, the
purpose of the grant would not, by itself, restrict or cut down the interest.
The desire to provide maintenance or residence for the donee would only show
the motive which prompted the donor to make the gift, but it could not be read
as a measure of the extent of the gift.
It is,
of course, true that the aforesaid observations were in connection with the
absolute gift of properties in favour of a hindu widow. But the principle laid
down therein can squarely get attracted while interpreting and giving effect to
the recitals in the Gift Deed of 18th February, 1907. The settlors intention is
very clear that he wanted to entrust right of trusteeship and management to his
second wife along with her heirs without any fetter or restriction on her power
to appoint successor manager after her demise. For all these reasons above, the
third point for determination, therefore, also is answered in the affirmative
in favour of the contesting respondents and against the appellants. That takes
us to the consideration of the last point.
POINT
NO.4: Learned senior counsel for the respondents was right when he contended
that the scheme of administration settled by the Board of Commissioner for
Hindu Religious Endowments, Madras on 13th September, 1945 was not highlighted
or relied upon before the Trial Court or even before the High Court. However,
it cannot be forgotten that such an Order of the Commissioner is already on the
record of the case and that Order was rendered during the lifetime of
Pitchammal when Sivasankaran Pillai was also very much in the management of the
endowed properties as a General Power of Attorney holder of Pitchammal. A mere
look at the Order shows that for this very endowment of kattalai, a scheme of
administration was settled under Section 57 of the Madras Hindu Religious
Endowments Act, 1926 (Madras Act II of 1927). It would be binding on
Sivasankaran Pillai as General Power of Attorney holder of Pitchammal and after
her death also, as the legatee and manager of the kattalai properties,
Sivasankaran Pillai would be bound by the said scheme and similarly, whoever is
the successor trustee appointed by him under the Will (Ex.B-487) of 1st July,
1955 would also be bound by the said scheme and similarly any further trustee
appointed for management of the kattalai properties would also be bound by the
said scheme so long as the scheme is not altered by the competent authorities.
It cannot be disputed that Defendant no.9 would be bound by the said scheme as
legatee of the right of management under Will (Ex.B-487) of Sivasankaran Pillai
dated 1st July, 1955.
Similarly
any further entrustment of the said right of management by Defendant no.9 in
favour of Defendant no.10 by his Will will also be subject to the binding
settled scheme of 1945 and she will have to act under the directions of the
Executive Officer as per the scheme settled for this very kattalai endowment as
per the Order of 13th September, 1945.
Even
the Executive Officer of the Devasthanam, who is governed by the said Order, is
a party to the proceedings being Defendant no.11. Learned counsel for Defendant
no.11 submitted before us that relevant provisions of the scheme were not
effectively implemented till now because the authorities were awaiting the
decision of this Court as to who will be the kattalai manager. Once that
dispute is resolved and proper kattalai trustee is indicated all the provisions
of the scheme as per Order dated 13th September, 1945 will be enforced. In this
connection, we may usefully refer to what the High Court has to say in the
impugned judgment. In para-31 of the judgment, the High Court observed as
under:
31. We
wish to add one thing. The performance of the charities ordained in Ex.B.506
shall be carried out by the defendants who are obliged to do so, under the
supervision of the 11th defendant.
The
said direction is well sustained. We only want to make it clear that the
aforesaid directions of the High Court to 11th defendant for supervising the
working of the charities ordained in Ex. B-506 will also have to be carried out
in the light of the Order of the Board of Commissioner for Hindu Religious
Endowments, Madras dated 13th September, 1945. Defendant no.10, who is now the
legatee of the management rights as per the will executed by Defendant no.9 in
her favour, will also be bound by these directions. Point no.4, therefore, is
answered in the affirmative in favour of the appellants and against Defendant
no.10.
As a
result of the aforesaid discussion, the appeal fails and is dismissed subject
to the further directions contained in our decision on point no.4. In the facts
and circumstances of the case, there will be no order as to costs.
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