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PETITIONER: PALANIVELAYUTHAM PILLAI & ORS.

       Vs.

RESPONDENT: RAMACHANDRAN & ORS.

DATE OF JUDGMENT:       09/05/2000

BENCH: U.C.Banerjee, S.B.Majumdar

JUDGMENT:

     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

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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

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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

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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

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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

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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

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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

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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

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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.

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     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

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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

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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

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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.