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CASE NO.: Appeal (civil)  6616 of 2002

PETITIONER: S. Rathinam @ Kuppamuthu & Ors

RESPONDENT: L.S. Mariappan & Ors

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

1.      Whether right to manage a temple and/or shebaitship can be a subject- matter of testamentary succession is the question involved in this appeal,  which arises out of a judgment and decree dated 09.08.2000 passed by a  Division Bench of the High Court of Madras in L.P.A. No. 62 of 1991,  affirming a judgment and decree dated 28.01.1991 passed by a learned  Single Judge of the said Court in A.S. No. 661 of 1979.

2.      A private family temple known as ’Pechiamman Temple’ was  founded by one Palanichamy Chettiar.  The genealogical table of the said  Palanichamy Chettiar is as under :

PALANICHAMI CHETTIAR                ----------------------------------------------------------------                                                                                                                               L.P. Lakshmanan Chettiar                        Shanmugam @ Palanichami Chettiar                                                                           ---------------------------------                                                                                  |                        Thangam @ Palanichami Chettiar    

Shanmugam @            Chellam @ Subbiah                                                 Palanichami Chettiar             (Died)                                               Ramali ngam                                      |                                  L.S. Mariappan          ---------------------------------------------------------------------------------------- --                                                                                                                    Rathinam @    Lakshmanan          Chellam @          Subbiah  Patchaimuthu  Shanmugham Kuppumuthu       (Died)              Palanisami                          

3.      The founder of the trust dedicated properties for the maintenance of  the temple and performance of Pujas consisting of four shop rooms in the  front and a few residential buildings at the back of the temple. Disputes and  differences having been arisen between the two branches of the family,  Thangam son of Shanmugam filed a suit, which was marked as O.S. No. 9  of  1943.  The  said suit was decreed, relevant portion whereof reads as  under :

"Clause (iii) : That the C schedule properties be managed  in turns between the Plaintiff and the Second Defendant  on the one hand and Defendants 1 and 3 to 9 on the other,

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each branch for a period of two years.           Clause (iv) :  That the said two branches also be in  possession during their term of management of the  temple jewels mentioned as items 1 to 6 at page 13 of the  first Defendant’s written statement (specified hereunder)  in addition to amend as per order in I.A. No. 375 of 1944  dated 15.04.1944) the bronze \026Soodam, thattu with  Kalias referred tol in the same page of the written  statement."  

                                4.      The said decree has attained finality, pursuant whereto the branch of  Shanmugam became entitled to a right of term of management for a period  of two years.  On or about  04.07.1956, L.P. Lakshmanan Chettiar and his  two sons, however, entered into a partition deed for division of their  properties including the terms of management of the suit temple and its  properties. It was agreed that Lakshmanan Chettiar himself shall hold the  posts of pujari  as well as trustee for two years, whereas his two sons shall  hold the same for a period of eight months each.

5.      In respect of the properties in question, it was averred :

       "No. 1 and 2 party  shall hold, possess and enjoy  the rent and income derived from the C Schedule  property."          6.      Lakshmanan Chettiar executed a will on or about 24.05.1962  bequeathing his share in favour of his son Chellam.  He died on or about  10.04.1973.  It is not in dispute that after the death of Lakshmanan Chettiar,  Chellam had been acting as a Pujari as also a trustee for a period of sixteen  months and Shanmugam and his sons had been managing the said properties  for a period of eight months.  Chellam died on 10.02.1980, leaving behind  Respondent No.1 herein as his heir and legal representative.  Shanmugam  also appears to have executed a will in favour of his sons.

7.      For framing a scheme in respect of the said properties, a suit was filed  by the appellants against the said Thangam and others, which was marked as  O.S. No.222 of 1975.  The learned Subordinate Judge dismissed the said suit  by a judgment and order dated 19.02.1979.  An  appeal was preferred there-  against, which was marked as A.S. No. 661 of 1979, to which we shall  advert a little later.   

8.      However, after the death of Chellam, the sons of Shanmugam filed a  suit, which was marked as O.S. No. 83 of 1982, inter alia, praying for  a  declaration that Respondent No.1 herein was not the legal heir of Chellam @  Subbiah. Validity of the said will dated 24.05.1962 was put in question.  The  learned Principal Subordinate Judge while holding Respondent No.1 to be  the son of Chellam, also upheld the validity of the said will executed by  Lakshmanan Chettiar.  Aggrieved by and dissatisfied with the said judgment  and decree dated 13.03.1986, an appeal came to be preferred by the  appellants herein, which was marked as A.S. No.1363 of 1988.  Both the  appeals were heard together by the learned Single Judge of the High Court.  While holding the will to be not valid in law, a scheme was directed to be  framed in respect of the management of the said properties.  A Letters Patent  Appeal being No. 61 of 1991 was filed by Respondent No. 1 herein,  aggrieved by the direction to frame a scheme.  He also preferred a Letters  Patent Appeal against that part of the finding of the learned Single Judge that  the will executed by Lakshmanan Chettiar was not valid in law.  Respondent  No. 4 herein also preferred a Letters Patent Appeal, which was marked as  L.P.A. No. 128 of 1991, questioning the framing of scheme.  Appellants  herein also preferred a cross-objection, which was marked as Cross  Objection No. 106 of 1995 as against the finding that Respondent No. 1 was  the son of Chellam @ Subhiah.  The appeals and the cross-objection were  heard together.

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9.      It was accepted before the Division Bench that the scheme framed  pursuant to the decision of the learned Single Judge was working  satisfactorily and no interference therein was called for.  The finding of the  learned Single Judge to the effect that Respondent No. 1 was the son of  Chellam was also not seriously disputed.  In regard to the validity of the  will, however, the Division Bench held  the same to be valid.  Consequently,  it was held that Respondent No. 1 was entitled to be in the management of  the suit temple and its properties for a total period of sixteen months within  24 months allotted to the branch of Lakshmanan Chettiar.   

10.     Three of the plaintiffs are before us, being aggrieved by and  dissatisfied with the said judgment and decree.  No appeal has been  preferred as against rejection of the said Cross Objection No. 106 of 1995 or  dismissal of the Letters Patent Appeal arising out of A.S. No. 661 of 1979.

11.     Mr. V. Prabhakar, learned counsel appearing for the appellants, in  support of the appeal, submitted :

i)      The right to manage a property and pujariship being a personal right,          cannot be transferred being not transferable within the meaning of          Section 6(d) of the Transfer of Property Act;     ii)     The purported will executed by Lakshmanan Chettiar dated          24.05.1962 must be held to be invalid in law.   iii)    The right to hold the office of a pujari and a   trust being a personal          right,  would come to an end with the death of the holder of the office,          whereupon the same would devolve upon his heirs and legal           representatives.   Reliance,  in   this  behalf,  has  been placed on          Kakinada Annadana Samajam etc. v. The Commissioner of Hindu          Religious and Charitable Endowments, Hyderabad & Others etc.          [(1971) 2 SCJ 527 : (1970) 3 SCC 359 ]

12.     Mr. K.K. Mani, learned counsel appearing on behalf of the  respondents, on the other hand, would support the judgment.  The learned  counsel would contend that the issue is covered by a decision of this Court  in Angurbala Mullick v. Debabrata Mullick [1951 SCR 1125].

13.     It was urged that the appellants are estopped and precluded from  questioning the validity or otherwise of the will as even Shanmugam had  also executed a will. It was pointed out that the will executed by  Lakshmanan Chettiar on 24.05.1962 was given effect to by the parties on his  death which took place on 10.04.1973 and only upon the death of Chellam,  the appellants herein claimed a right of reversion therein on the premise that  Respondent No. 1 herein was not the son of Chellam.

14.     The learned counsel appearing on behalf of Respondent No. 4 herein,  would submit that the disputes and differences arose between the parties in  regard to not handing over the possession of the properties in terms of the  judgment and decree passed by the competent courts and in that view of the  matter, this Court may issue an appropriate direction.

15.     The trust in question is a private trust.  As a private trust, the terms  and conditions of the management of the temple, would, therefore, be  subject to the desire of the founder of the trust.  No document in writing was  produced in this behalf.  The parties, however, understood  the will of the  founder of the trust to the effect that holding of the office of Pujariship as  also the trusteeship for a term would be permissible in law.  It was so  determined in the suit by the learned Subordinate Judge in O.S. No. 9 of  1943.

16.     The very fact that both the branches had agreed to a term of  management of two years each and had given effect to the decree passed by  the learned Subordinate Judge in the said suit is a  pointer in that behalf.   Furthermore,  Lakshmanan Chettiar and his two sons also executed a deed of

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partition on 04.07.1956.  It was agreed to by the parties to the said deed of  partition that each of them would hold the office of Pujariship and  trusteeship for a period of eight months.

17.     The issue must, therefore, be determined in the aforementioned  backdrop of events.

18.     Before, however, we advert to the legal issue, we may notice that the  plaintiffs in the suit claimed relief on the ground that upon the death of  Chellam, his right has vested in them as reversioners, contending that  Respondent No. 1 herein was not his son.  Once a right of reversion in the  said office for a particular period, namely, sixteen months in a period of  two  years is claimed, the existence of right in Chellam could not have been  disputed.  In law, the same would be deemed to have been accepted.  Unless  the arrangements made by the parties also and/or the devolution of the  properties by reason of the said will executed by Lakshmanan Chettiar is  found to be opposed to  ’public policy’ as envisaged under Section 23 of the  Indian Contract Act, 1872, there does not exist any legal impediment in  giving effect thereto, particularly when the same would depend upon the  desire in that behalf by the founder of the trust.   

19.     A will denotes a testamentary document.  It means a legal declaration  of the intention of a testator with respect to his property which he desires to  be carried into effect after his death.  It is in its own nature ambulatory and  revocable during his life.    

20.     In Uma Devi Nambiar and Others v. T.C. Sidhan (Dead) [AIR 2004  SC 1772], it was held :         "10. Will is a translation of the Latin word "  voluntas ", which was a term used in the text of Roman  law to express the intention of a testator. It is of  significance that the abstract term has come to mean that  document in which the intention is contained. The same  has been the case with several other English law terms,  the concrete has superseded the abstract \027 obligation,  bond, contract, are examples (William: Wills and  Intestate Succession , p.   5). The word "testament" is  derived from " testatio mentis ", it testifies the  determination of the mind. A Will is thus defined by  Ulpians as " Testamentum est mentis nostrae justa  contestatio in id sollemniter facta to post mortem  nostrum valeat ." Modastinus defines it by means of  voluntas . It is " voluntatis nostrae justa sententia, de eo  quod quis post mortem suam fieri vult (or velit )"; the  word " justa " implying in each, that, in order to be valid,  the testament must be made in compliance with the forms  of law. It means, "the legal declaration of a man’s  intentions, which will be performed after his death". A  last Will and testament is defined to be "the just sentence  of our Will, touching what we would have done after our  death". Every testament is consummated by death, and  until he dies, the Will of a testator is ambulatory. Nam  omne testamentum morte consummatum est; et voluntae  testamentoric est embulatoria usque od mortem . (For,  where a testament is, there must also of necessity be  death of testator; for, a testament is of force after men are  dead; otherwise it is of no strength at all while the  testator liveth.) A "Will", says Jarman, "is an instrument  by which a person makes a disposition of his property to  take effect after his decease, and which is in its own  nature ambulatory and revocable during his life." (  Jarman on Wills , 1st Edn., p.   11.) This ambulatory  character of a Will has been often pointed out as its  prominent characteristic, distinguishing it, in fact, from  ordinary disposition by a living person’s deed, which

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might, indeed postpone the beneficial possession or even  a vesting until the death of the disposer and yet would  produce such postponement only by its express terms  under an irrevocable instrument and a statement that a  Will is final does not import an agreement not to change  it. (Schouler: Law of Wills , S. 326). A Will is the  aggregate of man’s testamentary intentions so far as they  are manifested in writing, duly executed according to the  statute\005"

21.     A testator by his will, may make any disposition of his property  subject  to the condition that the same should not be inconsistent with the  laws or contrary to the policy of the State.  A will of a man is the aggregate  of his testamentary intentions so far as they are manifested in writing.  It is  not a transfer but a mode of dovolution. [See Beru Ram and Others v.  Shankar Dass and Others - AIR 1999 J&K 55].

22.     The question as to whether  shebaitship can be a subject-matter of a  will came up for consideration before a Four-Judge Bench of this Court in  Angurbala Mullick (supra), wherein it was categorically held : "\005As the Judicial Committee observed in the above  case, in almost all such endowments the shebait has a  share in the usufruct of the debutter property which  depends upon the terms of the grant or upon custom or  usage. Even where no emoluments are attached to the  office of the shebait, he enjoys some sort of right or  interest in the endowed property which partially at least  has the character of a proprietary right. Thus, in the  conception of shebaiti both the elements of office and  property, of duties and personal interest, are mixed up  and blended together; and one of the elements cannot be  detached from the other. It is the presence of this  personal or beneficial interest in the endowed property  which invests shebaitship with the character of  proprietary rights and attaches to it the legal incidents of  property\005"  

It was also held :

       "21. Assuming that the word "property" in Act 18  of 1937 is to be interpreted to mean property in its  common and ordinarily accepted sense and is not to be  extended to any special or peculiar type of property, even  then we think that the other contention of Mr Tek Chand  is perfectly sound. Succession to shebaitship, even  though there is an ingredient of office in it, follows  succession to ordinary or secular property. It is the  general law of succession that governs succession to  shebaitship as well. While the general law has now been  changed by reason of Act 18 of 1937, there does not  appear to be any cogent reason why the law as it stands at  present should not be made applicable in the case of  devoluton of shebaitship."   23.     The principle enunciated therein was considered at some details by a  Division Bench of the Andhra Pradesh High Court in Narayanam  Seshacharyulu and Another v. Narayanam Venkataccharyulu [AIR 1957 AP  876], but it is not necessary to advert thereto in the facts of the present.

24.     In Shambhu Charan Shukla v. Shri Thakur Ladli Radha Chandra  Madan Gopalji Maharaj and Another [(1985) 2 SCC 524], this Court held :         "15. The text of Hindu law and the aforesaid two  decisions of this Court and the earlier decision in  Angurbala Mullick case 2 show that shebaitship is in the  nature of immovable property heritable by the widow of

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the last male holder unless there is an usage or custom of  a different nature in cases where the founder has not  disposed of the shebaiti right in the endowment created  by him. In the present case Purushottam Lal has not made  any disposition regarding shebaiti right in his Will, Ext.  A-2 dated April 14, 1944 whereby he created the  endowment. No custom or usage to the contrary has been  pleaded. Therefore, the widow Asharfi Devi had  succeeded to the shebaiti right held by him on his death  as a limited owner and that right has become enlarged  into an absolute right by the provisions of Section 14(1)  of the Hindu Succession Act, 1956 and she could transfer  that right by a Will in favour of a person who is not a  non-Hindu and who could get the duties of shebait  performed either by himself or by any other suitable  person. In these circumstances I hold that the second  respondent has acquired the shebaiti right under the Will  Ext. A-6 executed by Asharfi Devi on her death on  March 7, 1963. No interference is called for in this  appeal with the judgment of the learned Single Judge of  the High Court. The appeal is accordingly dismissed with  costs."   

25.     Sabyasachi Mukharji, J. in his concurring Judgment stated the law  thus : "\005In my opinion it is well-settled by the authorities that  shebaitship is a property which is heritable. The  devolution of the office of shebait depends on the terms  of the deed or the Will or on the endowment or the act by  which the deity was installed and property consecrated or  given to the deity, where there is no provision in the  endowment or in the deed or Will made by the founder as  to the succession or where the mode of succession in the  deed or the Will or endowment comes to an end, the title  to the property or to the management and control of the  property as the case may be, follows the ordinary rules of  inheritance according to Hindu law\005"  

26.     In Ranbir Das and Another etc. v. Kalyan Das and Another  [(1997) 4  SCC 102], this Court stated the law thus :

"\005Will in the normal connotation, takes effect after the  demise of the testator. But in the case of nomination of a  Shebait, the nomination takes effect from the date of its  execution though it is styled as a Will. Once it takes  effect, the nominee becomes entitled to go into the office  as a Shebait after the demise of the last chela of Hari  Dass. Under these circumstances, the shebaitship being a  property, vests in Rambir Dass and he could administer  the property and manage the temple for the purpose of  spiritual and other purposes with which Hari Dass, the  original founder had endowed the property to Lord  Krishna and Radha."    

27.     We may notice that  Dr. B.K. Mukherjea in his Tagore Law Lectures,  on The Hindu Law of Religious and Charitable Trust, , inter alia, observed :

"5.30.   Shebit’s right of nominating his successor.- The  founder of an endowment can always confer upon a  Shebait appointed by him the right of nominating his  successor.  Without such authority expressly given to  him, no Shebait can appoint a successor to succeed to  him in his office.  The power of nomination can be  exercised by the Shebait either during his lifetime or by a

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will, but he cannot transfer the right of exercising this  power to another person."

28.     In the aforementioned backdrop of events, we may test the decisions  relied upon by Mr. Prabhakar.

29.     In Kakinada Annadana Samajam (supra), this Court was concerned  with the question as to whether a right of shebaitship can be held to be a  fundamental right within the meaning of Article 19(1)(f) of the Constitution  of India, as it then stood, and consequently whether the provisions of the  Andhra Pradesh Charitable and Hindu Religious Endowments Act (XVII) of  1966 would be a law within the meaning of clause (5) thereof.  It was held  that the trusteeship and pujariship would be a property but not a property  within the meaning of Article 19(1)(f) of the Constitution of India.  

30.     In Kali Kinkor Ganguly v. Panna Banerjee and Others [(1974) 2 SCC  563], although a Division Bench of this Court opined that ’a transfer of  shebait by Will is not permitted because nothing which the shebait has can  pass by his Will which operates only at his death’; but the question as to  whether a will would amount to a transfer or not did not fall for  consideration therein.  The question which arose for consideration was as to  whether the right of shebaitship, temple and the deity installed therein is a  transferable.  This Court while dealing with the said contention noticed : "14. In the Hindu Law of Religious and Charitable Trust,  First Edn, being the Tagore Law Lectures delivered by  Dr B.K. Mukherjea the statement of law at p. 228 is this:  "Although shebaiti right is heritable like any other  property, it lacks the other incident of proprietary  right viz. capacity of being freely transferred by  the person in whom it is vested. The reason is that  the personal proprietary interest which the shebait  has got is ancillary to and inseparable from his  duties as a ministrant of the deity, and a manager  of its temporalities. As the personal interest cannot  be detached from the duties the transfer of  shebaitship would mean a delegation of the duties  of the transferor which would not only be contrary  to the express intentions of the founder but would  contravene the policy of law. A transfer of  shebaitship or for the matter of that of any  religious office has nowhere been countenanced by  Hindu lawyers."  

31.     However, yet again the court noticed that the right against alienation  had been relaxed by reason of certain circumstances, stating : "17. The rule against alienation of shebaiti right has been  relaxed by reason of certain special circumstances. These  are classified by Dr B.K. Mukherjea at p. 231 in his  Tagore Law Lectures on the Hindu Law of Religious and  Charitable Trust, First Edn. under three heads. The first  case is where transfer is not for any pecuniary benefit and  the transferee is the next heir of the transferor or stands in  the line of succession of shebaits and suffers from no  disqualification regarding the performance of the duties.  Second, when the transfer is made in the interests of the  deity itself and to meet some pressing necessity. Third,  when a valid custom is proved sanctioning alienation of  shebaiti right within a limited circle of purchasers, who  are actual or potential shebaits of the deity or otherwise  connected with the family."  

32.     The Calcutta High Court in Rajeshwar v. Gopeshwar, [(1908) 35 Cal.  226] opined that nomination of a successor by will may be permissible under  a usage justifying the same.  A somewhat different view was taken by the

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same High Court in Sovabati Dassi v. Kashi Nath [AIR 1972 Cal. 95].  The  Bombay High Court, however, took a different view. [See Mancharam v.  Pranshankar (1882) 6 Bom. 298].

33.     However, we need not enter into the said question as the law is now  well-settled in view of the decision of this Court in Shyam Sunder v. Moni  Mohan  [AIR 1976 SC 977] [See also Nandlal  v. Kesharlal AIR 1975 Raj.  226].

34.     Such a nomination is also permissible being intervivos.  In view of the  decisions of this Court, we are of the opinion that it is not necessary for us to  consider the decision of the Madras High Court, on which Mr. Prabhakar has  placed strong reliance, as the said decision revolves round the question as to  whether such a right is transferable or not.  A will being not a transfer, the  bar contained in Section 6(d) of the Transfer of Property Act, in our opinion,  will have no application.  We, therefore, agree with the findings of the  Division Bench of the High Court that the will is valid in law.

35.     Furthermore, the necessity to have a fixed term of management for the  purpose of running the temple in question has been accepted by the family  for a long time.  If it is to be held otherwise, the court will have to disturb  even a binding decree passed by the competent court of law which is binding  otherwise on the parties, rendered as far back as in 1944.  It is for the said  purpose that the conduct of the appellants becomes relevant.  They not only  accepted the right of the branch of Shanmugam but also accepted the right of  Chellam.  It has not been disputed that Chellam had been exercising the right  of shebaitship for a period of sixteen months in a period of two years for a  long time.  Once the finding of the courts below to the effect that  Respondent No. 1 was his son, his right of inheritance is, thus, not being  disputed; in our opinion, the contentions raised in this appeal cannot be  accepted.   

36.     We, therefore, affirm the findings of the Division Bench of the High  Court.  The question, however, which remains for consideration would be as  to whether this Court should pass any order directing the parties to hand over  possession on expiry of their term.  In law, undoubtedly, they are bound to  do the same.  They cannot hold the office more than the period directed by  the court of law.  Their terms have to be fixed.  We may notice that before  the Division Bench of the High Court, the parties agreed to the following :

"a)     The branch represented by Ramlingam (applicant          herein) would manage and administer the temple          and its properties for a period of two years.

b)      In so far as the other branch consisting of 1st          respondent on one side and respondents Nos. 2 to 4          on the other, they      would be managing and          administering the temple        for a period of 2 years          i.e. one year each."             

37.     This Court in a contempt proceeding initiated by Respondent No. 4,  which was marked as Contempt Petition No. 550 of 2004, directed :

"Without going into the allegations and counter  allegations made in the contempt petition, we direct  respondent No. 1 to hand over the possession of the  temple in question to the applicant herein on 11th  December, 2004 at 11.00 a.m. in the presence of the  bailiff of the court of Principal Subordinate Judge,  Madurai who will take inventory of the movables in the  temple and the same shall be signed by the applicant  herein as well as the 1st respondent in the appeal.  The 1st  respondent will also deposit a sum of Rs.10,000/- within  four weeks from today.  The said amount shall be put in a

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fixed deposit in the name of the temple and the Managing  Trustee would be entitled to withdraw only interest  thereof.  The compliance in this regard shall be intimated  to this Court in the 1st week of January, 2005."                           38.     Several orders have been passed by this Court from time to time.  It  appears that despite such directions, one party or the other claims to hold the  office despite expiry of the term.  In this appeal, as has been suggested by  Mr. Prabhakar, it may not be practicable for us to fix any time for taking  over or handing over of possession.  It, however, appears that an execution  case is pending before the Additional Subordinate Judge, Madurai.

39.     We, therefore, in exercise of our jurisdiction, direct the learned Trial  Judge, to pass an appropriate order in this behalf.  The learned Trial Judge  may pass an appropriate order in regard to the amount deposited by  Respondent No.1 pursuant to the said order dated 07.12.2004 or any other  order that may be brought to its notice.  

40.     This appeal is dismissed with the aforementioned directions with costs  payable by the appellant in favour of Respondent No.1.  Counsel’s fee is  assessed at Rs.50,000/-