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PETITIONER: SRI MAHALINGA THAMBIRAN SWAMIGAL

       Vs.

RESPONDENT: HIS HOLINESS SRI LA SRI KASIVASI ARULNANDITHAMBIRAN SWAMIGAL

DATE OF JUDGMENT19/10/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH MUKHERJEA, B.K.

CITATION:  1974 AIR  199            1974 SCR  (2)  74  1974 SCC  (1) 150  CITATOR INFO :  R          1980 SC 707  (30)

ACT: Hindu  Law of Religious and Charitable Trust-By a will,  the head of the Mutt nominated the junior Elavarasu but  later, by  another will, terminated the appellant-If  valid-Whether status  was acquired by the junior after  nomination-Meaning of ’Status’.

HEADNOTE: The  appellant  filed a suit for a declaration that  he  was entitled  to continue as the junior head (Elavarasu) of  the Tiruppandal or the Kasi Mutt and for a perpetual  injunction against  the  defendant, the head of the Mutt.  from  inter- fering with his functioning as the junior head of the Mutt. The  defendant, now dead, contended that the  appellant  was not  validly  nominated as the junior head of the  Mutt  and that  even  if  he  was nominated  as  such,  the  appellant acquired  no  right  by the nomination to  continue  as  the junior  head  after  the  head of  the  Mutt  cancelled  the nomination by another document Ex.  B-9 will. The  trial court found that by Ex.  B-1 will, the  defendant nominated  the appellant as the Elavarasu of the Mutt  but that  he acquired no status nor did he become the holder  of an  office by virtue of the nomination.  The  court  further found  that  the  defendant  was  competent  to  cancel  the nomination and that he had cancelled it by executing Ex.  B- 9  will.   The trial court. therefore, dismissed  the  suit. The District Court also confirmed the findings of the  trial court and dismissed the appeal. In  the second appeal, the learned single judge of the  High Court  granted a decree to the appellant on the ground  that by the nomination of the appellant he acquired a status  and he  became;  a holder of an office and  that  the  defendant could terminate the office or status only on good cause; but since  the appellant was not guilty of any misconduct,-  the cancellation  of  the  nomination  by  Ex.   B-9  will   was ineffective. On appeal, the Division Bench of the High Court reversed the decree  passed  by  the single judge on  the  basis  of  its finding  that  the appellant did not become a holder  of  an

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office by virtue of the nomination and so it was open to the defendant  to  cancel  the  nomination  without  notice  and without assigning any reason. The questions for consideration before this Court were (1)  Whether.  by  virtue of the nomination,  the  appellant obtained a status or a right in law or became the holder  of an office, and (2)  whether  the  defendant  was competent  to  cancel  the nomination without good cause. Allowing the appeal, HELD  :  (i) During the first part of the,,’  19th  century, there  were two managing Thambirans both at Banaras  and  at Tiruppanandal,  a  senior  and a junior;  and  the  peculiar feature  of this period consisted in this double  agency  at each centre of control. [78F] Succession  to the office of Mahant or Head of a Mutt is  to be  regulated by the custom of the particular Mutt  and  one who  claims  the office by right of succession is  bound  to allege  and prove what the custom of the  particular  insti- tution is. [78G] Giyana  Sambandha  Pandra Samadhi  v.  Kandasani  Thambiran, I.L.R.  10 Madras 375; Greedharee Doss v. Nandokissore  Doss Mohunt  [867] M.I.A. 405; Ramalingam Pillai v.  Vythialingam Pillai[1893] 20 I.A. 150 etc., ire referred to. 75 (ii) The  custom  in the Kasi Mutt was for the head  of  the Mutt to nominate a successor to succeed him by will and  was attended by certain religious ceremonies.    The  appellant, in  the present case, was nominated by Exhibit B-1 will  and whether the nomination was accompanied by performance of any religious ceremony was not essential[79C] B.   K.  Mukherjea’s Hindu Law of Religious  and  Charitable Trusts" 3rd Ed 1940 p. 257 and M. B. Bhagat v. G. N.  Bhagat [1972]  2 S.C.R. 1005, Krishnagiri, Trikangiri v.  Sheriadar Kavlekar  A.I.R.  1922 Bombay 202 and  Raghunath  v.  Ganesh A.I.R. 1932 Allahabad 603, referred to. (iii)     In  the  present  case,  although  the  power   of nomination  was exercised by a will, it is pro-tanto a  non- testamentary  instrument.   The  definition  of  "will"’  in Section 2(h) of the Indian Succession Act. 1925, would  show that  it  is the legal declaration of the intention  of  the testator with respect to his property which  he  desires  to be  carried into effect after his death.  By exercising  the power     of  nomination,  the,  head  of  a  Mutt  is   not disposing any property belonging to     him which is to take effect after his death.  He is simply exercising a. power to which he is entitled to under the usage of the  institution. A nomination   takes   effect   in  present.   It   is   the declaration of the intention of the head of the   Mutt   for the time being as to who his successor would be;  therefore, although  it is said that the usage in the Mutt is that  the power  of nomination is exercisable by will, it is really  a misnomer, because, a will in the genuine sense of the  term. can  have  no  effect in praesenti and it  does  not  become revocable  without  good cause merely because the  power  is exercised by a will. [80B-F] Ram Nath v. Ram Nagina A.I.R. 1962 Patna 481 and Kailasam v. Nataraja A.I.R. 1918 Madras 1016 referred to. (iv) It  is not correct to say that Mahantship  is  property and nomination by a Mahant    of  a successor is a  disposal of that property to take effect after the depth of     the Mahant.   Nomination is not a disposal  simipliciter.of  the office of Mahantship of the Mutt or its properties, to  take effect after the death of the incumbent.  It is the creation of a relationship generating a capacity in the    nominee to

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succeed  to  the Mutt on the death of the  incumbent.   This concept, however, cannot be put in a straight jacket of  any jurisprudential concept.  The Division Bench opined that the junior  as  the  successor designate,  carried  with  him  a certain  status and received dignity and  honours  befitting that status. [82B] (v)  The  fundamental  difference  between  relationship  or status  and capacity is that the former is a legal state  of being  while  the latter is a legal power  of’  doing.   The imposition of status carries with it attribution or a  fixed quota  of  capacities  and incapacities,  but  it  does  not directly compel the. holder to do or refrain from doing  any particular  act.  Capacity on the other hand, is  a  legally conferred  power to affect the rights of oneself  and  other persons  to whom the experience of the capacity is  directed subject to certain defined limits.  Capacity in this form is an incident of status. [84B] R.   H. Grareson’s ’Status in the Common Law’ p. 127,  Allen on  Legal  Duties, P. 33, Treatise on the Conflict  of  Laws 1935  p.  649,  "Status  and  Capacity"  46;  Law  quarterly Review, 277, Salvesen v. Administrator of Austrian Property    [19 27] A.C.  641.  Wibaret v. Niboret 1878 P.O. (CA) 1 and Ross  v. Ross 129 Mass. 243, referred to. (vi) The fact of a person being legally nominated as junior, having  a peculiar relationship with the senior  is  status, and  the capacity to succeed to the head is the incident  of that  status.   The status, when created  by  a  nomination, cannot  be  withdrawn or cancelled at the mere will  of  the parties. [85C-D] Tiruvambala  Desikar  v. Manikkavachaka Desikar,  I.L.R.  40 Mad. 177,referred to. The  nomination when made can be cancelled or  revoked  only for a good cause and as admittedly, there was no good  cause shown in this case for cancellation of the nomination by Ex. B-9, the cancellation was bad in law.  The- 76 -appellant  was holding the status of the Elavarasu  of  the Kasi  Mutt during the life-time of the defendant.  Now  that the defendant is dead, it is declared that the appellant was holding  the position of the Slavarasu during the  life-time of the defendant, that the revocation of the nomination  was bad  and  the  appellant was entitled  to  succeed  to  the headship of the Mutt on the death of the defendant.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1677  of 1969. Appeal  by special leave from the judgment and  order  dated the  12th  January,  1968 of the High  Court  of  Madras  in Letters Patent Appeals Nos. 4 and 29 of 1967. K.   S. Ramamurthy and K. Jayaram, for the appellant. S.   V.   Gupte,  S.  K.  Sastri,  S.  Gopalan  and  M.   S. Narasimahan, for the respondent. The Judgment of the Court was delivered by MATHEW,  J.  The appellant as plaintiff filed a suit  for  a declaration  that  he  was  entitled  to  continue  as   the Elavarasu  or Junior Head of the Tiruppanandal or  the  Kasi Mutt   and  for  a  perpetual  injunction  restraining   the defendant, the Head of the Mutt, from interfering in any way with his functioning as the Elavarasu or Junior Head of  the Mutt. The defendant, who is now dead, contended that the appellant

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was not validly nominated as the Elavarasu of the Mutt, that even  if  he was nominated as the Elavarasu,  the  appellant acquired  no  right by :the nomination to  continue  as  the Elavarasu, that the appellant’s conduct after he became  the Elavarasu was such that he was unworthy to become the future head  of  the Mutt, that he (the  defendant)  cancelled  the nomination  and  so the appellant had no right  to  get  the decla ration prayed for. The  questions  which arose for consideration in  the  trial court were: whether the appellant had been nominated by  the defendant  as  the Elavarasu of the Kasi Mutt;  whether,  by virtue  of  the  nomination, the appellant  was  holding  an office  or  had acquired any right or  status;  whether  the appellant was guilty of misconduct which disentitled him  to continue   as  the  Elavarasu  and  whether  the   appellant nomination  as  the Elavarasu was validly cancelled  by  the defendant. The  trial  court  found  that  by  Exhibit  B-1  will,  the defendant  nominated the appellant as the Elavarasu  of  the Kasi Mutt, but that he acquired no status nor did he  become the  holder of an office by virtue of the  nomination.   The court  further  found that the defendant  was  competent  to cancel  the  nomination even though the  appellant  was  not guilty  of  any misconduct and that he had cancelled  it  by executing  Exhibit  B-9 will.  The trial  court,  therefore, dismissed the suit. The  District Judge, in appeal by the  appellant,  confirmed the findings of the trial court and dismissed the appeal. In  the  second  appeal filed by the  appellant,  a  learned single judge of the High Court of Madras found that by  the nomination of the appellant as the Elavarasu, he became the holder of an office or that,  77 at  any  rate, he acquired a status and that  the  defendant could  terminate the office or status only for a good  cause and in  the  light of the finding of the  trial  court  as affirmed by the first appellate court that the appellant was not  guilty  of  any misconduct, the  cancellation  of  they nomination by Exhibit B-9 will was ineffective.  The learned judge,   therefore,  granted  a  decree  to  the   appellant declaring that he was the duly appointed junior head of  the Kasi Mutt and that he was entitled to continue as the junior head, subject to the right of the head of the     Mutt    to remove him for. good cause. The learned judge, however,  did not  make  a declaration that the appellant had a  right  to succeed to, the headship of the Mutt after the life time  of the  defendant, nor was the appellant granted an  injunction restraining   the  defendant  from  interfering   with   the appellant exercising the right as the junior head.      Appeals were preferred against this decree by both  the appellant and the defendant to a. Division Bench of the High Court. The Division Bench reversed the decree passed by the learned           single judge on the basis of its finding that  the appellant did not  become the holder of an office by  virtue of  the nomination and so it  was open to the  defendant  to cancel  the nomination without notice to the  appellant  and without assigning any reason.           It  is  against this decree that this  appeal  has been preferred by, special leave. The  questions which fall for consideration in  this  appeal are,  whether,  by virtue of the nomination,  the  appellant obtained a status   or  a right in law or became the  holder of  an office, and, whether the defendant was  competent  to cancel the nomination without good cause.

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It is not disputed that on September 12, 1951, the defendant executed a will (Exhibit B-1) reciting that he had nominated the  appellant as the Elavarasu of the Kasi Mutt.  The  will also  stated that certain ceremonies were performed  on  the occasion of the nomination. It then provided that by  virtue of  the nomination, the appellant win succeed the  defendant as the Head of the Mutt. There is also no dispute that  till January  2,  1960,  when the  defendant  revoked  they  will (Exhibit  B-1)  by  Exhibit B-9 stating  that  "it  was  not necessary  to appoint the appellant as the  Elavarasu",  the appellant was the Elavarasu by virtue of his nomination. In  Giyana  Sambendha Pandara Samadhi v.  Kandasami  Thambi- ran(1) herinafter referred to as "Sambandha Case", Muttusami Ayyar,  J. has traced the historical evolution of  the  Kasi Mutt  and the Dharmapuram Adhinam. The  Dharmapuram  Adhinam and  the  Kasi  Mutt are  monastic  institutions.  They  are presided over by ascetics who have renounced the world.  The Mutt  at Tiruppanandal i.e. Kasi Mutt was affiliated to  the Dharmapuram  Adhinam as a disciple Adhinam. An Adhinam is  a central institution from which the chief ascetic exercises (1)  I.L.R. 10 Madras 375. 78 control and supervision over a group of endowed institutions and religious trusts.  A Thambiran is an ascetic attached to an  Adhinam and when he becomes the head of the Adhinam,  he is  referred to as Pandara Sannadhi.  A Mutt was  originally established at Benares by one Kumaragupara Thambiran of  the Dharmapuram Adhinam.  The Dharmapuram Adhinam had come  into existence  several centuries before the institution  of  the Mutt at Benares.  The Mutt at Tiruppanandal was  established later  in aid of the Mutt at- Benraes by  Tillanayaka  Tham- biran,   a   successor  of  Kumaragurupara   Thambiran   who functioned  between  1720 to 1756.  In course of  time,  the Mutt at Tiruppanandal became the principal Mutt and the Mutt at Benares a subsidiary one.  As the Mutt advanced in  fame, endowments  and  trusts began to come  in.   So,  subsidiary institutions  came to be established and  the  Tiruppanandal Mutt  ceased to be, an isolated institution.  It  became  an important  centre exercising supervision and  ’control  over several subordinate Mutts in.  Southern India, over the Mutt in  Benares,  and  over Mutts at Merangi  in  Nepal  and  at Achiram .in Travancore so much. so that in some of the later correspondence one finds that Tiruppananddi is referred  to as an Adhinam.  The Dharmapuram Adhinam was regarded, by the Thambiran  at Tiruppanandal as, Ms Gurupitham, the  seat  of his  religious preceptor.  The Thambirans  at  Tiruppanandal were,  in  a  spiritual sense, subordinate  to  the  Pandara Sannadhi  at  Dharmapuram.   In course of  time,.  a  junior Thambiran came to be associated with the senior Thambiran in the management of the Tiruppanandal Mutt.  The necessity for the services of a junior at Tiruppanandal was felt, because, it Would on the one hand, give an opportunity to the  senior to  see  whether  the  junior might  be  relied  upon  as  a competent  successor,  .while, on the other hand,  it  would enable the junior to acquire experience before he became the head  of the Mutt.  The practice in the Dharampuram  Adhinam of  there being a senior and a junior Pandara.  Sannadhi  at one and the same time was the probable origin of the  double agency  at Tihuppanandal.  But, as only a  Pandara  Sannadhi could   initiate  a  Thambiran,  it  came  about  that   the Thambirans  for the Mutt at Tiruppanandal and  Benares  came from the Dhaniapuram Adhinam.  During the first part of  the 19th  century  (1833  to  1841)  there  were  two   managing Thambirans  both at Benares and at Tiruppanandal,  a  senior and  a  junior;  and the peculiar  feature  of  this  period

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consisted  in this double agency at each centre of  control, which  was probably due to the considerable increase in  the number and value of endowments to be superintended. Succession  to the office of Mahant or Head of a Mutt is  to be  regulated by the custom of the particular Mutt  and  one who  claims the office by right of succession is,  bound  to allege   and  prove  what  the  custom  of  the   particular institution  is, for, the only law regulating succession  to such institutions is to be found in the custom and  practice of that institution (see the decisions of the Privy  Council in  Greedharee  Doss  v. Nandokissore  Doss,  Mohunt(1)  and Ramalingam Pillai v. Vythiaingam Pillai(2).  As was observed in  Vidyapurna Tirthaswami v. Vidvanidhi  Tirthswami(s),  in most cases, (1)  (1867) M.I.A. 405. (2) (1893) 20 I.A. 150. (3)  I.L.R. 27 Madras 435. 79 especially in Southern India, the successor is ordained  and appointed  by the Head of the Mutt during his own life  time and in default of such appointment, the nomination may rest with  the head of some kindred institution or the  successor may be appointed by election by the disciples and  followers of  the  Mutt  or, in the last instance,  by  the  court  as representing  the sovereign.  Where the head of a  religious institution is bound by celibacy, it is frequently the usage that  he nominates his successor by appointment  during  his own life time, or by will.  Such a power of nomination must, however, be exercised not corruptly or for ulterior reasons, but  bona fide and in the interests of the Mutt;  otherwise, the   appointment   will  be  invalid   [see   Nataraja   v. Kaliasam(1);  Ramalingam Pillai v.  Vythialingam  Pillai(2); Ram   Prakash  Das  v.  Anand  Das(3)  and  Vaidyanatha   v. Swaminatha(4)]. From the decision in the Sambandha Case it is clear that the custom in the Kasi Mutt is for the head of the Mutt for  the time  being to nominate a successor to succeed him from  one among  the  Thambirans of Thirukkuttam  of  the  Dharmapuram Adhinam;  that  the nomination is made by will and  that  is attended by certain religious ceremonies like Manthakashyam, Deekshha,.Pooja and Arukattai.’ There  was no contention in the written statement  that  the necessary ceremonies for a valid nomination of a junior head in the Kasi Mutt were not performed.  Exhibit B-1 states  in unambiguous  language  that the ceremonies  were  performed. Both  the trial court as well as the first  appellate  court found, on the basis of the oral evidence, that the religious ceremonies for the nomination were not performed at the time of  the  nomination,  but at an  anterior  date.   When  the defendant had himself admitted in Exhibit B-1 will that  the nomination  was  made after the ceremonies  were  performed, there  is  no scope for any controversy as  to  whether  the ceremonies were performed. The statement in Exhibit B-1 that the ceremonies were performed was made at a time when  there was no controversy between the parties.  And, it was on  the basis  that there was a valid nomination that the  appellant was  associated with the defendant from 1951 to 1960 as  the Elavarasu of the Mutt. Quite  apart from these circumstances, we do not think  that for  a nomination to be valid, performance of any  religious ceremony  is necessary, unless, of course, the usage of  the institution  has made it mandatory.  "In many cases  when  a successor is appointed by Mohunt, he is installed in  office with  certain  ceremonies."  This cannot  be  deemed  to  be essential" (see B. K. Mukherjea, "Hindu Law of Religious and

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Charitable   Trusts",  3rd  ed.  (1970),  p.   257).    This observation was quoted with approval by this Court in M.  B. Bhagat  v.  G.  N. Bhagat (5).  See also  the  decisions  in Krishnagiri   Trikamgiri   V.  Sheriddar   Kavlekar(6)   and Raghunath v. Ganesh(7). The Division Bench of the High Court was of the opinion that as the nomination was made by Exhibit B-1 will, there was no reason. (1)  (1920) 48 I.A . 1. (2) [1893] 20 I.A. 150. (3) (1916) 43  I.A.73. (4) (1924) 51 I.A. 282. (5) (1972) 2 S.C.R. 1005 at 1010. (6) A.I.R. 1922 Bombay 202. (7) A.I.R. 1932 All. 603. 80 why  that will could not be revoked under law and  therefore the nomination stood revoked by the execution of Exhibit B-9 will.  In other words, one line of reasoning adopted by  the High Court was that, as a will is revocable at the  pleasure of the testator at any time before his death, the nomination made by Exhibit B-1 will was revocable without assigning any reason. The definition of "will" in s.2(h) of the Indian  Succession Act,  1925, would show that it is the legal  declaration  of the  intention  of a testator with respect to  his  property which he desires to be carried into effect after his  death. By exercising the power of nomination, the head of a Mutt is not  disposing of any property belonging to him which is  to take  effect  after his death.  He is  simply  exercising  a power  to  which he is entitled to under the  usage  of  the institution.   A  nomination makes the nominee  stand  in  a peculiar  relationship  with the head of the  Mutt  and  the Hindu  community and that relationship invests him with  the capacity  to  succeed  to  the  headship  of  the  Mutt.   A nomination takes effect in presenti.  It is the  declaration of the intention of the head of the Mutt for the time  being as to who his successor would be; therefore, although it  is said  that  the  usage  in the Mutt is  that  the  power  of nomination is exercisable by will, it is really a  misnomer, because, a will in the genuine sense of the term can have no effect  in presenti.  There can be no dispute that  a  nomi- nation can be made by deed or word of mouth. in such a case, the  nomination invests the nominee with a  present  status. That  status  gives  him  the capacity  to  succeed  to  the Headship  of the Mutt on the death of the incumbent for  the time  being.  If that is the effect of nomination when  made by  deed or word of mouth, we find it difficult to say  that when  a nomination is made by will, it does not take  effect in  presenti,  and  that it can be  cancelled  by  executing another  will revoking the former will.  Such, at any  rate, does  not  seem to be the concept of nomination in  the  law relating  to Hindu Religious Endowments.  A nomination  need not partake of the character of a will in the matter of  its revocability,  merely  because the power  of  nomination  is exercised  by  a  will.   In  other  words,  the  nature  or character  of a nomination does not depend upon the type  of document   under  which  the  power  is  exercised.   If   a nomination  is otherwise irrevocable except for good  cause, it  does  not become revocable without  good  cause,  merely because the Dower is exercised by a will.  If the power  of nomination  is exercised by a will, it is pro-tanto  a  non- testamentary   instrument.    A  document  can   be   partly testamentary  and partly non-testamentary.  In Ram  Nath  v. Ram  Nagina(1),  the  head of the Mutt for  the  time  being exercised his power of nomination, more or less in terms  of Exhibit  B-1  here, namely, by making the  nomination  of  a

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successor  and providing that the will be the owner  of  the prope rties and charities of the Mutt and also of the  other properties  standing  in the name of the head of  the  Mutt. The court held that so far as the nomination and  devolution of  the  properties  of the Mutt were  concerned,  the  will operated  as a non-testamentary instrument.  The Court  said that the condition which must be satisfied before a (1)  A.I.R. 1962 Patna 481. 81 document  can  be called a will is that there must  be  some disposition of property and that the document must contain a declaration  of  the  intention of  the  testator  not  with respect  to  any  thing but with respect  to  his  property. According  to  the  Court,  if there  is  a  declaration  of intention   with  respect  to  his  successor,   it   cannot constitute  a will even if the document were to  state  that the  nominee will become the owner of the properties of  the Mutt after the death of the executant of the will as that is only a statement of the legal consequence of the nomination. In  Kailasam  v. Nataraja(1), the court expressed  the  view that  a will making a nomination is only the evidence  of  a past  event.   In  other words, a will is the  record  of  a nomination and that it is not by the will that a  nomination is made. Exhibit  B-1 makes it clear that the nomination had  already been made.  It says:               "I  have nominated as my  successor  Mahalinga               Thambiran, who is one among the Thambirans  of               Thirukkuttam   of   Dharmapuram   Adinam   and               obtained  Manthakashyam,  Deeksha,  Pooja  and               Arukatti  and who is performing pooja  in  our               Mutt." The statement in the will that after the death of the  Head, the Junior win be the owner of the properties pertaining  to the Mutt is a declaration as to the legal consequence of the nomination.   The  fact that in the Kasi Mutt  there  is  no usage  that the power of nomination was exercised  otherwise than  by  will does not mean that a  nomination  will  stand cancelled when the will is revoked. Mr.  Gupte  for  the respondent argued  that  Mahantship  is property  and  nomination by a Mahant of a  successor  is  a disposal of that property to take effect after the death  of the  Mahant and, therefore, the power of nomination- can  be exercised only by a will, and, if it is exercisable only  by a  will,  it  follows that when the  will  is  revoked,  the nomination would stand cancelled. We  do  not think that this contention is  correct.   As  we said, the power of nomination is a concept pertaining to the law  of Hindu Religious Endowments.  It is not  because  the Mahantship  was  treated as property that in  the  Sambandha Case  it  was observed that in the Kasi Mutt  nomination  is made by a will, but because, it was the custom of that Mutt. The Privy Council has said that a nomination can be. made by word  of  mouth (see Greedharee Doss v.  Nandokissore  Doss, Mohunt(1).  And there is no reason why it cannot be made  by a deed.  If the power of nomination is exercised by word  of mouth  or by deed, it is not clear how the exercise  of  the power  would be valid if Mahantship itself is  property  and nomination  is regarded as the disposition of that  property to  take  effect after the death of the head  of  the  Mutt. For, if nomination is merely a declaration of the  intention of the head of the Mutt as to the disposal of the office  of Senior Pandara Sannadhi (1) A.I.R. 1918 Madras 1016, at 1018. (2) [1867] MIA405

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7-L447Sup.CI/74 82 which is generally regarded as property or of the properties appertaining  to the office, to take effect after the  death of the incumbent of the office for the time being, then  the power  of nomination can be exercised only by a  will.   The fact   that  according  to  the  law  of   Hindu   Religious Endowments,  a  nomination can be made by deed  or  word  of mouth  is  positive  proof that nomination  is  not  a  mere disposal of the office or of the properties appertaining  to it,  but the creation of a present  relationship  generating the capacity to succeed to the office and to the  properties appertaining  to  the office.  In other words,  by  word  of mouth or deed one cannot dispose of an office, if it is pro- perty, to take effect after the death of the person uttering the word or executing the deed and, therefore, nomination is not a disposal simpliciter of the office of the headship  of the  Mutt or its properties, to take effect after the  death of  the  incumbent.  It is the creation  of  a  relationship generating a capacity in the nominee to succeed to the head- ship of the Mutt on the death of the incumbent.  What, then, is the nature of that relationship ? Mr. Gupte said that so long as no present right or status is conferred or created by a nomination, the, Head of the  Mutt can  cancel on revoke the nomination at any time he  pleases and  that  there is no foundation for  the  assumption  that nomination can be cancelled only for good cause. As  already stated, a nomination is a concept pertaining  to Hindu  Religious  Endowments.  And it is sui  generis.   One cannot put it in the straight jacket of any  jurisprudential concept. The  Division Bench was of the view that "the junior as  the successor designate of the headship of the Mutt carried with him  a certain status on account of that fact  and  received dignity and  honours befitting that status". The  question is whether, by the nomination,- the  appellant acquired  a  status in law, and, if he acquired  a  status, whether  it was liable to be put an end to by the  defendant at his whim. John  Austin  has said that status is  "the  most  difficult problem in the whole science of jurisprudence." The question whether the junior Pandara Sannadhi or the Second occupies a status, has to be decided with reference to the law relating to Hindu Religious Endowments.  It is a well known custom in several  Mutts, for the heads to nominate their  successors. Junior heads so nominated form a class by themselves and  as they stand in a relationship with the senior heads which  is peculiar  in the sense that no other’ class of persons  hold that  relationship  with  them,  the  question  is  whether, according  to  the law of Hindu Religious  Endowments,  they acquire a status in law.  The custom or usage will certainly govern  the  question whether the head of the Mutt  has  the power  to  make a nomination during his life time,  and  the manner  of its exercise and the religious ceremonies  to  be performed  at  the  time of the  nomination.   But,  in  the absence  of  any  ,custom or  usage,  the  question  whether nomination would confer a 83 status  upon the junior heads so nominated is a  matter  for the  court  to decide in the light of the  law  relating  to Hindu  Religious  Endowments.   And,  in  deciding  it,  the interests of the Hindu religious community and of the  Mutts in  general are of paramount importance.  Whether or  not  a particular  condition  or  relationship  is  one  of  status depends primarily on the existence and extent of the  social

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interest in the creation and supervision of such a condition or  relationship.   The  test is not a  simple  one  of  the existence or non-existence of the concern of the society; it is also one of the degree of such concern.  It is,  further, abvious,  that  the degree and even the  existence  of  this concern  in  a particular condition will vary from  time  to time  in  the same society.  It is not possible  to  draw  a clear line of distinction in a dogmatic and a priori  manner between  conditions of status and special conditions not  of status.   In  other words, the picture of status  cannot  be painted  in  elemental colours of black and white on  any  a priori  considerations.  "It is rather a matter for a  court to  decide  at  the  time of  action  whether  a  particular condition  does or does not involve a sufficient  degree  of social interest to be characterised as status, assuming that all  other  features of status are present"  (11)  Bentham’s idea of status was that it was "a quality or condition which generates  certain  rights and  duties"(2).   Beale  defines status  as a personal quality or relationship not  temporary in  nature nor terminable at the mere will of  parties  with which third parties and even the State are concerned(3).  C. K.  Allen said that status is a condition of belonging to  a particular  class  of persons to whom  law  assigns  certain capacities  and  incapacities(4).   Status  is  defined   by Graveson  as  a  special  condition  of  a  continuous  and, institutional  nature, differing from the legal position  of the  normal person which is conferred by law and not  purely by  the  act of the parties, whenever a  person  occupies  a position    of   which   the   creation,   continuance    or relinquishment and the incidents are a matter of  sufficient social  or public concem(5).  The distinguishing mark  of  a class  for the purpose of status is that legal  consequences result to its members from the mere fact of belonging to it. In  Salvesan v. Administrator of Austrian Property(6),  Lord Haldane  asked the question : "For what does status mean  in this  connection  ?" and answered it by saying that  in  the case  of  marriage,  it  is  something  more  than  a   mere contractual relation between the parties to the contract  of marriage.   He also said that status may result from such  a contractual  relationship,  but only when the  contract  has passed  into  something  which  Private  International   Law recognizes as having been superadded to it by the  authority of  the  State, something "which the  jurisprudence  of  the State  under its law imposes when within its boundaries  the ceremony has taken place." (1)  See R.H. Graveson, "Status in the Common Law". p. 127. (2)  see Allen, "Legal Duties, p. 33. (3)  see "Treatise on the Conflict of Laws" (1935). p, 649, (4)  see "Status and Capacity" 46 Law Quarterly Review, 277. (5) sec ’Status in the Common Law", p .2. [1927] A.C, 641 84 In Nibovet v. Nibovet(1), Brett, L. J. said :               "The status of an individual, used as a  legal               term,   means  the  legal  position   of   the               individual  in or with regard to the  rest  of               the community". The  fundamental difference between status and  capacity  is that  the former is a legal state of being while the  latter is  a  legal power of doing.  Status determines  a  person’s legal  condition  in community by reference  to  some  legal class  or group and cannot normally be voluntarily  changed. The  imposition of status carries with it attribution  of  a fixed quota of capacities and incapacities, but it does  not directly  compel the holder to do or refrain from doing  any particular  act.  Capacity, on the other hand, is a  legally

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conferred  power to affect the rights of oneself  and  other persons  to whom the exercise of the  capacity  is-directed, subject  to  certain generally and legally  defined  limits- which vary in relation to each particular form of  capacity. Capacity  in  this form is an incident of  status.   And,  a distinction  therefore  must  be  made  between  the   legal principles applicable to the major conception of status  and those  affecting the minor conception of  its  incidents(2). The  closest  approach  to  a  judicial  statement  of   the distinction between status and its incidents is found in the judgment of Gray, C. J. in Ross v. Ross(3) :               "The  capacity or qualification to inherit  or               succeed  to property, which is an incident  of               the  status or condition, requiring no  action               to give it effect, is to be distinguished from               the  capacity  or  competency  to  enter  into               contracts that confer rights upon-others." It  would follow that status is a condition imposed  by  law and  not by act of parties, though it may be  predicated  in certain  cases  on  some  private act  as  the  contract  of marriage.   Whether the condition of status will be  imposed as  the result of private contract or private or public  act depends  on the public interest in the relation  created  by the  contract  or  act.  In other words,  as  we  said,  the interest  and concern of the society of which  parties  form part  determine  whether or not status will  be  imposed  or conferred as the result of private contract or by private or public act.  Social interest is a feature of the concept  of status; unfortunately, this aspect has been little  stressed in  the cases.  "Austin’s neglect of this aspect  of  status has made no small contribution to the judicial disregard  of social interest involved in the concept"(4).               In  Ross  v. Ross   (20"  Chief  Justice  Gray               said               "A  general  principle  that  the  status   or               condition  of a person, the relation in  which               he stands to another person,. and by which  he               is qualified and made capable to take  certain               rights  in that other’s property, is fixed  by               the law of domicile’. (1)  (1878) P.D. (C.A.) 1 at II (2)  see  V,.K.  Allen, "Legal Duties and  other  Essays  in Jurisprudence"(1931) pp. 28 ff and also his article  "Status and Capacity", 46 Law Quarterly Review, 277. (3)  129 Mass. 243 (1880). (4)  see R.H. Graveson, "Status in the Common Law", p. 60. 85 In    Tarak    Chandra   Das   and   Another    v.    Anukul Chandra Mukherjee(1), B. K. Mukherjea, as he then was,  said :               "Now,  legal  character is the same  thing  as               status." What  is  the relationship in which junior  heads  stand  to their seniors ? In Sambandha Case (supra), Muttusami  Ayyar, J. said (at P. 493) :               "By appointment as junior, the Tambiran became               a  spiritual brother or a brotherly  companion               and  by both the senior who appoints  and  the               junior who is appointed belonging to the  same               Adhinam, they were associates in holiness." As  we said, status is something apart from and  beyond  its incidents.   "The  status of a child is not  his  duties  or disabilities  in  relation to his parents, but  the  legally recognised fact of being a child"(2).  The fact of a  person

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being  legally  nominated  as  junior,  having  a   peculiar relationship with the senior is status, and the capacity  to succeed  to  the head is the incident of that  status.   The status, when created by a nomination, cannot be withdrawn or cancelled  at  the mere will of the parties.  The  law  must determine the condition and circumstances under which it can be,  terminated.  Merely because the status originated  from the act of a senior head in making the nomination, it  would not  follow  that the senior head can put an end  to  it  by another  act.  In other words, the junior heads as  a  class occupy  a  position of which the  creation,  continuance  or reliquidate, and its principal incident, namely,  succession to  the  office of the headship of the Mutt are  matters  of sufficient  social or public concern in the sense  that  the Hindu  religious community is vitally interested in  all  of them. There was some debate at the bar on the question whether, by nomination,  the  junior gets a contingent interest  in  the office  or  in the properties of the Mutt,  the  contingency being the survival by the junior of the head of the Mutt.  A contingent interest or ownership is a present right.  But we do  not propose to decide that point in this appeal.  As  we said,  the  concept of nomination is sui generis;  and  that makes  it  rather  difficult to bring  it  under  any  legal rubric.  Perhaps, it has its analogue in Canon Law and  that was  the  reason  why Bhashyam Ayyangar,  J.  in  Vidyapurna Tirthaswaini   V.  Vidvanidhi  Tirthaswami(3)  likened   the position  of a junior head to +,hat of a coadjutor in  Canon Law.  A coadjutor stands in a peculiar relationship with the Bishop.  He has a right to succeed the Bishop; while be is a coadjutor,  he has no administrative functions of  his  own, but  has only to do the work assigned to him by the  Bishop. But,  nevertheless,  during the life time of the  Bishop  he enjoys  a status and is accorded honours and regard  by  the religious  community, second only to those accorded  to  the Bishop. Even if it is assumed that the position of a junior head  is not a status as known to law, we think that the relationship created by the nomination is one which cannot be put an  end to by the head at his sweet will and pleasure. (1)  A.I.R. 1946 (33) calcutta 118, at 119. (2)  see R.H. Graveson, "Status in the common Law". pp. 122- 127. (3)  1. L. R. 27 Mad. 435. 86 In  Tiruvambala  Desikar v. Kanikkavachaka  Desikar(1),  the question  was  whether the head of the  Dharmapuram  Adhinam has, after making a valid nomination, an uncontrolled  right to concel it and nominate another person as the junior head. A  Division  Bench of the Madras High  Court  consisting  of Wallis, C. J. and Seshagiri Ayyar, J. held that the Head  of the Mutt, after making a valid nomination cannot revoke  the nomination at his sweet will and pleasure, but only for good cause Wallis, C. J. said (at P. 190) :               "It  has  been contended before  us  that  the               defendant only held office at the pleasure, of               the Pandarasannadhi and that consequently  the               latter  was  entitled to dismiss  him  without               giving  him  any opportunity of  being  heard.               The  nomination  and ordination  of  a  junior               Pandarasannadhi  is  the customary  manner  of               providing for the line of succession in  Mutts               of  this  kind, and it is not shown  that  the               Pandarasannadhi  has  any power  of  arbitrary               dismissal,  while  on the other hand,  it  has

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             been  held in a previous suit relating to  the               institution  that  he  may  dismiss  for  good               cause.    In  Hidyapurna  Thirtha.  swami   v.               Vidvanidhi  Tirthaswami(2) where the  question               was  whether a Pandarasannadhi  forfeited  his               position as such by reason of lunacy, recourse               was had to the analogies of the Canon Law  and               applying  those  analogies to this  case,  the               position of the junior Pandarasannadhi  during               the life time of the elder would appear to  be               that   of  a  coadjutor  with  the  right   of               succession,  a  right of which  he  cannot  be               deprived except for grave cause." Seshagiri Ayyar, J., after stating that the ordinary mode of succession in Mutts is by appointment by the head either  by will or by word of mouth observed :               ". . I feel no hesitation in holding that  the               appointer  has  not  the  absolute  power   to               dismiss which is claimed for him .... I  shall               refer to what takes place on the nomination of               a  successor  in this Mutt.   Exhibit-C.  .  .               mentions  the ceremonies that have to be  gone               through  in  selecting a  successor  and  also               those   which  the  person  selected  has   to               undergo.   The most important of these is  the               abishegam.   The rites to be observed on  this               occasion are described by the plaintiff as his               thirty-third  witness.  This may be  taken  to               represent correctly what happens when a junior               Pandarasannadhi  is appointed.  It is also  in               evidence   that  the  senior   Pandarasannadhi               himself  offers puja to the junior because  by               the abishegam the junior attains Godhead.   He               performs separate puja to Gods Vigneswara  and               Subrahmanya.    He  is  called   the   Sadbaka               Acharya,  or  co-adjutor with  the  senior..."               (PP. 194-195). The learned judge, then said that a person appointed by will and  on  whom  abishegam has  been  performed  becomes  heir presumptive  entitled  to  succeed to the  headship  on  the happening of a vacancy. (1) I.L.R. 40 Madras 177.           (2) I. L. R. 27 Mad.435. 87 He  further  said that when the nomination carries  with  it certain  dignity  and  is construed  by  the  worshipers  as implying sanctity of the person, it would lead to disastrous results  to  hold that the appointee is  dependent  for  his position upon the will of the appointee as the conscience of the people regards him as the unquestionable successor.   He then summarised his conclusions as follows : (at P. 197)               "(1) that the head of the Mutt is entitled  to               appoint  a Junior Pandharasannadhi;  (2)  that               this junior has a recognized status,- (3) that               he is entitled-to succeed to the headship,  if               he  survives the appointee; (4) that for  good               cause  shown he can be. removed; (5) that  the               tenure  of his position is not dependent  upon               the goodwill of the appointee; and (6) that it               is not open to the head of the mutt to dismiss               him arbitrarily". Counsel  for  the appellant argued that this  decision  lays down  the correct law and there is no reason why  it  should not apply to the case in hand.  He said that it is from  the Dharmapuram  Adhinam that the Kasi Mutt took its origin  and that  the same principles must apply to the Kasi  Mutt.   As

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regards the Dharmapuram Adhinam, Muttusami Ayyar, J. said in Sambandha Case(1)               "It should be observed here that there were  a               senior  and a junior Pandara Sannnadhi at  one               and  the  same  time,  and  that  the   junior               succeeded  the  senior  unless  dismissed  for               misconduct, and that a will was left at  times               by the senior Pandara Sannadhi appointing  his               junior   as  his  successor.  This   indicates               probably  the source from which the course  of               succession  at  Tirupranandal  was  originally               derived." The,  Division Bench of the High Court was of the view  that the  decision  in  Tiruvambala  Desikar  v.   Manikkavachaka Desikar(2)            Was   inapplicable  to   resolve   the controversy  here  for the  reason            that  Achariya Abishegam ceremony which invested the junior head there with certain spiritual powers was admittedly not performed in the instant  case.   It  was  submitted by  Mr.  Gupte  for  the respondent that the foundation of the decision in the  above case  was  the  finding  in that case  that  there  was  the ceremony  of Achariya Abishegam on nomination and that   had the  effect  of  investing  the  junior  head  with  certain spiritual powers and as the nomination of the appellant  was not attended with Achariya Abishegam, the nomination did not invest  the appellant with any spiritual capacity so  as  to make  the  nomination irrevocable.   In  Sambandha  Case(1), Muttusami Ayyar, J. said :               "....... a ceremony called Adhariya Abhishegam               is performed only in the case of Tambirans who               are  raised  to the position of  a  senior  or               junior  Pandara  Sannadhi.   It  consists   in               anointing  and bathing him as an  achariya  or               preceptor  and consecrating him as  such  with               the  recitation of religious texts  prescribed               for the occasion.  The belief with which it is               performed   is  that  unless  a  Tambiran   is               solemnly consecrated as a preceptor, he is not               competent                (1) I. L. R. 70 Mad. 375.                (2) I. L. R. 40 Mad. 177.               88               to   initiate  laymen  in  forms   of   prayer               conducive to their spiritual happiness and  to               ordain  laymen  as  Tambirans  with  efficacy"               (Para 8 of the judgment). What  this  paragraph  says  is  that  Achariya   Abhishekam ceremony  is  performed only for raising a Tambiran  to  the position  of  a  junior or senior Pandara  Sannadhi  in  the Dharmapuram   Adhinam.   It  would  not  follow  from   what Muttusami Ayyar, J. has said that the right to succeed which is  the  invariable  legal  incident  of  a  nomination   is conferred  by  virtue of  Achariya  Abhishekam.   Nomination must,  in  logic and in fact, always  precede  the  Achariya Abhishekam.  The effect of Achariya Abhishekam, according to the  learned  judge,  is to confer on the  junior  head  the spiritual  capacity to ordain Tambirans or, in other  words, to initiate laymen into the spiritual fold (Thirukkuttam) of Tambiran.   The  learned judge did not  say.  that  Achariya Abhishekam has the effect of investing the junior head  with an  indefeasible  right to succeed to the  headship  of  the Mutt.   In  other  words, if  revocability  is  otherwise  a characteristic of nomination, it would not cease to be so by virtue  of  the religious ceremony of  Achariya  Abhishekam. Even if it be assumed that Achariya Abhishekam would  invest

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a  junior head with the power to ordain Tambirans  which  he would not otherwise have, it would not follow that by virtue of Achariya Abhishekam he would obtain a right, much less an indefeasible  right, to succeed if nomination per se has  no such effect. In  the judgment in Sambandha Case(1), Muttusami  Ayyar,  J. has  referred  to a case where the head of  the  Dharmapuram Mutt-one Sadayappa-made three wills in succession nominating the  same person.  Counsel for the respondent wanted  us  to infer from this that a power to nominate, if it is exercised by  a  will, can also’ be revoked by another  will;  but  as already stated, the will, in most cases, is only a record of the  exercise of the power of nomination and the  mere  fact that  the head of the Mutt in question executed three  wills successively naming the same person as the junior head would not  in  any  way militate against  the  contention  of  the appellant  that  nomination  once  made  cannot  be  revoked arbitrarily.  if  there was an instance  in  the  particular institution of a head who, after having exercised the  power of  nomination by a will, executed another  will  nominating another  person,  the  position  would  probably  have  been different. Looking  at  the matter from another angle, we come  to  the same  conclusion.   We have already said that the  power  of nomination  must be exercised not corruptly or for  ulterior reason but bona fide and in the interest of the Mutt and the Hindu  community.   It then stands to reason  to  hold  that power  to revoke the nomination must also be exercised  bona fide  and  in  the  interest  of  the  institution  and  the community.   In  other  words, the power to  revoke  can  be exercised  not arbitrarily, but only for good cause.  We  do not  pause  to  consider  what  causes  would  be  good  and sufficient for revoking a nomination as the defendant had no case  before us that he revoked that nomination for  a  good cause. (1)  I. L. R. 10 Mad. 375. 89 We  hold  that a nomination when made can  be  cancelled  or revoked only for a good cause and, as admittedly, there  was no  good  cause shown in this case for cancellation  of  the nomination by Exhibit B-9, the cancellation was bad in  law. Therefore,  it must be held that the appellant  was  holding the status of the Elavarasu of the Kasi Mutt during the life time of the defendant.  Normally, a court will declare  only the rights of the parties as they existed on the date of the institution  of the suit.  But, in this case, on account  of the subsequent event, namely, the death of the defendant, we have  to mould the relief to suit the altered  circumstance. If  the  defendant  had  been  alive,  it  would  have  been sufficient  if we had declared, as the learned single  judge has  done, that the appellant was the Elavarsu of  the  Kasi Mutt.Now  that the defendant is dead, we make a  declaration thatthe  appellant   was  holding  the  position   of   the Elavarasu during thelife  time of the  defendant,  that the revocation of the nomination ofthe  appellant    as the Elavarasu by Exhibit B-9 was bad, and thatthe appellant  was  entitled to succeed to the headship  of  the Mutt onthe  death of the defendant. The decree passed by the Division Bench of the High Court is set aside and the appeal is allowed.  In the  circumstances, we make no order as to costs. S.C.                       Appeal allowed. 90

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