TaxTMI 
TaxTMI 
TaxTMI 
2007 (5) TMI 633
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....lanichami Chettiar (Died) Ramalingam | 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, 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 ....
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....pellants 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. 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....
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....ces 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 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....
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.... 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 might, indeed postpone the beneficia....
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....ssion 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 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....
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....ukherjea 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 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 pr....
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....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 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 tr....