TaxTMI 
TaxTMI 
2007 (5) TMI 633
X X X X Extracts X X X X
X X X X Extracts X X X X
.... | Thangam @ Palanichami Chettiar Shanmugam @ Chellam @ Subbiah ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "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 15.04.1944) the bronze Soodam, 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 respec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....91, 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 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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" 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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, 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 ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erned 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 Ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....[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 Chella....