TMI Blog2007 (5) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... Thangam @ Palanichami Chettiar Shanmugam @ Chellam @ Subbiah Palanichami 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 : Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreted 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 shebaitsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 ₹ 10,000/- within four weeks from today. The said amount shall be put in a 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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