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PETITIONER:

PALANIVELAYUTHAM PILLAI & ORS.

Vs.

RESPONDENT:

RAMACHANDRAN & ORS.

DATE OF JUDGMENT: 09/05/2000

BENCH:

U.C.Banerjee, S.B.Majumdar

JUDGMENT:

S.B.Majmudar, J.

This appeal, on grant of special leave, is moved by

Defendant nos. 1-4 in Original Suit no.341 of 1968 in the

Court of the Subordinate Judge of Madurai in the State of

Tamilnadu. The said suit was filed by Respondent nos. 2 &

3 herein as plaintiffs against number of other defendants

with which we are not concerned in this appeal. The said

suit was filed for partition and separate possession of the

plaintiffs undivided share in the suit properties scheduled

A, B & C. It was contended that the plaintiffs and

the 7th defendant were the sons of one Sivasankaran Pillai

through his second wife, while the Defendant nos. 1,5 & 6

were the sons of the said Sivasankaran Pillai through his

first wife. The 8th defendant was the second wife of

Sivasankaran Pillai. Sivasankaran Pillai died on 27th

January, 1956. According to the plaintiffs, the suit

properties were the ancestral properties of the said

Sivasankaran Pillai who inherited the same. That the said

properties remained as joint family properties and the

plaintiff and Defendant nos. 1,5 & 6 were continuing as

undivided members of the joint family even after the death

of Sivasankaran Pillai.

The contesting Defendant nos. 1, 5 & 6 resisted the

suit on various grounds. In the present proceedings, the

dispute centers around schedule C properties only. Hence

we may not dilate on other properties and the nature of

dispute between the contesting defendants qua them. So far

as schedule C properties were concerned, the contention of

the contesting defendants was that they were gifted by the

original owner one Palanivelayutham Pillai by a Gift Deed

dated 18th February, 1907 in favour of Madurai Devasthanam

Tirupparankundram Andavar Subramaniaswamy and consequently,

they were not liable to be partitioned amongst the

descendants of said settlor. It was further contended that

under the said Gift Deed the right of management of the

aforesaid endowed properties was entrusted, on the death of

the settlor, to his second wife who had to continue

charitable performances for the deity along with her heirs

and had to act as a trustee qua these properties. That the

said designated trustee, the second wife of the settlor

Pitchammal alias Avudai Ammal, after the death of the

settlor, had continued to manage the said properties as a

trustee. That she had executed a General Power of Attorney

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on 3rd August, 1922 in favour of R. Sivasankaran Pillai

whose properties were sought to be got partitioned in the

present suit. That, amongst others, the said Sivasankaran

Pillai was entrusted with the task to manage and maintain

schedule C properties and to perform the charitable

activities as per the document executed by the deceased

husband of Pitchammal. That by a Will dated 27th January,

1924, the said Pitchammal also appointed the very same

Sivasankaran Pillai and his wife Subbammal who pre-deceased

Sivasankaran Pillai, as successor trustees after her death.

He alone, therefore, remained the repository of the right of

management of schedule C properties. That the said

Pitchammal died on 24th June, 1950 and thereafter

Sivasankaran Pillai continued to manage the schedule C

properties pursuant to the Will dated 27th January, 1924.

That the said Sivasankaran Pillai, by his Will (Ex.B-487)

dated 1st July, 1955, bequeath the rights of management and

trusteeship to Defendant no.9 - K.Sethuramalingam Pillai,

his son-in-law, so far as schedule C properties were

concerned. While on the same day he executed another Will

qua his other properties in favour of Defendant nos. 1, 5 &

6. The plaintiffs contention was that the aforesaid two

Wills of Sivasankaran Pillai were unauthorised, illegal and

inoperative at law. Earlier, the present appellants

resisted the said suit and contended that the Wills were

legal and valid but subsequently by an amended written

statement Defendant nos. 1,5 & 6 parted company of

Defendant no.9 and submitted that Sivasankaran Pillais Will

(Ex.B-487) dated 1st July, 1955 in favour of Defendant no.9

entrusting the management of schedule C properties to him

after testators death was not legally proved and, in any

case, was inoperative at law as Sivasankaran Pillai could

not Will away the right of management of schedule C

properties to a stranger like Defendant no.9, who was his

son-in-law, bypassing his own sons who were his heirs.

The learned Trial Judge, after recording evidence

offered by the contesting parties, came to the conclusion

that so far as schedule C properties were concerned, they

could not be partitioned being kattalai properties i.e.

consisting of special grant for religious services in a

temple. The learned Trial Judge, however, held that the

Will of 1st July, 1955 (Ex. B-487) entrusting the

management of the aforesaid schedule C properties to his

son-in-law, Defendant no.9, bypassing his own sons was duly

proved and was perfectly legal and valid. The aforesaid

decision was rendered by the learned Trial Judge on 30th

November, 1976.

Being aggrieved by the said decision of the learned

Trial Judge, the present appellants along with Defendant

no.5 filed first Appeal no. 1058 of 1977 in the High Court

of Judicature at Madras. The appeal was confined to

schedule C properties and two contentions were canvassed

for consideration of the High Court. They are : 1) Whether

the Will (Ex. B-487) dated 1st July, 1955 said to have been

executed by Sivasankaran Pillai favouring Defendant no. 9

was legal and valid and was duly proved. 2) Whether under

the aforesaid Will Sivasankaran Pillai was authorised to

entrust trusteeship and management of schedule C

properties, i.e. kattalai properties, to a stranger like

Defendant no.9, who was his son-in-law, bypassing his own

sons. The Division Bench of the High Court, by its impugned

judgment dated 12th July, 1984, negated both these

contentions and upheld the decision of the Trial Court on

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these issues. That is how the appellants-original Defendant

nos. 1-4 have landed in this Court in the present

proceedings by obtaining special leave to appeal under

Article 136 of the Constitution of India.

RIVAL CONTENTIONS: Learned counsel for the appellants

Shri Sampath in support of the appeal vehemently contended

that Sivasankaran Pillai, the father of Appellant no.1 was

not having any sound disposing state of mind on the date on

which he is said to have executed the Will (Ex. B-487) i.e.

on 1st July, 1955. That he was almost invalid and was not

having enough mental poise and that the Will was clouded by

many suspicious circumstances. He further submitted that,

in any case, the Will was not legally proved as attesting

witnesses to the said Will were not examined in proof

thereof. He alternatively contended that, in any case, the

Will could not be treated as a valid legal document under

which the right of management of schedule C kattalai

properties could be entrusted to a stranger to the family

like Defendant no.9, who was his son-in-law, bypassing the

appellants, who were his straight lineal descendants. In

support of this alternative contention, it was submitted

that the original endowment of schedule C properties,

pursuant to the Gift Deed of Palanivelayutham Pillai dated

18th February, 1907, created a life interest or widows

estate in favour of his second wife Pitchammal who had to

carry on religious and charitable performances along with

her heirs after the death of the donor; and as Pitchammal

had no issues or her legal heirs, on the death of

Pitchammal, the right of management would revert to the

reversioners being the lineal descendants of original

settlor - Palanivelayutham Pillai. That Pitchammal died on

24th June, 1950. Thereafter, Sivasankaran Pillai, as a

reversioner, could continue in management of the Kattalai

properties but he, in his turn, could not have willed away

the said right of management in favour of Defendant no.9,

who was a stranger to the family. That right of management

would legally enure in favour of Sivasankaran Pillais

lineal descendants - like appellants and Defendant no.5 and

consequently the Will (Ex.B-487) of Sivasankaran Pillai was

legally inoperative even on this ground. It was also

contended by Shri Sampath that pending the suit, even

Defendant no.9 has died, and his heir - Defendant no.10 -

his widowed wife, who is the sister of Appellant no.1, was

bequeathed with the right of management of schedule C

properties by Defendant no.9 by his own Will in her favour

and that the said Will would fall through if it is held that

the Will (Ex.B-487) dated 1st July, 1955 of Sivasankaran

Pillai in favour of Defendant no.9 itself was inoperative in

law.

It was also contended that by an Order dated 13th

September, 1945 of the Board of Commissioner for Hindu

Religious Endowments, Madras, a scheme of administration was

settled under Section 57 of the Madras Hindu Religious

Endowments Act, 1926 (Madras Act II of 1927) for

administration of the kattalai known as Palani Velayudham

Pillais specific endowments for Uchikalam kamalapatram

service and feeding on Karthigai Monday for Sri

Subramaniaswamy Temple, Tirupparankundram, Madurai. That

the said order was passed at the time when Sivasankaran

Pillai was managing the properties under the General Power

of Attorney dated 3rd August, 1922 executed by Pitchammal in

his favour. Therefore, the kattalai trustee had to be

governed by the said scheme of administration and that

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Defendant no.9 who was managing the schedule C properties,

had not complied with the requirements of the said scheme.

Learned senior counsel for the contesting respondents

- Defendant no.9 and Defendant no.10, being the heir of

Defendant no.9 (since deceased), on the other hand,

contended that the decision rendered by the High Court on

the aforesaid points is quite justified and calls for no

interference. That the testamentary capacity of deceased

Sivasankaran Pillai has been found to be well sustained on

record. That there were no suspicious circumstances

surrounding the Will; that the Will was legally proved as

the scribe was also an attesting witness and was examined as

such. Consequently, the Will was legally proved; that mere

presence of Defendant no.9 at the time of execution of the

Will could not be treated to be a suspicious circumstance

when, on the same day, the testator executed two Wills and

got them registered. One Will (Ex. B-487) was in favour of

Defendant no.9 and another Will (Ex. B-488) was executed in

favour of contesting defendants themselves, the appellants

herein, and Defendant nos. 5 & 6 so far as his personal

properties were concerned. On the legality of the Will, it

was submitted that by the Gift Deed (Ex. B- 506) the

settlor appointed his second wife Pitchammal as manager and

trustee qua schedule C properties, entrusting her with the

duties of carrying on charitable performances indicated in

the Gift Deed and though she had to carry on these

performances along with her heirs, in the absence of her

legal heirs, she became entrusted with absolute right of

management and trusteeship and could not be treated as

having widows estate or limited interest. Hence, there was

no question of the said right of management and trusteeship

devolving on the reversioners on her death. That she had

every right to appoint her successor manager which she did

by appointing Appellant no.1's father - Sivasankaran Pillai

by her Will dated 27th January, 1924 (Ex. B-26) which

started operating on 24th June, 1950, when Pitchammal died.

That thereafter Sivasankaran Pillai performing the duties of

management pursuant to his appointment by Pitchammal also

had equal right to appoint another manager on his demise as

per the impugned Will (Ex.B-487) dated 1st July, 1955

favouring Defendant no.9. That the settlor had not reserved

the right of management to be confined to his own lineal

descendants but had completely parted with the same in

favour of his second wife Pitchammal pursuant to the Gift

Deed (Ex. B-506) and consequently whatever Pitchammal did

was binding not only on Sivasankaran Pillai but also to his

successor manager as per his Will (Ex.B-487) dated 1st July,

1955. That there was no restriction on the right of

Sivasankaran Pillai to appoint the manager of his choice on

his demise so far as schedule C properties were concerned

and that is exactly what he had done by the impugned Will

(Ex. B-487) dated 1st July, 1955 and, therefore, the High

Court was right in upholding the said Will in favour of

Defendant no.9. Once that conclusion is reached, Defendant

no.9, as a manager of these properties, was equally

competent to entrust the said management on his demise to

Defendant no.10 as his successor manager. So far as the

Order dated 13th September, 1945 of the Board of

Commissioner for Hindu Religious Endowments, Madras is

concerned, it was submitted that no reliance was placed on

the same during the trial and, therefore, the appellants

cannot raise any contention in that behalf. However,

Respondent no.8, Executive Officer appearing for the

Devasthanam - originally joined as Defendant no.11 in the

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suit, submitted that the scheme settled by the Order dated

13th September, 1945 could not be enforced earlier because

of the pendency of this litigation and the said scheme will

be given effect in the light of the decision of this Court,

whereunder the appropriate kattalai trustee will be

ascertained and the said trustee will have to act under the

supervision of the Executive Officer for the time being in

force. In the light of the aforesaid rival contentions, the

following points arise for our consideration : 1. Whether

the Will (Ex. B-487) dated 1st July, 1955 said to have been

executed by Sivasankaran Pillai in favour of Defendant no.9

was legally proved. 2. Whether the said Will was

surrounded by suspicious circumstances and was required to

be rejected. 3. Whether the aforesaid Will can be treated

to be legal and valid in so far as it tried to entrust the

management of kattalai properties in favour of a stranger to

the family, Defendant no.9, bypassing the sons of

Sivasankaran Pillai. 4. Even if the aforesaid points are

decided against the appellants and in favour of Defendant

nos. 9 & 10, whether the scheme of administration settled

as per the Order dated 13th September, 1945 of the Board of

Commissioner for Hindu Religious Endowments, Madras is

required to be enforced against the kattalai trustee, now

Defendant no.10, who is the legatee of the management rights

as per the Will executed by Defendant no.9 in her favour.

We shall deal with these points seriatim. POINT NO.1: So

far as the proof of Will (Ex. B-487) dated 1st July, 1955

is concerned, a mere look at the said Will shows that apart

from two attesting witnesses S. Ramachandran and R.

Balakrishnan, T.K.Sankara Narayanan, who is the scribe of

the Will, has also witnessed the same. The description of

Sankara Narayanan mentions that it is written and witnessed

by him and when he was examined in proof of the said Will

before the Trial Court, it cannot be said that the attesting

witnesses were not examined in proof of the said Will. The

submission of learned counsel Shri Sampath appearing for the

appellants to the effect that Sankara Narayanan is shown to

be a witness in the other Will (Ex. B-488) dated 1st July,

1955 is now not shown to be a witness simpliciter so far as

the disputed Will is concerned and, therefore, he should not

be treated as an attesting witness to the latter Will,

cannot be countenanced. It is difficult to appreciate this

contention. If the Will (Ex. B-487) had shown Sankara

Narayanan only as a scribe, Shri Sampath would have been

right. But the Will shows that Sankara Narayanan ascribed

his signature apart from describing himself as a scribe. It

must, therefore, be held that the disputed Will was attested

by three attesting witnesses out of which one Sankara

Narayanan was examined in the Trial Court for proving the

said Will. The Trial Court as well as the High Court were

justified in taking the view that the Will (Ex. B-487) was

duly executed. It has also to be kept in view that on the

very same day the testator executed and got the Will

registered along with the other Will (Ex. B-488) in favour

of Defendant nos. 1,5 & 6. Point no.1 is, therefore,

answered in the affirmative in favour of the contesting

respondents and against the appellants.

POINT NO.2: So far as this point is concerned, it has

to be kept in view that both the Trial Court as well as the

High Court have concurrently held on facts that the deceased

testator was in a sound disposing state of mind and was

capable of executing the Will and that there were no

suspicious circumstances surrounding the Will. Merely

because Defendant no.9 was present at the time of execution

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of both the wills, it could not be said that it was a

suspicious circumstance. It has also to be kept in view

that on the very same day i.e on 1st July, 1955 the testator

Sivasankaran Pillai executed two Wills, one - the disputed

Will (Ex. B-487) in favour of Defendant no.9 so far as

schedule C kattalai properties and their management were

concerned. But simultaneously at the same sitting on the

same day, he executed another Will (Ex. B-488) in favour of

the appellants & Defendant nos. 5 & 6, his own sons so far

as his personal properties were concerned. Both the Wills

were got registered simultaneously. It is easy to visualise

that if the Will in favour of appellants and Defendant nos.

5 & 6 executed by the testator on the very same day can be

found to be legal and valid though held by the Trial Court

to have not been acted upon, it cannot be held by any

stretch of imagination that the same testator, who was in

sound disposing state of mind, while executing a valid Will

(Ex. B-488) in favour of Appellants and Defendant nos. 5 &

6 would loose his testamentary capacity while executing on

the same day at the same time another disputed Will (Ex. B-

487) in favour of Defendant no.9. The appellants cannot be

permitted to blow hot and cold at the same time. Of course,

Shri Sampath, learned counsel for the appellants, submitted

that he does not rely upon the Will (Ex. B-488) as it is

not acted upon but that is neither here nor there. Even if

the Will in favour of the appellants might not have been

acted upon for reasons best known to them after the demise

of the testator, that would not affect due execution of the

said Will by the testator nor would it affect his

testamentary capacity qua the disputed Will executed on the

same day and got registered by the testator simultaneously

with the Will (Ex. B-488) in favour of the appellants and

Defendant nos. 5 & 6. Even though an attempt was made to

show that the testator was unwell and confined to bed and

the plaintiffs went to the extreme and submitted that

testator was a lunatic, the evidence on record shows to the

contrary. He might be old and suffering from illness but

his testamentary capacity is not shown to be affected

adversely in any manner when on the same day he executed two

Wills and got them registered. The findings reached about

testamentary capacity of the testator by the Trial Court and

confirmed by the High Court are well sustained on evidence

and cannot be said to be suffering from any patent error of

law or being perverse which would call for our interference

in appeal under Article 136 of the Constitution of India.

Reliance tried to be placed by learned counsel Shri Sampath

for the appellants on the three decisions of this Court in

Bhagwan Kaur w/o Bachan Singh v. Kartar Kaur w/o Bachan

Singh & Ors., (1994) 5 SCC 135, H. Venkatachala Iyengar v.

B.N.Thimmajamma & Ors., AIR (46) 1959 SC 443 and Ramchandra

Rambux v. Champabai & Ors., AIR (52) 1965 SC 354 also

cannot be of any assistance to him as the fact situations

which fell for consideration in the aforesaid decisions were

entirely different and suspicious circumstances considered

in these decisions are found to be totally absent, so far as

the facts of the present case is concerned.

Mr. Sampath tried to highlight certain circumstances,

which according to him, were highly suspicious. We may

briefly refer to them. He submitted that under normal

circumstances any reasonable person like the testator, would

not disinherit his own children, i.e the appellant no.1 and

his brothers nor would he prefer a total stranger as a sole

legatee of schedule C properties. This contention is

totally devoid of force. The reason is obvious. So far as

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schedule C properties were concerned, they were not

personal properties of Sivashankaran Pillai. They were

endowed properties belonging to the temple. Mere right of

management was given to him by earlier manager Pitchammal

and it is this right of management which was being entrusted

by him to Defendant no.9, who was found to be a capable

manager. So far as the personal properties are concerned,

the testator executed another Will (Ex.B-488) on the same

day in favour of his own children, including the appellants.

He had, therefore, not disinherited them qua his own

personal properties. The second suspicious circumstance

highlighted by Shri Sampath was to the effect that Defendant

no.9, being beneficiary of the Will, had actively

participated in its execution. That is neither here nor

there. Even despite his active participation, Defendant

no.9 saw to it that the testator bequeathed his personal

properties in favour of his own sons, namely, the appellants

and Defendant nos. 5 & 6.

It has also to be kept in view that Defendant no.9 was

brother-in-law of Appellant no.1 and a trusted worldly wise

person on whom the testator, his father-in-law, had full

trust. He was not shown to be inimical to the appellants

when the disputed Will was executed. In fact, he was

looking after the interest of the entire family. Thus his

presence proved to be beneficial not only to him but also to

the appellants. The next circumstance pressed in service

was that the testator was residing with Defendant no.9 in

his house. This, to say the least, is not a suspicious

circumstance but a relevant circumstance which would

persuade the testator to entrust the management of the

kattalai properties to Defendant no.9. The next

circumstance tried to be highlighted by Shri Sampath was

that the testator was seriously ill and had undergone

abdominal operation and was unconscious and had no capacity

to understand things. It is difficult to appreciate this

contention. Even though the testator might be ill and might

have undergone abdominal operation, he could not be said to

be unconscious when he himself got the Will registered

before the authorities when the registering officer remained

present in the house of Defendant no.9 between 8 9 in the

morning and ascertained the willingness and capacity of the

testator in getting the Will executed and registered by the

authority. Shri Sampath tried to submit that the scribe got

the Will executed by the testator by exercising undue

influence and coercion. This contention, to say the least,

is not at all borne out from the evidence when the very same

scribe became an attesting witness to the Will (Ex. B-488)

in favour of appellants themselves and Defendant nos. 5 &

6. If he was out to pressurise the testator to disinherit

the appellants and Defendant nos. 5 & 6, he would never

have stood as an attesting witness to the Will (Ex. B-488)

in favour of Defendant nos. 1, 5 & 6 on the very same day

on which it was executed by the testator along with the

disputed Will. Resultantly, point no. 2 is also answered

against the appellants and in favour of the contesting

respondents.

POINT NO.3: So far as this point is concerned, we

have to trace the genesis and the nature of the management

entrusted to Sivasankaran Pillai by the deceased Pitchammal.

The first document, in chronology, is the Gift Deed

(Ex.B-506) dated 18th February, 1907. It recites that the

donor Palani Velayutham Pillai was donating the properties

in favour of Madurai Devasthanam Tirupparankumdram Andavar

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Subramania swamy. These properties were gifted to the

temple for the purpose of performing poojas and Archanas to

the deity daily at noon, for performing lotus archana in

every karthigai month and for Bhojanas to Brahmins and

others. The Gift Deed also recited that excluding the

payment of government taxes the remaining income derived out

from the under-mentioned properties had to be utilised for

the aforesaid purpose by the management of the trustee and

in case of death of the donor prior to the death of his

second wife, she will continue the said charitable

performances along with her heirs and after the amount spent

for the said purpose, an amount of Rs.2/- per month had to

be detained by them and she had to act as a trustee. In the

event of any fault on the part of performing the said

charitable performances, the Devasthanam was entitled to

question the same. He also consented for transferring the

patta as a trustee of the properties in the name of the

deity. These recitals clearly indicate that the donor

wanted the right of mangement of the donated properties to

be entrusted to his second wife along with her heirs after

the lifetime of the donor. It is obvious that the

properties belong to the temple. A mere right of managing

the properties, as a trustee, by collecting income therefrom

and for utilising the same for performing the religious

ceremonies and charitable performances as laid down in the

Gift Deed was entrusted to his second wife along with her

heirs. It is pertinent to note that this mere right of

management as a trustee did not confer any proprietary right

in the property donated to the temple. The only proprietary

right was to collect an amount of Rs.2/- per month as

remuneration for performing the duties of a trustee

entrusted to his second wife along with her heirs. It is

also necessary to note that this mere right of management as

a trustee charged with the duty to perform religious and

charitable performances was the kattalai grant to donors

second wife along with her heirs. It is pertinent to note

that the donor, who is the settlor, had not entrusted the

right of management as successor trustees to any of his

heirs or lineal descendants. He, on the contrary, chose to

select his own second wife and her heirs for discharging

this obligation. It is, therefore, not possible to agree

with the contention of Shri Sampath, learned counsel for the

appellants, that the aforesaid recitals in the Gift Deed

conferred any life interest or widows estate to the donors

second wife, after his demise. On the contrary, the right

of management and to act as trustee for the same without any

proprietary interest in the donated properties was only

conferred on his second wife along with her heirs.

In this connection, we may usefully refer to the

observations of learned author B.K.Mukherjea on The Hindu

Law of Religious and Charitable Trusts - Fifth Edition by

A.C. Sen, Eastern Law House in connection with Kattalai

grants in South India. The learned speaker in one of his

lectures reproduced in the aforesaid book at pages 198-200

observed as under:

XIV. KATTALAI GRANTS IN SOUTH INDIA 4.55. Kattalai

or special grant.- Before I close this chapter one thing

requires to be noticed and that is a special grant for

religious services in a temple which is in vogue in Southern

India and is known by the name of Kattalai. As Muttusami

Aiyyar, J. explained in Vythilinga v. Somasundara, in

ordinary parlance, the term Kattalai as applied to temple

means endowments and signifies a special endowment for

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certain specific service or religious charity in the temple.

Ardajama Kattalai or endowment for midnight service is an

instance of the former and Annadan Kattalai or an endowment

for distributing food to the poor is an example of the

latter. In this sense the word Kattalai is used in

contradistinction to the endowment designed generally for

the upkeep and maintenance of the temple. Persons who endow

properties for kattalais are entitled to appoint special

trustees to administer them, and the general trustees of the

institution have no right to dispossess them. And if under

the terms of the grant, the special trustee has to utilise

the income for specified services in the temple, the general

trustee has the right, as the person in charge generally of

the temple, to require the special trustee to hand over the

income to him. But the special trustee is, in respect of

the management of the kattalai properties, under the same

obligations as a trustee, and an alienation by him of those

properties would be void, unless it is for necessity or

benefit. In the case of some important temples, the sources

of the income are classified into distinct endowments

according to their importance. Each endowment is placed

under a separate trustee and specific items of expenditure

are assigned to it as legitimate charges to be paid

therefrom. Each of such endowments is called also a

Kattalai and the trustee who administers it is called the

Kattlaigar or stanik of the particular Kattalai. The

import of this expression was discussed in detail by

Sesagiri Aiyyar, J. in Ambala Vana v Sree Minakshy.

According to him, this expression is used with reference to

three different kinds of endowments. Properties may be

endowed- (a) for the performance of pujas in the temple,

or (b) for the performance of certain festivals in the

temple, or (c) for the performance of Archanas to the deity

in the name of the donors. (a) Ordinarily, the puja is not

performed in the name of the donor, and consequently,

supplementary grants are made by pious persons in order that

the service should be more efficiently performed. Instances

of this type of grant are to be found in the famous temple

at Chidambaram, where almost all the necessary daily

services are conducted by means of Kattalais endowed by

pious donors. (b) It also happens that where lands for

funds in respect of particular service or festival at

temples are not sufficient for conducting them on the

original scale, new donors come forward to supplement these

funds. (c) For Archana, however, no supplementary grant by

other donors is possible. It is intended solely for the

spiritual benefit of the grantor and it is not the concern

of third parties to help in his performance if the funds are

for any reason not found sufficient. Whatever the exact

nature of Kattalais may be-and that must depend upon the

usages of particular temples-one fact ought to be remembered

in this connection, and that is that when the grant is to

the deity and the income of particular funds is earmarked

for special services which are entrusted to special

trustees, if there is a surplus which cannot be spent on

these services, it would be a case for the application of

the cy pres doctrine and the special trustee can, on no

account, claim the surplus. This has been held by the

Judicial Committee in an appeal from the Madras High Court.

These observations clearly indicate that the grantee

of such special endowment derives his or her right of

management from the appointment by the settlor and could not

be treated to be having independent proprietary right in the

subject matter of the grant.

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Once this conclusion is reached, it becomes obvious

that the right of management as a trustee which inhered in

donors second wife - Pitchammal after his death could be

independently exercised by her along with her heirs. Now it

is not in dispute that she had no issues or lineal

descendants. Therefore, the phrase along with her heirs

on that score became redundant and she had every right to

mange on her own the donated properties as a trustee. Even

alternatively, as submitted by learned senior counsel for

the contesting respondents, it could be held that her heirs

may even include her testamentary heirs. In either way

Pitchammal, the second wife of the settlor, had every right

to select successor trustee in her place by her Will. That

is precisely what she did by executing her Will (Ex.B-26)

dated 27th January, 1924 in favour of Sivasankaran Pillai,

father of appellant no.1. It is not in dispute that even

prior to the said Will, the said Sivasankaran Pillai under

the General Power of Attorney dated 3rd August, 1922 from

Pitchammal, was managing the trust properties as her agent.

But on the death of Pitchammal on 24th June, 1950 the Will

(Ex.B-26) became operative in his favour and he became the

successor trustee and manager of these properties charged

with the obligation to carry out the religious and

charitable performances as directed in the Gift Deed of the

settlor. It has also to be kept in view that the said

entrustment of trusteeship rights by Pitchammal in favour of

Sivasankaran Pillai by her Will (Ex.B-26) dated 27th

January, 1924 is not in dispute between the parties.

However, Shri Sampath, learned counsel for the appellants,

tried to put a gloss over this will by submitting that even

otherwise Sivasankaran Pillai, the legatee under

Pitchammals Will, was himself the lineal descendant of

settlor Palanivelayutham Pillai and can be said to be the

heir of Pitchammal. It is difficult to appreciate this

contention. The Gift Deed of 18th February, 1907 nowhere

mentioned, as noted earlier, that the donor wanted

trusteeship and management of properties to go to his lineal

heirs. That Sivasankaran Pillai got the right of management

and trusteeship only because of the Will of Pitchammal who

had every right to will away the said trusteeship in favour

of anyone she liked unfettered by any restrictions found in

the original Gift Deed conferring right of management to her

for the first time.

In view of the aforesaid finding of ours, it is

equally not possible for us to accept the contention of Shri

Sampath that when Sivasankaran Pillai wanted to make Will in

connection with the right of management of the temple

properties, he ought to have and should have preferred only

his own sons and not a stranger like Defendant no.9. In

fact, that was the main contention of learned counsel for

the appellants. He submitted that the Will (Ex.B-487) of

Sivasankaran Pillai, favouring Defendant no.9 dated 1st

July, 1955 was, in any case, unauthorised and illegal as the

testator Sivasankaran Pillai could not have willed away the

right of management of temple properties to Defendant no.9

who was not his lineal descendant but was a stranger to the

family being, his son-in- law. This submission is totally

devoid of any force. Sivasankaran Pillai, by his impugned

Will (Ex.B-487) dated 1st July, 1955 in his turn selected an

appropriate manager for the trust properties charged with

the obligation of trusteeship to carry on the charitable

performances. The said Will itself shows that he was acting

as per the directions and demands of Pitchammal and because

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of his bad health he was unable to continue the said

charitable performances and, therefore, he was bequeathing

the said right in favour of Defendant no.9, his son in law.

It has to be kept in view that it was a mere right of

management and not a proprietary right which inhered in the

testator Sivasankaran Pillai pursuant to the earlier Will of

Pitchammal in his favour. He, as a successor trustee and

manager, had to select the best available person of his

choice to act after his demise as trustee and manager of the

temple properties with a view to continue the charitable

performances as originally entrusted by donor in favour of

his second wife Pitchammal and under whose directions he was

acting during her lifetime and had to act under her Will

after her demise. To recapitulate, as the original settlor

had not reserved the right of management and trusteeship of

these properties donated by him to the temple for his lineal

descendants and, on the contrary, had handed over that right

to his second wife and had further left the said management

to her, along with her heir, such absolute right being

conferred on her by the settlor could be well utilised by

her in selecting a successor of her choice. That is

precisely what was done by her by her Will of 3rd August,

1922 and in exercise of the same right conferred on

Sivasankaran Pillai, he in his turn as her representative

validly executed the impugned Will in favour of Defendant

no.9. It cannot, therefore, be held that the Will

(Ex.B-487) of 1st July, 1955 was in any way unauthorised or

illegal. It has to be kept in view that Pitchammal herself

was not appointed by her husband as a shebait of the

properties. She had a mere right to manage the properties

on which she had every right to bequeath to any person of

her choice unfettered by any other restrictions in this

connection. It is the very same unfettered right which got

transmitted from her to Sivasankaran Pillai by her Will

dated 27th January, 1924 and which further got transmitted

by him in favour of Defendant no.9 by the impugned Will

(Ex.B-487) dated 1st July, 1955. It is, therefore, not

possible to agree with the contention of Shri Sampath,

learned counsel for the appellants, that Sivasankaram Pillai

was bound to entrust the management and trusteeship qua the

temple properties to any of his sons and could not have

selected a stranger like Defendant no.9. It has to be kept

in view that mere right of management of trusteeship

unfettered by any direction of the original settlor could be

entrusted by Sivasankaran Pillai in his turn to any

competent person of his choice, only for the limited purpose

of management not backed up by any proprietary right in

connection with the trust properties which, admittedly,

belong to the deity.

Reliance placed by Shri Sampath, learned counsel for

the appellants, in the case of Kalipada Chakraborti & Anr.

v. Sm. Palani Bala Devi and Ors. AIR (40) 1953 SC 125

cannot be of any assistance to him. In that case,

B.K.Mukherjea, J. speaking for the three-Judge Bench

observed in this connection about Shebaitship as under:

(b) Hindu Law Religious endowments Shebaitship.

Whatever might be said about the office of a trustee, which

carries no beneficial interest with it, a shebaitship,

combines in it both the elements of office and property. As

the shebaiti interest is heritable and follows the line of

inheritance from the founder, obviously, when the heir is a

female, she must be deemed to have, what is known, as

widows estate in the shebaiti interest. It is quite true

that regarding the powers of alienation a female shebait is

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restricted in the same manner as the male shebait, but that

is because there are certain limitations and restrictions

attached to and inherent in the shebaiti right itself which

exist irrespective of the fact whether the shebaitship vests

in a male or a female heir.

It must be kept in view that in the light of the

recitals in the Gift Deed of 18th February, 1907, as noted

by us earlier, it cannot be said that the settlor had given

any shebaitship rights to his second wife nor had he laid

down any line of inheritance qua such shebaitship in his

Gift Deed. It was a mere right of membership entrusted to

his second wife with a further right given to her to execute

the office of trusteeship along with her heirs and without

any reference to the settlor or his heirs. The aforesaid

decision, therefore, on the facts of the present case, does

not get attracted. On the contrary, in an earlier judgment

of this Court in the case of Ram Gopal v. Nand Lal & Ors.

AIR (38) 1951 SC 139, the same learned Judge B.K.Mukherjea,

J., speaking for the Court, while dealing with the right of

hindu widow in connection with the gift of property, made

the following pertinent observations: The mere fact that

the gift of property is made for the support and maintenance

of a female relation cannot be taken to be a prima facie

indication of the intention of the donor, that the donee was

to enjoy the property only during her lifetime. The extent

of interest, which the donee is to take, depends upon the

intention of the donor as expressed by the language used,

and if the dispositive words employed in the document are

clear and unambiguous and import absolute ownership, the

purpose of the grant would not, by itself, restrict or cut

down the interest. The desire to provide maintenance or

residence for the donee would only show the motive which

prompted the donor to make the gift, but it could not be

read as a measure of the extent of the gift.

It is, of course, true that the aforesaid observations

were in connection with the absolute gift of properties in

favour of a hindu widow. But the principle laid down

therein can squarely get attracted while interpreting and

giving effect to the recitals in the Gift Deed of 18th

February, 1907. The settlors intention is very clear that

he wanted to entrust right of trusteeship and management to

his second wife along with her heirs without any fetter or

restriction on her power to appoint successor manager after

her demise. For all these reasons above, the third point

for determination, therefore, also is answered in the

affirmative in favour of the contesting respondents and

against the appellants. That takes us to the consideration

of the last point.

POINT NO.4: Learned senior counsel for the

respondents was right when he contended that the scheme of

administration settled by the Board of Commissioner for

Hindu Religious Endowments, Madras on 13th September, 1945

was not highlighted or relied upon before the Trial Court or

even before the High Court. However, it cannot be forgotten

that such an Order of the Commissioner is already on the

record of the case and that Order was rendered during the

lifetime of Pitchammal when Sivasankaran Pillai was also

very much in the management of the endowed properties as a

General Power of Attorney holder of Pitchammal. A mere look

at the Order shows that for this very endowment of kattalai,

a scheme of administration was settled under Section 57 of

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the Madras Hindu Religious Endowments Act, 1926 (Madras Act

II of 1927). It would be binding on Sivasankaran Pillai as

General Power of Attorney holder of Pitchammal and after her

death also, as the legatee and manager of the kattalai

properties, Sivasankaran Pillai would be bound by the said

scheme and similarly, whoever is the successor trustee

appointed by him under the Will (Ex.B-487) of 1st July, 1955

would also be bound by the said scheme and similarly any

further trustee appointed for management of the kattalai

properties would also be bound by the said scheme so long as

the scheme is not altered by the competent authorities. It

cannot be disputed that Defendant no.9 would be bound by the

said scheme as legatee of the right of management under Will

(Ex.B-487) of Sivasankaran Pillai dated 1st July, 1955.

Similarly any further entrustment of the said right of

management by Defendant no.9 in favour of Defendant no.10 by

his Will will also be subject to the binding settled scheme

of 1945 and she will have to act under the directions of the

Executive Officer as per the scheme settled for this very

kattalai endowment as per the Order of 13th September, 1945.

Even the Executive Officer of the Devasthanam, who is

governed by the said Order, is a party to the proceedings

being Defendant no.11. Learned counsel for Defendant no.11

submitted before us that relevant provisions of the scheme

were not effectively implemented till now because the

authorities were awaiting the decision of this Court as to

who will be the kattalai manager. Once that dispute is

resolved and proper kattalai trustee is indicated all the

provisions of the scheme as per Order dated 13th September,

1945 will be enforced. In this connection, we may usefully

refer to what the High Court has to say in the impugned

judgment. In para-31 of the judgment, the High Court

observed as under:

31. We wish to add one thing. The performance of

the charities ordained in Ex.B.506 shall be carried out by

the defendants who are obliged to do so, under the

supervision of the 11th defendant.

The said direction is well sustained. We only want to

make it clear that the aforesaid directions of the High

Court to 11th defendant for supervising the working of the

charities ordained in Ex. B-506 will also have to be

carried out in the light of the Order of the Board of

Commissioner for Hindu Religious Endowments, Madras dated

13th September, 1945. Defendant no.10, who is now the

legatee of the management rights as per the will executed by

Defendant no.9 in her favour, will also be bound by these

directions. Point no.4, therefore, is answered in the

affirmative in favour of the appellants and against

Defendant no.10.

As a result of the aforesaid discussion, the appeal

fails and is dismissed subject to the further directions

contained in our decision on point no.4. In the facts and

circumstances of the case, there will be no order as to

costs.