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Kalyanasundaram Aiyar and ors. Vs. Umamba Boyi Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Trusts and Socieites
CourtChennai
Decided On
Reported in(1897)7MLJ324
AppellantKalyanasundaram Aiyar and ors.
RespondentUmamba Boyi Saheb and ors.
Cases ReferredKunacha Umma v. Kutti Mamrrise Hajee I.L.R.
Excerpt:
- - ' i think the subordinate judge is clearly right in holding that the late rajah was trustee of these pagodas. the government does accede to her request, so recommended by the agent, and i think it maybe fairly inferred that the intention was that she should assume the management of the pagodas in the capacity in which she asked for it, that is to say, as the head of the family for the time being. 206. this being so, the inference is, i think, irresistible that the intention was to grant a widow's estate that is to put kamakshi boyi in the position which she would have enjoyed, had there been no confiscation on the death of her husband, the raja......and confined himself to the con-teitions hereinafter mentioned.3. whatever estate or interest, the late kamakshi boyi did acquire, fas undoubtedly acquired by her under the order of government, lated 19th march 1863, which concludes with the words, 'it is desir-table that the connection of government with the jrogodas should cease ind they will accordingly be made over to her highness kamakshi boyi sahiba.' some attempt was made to show that the late maha-ajah who died in 1855 and whose property was thereupon seized by the goverment in the exercise of its soverign power (see the secretary of mate in council of india v. kamakshi boyee sahiba 7 m.i.a., 476 was not the rustee of these pagodas but possessed over them nothing more than the tfelkima or sovereign right of superintendanee. this.....
Judgment:

Shephard, J.

1. The appellants are the, members of the two Devastanam committees of Tanjore and Kumba-konam. The 1st respondent is the senior Rani of the late Maharajah of Tanjore.

2. The suit relates to certain Devastanams known as the fort or Palace Devastanams and their endowments of which the' 1st respondent; claims to be heriditary trustee in succession to her co-widov, H.H. Kamakshi Boyi who died in 1892. Numerous questions appear to have been raised at the trial in the Court below, bu; in this Court, the appellants' Vakil did not argue the questions involved in the last seven issues and confined himself to the con-teitions hereinafter mentioned.

3. Whatever estate or interest, the late Kamakshi Boyi did acquire, fas undoubtedly acquired by her under the order of Government, lated 19th March 1863, which concludes with the words, 'It is desir-table that the connection of Government with the Jrogodas should cease ind they will accordingly be made over to Her Highness Kamakshi boyi Sahiba.' Some attempt was made to show that the late Maha-ajah who died in 1855 and whose property was thereupon seized by the Goverment in the exercise of its soverign power (see The Secretary of Mate in Council of India v. Kamakshi Boyee Sahiba 7 M.I.A., 476 was not the rustee of these pagodas but possessed over them nothing more than the tfelkima or sovereign right of superintendanee. This point is, in ay opinion, sufficiently dealt with by the Subordinate Judge in the 7th and following paragraphs in. his judgment. There is a clear listinction made in the documents exhibited between the public and the Fort temples. The latter are spoken of by Commissioner Phillips. in his.letter of the 15th June 1857 as 'possessions of he Raj which must unavoidably remain under management by Government officers until the final settlement of Tanjore affairs.' I think the Subordinate Judge is clearly right in holding that the late Rajah was trustee of these pagodas.

4. That being so, the only question is what was the intention of Government in passing the order above mentioned of the 19th March 1863. It is necessary to consider the circumstances which led up to that order. On Mr. Phillips' letter above mentioned, the' Government obtained the opinion of the Advocate-General as to the course which they could legally adopt with regard to the pagodas and their revenues, and on the 21st July 1858, an order was passed which concludes with the following words :--Under these circumstances, the Governor in Council requests that the Conmis-sionei: will proceed at once to take measures for the disposal of the pagodas on the principles above indicated and for making) them over to trustees, reporting the arrangements 'which he would propose for the sanction of Government before their being parried out. It has occurred to Government that these Devastanams might be made over wholly or in part to Sakharam Sahib, son-in-lav of the late Bajah, as sole trustee, but on this point they would dedre to have Mr. Phillips' opinion.'

5. On the 21st August 1862, an order was made by the Government to the effect that the private property of the late Rajah should be handed over to the senior Rani, the late Kamakshi Boyi, on the terme mentioned therein' (see order in 3 M.H. O. R., 423). Tb nature of these terms Was such that the senior Rani and the other Ranies and the Rajah's daughter were practically placed as between themselves in the position in which they would have been under Hindu Law, had no confiscation of the property taken place G(sic) the 13th January 1863, the Government Agent sends up to Govern ment a memorial from the senior Rani with his reporo upon In the memorial occurs this passage:--'Finally, your memorialit prays that the pagodas and charitable institutions which has been founded from time to time by members of her family my now be made over to her as the head of the family for the tits being. No objection, she submits, can arise from the circumstam of. her being a female; for the Rani of Ramnad is the acknowledge head of all charities in her Zemindari, and has been so judiciat declared by the late Court of Sadr, Adalut.' The memorialed; with the submission that the memorialist is the fit and proper person as the senior widow of her late husband, and to have the charge of the charitable endowments of the family.

6. In his report the Government Agent distinguishes between the pagodas and the chatrams. With regard to the former, he writes, 'Now, however that the Memorialist, H.H. Kamakshi Boyi Sahiba, has been recognized as the head of the family, and has had the whole of the private property of the late Raja made over to her, I conceive the Government will be disposed to accede to her request as far as it relates to the management of the pagodas.' It is on these materials that the order'of the 19th March 1863 was passed in the following language:--'It is desirable that the connection of Government with the pagoda should cease, and they will accordingly be made over to Her Highness Kamakshi Boyi Sahiba.

7. The extreme contentions on the part of the appellant in the Court' below seems to have been that the intention of Government was to constitute the senior Rani a mere manager removable at pleasure, and not to vest any estate in her. That contention was not pressed upon us at the hearing of the appeal: but it was argued that if the senior Rani took any estate, n wa,s only an estate for life and our attention was called by way of contract to the terms of the disposition of the Raja's private property expressed in the order of the 21st August 1862.

8. Whatever may have been the intention of Government as to the devolution of the estate on the death of Kamakshi Boyi Sahiba, I think it clear that they intended to make an absolute transfer without any reservation of a reversionary right to make a new appointment. The evidence shows that at the time, the Government was anxious to divest itself and its officers of the charge of religious endowments. Only nine days before the order of Government was passed the Act XX. of 1863 received the sanction of the Governor-General. By that Act a distinction was drawn between those temples whose trustees had been appointed by Government; and those which had been managed by hereditary trustees. It being competent to the Government to deal with the Fort pagodas in such manner as they thought fit, they treated the pajgodas as if they belonged to the latter class dealing with them in aocor danoe with the provisions of Section 4 of the Act. There is nothing to show that the resolution so to treat them was intended to be in any way conditional, or that it was intended to leave it an open question whether at some future time the pagodas might be dealt with in some other way.

9. The question still remains what was the precise nature, of the estate intended to be taken by the senior Rani. It must be taken that the estate was in the nature of self-acquired property in the Rani's lands, in this sense, that her rights were derivative from Government and had no relation back to inheritance on the death of the Raja. That was the; view taken with regard to the private property restored by the order of 21st August 1862 (See Jijoyiamba Bayi Saiba v. Kamakqhi Boyi Saiba 3 M.H.C.R., 444 etc. In the order relating to the pagodas there are no express terms, such as there were in the earlier order, regulating the enjoyment and devolution of the estate, The intention of Government may, however, I think, be gathered from the terms of the memorial and the report on which the order proceeded. In the memorial the senior Rani prays that the pagodas may be handed over to her, ' as the head of the family for the time being.' The Government Agent supports her claim on the same grounds, saying that, as she has been recognized as the, head of the family and has had the private property made over to her, he conceives the Government will be disposed to accede to her request regarding the pagodas. The Government does accede to her request, so recommended by the Agent, and I think it maybe fairly inferred that the intention was that she should assume the management of the pagodas in the capacity in which she asked for it, that is to say, as the head of the family for the time being. It cannot be suggested that it was any other capacity than that of widow of the late Raja that she Was chosen as the person to whom the trust should be made over And it must be presumed that the Government in making the grant had in view the personal law of the family to which the grantee belonged and intended to create an estate consonant to that law. (See Mahomed Shumsool v. Shewankam L.R., 2. IndAp 7 Kunacha Umma v. Kutti Mamrrise Hajee I.L.R., 16. M. 206. This being so, the inference is, I think, irresistible that the intention was to grant a widow's estate that is to put Kamakshi Boyi in the position which she would have enjoyed, had there been no confiscation on the death of her husband, the Raja. The Advocate-General put the case in two ways. He argued that it was the intention of Government either to confer on Kamakshi Boyi, a widow's estate or to grant the trust property to her as stridhanam. In either view he contended the plaintiff would, on the death of Kamakshi Boyi without issue, be the person entitled to suceed. A consideration of the circumstances under which the grant was made, in my opinion, strongly indicates the intention of Government to adopt the former course, and that view of the grant is further supported by the presumption which exists in favour of the supposition that the estate when regranted to a member of the original family, was intended to possess the qualities which it possessed in the hands of the former holder. For these reasons, I think the Subordinate Judge has come to a right conclusion, and I would dismiss the appeal with costs, to be paid by the appellants to the 1st respondent.

Davies, J.

10. I concur throughout.


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