1. Defendants 1 to 5 are the appellants in this appeal. The same arises out of the judgment and preliminary decree for partition rendered in O.S.No. 341 of 1968 on the file of the Sub-court, Madurai.
2. The facts are as under: During the minority of the plaintiffs, the suit was filed by P.W.1 for partition and separate possession of the plaintiffs' l/6th share in the suit properties. The suit filed was approved by the plaintiffs on their attaining majority. According to the plaint, the plaintiffs and the seventh defendant are the sons of Sivasankara through his second wife while defendants 1,5 and 6 are the sons through his first wife. The eighth defendant is the second wife or Sivasankaran. Sivasankaran died on 27th January, 1956. The suit properties are ancestral properties of the said Sivasankaran who inherited the same. The suit properties remained as joint family properties of the plaintiffs and defendants 1,5 and 6 who continued as members of the joint family and as undivided even after the death of Sivasankaran. The plaintiffs and defendants 7 and 8 are separately residing at Nilayur. The suit properties were in the enjoyment of the plaintiffs and defendants 1 and 5 to 7. Defendants 1, 5 and 6 are not giving any income to the plaintiffs and defendants 7 and 8 as far as A and C Schedule properties are concerned. They began to alienate the joint family properties without any legal necessity or for any family benefit. Thus, they have alienated the B Schedule properties in favour of defendats 12 to 46. The same is not binding; nor are the other alienations. The C Schedule properties originally belonged to one Palanivelayutham Pillai. He made an endowment in favour of the 11th defendant in respect of those properties, creating a charge and directing some kattalais by virtue of Ex.B-506, dated 18th February, 1907 and the right of the trusteeship and the C Schedule properties were inherited by Sivasankaran. He was doing service as directed in the said deed and enjoying the C Schedule properties absolutely. After the death of Sivasankaran, defendants 1 and 5 to 7 and the plaintiffs inherited the trusteeship and the C Schedule properties and they were doing service. However, later on, in collusion with defendants 1, 5 and 6, the defendants 9 and 10 were trying to change the name in the pattas and house tax receipts. They were also trying to interfere with the management of the trust and the C Schedule properties to which they have no right. The movable properties described in D Schedule are liable to be divided. Though a sale deed in respect of some of the properties has been executed by Sivasankaran, that was never intended to be acted upon. Further, Sivasankaran has nominated a trustee who is totally a different person. That nomination is invalid.
3. The 48th defendant remains as an unmarried daughter of Sivasankaran. She does not want to get married. Since provisions for the marriage and maintenance of the 48th defendant and her sisters' have already been made, she is not entitled to claim anything from the suit properties. More so, because she is an earning member. With these allegations, the plaintiffs claim 2/6 share and defendants 1 to 7 and 12 to 46 are liable to pay future mesne profits in respect of the properties which are in their possession and enjoyment. A notice was issued claiming partition. That was refuted by some false allegations. Hence the suit.
4. In the written statement of defendants 1,5 and 6 it was alleged that it is not true to say that the properties are the ancestral properties of Sivasankaran. It is false to allege that the properties mentioned in A to B Schedule are the joint family properties of plaintiffs and defendants 1 to 7. Sivasankaran was entitled to several items in A Schedule, Item 9 belonged to the 1st defendant alone by virtue of a Will, dated 1st July, 1955. The alienations complained of had been done only with a view to discharge family debts. They were also for family necessity and benefit. In respect of C Schedule properties, plaintiffs and defendants 1 and 5 to 8 have no manner of right. The document dated 18th February, 1907, namely, Ex.B-506, is perfectly valid. Palanivelayutham Pillai constituted his second wife Pichammal alias Avadai Ammal as trustee. She had no children and she brought up Subbainmal, the first wife of Sivasankaran and her brother the 9th defendant. She executed a Will on 27th January, 1924 giving right jointly to Subbamrnal and her husband Sivasankaran Pillai. Since Subbammal predeceased her husband, Sivasankaran Pillai was in possession and nominated a trustee. Therefore, that nomination is perfectly valid. The heirs of Sivasankaran alone are entitled to succeed to the trust. This fact is borne out by the execution of a general power of attorney by the said Pichammal alias Avadai Ammal. The 9th defendant has managed to get documents executed in his favour, exercising coercion and undue influence. He is not a member of the family of Sivasankaran Pillai since he is an intruder.
5. The 8th defendant also filed a separate written statement stating inter alia that the alienations are for ridiculously low value to defraud the plaintiffs and defendants 7 and 8. By virtue of the Hindu Women's Rights to Property Act, 1937, the 8th defendant is entitled to claim partition in the suit properties.
6. Defendants 9 and 10 in their statement contend that with regard to item 2 of A Schedule, Sivasankaran Pillai had no title. That was used as a threshing floor for C Schedule properties.
'7. We are not concerned with the written statements of other defendants, since the scope of the appeal is very limited and only two points are raised. As many as 25 issues were originally cast. Though the appellants before us filed a written statement, supporting the Wills, dated 1st July, 1955, later on by reason of an amendment they claimed that the Wills were not true and genuine. Additional issues 26 and 27 were framed on 23rd June, 1970 and 28, 29 and 30 on 25th January, 1972; five additional issues were framed on 20th December, 1973 and lastly two more additional issues were framed on 21st October, 1976.
8. In a common finding on issues 1 and 8 to 11, the learned Subordinate Judge held that the properties mentioned in items 2,51 and 56 of A Schedule belong exclusively to the 9th defendant, that the properties mentioned in Items 41 to 44,50,52 and 57 of A Schedule belong exclusively to the 10th defendant and that the C Schedule properties belong to Andavar Sri Subramaniaswamy trust of which the 9th defendant is the trustee and therefore, these properties cannot be made subject-matter of partition in the suit and the rest of the suit properties which are ancestral properties of Sivasankaran Pillai alone could be made subject-matter of partition. On issue No. 2 and Additional Issue No. 4 framed on 20th December, 1973 the trial Judge held that there was no partition in the family of the plaintiffs as stated by defendants 1 and 2. On issues Nos. 6 and 7 and Additional Issues 1,2 and 5 framed on 20th December, 1973 and Additional Issues 1 and 2 framed on 21st October, 1976, the learned Judge came to the conclusion that the Will, dated 1st July, 1955 executed by Sivasankaran Pillai in favour of defendants 1, 5 and 6, even if true and valid, has not been acted upon and therefore not binding on the plaintiffs. He further held that the first defendant has not been in possession of C Schedule properties till about 1971 and that the conveyance of trust in favour of the 9th defendant is true and not tainted with any fraud or coercion. He also held that the C Schedule properties are not succeeded either by defendants 1,5 and 6 or by plaintiffs and the 7th defendant but is acquired by 9th defendant by means of a Will in his favour and that the 9th defendant has not prescribed title to C Schedule properties. On issues Nos. 4,5 and 24, he held that the alienations of various items of B Schedule are binding on the plaintiffs. On discussing issues Nos. 12 to 23, he concluded that the sale deed, dated 24th June, 1959 executed by the 1st defendant in favour of the 43rd defendant in respect of item 21 of B Schedule is binding on the plaintiffs and that the property has been sold for valuable consideration as contended by 43rd defendant and that the sale deed, dated 1st February, 1965 in respect of item 2 of B Schedule in favour of 43rd defendant is binding on the plaintiffs and the property has been sold for valuable consideration. On additional issues 1 and 2 (numbered as 28 and 29) framed on 25th January, 1972 and additional issue No. 3 framed on 20th December, 1973 he found that those persons who got benefits have to share the obligation towards 48th defendant in equal shares and provide for her monthly maintenance and marriage expenses without discrimination whether they are the children of the first wife or second wife of Sivasankaran Pillai. He was therefore of opinion that awarding a sum of Rs. 70 p.m. towards maintenance of the 48th defendant will be reasonable and the same is to be made by all the seven people who got the benefits out of the suit Will in equal moieties, viz., Rs. 10 per head per month. He held on issue No. 29 that since there is no provision. for the marriage expenses of the 48th defendant, she is entitled to a sum of Rs. 1,000 each from plaintiffs and defendants 1 and 5 to 8. On additional issue framed on 20th December, 1973 he was of the view that the marriage expenses of the 48th defendant could be fixed at Rs. 7,000 considering the status of the family. In view of these, on issues Nos. 3,25,26 and 27 and additional issue No. 3 framed on 20th December, 1973, he came to the conclusion that a preliminary decree would have to follow with the award of past and future maintenance at the rate of Rs. 70 p.m. and marriage expenses of Rs. 7,000. Thus, the appeal.
9. As we have stated above the only two points that are urged by Mr. Alagar, learned Counsel for the appellants are as follows. The Wills Exs.B-487 and B-488 have not been executed by the testator. It was the 9th defendant who, taking advantage of the fact that the testator was living with him, had brought about Ex.B-487. If the signatures in the Will are compared with the admitted signature in Ex.B-681, which is after a few months before, it will be clear that there is a great difference between the signature in Exs.B-487 and B-448 on the one hand and that in Ex.B-681 on the other. It is somewhat surprising that in the evidence it is trotted out as if four months before the execution the hands of the testator became shaky. Further only one attestor, namely, D.W.7 was examined His evedence is full of contradictions that it is impossible to say that he had any regard for truth. Therefore, his evidence ought to have been rejected, The fact that the, Wills were registered on 1st July, 1955 will not be of any consequence at all, because it is well settled that mere registration cannot add to the probative value of a testament.
10. The second attack against the judgment is in respect of the nomination by Sivasankaran Pillai of the 9th defendant as trustee, it was under Ex.B-506 the endowment was created. Sivasankaran Pillai being the grandson of Palanivelayutham Pillai was entitled to succeed however, in preference to Thangathammal, the brothers' wife. A careful reading of Ex.B-506 will clearly show that the founder of the trust had delineated the course of succession. Therefore once it has been so delineated, the office becomes hereditary. If that be so, the founder himself cannot go back upon the same and provide another course of succession, unless a right has been reserved to himself. In support of this submission, reliance is placed on the decision in Janaki Raman P.O. v. Koshalyanandam PD : AIR1961Pat293 .
11. If Pichammal had merely a widow's estate or a life estate, she has no right to appoint somebody else. In support of this reliance is placed on the decision in Ramaswamy Thevar v. Madras H.R. & C.E. Board : AIR1954Mad1110 . Therefore, the nomination of Sivasankaran Pillai itself is valid. Assuming he could succeed as heir, then certain other consequences follow. Ex.B-26 by which the 9th defendant gets right is not valid for these reasons; Avadai Ammal, a female heir inherited the widow's estate. Therefore, she cannot will away. Under Ex.487, Sivaramalinga is not the heir being Pichaammal's sister's son. Then again, he submitted even the founder himself cannot alter the course of succession. If that be so, Sivasankaran Pillai cannot equally alter. All these arguments will apply should this Court come to the conclusion that the office is hereditary. On the contrary, if it is held that the office is non-hereditary in nature this being a specific endowment attached to a religious institution, this itself is the religious institution. Therefore, the authority to appoint a trustee is the designated authority under the Hindu Religious and Charitable Endowments Act, either Act II of 1927 or Act 19 of 1951 or Act 22 of 1959. (The definition of 'religious institution' is found in Clause 18 of Section 6 of Act 22 of 1950). The further submission of the learned Counsel is that there is no evidence to show that the blending was done by the appellants, even assuming that Ex.B-488 is valid. One faint argument is advanced about the maintenance to be awarded in favour of the 48th defendant who has filed a memorandum of cross-objection in regard to maintenance alone; and she prays that a higher quantum of maintenance should be awarded. But that was left to the discretion of the court. Therefore we will deal with that at the appropriate stage.
12. In answer to the above submission, Mr. K. Ramamoorthy, the learned Counsel for the contesting respondent says, the first and second plaintiffs came forward with a case claiming the C Schedule properties. In the written statement filed originally in paragraph 9 as well as the additional written statement in paragraph 5, admissions as to the Will are clearly made. Then there is the evidence of D.W.7. No doubt, there are a few discrepancies. But on that score his evidence is not liable to be rejected. The court below has given very valid reasons for upholding the Will. Apart from the fact that both are registered Wills executed on the same day, if one Will is to be accepted as true, it would necessarily follow that the other Will also has to be accepted. If the signatures found in these Wills do not favourably compare with those in Ex.B-681, that would not discredit these Wills. Therefore according to the learned Counsel, the appellants are estopped from questioning the validity of these Wills. On the second question it is argued that a founder can even found a trust and nominate any one as a trustee. In this regard the decision in Gossami Sri Gridharji v. Romanlalji Gassami I.L.R.(1890) Cal.3 : (1888) 16 I.A.37 is cited. What Ex.B-506 mentioned is 'Pichaammal and her heirs'. On Pichaammai's death the property will devolve on her father's heir as Stridhana heirs. The trusteeship given to Pichaammal cannot be called a female's or a widow's estate. She takes it absolutely as laid down in the decision in Gauranga Sahu v. Sudevi Mata I.L.R. (1917) Mad.612 : 6 L.W.46 : 32 M.L.J.597 : A.I.R.1918 Mad. 1278 which has been cited in Jayarama Naidu v. Tirupathi : AIR1972Mad183 . Therefore, after Pichaammal there being no other heir she is entitled to nominate the intention of the founder having failed. She does not take a widow's estate. This is the principle adumbrated in Sections 95, 96 and 97 of the Indian Succession Act. Under Ex.B-487 Sivasankaran Pillai merely carried out the wishes of Pichaammal and therefore he can nominate. In view of these it is urged that the junior wife took an absolute estate. As to what is the construction to be placed on clauses of this character can be gathered from Halsbury 4th Edition Vol.50 Para. 563-567 at page 375 and Theobald on Wills, 1971 Edition, para.996. The relevant authority is In re Mc Elligott (1944) Ch.D.216. Under Hindu Law when properties are given under settlement, no question of widow's estate arises. This is clear from the decision in Ramachandra Rao v. Ramachandra Rao I.L.R.(1922) Mad.328 and the passage occurring at page 328 has been approved by the decision of the Supreme Court in Ram Gopal v. Nandlal, : 1SCR766 in which at page 141 it has been categorically laid down as under;
There is no warrant for the proposition of law that when a grant of immovable property is made to a Hindu female, she does not get an absolute or alienable interest.
To the same effect is the decision in Bishu Singh v. Mangla Nain Bhagwan, and in Sri Ram v. Chandeswar Prasad : AIR1952Pat438 . A vital distinction has to be drawn between power and property as laid down in the above cases.
13. In Sovabati Dassi v. Kashi Nath : AIR1972Cal95 the question as to what is to happen if no perpetual. or hereditary line of succession has been prescribed, arose. It is that principle which has been explained in Tagore Law Lectures on Endowment, 5th Edition (1983) Para.5, 6A. Even assuming there is a right, as far as the respondents are concerned that claim is clearly barred in view of Article 107 of the Limitation Act. To the same effect is the decision in Venkata Ramanujam v. Parthasarathi : (1976)1MLJ140 and in Gnanasambanda Pandarasannadhi v. Velu I.L.R. (1900) Mad.271 : 27 I.A.69 : 10 M.L.J.29 affirmed by the Supreme Court in Kalipada v. Palani Bala, : 4SCR503 . The fact that the appellants are in possession will clearly show that there was no blending as well.
14. As regards maintenance claimed by the 48th defendant, the learned Counsel fairly leaves it to the Court to fix the quantum thereof.
15. In reply Mr. R. Alagar contends that if it is stridhana property, the principle laid down in Mayne's Hindu Law at page 746 Section 624 would apply. The decision in Ram Gopal v. Nand Lal, : 1SCR766 , does not apply, because there is no wording as absolute estate. The authorities are clear as seen from the decision in Lalta Baksh v. Phool Chand (1945) 2 M.L.J.393 : A.LR.1945 P.C. 113 : 59 L.W.46 (P.C), if there is nothing to indicate an absolute estate, the widow takes limited estate. In support of this stand the decision in Manathunainatha Desikar v. Gopala Chettiar I.L.R. (1943) Mad.858 : (1943) 1 M.L.J.434 : A.I.R.1944 Mad. 1 is also cited.
16. Having regard to the above arguments, two questions arise for out determination. Firstly: whether Exs.B-487 and B-488 Wills could be upheld. The second question is whether the nomination under Ex.B-506 and further willing away the right of trusteeship under Ex.B-26 could be considered to be valid.
I7. Point 1: We have carefully perused ourselves the Wills Exs.B-487 and B-488. One thing that is striking in this case is they came to be executed on the same day and registered on 1st July, 1955. First and foremost, as rightly contended by Mr. K. Ramamoorthy, the learned Counsel for the 6th respondent, a written statement was filed on the side of defendants 1,5 and 6, stating in paragraph 9 that Sivasankaran Pillai executed his last registered Will on 1st July, 1955 when he was in a sound and disposing state of mind constituting the 9th defendant Seturamalingam Pillai, his brother-in law cum son-in-law as trustee for the trust properties in C Schedule. Then again, in the additional written statement in paragraph 5 it is stated thus:
The Will was executed by Sivasankaran Pillai while he was in a sound and disposing state of mind. It is again false to allege that the Will was executed when Sivasankaran Pillai was ill with abdomen operation. The operation was in 1952. After three years the Will was executed. The plaintiffs cannot question the validity of and the genuineness of the Will, since they were aware of the Will even as early as 1955.
In view of these, we are clearly of the opinion that the appellants are estopped from questioning, the truth and validity of the Will. But that does not relieve the Court when once the Will is brought before it to examine independently and satisfy its conscience as to whether it is true or valid. Looked at in that light, on a perusal of the evidence of D.W.7, we are of the view that he speaks the truth and rightly his evidence has come to be accepted. There are certain discrepancies as to when Ramachandran was brought, who gave the list of properties, etc. These in our considered opinion will not constitute such material discrepancies as to discredit the evidence. Therefore, we find no difficulty in upholding both the Wills Exs.B-487 and B-488. It is all the more reason why they came to be registered. Not that for a moment, because of registration we are saying it is of higher probative value, but that is one of the circumstances to be taken into consideration. That is our finding on point No. l.
18. Point 2: That takes us to Ex.B-506. It is under this document, dated 18th February, 1907 Palanivelayudham Pillai founds the trust. He says that because he had made a donation of the properties during his lifetime, he will be the trustee and after his life, his junior wife and her heirs shall perform the Kattalals, taking a salary of Rs. 2 and maintaining proper accounts, etc. One thing cannot be overstated; that is, a founder can found a trust and nominate anyone as a trustee.
19. In Gossami Sri Gridharji v. Ramanlalji Gossami, I.L.R. (1890) Cal.3 : L.R. (1888) 16 IndAp 137 the Headnote reads as follows:
According to Hindu Law, when the worship of a Thakur has been founded, the office of a shebait is held to be vested in the heir or heirs of the founder, in default of evidence that he has disposed of it otherwise, provided that there has not been some usage, course of dealing, or circumstance, showing a different mode of devolution, Poet Koonware v. Chutter Dharee Singh, I.L.R. (1886) All.315 referred to. It having been established that a particular worship had been founded by the plaintiff's grandfather, it followed that the plaintiff was by inheritance the shebait of that worship, there being no proof of any usage at variance with this presumption, but the custom appearing to be in accordance with it. Held, that the plaintiff, as such representative of the founder, was entitled, in preference to a collaterally-descended member of the founder's family, to claim the shebaitship. Also that the plaintiff was entitled, in that character to the possession of a portrait which had been by the same founder dedicated to this worship. But that he had no right to a temple in which the portrait was kept this temple having been given by one of the worshippers ('for the location of the Sri Sri Ishwar Jois') with the condition annexed that the defendant should be shebait. The plaintiff accordingly could not claim possession of this temple, as it could only have been accepted as a gift upon the donor's terms and this condition prevailed notwithstanding that the temple had been in part paid for by subscription among the worshippers; there being no evidence that the latter did not know of it, or had paid their money with any reference to the question who was to be shebait.
20. The next question therefore is whether Pichaammal took only a limited estate or what is called as widow's estate. We have already seen that Ex.B-506 mentions 'Pichaammal and her heirs.' In the decision in Gauranga Sahu v. Sudevi Mata. I.L.R. (1917) Mad. 612 : A.I.R.1918 Mad. 1278 it is held:
Nor can it tie said that the nomination of a trustee by the heirs of the founder would not be in accordance with the genesis of the Hindu Law relating to trusts. That system recognises the hereditary principle with reference to trusteeships, such office is liable to partition like' ordinary joint family property and it has been held to be capable of being acquired by prescription. It would doubtless be more in accordance with modern legal notions to release the office of trustee from the domination of the joint family and hereditary principles relating to tenure of property and the arguments of convenience probably preponderate in the same direction. At the same time I am not convinced that there are really insuperable difficulties in working out the view which upholds the right of the heirs of the founder to nominate and appoint trustees. Such 01 them as arose in actual, cases have apparently been solved.
Though one of the learned Judges dissented from this view, the majority view as expressed by Abdul Rahim,, J. would conclude the issue. This was referred to in Jayarama Naidu v. Timpathit : AIR1972Mad183 . In paragraph 4 it is stated thus:
If the office of trusteeship is not property in the sense we have explained above, Gauranga Sahu v. Sudevi Mata I.L.R. (1917) Mad 612 : A.I.R.1918 Mad. 1278 : 6 L.W.46 : 32 M.L.J.597 will in our opinion, govern the decision in the instant case, Sir John Wallis, C.J. with whom Abdul Rahim, J. concurred held that it was competent to the heir of the founder of a Shrine on whom the trusteeship had vested owing to the failure of the line of the original trustees to create a new line of trustees, The rule was actually based on the presumed intention of the founder that the heirs should be at liberty to make fresh arrangements for devolution of the trust instead of leaving it to devolve in the family. Though that was not a case of nomination made by a widow, the ratio of the decision applies to her too when either she took the office of trusteeship as an heir or as a nominee of the previous heir or nominee.
21. In this case what happened is, there is no proprietary interest; there is no devolution beyond the brother's son. Therefore, the principle laid down in Gauranga Sahu v. Sudevi Mata I.L.R. (1917) Mad. 612 : A.I.R.1918 Mad.1278 : 32 M.L.J. 597 : 6 L.W.46 was approved.
22. Now, we will make a reference to Sections 95, 96 and 97 of the Indian Succession Act which run as under:
95. Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.
96. Where property is bequathed, to a person with a bequest in the alternative, to another person or to a class of persons, then, if a contrary intention does not appear by the will, the legatee first named shall be entitled to the legacy, if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
97. Where the property is bequeathed to a person and words are added which describe a class of persons but do not denote them as direct object of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the Will.
If therefore, after Pichaammal there were no heirs, she would be entitled to nominate, the intention of the founder having failed. Under these circumstances, we have to necessarily hold that she does not take the widow's estate. What is pressed into service by the appellants is the decision in Kalipada v. Palani Bala, : 4SCR503 . At page 130 (in para. 18), their Lordships of the Supreme Court observed:
Whatever might be said about the office of a trustee, which carries no beneficial interest with it, a shebaitship, as is now well settled, combines in it both the elements of office and property. As the shebait 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 widow's estate in the shebait interest. Ordinarily, there are two limitations upon a widow's estate. In the first place, her rights of alienation are restricted and in the second place, after her death the property goes not to her heirs but to the heirs of the last male owner. It is admitted that the second element is present in the case of succession to the rights of a female shebait. As regards the first, it is quite true that regarding the powers of alienation, a female shebait is 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 shebait right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir.
The principle has no application in view of the facts of the case which are set out above,
23. Yet another case - that is cited is Janaki Raman, P.D. v. Koshaly Anandan P.D. I.L.R. (1922) Mad.320 : A.I.R.1922 P.C.80 : 16 L.W.1 : 43 M.L.J.78. The head-note (at p.328) reads thus:
The right of shebaitship is a recognised form of property in Hindu Law and any succession to it is like that to any other secular property. It is the general law of succession that governs also the right of shebaitship. A shebaitship combines in it both the elements of office and property and it is heritable.
Here again we cannot accept the argument, because, as we observed above, Pichaammal does not take a widow's estate. As rightly contended by the learned Counsel for the contesting respondent, Sivasankaran Pillai was carrying out the wishes of Pichaammal. That is evident from a reading of Ex.B-487. Therefore he can nominate. We therefore hold that having regard to Sections 96 and 97 of the Indian Succession Act, the conclusion is that Pichaammal could validly nominate.
24. Now coming to Ex.B-26, the question is whether the right can be willed away. We have already held that Pichaammal did not inherit a widow's or a restricted estate. There are also authorities which lay down such a proposition clearly. Under Hindu Law when properties are given under settlement, no question of widow's estate arises, is what is laid down in the decision in Ramachandra Rao v. Ramachandra Rao : AIR1961Pat293 . The same has been approved in the decision in Ram Gopal v. Nand Lal : 1SCR766 In paragraph 8 (at page 141), the following observations are made:
It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter, J. of the Calcutta High Court in Md. Kollani Koer v. Lachmee Parsad, 24 W.R.395 which was approved and accepted by the Judicial Committee in a number of decisions, seems to be' unassailable. It was held by the P.C. as early as in the case of Tagore v. Tagore, I.A. (Supp. Vol.)47 at p.68 : 9 Beng.L.R.377 (P.C.) that if an estate were given to a man without express words of inheritance,' it would in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognised and embodied in Section 8 T.P. Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a 'widow's estate', there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same.
25. Then again in Bysru Singh v. Mangla Main Bhagwan. it is observed:
It is true that their Lordships have said in Mohamed Shamsul v. Shewakram, (1874) 2 I.A.7. In construing the will of a Hindu it is not improper to take into consideration what are - known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu . . . . . . knows that as a general rule, at all events, women do not take absolute estate of inheritance which they are enabled to alienate.
but that statement is no authority for the proposition that if the terms of the will give the woman an absolute right of disposition those terms should be ignored. In this connection their Lordships may well draw attention to the following observations made by Sir George Lowndes in delivering the judgment in Jagmohan Singh v. Sri Nath :
There is, their Lordships think, no magic in the use of any particular word or form of words; the document must be construed as a whole, and its fair import deduced in the ordinary way, and if the conclusion come to is that it confers the estate out and out with no reservation, the rights of alienation will be included just as much as any of the other incidents of ownership, and just as much where the gift is to a female as where it is to a male.
Construed in this light their Lordships have no doubt that by the terms of the deed in question Pokhar Singh has conferred on his widow full power of transfer over the properties which she has inherited from him as his widow. Under the Hindu law, a widow or other limited heir has no power to alienate the estate inherited by her from the deceased owner except for the following purposes namely: (1) Religious or charitable purposes; (2) other purposes amounting to legal necessity; and (3) for the benefit of the estate. The question now arises, whether if a Hindu owner confers an absolute power of transfer on his next heir, the widow, who would otherwise have had only a limited power of transfer, does she thereby get any higher rights? It is not free from difficulty. On the one hand, it may be said that when a testator dies without making any disposition of property his widow would ordinarily get only such estate as the Hindu law allows her, and where there is no devise of arty estate as herein in favour of the widow, the conferment of an absolute power gives her no more rights than those, possessed by a Hindu widow. On the other hand, if the husband could validly confer on her a full power of transferring the estate without limitation then as stated by the High Court:
She would acquire an estate almost like an absolute interest differing only in this respect that in the case of an absolute estate it would devolve on her heirs and whereas, in the case of a widow's estate with full powers of transfer, the property remaining untransferred would devolve on the next heir of the husband, though where daughter or daughter's son would be the next heirs they would be heirs of both.
If the conferment of such power of transfer on a Hindu widow is not repugnant to any principles of Hindu law, then it appears to their Lordships, that such conferment should be upheld as by so doing they would only be giving effect to the intentions of the testator, such intentions being not in conflict with the law. It may be stated at once that no decision directly bearing on the point has been brought to their Lordships' notice; those that are said to throw some light on it will be referred to presently. On principle, the difficulty presented by the case does not seem to be insurmountable. The objection strongly urged is against the conferment of power of transfer on Gambhiri without any bequest of property in her favour; but the testator knows that she would inherit the estate in the ordinary course. What she will not so get ordinarily has now been bestowed on her by this 'deed'. The power of transfer has not been conferred on one, while the property devolves on another. Pokhar Singh was the absolute owner of the estate and had full power to dispose of it in any manner he liked while he had full power to bestow an absolute estate on his widow, their Lordships cannot find any valid objection to his being allowed to bestow a fuller power of transfer on her who would get the estate as his heir. This conclusion does not clash with any fundamental principle of the Hindu Law.
26. In Sri Ram v. Chandeswar Prasad : AIR1952Pat438 Headnote (c) and (d) it is held:
A widow's estate is not a life estate but her right is in the nature of right of property and the whole estate is for the time vested in her absolutely for certain purposes. The power of nominating new trustees is a right which is appurtenant to the right of management and which the widow is competent to exercise. Therefore, a widow who is an heir of the founder of the endowment and in whom trusteeship has vested can appoint a trustee or create a new line of trustees for the proper managment of the dedicated properties.
Per Sarjoo Prosad, J.: The right of the founder to lay down the line of devolution of the shebaitship is a heritable right, and the successor of the founder is entitled to exercise that right. It is not correct to say that nomination of a trustee by the heir of the founder of an endowment would tantamount to alienation of office of trustee. The heir of the founder has right to create a new line of trustee if the trusteeship has vested in him or her owing to the failure of the line of the original trustees.
That clearly establishes that a widow's estate is not a life estate. In paragraph 20 at page 444, the following observations are found. They are very apposite to our case, because they draw a categoric distinction between power and property. We extract the same below:
The principle is well settled that the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing or some circumstances to show a different mode of devolution. In the present case, Ramanugrah Narayan Singh had built the temple and installed the deities and was the founder of the endowment. It was, therefore, competent for him to lay down the course of devolution of the office of shebait. This he does not appear to have done. It has not been seriously disputed, nor can it be disputed that the right of the founder to lay down the line of devolution of the shebaitship is a heritable right, and the successor of the founder was entitled to exercise that right. There are numerous decisions to show that it is competent to the heir of the founder of an endowment in whom the trusteeship is vested, owing to the failure of the line of original trustees, to create a new line of trustees. The principle is illustrated by a Full Bench decision of the Madras High Court in Gauranga Sahu v. Sudevi Mats I.L.R. (1917) Mad.612 : 6 L.W.46 : 32 M.L.J.597 and also by the decision of the Judicial Committee of Privy Council in Pramatha Nath v. Pradyumna Kumar . It is therefore, impossible to entertain the extreme contention of the learned Advocate General that once the founder has failed to indicate the line of shebaits, her heirs cannot do so.
Viewed from this, we hold that there is power to nominate and not property right to succeed hereditarily. From this view, we are unable to see how the decision in Brindaban v. Ram Lakhan : AIR1975All255 where under head-note (A) it was observed:
When a property has been dedicated by a donor and he has thereby divested himself of all interests in the property, the rule of succession to the office of shebait assumes considerable importance in the case of trusts, and, if the line of succession has been laid down by the donor at the time of the dedication, the same cannot be changed by the donor in the absence of any reservation of power to himself of changing the line of succession. A shebait cannot also alter the line of succession to the office of Shebait laid down by the founder.
Three persons N.S. and K executed a document in 1908, whereby they endowed all the properties in favour of the idols installed in a temple. The deed of endowment provided, inter alia, that S would be the Mukhya Dharmakarta during her. lifetime. Arrangements for the management of the trust property, after the death of the executants of that deed were also made in that document. A Committee of Dharmakartas with a Mukhya Dharmakarta and a Sahakari Mukhya Dharmakarta was nominated, and it was stipulated that in the event of any Dharmakarta becoming incapable of discharging his duties, his vacancy could be supplied by the remaining Dharmakartas. It was also stipulated that the executants would have a right to remove the Karpardars and appoint, in their places, other Karpardars. It was clear from the deed that the three executants thereof had not reserved to themselves a right to change the members of the Committee of Dharmakartas or to appoint anyone else in their places. However, in 1932, N. who was the last of the three executants, executed a will whereby, she appointed D as Mukhya Dharmakarta and B as one of the Dharmakartas. It was also stated in that will that after the death of N,D would act as Mukhya Dharmakarta and on the death of D,B and R would, one after the other, act as Mukhya Dharmakarta. B, along with D, on the demise of N entered into the management and continued to manage the properties aven after the death of D.R filed a suit for declaration that he was the Sarbakar of the Idol and for removal of. B from the management of the temple and the properties of the Idol....
Held, that the relief for declaration sought for by R could not be granted. N could not change the panel of trustees, nor could she appoint a new Dharmakartas or Mukhya Dharmakartas in place of those who were nominated by the deed of 1908. Hence P could not claim any legal right to the office of Mukhya Dharmakarta. Moreover, the office of Dharmakarta, was not a property, which could be bequeathed by a Will. In that view of the matter as well, N could not by her will, appoint any person to function as Mukhya Dharmakarta after her death. R had, however, founded his claim to the office of Mukhya Dharmakarta on the said Will. No such claim could be legally maintained.
would have no application to the facts of this case.
27. In Sova Bati Dassi v. Kashi Nath : AIR1972Cal95 at 103 in paragraph 13(a) as to what is to happen if no perpetual or hereditary line of succession is delineated has been discussed. We extract the same below:
The mode of devolution of shebaitship in the Deed of Endowment does not show that the settlor intended to have a perpetual or hereditary line of succession. The settlor specifically appointed his widow for her lifetime and after her death to his son Poolin and after the death of Poolin to his heirs. As discussed above the line of succession for the devolution of shebaitship was appointed with the sole shebait. If, of course, Kalichandran Dey would not have transferred his 'shebaitship by will the plaintiff could have legitimately claimed as the heir of the founder. But admittedly Kalicharan Dey was the sole shebait under the Deed of Endowment. During the lifetime of Kalicharan Dey admittedly the plaintiff did not claim shebaitship at all. It was only after the death of Kalicharan the plaintiff claimed her shebaiti right. The adoption of' Kashinath Dey has not been challenged. Kashinath Dey also admittedly obtained the probate of will of Kalicharan Dey. The line of succession having been prescribed upto Poolin's heir Kalicharan, there was no limitation on his power to transfer by will his shebaiti right.
The same principle is found in Mukherjea's Tagore Law Lectures, Fifth Edition at page 206 para. 5-6A which we extract below;
Shebaitship remains in the founder and his heirs unless disposed of - When a deity is installed, the shebaitship remains in the founder and his heirs. 'According to Hindu Law,' thus observed Lord Hobhouse in Gossamee Sree Gree-dhareejee v. Rum an Laljee (1888) L.R.16 IndAp137 : I.L.R.17 Cal.3 and this observation has been reiterated in numerous cases since then - 'when the worship of a Thakoor has been founded, the shebaitship is held to he vested in the heirs of the founder in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution.' Unless therefore the founder has disposed of the shebaitship in any particular way and except when an usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder. It has been pointed out by the Supreme Court in Profulla Chorone's Case at P. 1686 that shebaitship being property, it devolves like any other species of heritable property and that consequently where the founder does not dispose of the shebaiti rights in the endowment created by him, the shebaitship devolves upon the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist.
28. Therefore, we conclude that the office is hereditary. It is entirely open to Pichaammal to nominate. Likewise, that right can be willed away under Ex.B-26. That apart, the principle of limitation as laid down under Article 107 of the Limitation Act will come into play in this case. The authorities are: Venkataramanujam v. Parthasarathy : (1976)1MLJ140 and Gnanasambanda Pandara Sannadhi v. Velu Pandaram I.L.R. (1900) Mad.271 : 10 M.L.J.29 which was approved by the Supreme Court in Kalipada v, Palani Bala, : 4SCR503
Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the Legislature is obviously to treat hereditary offices like land for the purpose of barring suits for possession of such office and extinguishing the right to the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiff? It is conceded that the possession was adverse to Rajalakshmi, the holder of shebaiti at that time; but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajalakshmi, the defendant could not be regarded as taking possession of the office adversely to the plaintiffs. He refers in this connection to the definition of 'plaintiff' in Section 2(2) of the Limitation Act where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right to sue. In answer to this it is argued by Mr. Ghose that a shebait like a trustee represents the entire trust estate and the next trustee even though he may not strictly claim through or from the previous holder of the office, must be deemed to be bound by acts or omissions of the later; and in support of this contention he relies upon the judgment of the Judicial Committee in Gnanasambanda v. Velu Pandaram (1900) 27 Ind.App.69 (P.C.) : I.L.R. (1899) Mad.271 (P.C.) : 10 M.L.J.29. We do not think that this contention is right. Article 124 relates to a hereditary office and this means that the office goes from one person to another solely by reason of the latter being a heir to the former. Under the Hindu Law of Inheritance, when a female heir intervenes, she holds during her life-time a limited interest in the estate and after her death succession opens out not to her heirs but to the heirs of the last male holder. It has not been and cannot be disputed that the same rule applies in the case of succession to shebaitship. Reading Article 124, Limitation Act, along with Section 2(8), the conclusion is irresistible that to defeat the title of the plaintiff under Article 124 it is necessary to establish that the defendant had taken possession of the, office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnanasambanda v. Velu Pandaram (1900) 27 Ind.App.69 (P.C.) : (1899) I.L.R.23 Mad.271 (P.C.) : 10 M.L.J.29. In this case two persons who were hereditary trustees of a religious endowment sold their right of management and transferred the entire endowed property to the defendant-appellant. The sales were null and void and the possession taken by the purchaser was adverse to the vendors from the very beginning. The plaintiff Velu was the son and heir of one of the hereditary trustees and he instituted the suit more than 12 years after the date of the transaction claiming possession of the office along with the heir of the other trustee who was joined as a defendant in the suit. It was held by the Judicial Committee that the plaintiff's suit was barred and the reason given is that 'the respondent Velu could only be entitled as heir to his father Nataraja, and from him and through him, and consequently, his suit was barred by Article 124.' This portion of the judgment, it seems, was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Rajalakshmi is immaterial. They would not be deriving their right to sue through and from the widow, and in this view of the case the plaintiffs' suit cannot be held to be barred. The result, therefore, is that we allow the appeal, set aside the judgment and decree of the High Court and restore those of the trial Judge with costs to the appellants in all Courts.
29. The question of blending may not loom large in view of what we have observed. This is our answer to point 2. In view of this, it is unnecessary for us to decide whether there was blending or not. We uphold the finding as to the blending as regards the will Ex.B-488. With regard to the quantum of maintenance we are of the view that having regard to the high prices, each of the plaintiffs and defendants 1 and 5 to 8 will be obliged to pay a sum of Rs. 20 per head per month. Accordingly the rights of the 48th defendant will be calculated from the date of plaint.
30. In the result, the appeal fails and is dismissed and the memorandum of cross-objections will stand allowed to the extent indicated. There will be no order as to costs.
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.