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Judgment
K. Gnanaprakasam, J.—These two appeals are filed by the unsuccessful appellants in AS.No.24/1989 and AS.No.25.1989, on the file of
the Principal District Judge at Erode. The appellants in AS.No.24/1989 are the plaintiffs in OS.No.24/1985, and the appellants in AS.No.25/1989
are the defendants 5 to 8 in OS.No.25/1985, on the file of the Sub Court, Dharapuram.
For the purpose of convenience, the parties are referred to as they were arrayed in OS.No.24/1985.
The plaintiffs filed the suit for declaration that they are entitled to perform poojas for 32 days, in Arulmigu Nilambur Kaliamman Temple, as an
hereditary right and also the right derived, under the Will dated 22.11.1972 and the same should not be interfered with by the defendants.
The case of the plaintiffs is that the plaintiffs'' father Manikka Andi was performing poojas for the suit temple for a period of 30 years hereditarily
and they were also enjoying the tenancy right of the temple lands and were doing services to the suit temple and patta was issued to their father
under the Inam Abolition Act. One Cauvery Ammal had the right to perform pooja for 32 days in a year, to the suit temple and the plaintiffs''
father, even during the life time of Cauvery Ammal, was performing the poojas for 32 days in a year. In order to avoid any manner of possible
claim to the said right of performing pooja, by hereditarily, Cauvery Ammal, by her Will dated 22.11.1972, bequeathed the same to the plaintiffs
and therefore, they are entitled to perform pooja in the suit temple, as per the Will and also by hereditary right. While so, one Manikka Andi and
others filed a suit in OS.No.411/1984 on the file of the District Munsif Court, Dharapuram, with a view to prevent the plaintiffs from enjoying the
property. They also colluded with erstwhile Executive Officer and also prevented them from handing over the entire property to the plaintiffs''
shareholders. The plaintiffs have also filed a suit in OS.No.790/1984, on the file of the District Munsif Court, Dharapuram and also obtained an
order of injunction against Manikka Andi and others. At the instigation of the defendants 2 to 7, the 1st defendant was likely to pass an order and
therefore, the plaintiffs have filed the suit.
The case of the defendants, as stated in the written statement, is as follows:-
The plaintiffs'' suit to declare the pooja right of Cauvery Ammal, is not maintainable. The right of performing pooja held by Cauvery Ammal was
sold to the 1st defendant''s father Manikka Andi on 27.10.1945. Pursuant to the same, the father of the defendants 2 and 3 filed a suit in
OS.No.284/1945 before the District Munsif Court, Dharapuram and the same was decreed and as per the said decree, Cauvery Ammal was
entitled to enjoy the land during her life time only and the said decree was passed on 23.11.1946 and the said decree is not binding upon the right
of Kaliandi to recover possession of the suit property. The administration of the suit temple has come under the administration of Hindu Religious
and Charitable Endowments Act and the poojas have been performed by several families by hereditary right. Cauvery Ammal died on 5.1.1984.
The defendants 2 to 7 and one Doraisamy and others are the heirs and the Tahsildar, Dharapuram had also issued a legal heir certificate on
30.10.1984 to that effect and the same cannot be objected to by the plaintiffs. Based upon the said certificate, the 1st defendant enquired into the
matter and passed an order on 12.12.1984, by which, the defendants 2 to 7 and Doraisamy were given the right to perform poojas and the said
order cannot be questioned by the plaintiffs. Poojas are conducted as per the rights established and also confirmed by the 1st defendant in its
order. The defendants 2 to 7 and others have already filed a suit in OS.No.411/1984, before the District Munsif Court, Dharapuram and the same
was pending and the plaintiffs are the defendants in the said suit. The plaintiffs are not performing poojas in the suit temple and the right to perform
poojas claimed by the plaintiffs under the Will dated 22.11.1972, said to have been executed by Cauvery Ammal is not proper and no Will could
be executed in respect of performing of poojas and the plaintiffs are put to strict proof about the execution and genuineness of the Will. The
plaintiffs with the connivance of the 1st defendant are trying to defeat the claim of the defendants 2 to 7.
The defendants 2 to 7 filed a suit in OS.No.25/1985, on the file of the Sub Court, Dharapuram. The claim of the plaintiffs in the said suit is that
the plaintiffs and the defendants 2 to 4, as heirs of Cauvery Ammal, are entitled to carry on the pooja right and the defendants 1, 5 to 8 should not
interfere with their said right. The plaintiffs claimed that Cauvery Ammal had the right to perform pooja for 32 days in a year. The sale deed
executed by Cauvery Ammal in respect of the temple lands in favour of one Manikka Andi on 27.10.1945 was not valid and in the suit filed in
OS.No.244/1985, before the District Munsif Court, Dharapuram, it was held that the sale deed did not bind Kaliandi and Manikka Andi could
enjoy the property, as long as Cauvery Ammal was alive and that the plaintiffs and the defendants 2 to 4 are the heirs of Kaliandi and therefore,
they alone inherited the right to perform poojas to the temple.
The defendants resisted the said claim and claimed that Cauvery Ammal had bequeathed the pooja right to them under the Will dated
22.11.1972 and after the death of Cauvery Ammal on 5.1.1984, the defendants became entitled to perform the poojas to the temple and the
plaintiffs have not inherited the right to perform pooja from Cauvery Ammal.
Based on the above said pleadings, the trial court framed necessary issues and more particularly, whether the plaintiffs are entitled to perform
poojas to the suit temple, as a hereditary right and also the right derived under the Will dated 22.11.1972 and answered the said issue against the
plaintiffs and dismissed their suit and the suit filed by the defendants was decreed. As against the same, the plaintiffs in OS.No.24/1985 and the
defendants 5 to 9 in OS.No.25/1985 preferred appeals in AS.No.24/1989 and 25/1989 before the Principal District Judge, Periyar District at
Erode. The lower appellate court also considered the following points among other points:-
i. Whether the respondents 2 to 4 in AS.No.24/1989 have got right to perform pooja in the suit temple?
ii. Whether the will dated 22.11.1972 executed by late Cauvery Ammal is a genuine and valid document?
The lower appellate court took a view that Ex.A1, Will dated 22.11.1972, executed by Cauvery Ammal is genuine and true, but it is invalid, on
the ground that Cauvery Ammal has no right to execute the will and bequeath the pooja rights and she has also no right to alienate the lands
belonging to the suit temple and the Will does not bind the defendants 3 to 7 and therefore, the appellants herein, who are the appellants in
AS.No.24/1989 have no right to perform pooja to the suit temple for 32 days, in a year, in turn, but, whereas the respondents 2 to 4 in
AS.No.24/1989, who are the respondents herein, are entitled to perform pooja to the suit temple. Aggrieved by the same, the plaintiffs in
OS.No.24/1985, who are the defendants 5 to 8 in OS.No.25/1985, have preferred these two appeals in SA.Nos.16/1991 and 141/1992
respectively.
The learned advocate for the appellants has submitted that Cauvery Ammal had the right to perform poojas to the suit temple for 32 days in a
year and in order to avoid any manner of controversy at a later stage, she had executed the ''Will'' in favour of the plaintiffs on 22.11.1972, in
respect of her pooja rights to the suit temple. By virtue of the Will and also by the hereditary right, the plaintiffs claimed that they are entitled to
perform poojas to the suit temple.
Per contra, the learned advocate for the respondents would contend that Cauvery Ammal has no right to execute a Will in respect of the right
of performing poojas and the Will said to have been executed by Cauvery Ammal is not true, genuine and valid.
The rights of the parties are traced from one Aarandi, who had three sons, viz. Nachiandi, Palaniandi and Kaliandi. Pavayammal is the wife of
Nachiandi and they had no issues. Palaniandi had a son, by name, Suppandi and who died in the year 1936. Cauvery Ammal is the wife of
Suppandi and her only minor son died and therefore, she had no issues. Cauvery Ammal died on 5.1.1984. Kaliandi had 4 sons, viz. (1)
Narayanandi, (2) Sivamani, (3) Venkatachalam and (4) Natarajan. Sivaraman is the son of Natarajan. The defendants 5 to 7 are the sons of
Sivamani. Doraisamy and Rajeswari are the children of Narayanasamy.
Cauvery Ammal''s husband Suppandi had a younger brother, by name, Manikka Andi and the plaintiffs 1 to 3 and their brother Shanmugam
are the sons of Manikka Andi. It is the case of the appellants that Cauvery Ammal had exercised her right to perform poojas to the suit temple,
which right she had bequeathed to the plaintiffs under Ex.A1, which is the Registered Will. The said Will is attested by one Sakthivel (PW.2) and
Ayyavoo. The very same persons are the identifying witnesses, before the Sub Registrar Office also, at the time of registration of the Will.
According to the plaintiffs, the ''Will'' was duly executed and attested. But, however, the defendants have questioned the same on the grounds (1)
that Cauvery Ammal had no right to execute such a Will and (2) that the said Will is also not true and valid. The trial court is of the view that the
thumb impression in Ex.A1 appears to be a big one and the plaintiffs have not taken any steps to send Ex.A1 for a finger print expert, for
comparison of the said document with the admitted thumb impression of Cauvery Ammal to prove the Will. The evidence tendered on behalf of the
plaintiffs is not sufficient to hold that Cauvery Ammal had executed the Will, while she was in a sound and disposing state of mind. Observing so, it
had come to the conclusion that Ex.A1 was not proved. The trial court was also of the view that ""A bare right of management of the institution,
without any personal or beneficial interest in the endowed properties would not amount to a property and that therefore, it cannot be transferred.
The right enjoyed by Cauvery Ammal was in the nature of personal right and the transfer of the said right is not valid.
But, however, the lower appellate court took a different view. As far as the genuineness of the Will is concerned, the lower appellate court was
satisfied about the manner and method, by which the Will has been proved. It is stated that Cauvery Ammal put her left thumb impression in Ex.A1
before the Sub Registrar, in the Sub Registrar Office, Dharapuram and before PW.2 Sakthivel and one Ayyavoo. PW.2 and Ayyavoo are the
attesting witnesses of the Will. The lower appellate court also noticed that the left hand thumb impression of Cauvery Ammal is little bit different,
but that does not mean that she had not executed the Will, since the size of the thumb impression varies from person to person and also depends
upon the manner in which it is affixed. Observing so, it was held that the due execution of the Will Ex.A1 is proved by the evidence of PW.2 and
further held that Ex.A1 is genuine and true Will. But, however, the lower appellate court further held that Ex.A1 Will dated 22.11.1972 is invalid
on the ground that Cauvery Ammal had no right to bequeath the ''right to perform pooja'' to the suit temple.
The suit temple is being maintained and poojas are performed in and out of the income derived from the temple lands and Cauvery Ammal had
the right to perform pooja for 32 days, in a year, to the suit temple. It is observed by the lower appellate court that Raman Andi performed poojas
to the suit temple on behalf of Cauvery Ammal and as a representative and substitute, but, there is no proof that Manikka Andi, father of the
plaintiffs performed poojas to the suit temple. Besides, the 2nd defendant''s grand father and 3rd defendant''s father Kaliandi filed a suit in
OS.No.284/1945, before the District Munsif Court, Dharapuram to declare that the alienation of temple lands by Cauvery Ammal in favour of
Manikka Andi is invalid and it was held in that suit that Cauvery Ammal had no right to sell the lands belonging to the suit temple and Manikka
Andi can enjoy the land alienated to him by Cauvery Ammal till her life time only. The lower appellate court also accepted the legal heir certificate
issued by the Tahsildar, Dharapuram, dated 30.10.1984, Ex.B5 that the respondents 2 to 7 and one Doraisamy, Rajeswari and Sivaraman are the
heirs of Cauvery Ammal. Based upon these materials, the lower appellate court came to the conclusion that the plaintiffs are not the heirs of
Cauvery Ammal and entitled to perform poojas to the suit temple for 32 days in a year, as it has been done by Cauvery Ammal.
The learned advocate for the appellants before this court, has submitted that the right, which has been enjoyed by Cauvery Ammal, became
absolute u/s 14(1) of the Hindu Succession Act, 1956.
In fact, the substantial question of law framed in SA.No.16/1991 is, whether the right claimed by the plaintiff is one which has become absolute
u/s 14(1) of the Hindu Succession Act, 1956? This question is similar to question no.3 in SA.No.141/1992. Another substantial question of law
that has got to be answered in these appeals is that whether the hereditary right to perform poojas by the persons in turn would be a property and
whether it could be alienated?
The trial court was of the view that the genuineness and truth of the Will was not proved and rejected the plaintiffs'' claim. But, however, the
lower appellate court held that the will was proved, but it was invalid as Cauvery Ammal had no right to alienate the right to perform pooja. In
these circumstances, I feel it is better to give a finding, (1) whether the Will dated 22.11.1972 executed by Cauvery Ammal is true, valid and
genuine and (2) whether the alienation of pooja right by Cauvery Ammal under the Will (Ex.A1) is valid?
The Will is one of the documents, which is required by law to be attested.
Section 63(c) of the Indian Succession Act, 1925 speaks about the attestation of the Will, which reads as under:- ""The will shall be attested by
two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the
presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark, or of the
signature of such other person; and such of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more
than one witness be present at the same time, and no particular form of attestation shall be necessary.
Proof of execution of document required by law to be attested is stated u/s 68 of the Evidence Act, which is given here under:-
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been
registered in accordance with the provisions of the Indian Registration Act, 1908, (XIV of 1908) unless its execution by the person by whom it
purports to have been executed is specifically denied.
The term ''attested'' is defined u/s 3 of the Transfer of Property Act, which reads as follows:- ""It is in relation to an instrument, means and shall
be deemed always to have mean attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument,
or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a
personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the
presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no
particular form of attestation shall be necessary."" So Section 3 of the Transfer of Property Act requires that the attesting witnesses should say that
they have seen the executant signing or affixing his or her mark to the instrument and that each of the witnesses has signed the instrument in the
presence of the executant.
As per the provisions of Section 63(c) of the Indian Succession Act and the definition of ''attestation'' u/s 3 of the Transfer of Property Act and
Section 68 of the Indian Evidence Act, the execution of a document ''will'' has to be proved by calling in at least one of the attesting witnesses and
attestation itself has to be proved in the form in which Section 63(c) of the Indian Succession Act requires. Attestation has to be proved by the
attesting witnesses admitting attestation as also proving that they signed the document in the presence of the testator.
The testator Cauvery Ammal is a markswoman and not a signatory and according to the plaintiffs, her thumb impression was made before the
Sub Registrar and her thumb impression was duly identified by Sakthivel (PW.2) and Ayyavoo. IT is the contention of the appellant that in every
page ''X'' Mark was put and stated (fPuy; fhnthpak;khs;)/ The appellants contend that the said mark (fPuy;) is that of the testator Cauvery Ammal
and she had put her thumb impression before the Sub Registrar and she was identified by two witnesses, out of whom one witness, viz. Sakthivel
was examined as PW.2 and therefore, the will has been duly proved as required under law.
But, on the contrary, the learned advocate for the respondent submitted that the Will contained two pages and at the bottom of each page, the
testator has not put her thumb impression, but, on the other hand ''X'' mark is put and it is stated that (fPuy; fhnthpak;khs;). It is therefore argued
that each page of the Will was not duly thumb impressed by Cauvery Ammal and only before the Sub Registrar, thumb impression was affixed and
therefore, the Will was not properly executed.
The above said submission of the learned advocate for the respondents was swiftly answered by the learned advocate for the appellants, by
relying upon the ruling of this court in the case of Dasureddi Vs. M. Venkatasubbammal, . That is the case where the execution of the Will by
person other than the testator in his presence and by his direction takes place. It is sufficient for that other to affix the signature of the testator
himself. The proper form of such signature is and has always been recognised to be for the other person to sign the name of the testator and not his
own. There was difference of opinion between two judges and therefore, the matter was referred to a 3rd judge and at page 445, a case in Nirmal
Chunder Vs. Sarat Moni Debya was referred to and where the testator who for a number of years, was, as he was unable to write, in the habit of
using a name stamp which used to be attached by a servant to a document or paper he wanted to sign, directed that servant to affix the name
stamp to his will and the question was whether that was sufficient execution. It was held that it was on the ground that affixing the name stamp was
equivalent to signing. But, however, it was opined that it is not clear whether the court held that the signature was affixed by the testator himself and
treated the servant as a mere mechanical aid or whether they treated the signature as having been affixed by another person in the presence and
under the direction of the testator which is the alternative mode provided by Section 63(a). But, it was further observed that the expression
''signing'' according to the English Wills Act, marking by means of a stamp is sufficient for execution. In the case of Jenkyns Vs. Gaisford 1863 II
WR 854 : 9 JNS 630, it was observed by the learned judge that ""Whether the mark is made by a pen or by some other instrument cannot make
any difference; neither can it in reason make a difference that a facsimile of the whole name was impressed on the will instead of a mere mark or
''X''. The mark made by the instrument or stamp used was intended to stand for and represent the signature of the testator."" It was observed that
under English Wills Act, Section 9, which are practically identical with those of Section 63, Succession Act, leave no room for doubt that
execution by another is sufficient if he signs the name of the testator. In Jarman on Wills (7th Edition, Page 96), it is stated that it is immaterial that
the other person signed his own name instead of the name of the testator, meaning that signing the name of the testator is the more approved and
common method. It was further observed, at page 447, that the habit of illiterate persons in the Tamil country who can only make marks but who
wish to authenticate their documents by the instrumentality of others is precisely what happened in this case. The pen is touched and handed over
to the person who makes the mark and adds the memorandum that this is the mark of the executant. The meaning and object of that act is to
authenticate the document as that of the person whose name is written. Such being the case there can be no doubt as the learned Judges have held
that Kothandarama Pillai did sign Rangammal''s name to the Will. As already stated that he did so in her presence and under her direction is
proved. The will was therefore validly executed.
In our case also, the appellant''s contention is that the ""X"" mark on the foot of the Will was put by the testator and the same was spoken to by
PW.2. The testator had also affixed her thumb impression before the Sub Registrar and the said impression was also identified by two witnesses,
viz. Sakthivel (PW.2) and Ayyavoo and one of the witnesses Sakthivel gave evidence in this regard, stating the he had seen the testator putting
thumb impression on the document Ex.A1 and the contra evidence is very bleak and that therefore, we could safely conclude that the Will was
duly executed and duly attested and there cannot be any doubt about the genuineness and truth of the Will, having been executed by Cauvery
Ammal under Ex.A1.
The next question is whether the alienation of pooja right by Cauvery Ammal under the Will Ex.A1 is valid? The plaintiffs'' father was
performing poojas for the suit temple for a period of 30 years by hereditary right. Cauvery Ammal had the right to perform poojas for 32 days in a
year to the suit temple is not in dispute. In order to avoid any manner of possible claim by the Cousins, Cauvery Ammal had, by her Will dated
22.11.1972, bequeathed the said right to the plaintiffs. The said right is an hereditary one and if it is so, the alienation made by Cauvery Ammal is
legal.
In the case of Sri Mahant Prayag Doss Jee Varu and Others Vs. Archakam Bokkasam Govindacharlu and Others, , the Division Bench of this
court had observed that ""An alienation of the office of archaka to one in the line of heirs, not for consideration, and not in any way opposed to or
inconsistent with the interest of the institution is not invalid.
In this connection, it is also useful to refer the case of Ram Rattan (Dead) by Lrs. Vs. Bajrang Lal and Others, , where Desai, J. Speaking for
the Bench has observed thus: ""This hereditary office of shebaiti is traceable to old Hindu texts and is a recognised concept of traditional Hindu
Law. It appears to be heritable and partible in the strict sense that it is enjoyed by heirs of equal degree by turn and transferable by gift subject to
the limitation that it may not pass to a non-Hindu."" The Supreme Court, in the case of Shambhu Charan Shukla Vs. Shri Thakur Ladli Radha
Chandra Madan Gopalji Maharaj and Another, , after considering the several cases in extenso and by following decisions rendered in Angurbala
Mullick Vs. Debabrata Mullick, , has ruled that ""Shebaitship is in the nature of immovable property heritable by the widow of the last male holder
unless there is an usage or custom of a different nature in cases where the founder has not disposed of the shebaiti right in the endowment created
by him. In the absence of any custom or usage to the contrary, the widow would succeed to the shebaiti right held by her husband and on his
death, as a widow, she would succeed as a limited owner and that right had become enlarged into an absolute right by the provisions of Section
14(1) of the Hindu Succession Act, 1956 and she could transfer that right by a Will in favour of a person, who is not a non Hindu and who could
get the duties of shebait performed either by himself or by any other suitable person."" In our case, the fact that Cauvery Ammal derived the right to
perform pooja for 32 days in a year in turn by hereditary right, is not in dispute. Though as a widow, she had inherited the said right, as a limited
owner and that she died only in the year 1984, her limited right has been enlarged into an absolute right by the provisions of Section 14(1) of the
Hindu Succession Act, 1956 and therefore, the plaintiffs, who are the beneficiaries under the Will Ex.A1, are entitled to perform poojas for 32
days in a year to the suit temple.
As it has already been observed that the Will executed by Cauvery Ammal in favour of the plaintiffs is true and valid and that the right to
perform poojas for 32 days in a year is heritable right, which Cauvery Ammal has got every right to bequeath and the limited right, which she held
had also ripen into an absolute right, in view of the Section 14(1) of the Hindu Succession Act, 1956, the plaintiffs are entitled to succeed. In view
of the above said position, the decree obtained by Kaliandi, in OS.No.284/1945, on the file of the District Munsif Court, Dharapuram, would not
come in the way of Cauvery Ammal. In fact, in the said suit also, it was held that the purchaser Manikka Andi was entitled to enjoy the land
alienated by Cauvery Ammal till her life time. Admittedly, Cauvery Ammal died on 5.1.1984, i.e. after coming into force of the Hindu Succession
Act. As the limited right held by Cauvery Ammal had ripen into an absolute one, u/s 14(1) of the Hindu Succession Act, 1956, the respondents 2
to 7 and 8 to 10 cannot succeed to the right of Cauvery Ammal, as claimed by them. This aspect was not properly considered by the lower
appellate court, which resulted in holding that the Will is invalid and the said finding is liable to be set aside and accordingly, it is set aside.
In the result, both the appeals are allowed and the judgement and decree of both the courts below are set aside. No costs.