Narayana Pillai and others vs Dharmar and another

V. Ramaswami, J.—The plaint schedule properties in O.S. No. 33 of 1964 were endowed in favour of Nithiya Jaya Bhoothalinga

Vinayagar Deity at Kanyakumari for the conduct of poojas to the said Vinayagar deity and for conducting festivals and other ceremonies in the

temple. It is a private family trust of the family of the first plaintiff and the father of the first defendant. The first plaintiff''s family is Nanjinad Vellala

Tarwad and was governed by the Marumakkathayam Law. The said temple and its properties were managed by the Karanavan of the Tarwad as

the private family trust. The last office-holder trustee was Subramania Pillai, elder brother of the first plaintiff and the father of the first defendant.

This Subramania Pillai was in possession and management of the trust properties, in his capacity as a trustee of the Vinayagar temple and

conducting the poojas and feasts and other ceremonies from and out of the income of the trust properties. The trustee Subramania Pillai died on

14th July 1963. The first plaintiff claimed in the suit that he, as the eldest member of the Tarwad, was the Karnavan and was entitled to be the

trustee under the Marumakkathayam Law. On the other hand, the first defendant contended that before the Hindu Succession Act of 1956 Was

passed the devolution of the office of the trustee was in accordance with the Marumakkathayam Law; but after the Hindu Succession Act, 1956,

Succession to the trusteeship was governed by the Hindu Succession Act, 1956 and under that Act, the first defendant (as the son of the last

office-holder Subramania Pillai), his sisters and mother were entitled to be the trustees of the suit trust and the first plaintiff, the brother of the last

office-holder, was not entitled to be a trustee. The courts below held that ''trusteeship'' was not property, that the Hindu Succession Act was

applicable only to succession to ""property"" and that therefore the Hindu Succession Act was not applicable. They further held that if the Hindu

Succession Act was not applicable it was the Marumakkathayam Law, that was applicable and under that Law, the plaintiff being the eldest

member of the Tarwad was entitled to be the trustee. The first defendant has filed S.A. No. 1477 of 1967 against these judgments and decrees of

the courts below, in O.S. No. 33 of 1964 and the appeal therefrom. The first defendant in O.S. No. 33 of 1964, along with his two sisters and

mother, filed O.S. No. 270 of 1964 on the file of the district Munsif, Nagercoil, against the first plaintiff in O.S. No. 33 of 1964 second defendant

in O.S. No. 270 of 1964 and another tenant, for recovery of a sum of Rs. 672 being the value of the arrears of rent in respect of another trust in

favour of Bhadrakali Amman Temple, which was also a family trust created and endowed by the ancestors of the parties. Subramania Pillai the

father of the first defendant in O.S. No. 23 of 1964 was also the last trustee of the Bhadrakali Amman Temple. On the death of Subramania Pillai

on 14th July 1963, his son, the first defendant in O.S. No. 33 of 1964 (first plaintiff in O.S. No. 270 of 1964) had filed the suit for recovery of

arrears of rent on the ground that under the Hindu Succession Act, he was entitled to succeed to his father as the trustee and entitled to recover the

rent payable in respect of the trust properties. O.S. No. 270 of 1964 was dismissed and the appeal filed against the same was also dismissed. The

unsuccessful plaintiffs in O.S. No. 270 of 1964, have filed S.A. No. 1476 of 1967.

The contention of the learned counsel for the appellants in both the appeals, was that the trusteeship in the instant cases were in the nature of a

shebaitship with a beneficial interest in the trust properties and that therefore it is ''property''. The Hindu Succession Act having superseded the

Marumakkathayam Law of succession to property, the trusteeships in the instant cases were governed by the Hindu Succession Act and under

that Act, Subramania Pillai''s a legal heirs were entitled to succeed. In any case, even assuming without admitting that the trusteeship was not

property in the strict sense of being beneficially owned, still it is the Hindu Succession Act, that was applicable for determining succession to the

trusteeship and that therefore the first defendant, as the son of Subramania Pillai, was entitled to succeed to the trusteeship along with his two

sisters and mother. On the other hand, the contention of the learned counsel for the respondent (brother of Subramania Pillai) was that the Hindu

Succession Act, was applicable only to intestate succession to property and that trusteeship being not a property, the Marumakkathayam Law

alone was applicable and under that law, he as the Karnavan, was entitled to be in management of the suit trusts.

It is common ground that the trusteeship in question before us is hereditary and it relates to a private trust. There is no trust deed and there is no

evidence that the founder had prescribed any line of succession which is opposed to the general law of succession applicable to the parties. There

is also neither pleading nor evidence to show that under any special custom, a line of succession different from that provided under the general law

of succession to property was followed in this case. On the other hand, it is seen from paragraphs 1 to 3 of the plaint and paragraph 2 of the

written statement, that it had been pleaded that it was the Marumakkathayam Law of succession that governed the suit trust before the Hindu

Succession Act, 1956.

The principal incident of the Marumakkathayam Law is that it is the matriarchal members of the family that constitute a Marumakkathayam

tarwad, who are descendants through a common ancestress in the female line with equal rights in the property of the family. Under the customary

Marumakkathayam Law, no partition of the family estate may be made; but items of family property may by agreement be separately enjoyed by

the members. On the death, the interest of a member devolved by survivorship, and the management of the family property remained in the hands

of the eldest male member and in the absence of a male member, a female member. Partition of the property of the family could not be claimed by

a new member or even a thavazhi. These incidents were slightly modified by various enactments. The Hindu Succession Act also made inroads into

this customary Marumakkathayam Law of succession.

S. 7 of the Hindu Succession Act, 1956 provides that when a Hindu to whom the Marumakkatayam or nambudri Law would have applied if

that Act had not been passed dies after the commencement of that Act, having at the time of his or her death an interest in the property of a

tarwad, tavazhi or illom as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case

may be, under the Hindu Succession Act and not according to the Marumakkathayam or Nambudiri law. It is clear therefore that succession to

property is now governed by the Hindu Succession Act, 1956 and not by the Marumakkathayam Law of Inheritance.

It has now been authoritatively held by the Supreme Court and a Full Bench of our court, that trusteeship is not property if it is a bare right of

management of the institution, without any personal or beneficial interest in the endowed properties: but, if, on the other hand, there is a personal or

beneficial interest in the endowed property, as in the case of a shebaitship, then it is property; vide Kakinada Annadana Samajam, Vs.

Commissioner of Hindu Religious and Charitable Endowments, Hyderabad and Others, and K. Manathunainatha Desikar Vs. Sundaralingam and

Others, . It was because trusteeship was not property, it had been held in K. Manathunainatha Desikar Vs. Sundaralingam and Others, and

Manathunainatha Desikar v. Gopala Chettiar (1943) 1 M.L.J. 434 = ILR 1943 Mad. 858 that the rule in Tagore v. Tagore (1872) 9 Beng. L.R.

377 = (1872) I.A. (Supp.) 47 (P.C.) was not applicable and that the founder had a right to provide a special scheme of succession for the office

of the trusteeship. But in the absence of the founder himself prescribing a line of succession, it is a well-established proposition of law that

succession to trusteeship is governed by the ordinary rules of inheritance applicable to the parties. In Sethuramaswamiar v. Meruswamiar Mad.

296 = 34 M.L.J. 131 : (1918) L.R. 45 IndAp 1. the Privy Council observed:

With regard to what are called private charities such as endowments for the support of the family idol, the law as laid down by various decisions in

India and apparently accepted in one case by the Privy Council, Ramanatha Chetty v. Murugappa Chetty 27 Mad. 192 (P.C.), is that if there is

no-contrary provision in original grant the right of management passes to the natural heirs of the original grantee.

The Supreme Court, in the decision in Chockalinga Sethurayar and Another Vs. Arumanayakam, quoting the above passage of the Privy

Council with approval, further observed:

Assuming without deciding that the expression ''property'' used in Act II of 1929 does not include a trusteeship right, still it is a well established

proposition of law that succession to trusteeship similar to the one before us is governed by the ordinary rules of inheritance under the Hindu Law.

Even assuming that the trusteeship is not property, it would be seen from the decision in Chockalinga Sethurayar and Another Vs.

Arumanayakam, which is a case relating to succession to trusteeship under the Hindu Law and relating to the applicability of the Hindu Law of

Inheritance (Amendment) Act, 1929, that the Hindu Succession Act is clearly applicable to succession to trusteeship. The Supreme Court

observed in the above case:

Act II of 1929 has amended the general law of inheritance in certain respects and the same alterations must be recognised in regard to succession

to trusteeship as well.

In Angurbala Mullick Vs. Debabrata Mullick, which was concerned with a claim of the Hindu wife to the shebaitship temple under the Hindu

Women''s Right to Property Act, 1937, the Supreme Court observed:

Assuming that the word ''Property'' in Act XVIII of 1937 is to be interpreted to mean property in its common and ordinarily accepted tense and is

not to be extended to any special or peculiar type of property, even then we think that the other contention of Mr. Tek Chand is perfectly sound.

Succession to shebaitship, even though there is an ingredient of office in it, follows succession to ordinary or secular property. It is the general law

of succession that governs succession to shebaitship as well. While the general law has now been changed by reason of Act XVIII of 1937, there

does not appear to be any cogent reason why the law as it stands at present should not be made applicable in the case of devolution of

shebaitship.

In A.S. Nos. 397, 441 and 456 of 1964, by judgment dated 16th March, 1971, a Bench of this Court, to which I was a party, has taken a

similar view.

It will, therefore, be seen from the foregoing discussion that in the absence of the founder himself prescribing a line of succession and no special

custom to the contrary pleaded or proved, it is the general law of intestate succession, applicable to the last holder of the office that would be

applicable for succession to the office of trusteeship. Who these heirs are, has got to be determined according to the law in force at the time when

succession opens. Each trustee succeeds to the right by virtue of his being an heir to his immediate predecessor and not the original founder. If

there was a law governing the intestate succession to the private property of the last office holder, ipso facto it was that law that would be

applicable to determine succession to trusteeship. Any alteration in the general law of inheritance must be recognised in regard to succession to

trusteeship as well. For the applicability of the general law of intestate succession, it is immaterial whether the trusteeship was property or not.

It is, therefore, clear that the instant cases are governed by the Hindu Succession Act, 1956, and the heirs of Subramania Pillai, who are his

son (first defendant), daughters and widow, are entitled to succeed to the trusteeship.

In view of the above conclusion, it is unnecessary for me to consider whether the trusteeship in this case is property within the meaning of the

Hindu Succession Act.

The learned Counsel for the appellant in S.A. No. 1477 of 1967 also contended that the suit was bad for non-joinder of the two daughters

and widow of the last trustee, Subramania Pillai. In view of my finding that the Hindu Succession Act, 1956, applies to the instant case, they are

necessary parties to the suit and therefore the suit was bad for non-joinder of the daughters and widow of the last officeholder.

The appellant in S.A. No. 1477 of 1967 also contended that the first plaintiff was unfit to act as a trustee, because he had paralysis. He relied

on S. 73 of the Indian Trusts Act and the decision in Nathabhai Devidas Vs. Vaghjibhai Jhaverbhai, in support of his contention that ""unfitness"" for

trusteeship includes physical unfitness. He has also filed a petition to raise an additional ground that the plaintiff, being a paralytic patient, is unfit to

be a trustee. The plaintiff has produced a medical certificate given by an Assistant Surgeon of the Head quarters Hospital, Nagercoil, to the effect

that the plaintiff is physically healthy to walk about and that he was not bed ridden. As the physical unfitness is disputed. I do not think that the

petitioner could be permitted to raise the additional ground at this stage. Therefore, C.M.P. No. 2275 of 1971 is dismissed.

The learned Counsel for the respondent then contended that before Subramania Pillai, one Kalia Pillai was managing the suit properties and

that Subramania Pillai succeeded him only subsequent to 1956. If Kalia Pillai was a trustee after the Hindu Succession Act had come into force,

Subramania Pillai could not have succeeded him under the Hindu Succession Act, as he was not one of the heirs of Kalia Pillai. But, it is seen from

para. 3 of the plaint that the plaintiff claimed succession only to Subramania Pillai and he did not state in the plaint that Kalia Pillai was ever in

management P.W. 1, the second plaintiff in the suit had stated that in his evidence that he was a lessee under Subramania Pillai and that he leased

the properties three years before he died. The first plaintiff, in his evidence as P.W 2 has stated that Subramania Pillai was conducting the temple

affairs for 25 years. It may be mentioned that Subramania Pillai died only in 1963 and if he had been the trustee for 25 years, it would be from long

prior to the Hindu Succession Act. P.W. 4 also states that Subramania Pillai looked after the temple for twelve years. The trial Court, in para. 7 of

its judgment has also stated that it was admitted that Subramania Pillai, father of the first defendant, had been in possession and management of the

suit properties on behalf of the temple for 25 years before he died on 14th July, 1963. Therefore, there is absolutely no substance in this contention

of the respondent.

It may be mentioned that the suit out of which S.A. No. 1476 of 1967 arises, was in respect of Bhadrakali Amman Temple, while the suit out

of which S.A. No. 1477 of 1967 arises related to the Vinayagar Temple. But the legal contention, as already stated, in both the second appeals,

was common. In the foregoing circumstances, the second appeals are allowed with costs throughout.