Loading...

Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi … on 19 October, 1973

Supreme Court of India
Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi … on 19 October, 1973
Equivalent citations: 1974 AIR 199, 1974 SCR (2) 74
Author: K K Mathew
Bench: Mathew, Kuttyil Kurien
           PETITIONER:
SRI MAHALINGA THAMBIRAN SWAMIGAL

	Vs.

RESPONDENT:
HIS HOLINESS SRI LA SRI KASIVASI ARULNANDITHAMBIRAN SWAMIGAL

DATE OF JUDGMENT19/10/1973

BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
MUKHERJEA, B.K.

CITATION:
 1974 AIR  199		  1974 SCR  (2)	 74
 1974 SCC  (1) 150
 CITATOR INFO :
 R	    1980 SC 707	 (30)


ACT:
Hindu  Law of Religious and Charitable Trust-By a will,	 the
head of the Mutt nominated the junior Elavarasu but  later,
by  another will, terminated the appellant-If  valid-Whether
status	was acquired by the junior after  nomination-Meaning
of 'Status'.



HEADNOTE:
The  appellant	filed a suit for a declaration that  he	 was
entitled  to continue as the junior head (Elavarasu) of	 the
Tiruppandal or the Kasi Mutt and for a perpetual  injunction
against	 the  defendant, the head of the Mutt.	from  inter-
fering with his functioning as the junior head of the Mutt.
The  defendant, now dead, contended that the  appellant	 was
not  validly  nominated as the junior head of the  Mutt	 and
that  even  if	he  was nominated  as  such,  the  appellant
acquired  no  right  by the nomination to  continue  as	 the
junior	head  after  the  head of  the	Mutt  cancelled	 the
nomination by another document Ex.  B-9 will.
The  trial court found that by Ex.  B-1 will, the  defendant
nominated  the appellant as the Elavarasu of the Mutt  but
that  he acquired no status nor did he become the holder  of
an  office by virtue of the nomination.	 The  court  further
found  that  the  defendant  was  competent  to	 cancel	 the
nomination and that he had cancelled it by executing Ex.  B-
9  will.   The trial court. therefore, dismissed  the  suit.
The District Court also confirmed the findings of the  trial
court and dismissed the appeal.
In  the second appeal, the learned single judge of the	High
Court  granted a decree to the appellant on the ground	that
by the nomination of the appellant he acquired a status	 and
he  became;  a holder of an office and	that  the  defendant
could terminate the office or status only on good cause; but
since  the appellant was not guilty of any misconduct,-	 the
cancellation  of  the  nomination  by  Ex.   B-9  will	 was
ineffective.
On appeal, the Division Bench of the High Court reversed the
decree	passed	by  the single judge on	 the  basis  of	 its
finding	 that  the appellant did not become a holder  of  an
office by virtue of the nomination and so it was open to the
defendant  to  cancel  the  nomination	without	 notice	 and
without assigning any reason.
The questions for consideration before this Court were
(1)  Whether.  by  virtue of the nomination,  the  appellant
obtained a status or a right in law or became the holder  of
an office, and
(2)  whether  the  defendant  was competent  to	 cancel	 the
nomination without good cause.
Allowing the appeal,
HELD  :	 (i) During the first part of the,,'  19th  century,
there  were two managing Thambirans both at Banaras  and  at
Tiruppanandal,	a  senior  and a junior;  and  the  peculiar
feature	 of this period consisted in this double  agency  at
each centre of control. [78F]
Succession  to the office of Mahant or Head of a Mutt is  to
be  regulated by the custom of the particular Mutt  and	 one
who  claims  the office by right of succession is  bound  to
allege	and prove what the custom of the  particular  insti-
tution is. [78G]
Giyana	Sambandha  Pandra Samadhi  v.  Kandasani  Thambiran,
I.L.R.	10 Madras 375; Greedharee Doss v. Nandokissore	Doss
Mohunt	[867] M.I.A. 405; Ramalingam Pillai v.	Vythialingam
Pillai[1893] 20 I.A. 150 etc., ire referred to.
75
(ii) The  custom  in the Kasi Mutt was for the head  of	 the
Mutt to nominate a successor to succeed him by will and	 was
attended by certain religious ceremonies.    The  appellant,
in  the present case, was nominated by Exhibit B-1 will	 and
whether the nomination was accompanied by performance of any
religious ceremony was not essential[79C]
B.   K.	 Mukherjea's Hindu Law of Religious  and  Charitable
Trusts" 3rd Ed 1940 p. 257 and M. B. Bhagat v. G. N.  Bhagat
[1972]	2 S.C.R. 1005, Krishnagiri, Trikangiri v.  Sheriadar
Kavlekar  A.I.R.  1922 Bombay 202 and  Raghunath  v.  Ganesh
A.I.R. 1932 Allahabad 603, referred to.
(iii)	  In  the  present  case,  although  the  power	  of
nomination  was exercised by a will, it is pro-tanto a	non-
testamentary  instrument.   The	 definition  of	 "will"'  in
Section 2(h) of the Indian Succession Act. 1925, would	show
that  it  is the legal declaration of the intention  of	 the
testator with respect to his property which  he	 desires  to
be  carried into effect after his death.  By exercising	 the
power	  of  nomination,  the,	 head  of  a  Mutt  is	 not
disposing any property belonging to	him which is to take
effect after his death.	 He is simply exercising a. power to
which he is entitled to under the usage of the	institution.
A nomination   takes   effect	in  present.   It   is	 the
declaration of the intention of the head of the	  Mutt	 for
the time being as to who his successor would be;  therefore,
although  it is said that the usage in the Mutt is that	 the
power  of nomination is exercisable by will, it is really  a
misnomer, because, a will in the genuine sense of the  term.
can  have  no  effect in praesenti and it  does	 not  become
revocable  without  good cause merely because the  power  is
exercised by a will. [80B-F]
Ram Nath v. Ram Nagina A.I.R. 1962 Patna 481 and Kailasam v.
Nataraja A.I.R. 1918 Madras 1016 referred to.
(iv) It	 is not correct to say that Mahantship	is  property
and nomination by a Mahant    of  a successor is a  disposal
of that property to take effect after the depth of     the
Mahant.	  Nomination is not a disposal	simipliciter.of	 the
office of Mahantship of the Mutt or its properties, to	take
effect after the death of the incumbent.  It is the creation
of a relationship generating a capacity in the	  nominee to
succeed	 to  the Mutt on the death of the  incumbent.	This
concept, however, cannot be put in a straight jacket of	 any
jurisprudential concept.  The Division Bench opined that the
junior	as  the	 successor designate,  carried	with  him  a
certain	 status and received dignity and  honours  befitting
that status. [82B]
(v)  The  fundamental  difference  between  relationship  or
status	and capacity is that the former is a legal state  of
being  while  the latter is a legal power  of'	doing.	 The
imposition of status carries with it attribution or a  fixed
quota  of  capacities  and incapacities,  but  it  does	 not
directly compel the. holder to do or refrain from doing	 any
particular  act.  Capacity on the other hand, is  a  legally
conferred  power to affect the rights of oneself  and  other
persons	 to whom the experience of the capacity is  directed
subject to certain defined limits.  Capacity in this form is
an incident of status. [84B]
R.   H. Grareson's 'Status in the Common Law' p. 127,  Allen
on  Legal  Duties, P. 33, Treatise on the Conflict  of	Laws
1935  p.  649,	"Status	 and  Capacity"	 46;  Law  quarterly
Review, 277, Salvesen v. Administrator of Austrian Property    [19
27]
A.C.  641.  Wibaret v. Niboret 1878 P.O. (CA) 1 and Ross  v.
Ross 129 Mass. 243, referred to.
(vi) The fact of a person being legally nominated as junior,
having	a peculiar relationship with the senior	 is  status,
and  the capacity to succeed to the head is the incident  of
that  status.	The status, when created  by  a	 nomination,
cannot	be  withdrawn or cancelled at the mere will  of	 the
parties. [85C-D]
Tiruvambala  Desikar  v. Manikkavachaka Desikar,  I.L.R.  40
Mad. 177,referred to.
The  nomination when made can be cancelled or  revoked	only
for a good cause and as admittedly, there was no good  cause
shown in this case for cancellation of the nomination by Ex.
B-9, the cancellation was bad in law.  The-
76
-appellant  was holding the status of the Elavarasu  of	 the
Kasi  Mutt during the life-time of the defendant.  Now	that
the defendant is dead, it is declared that the appellant was
holding	 the position of the Slavarasu during the  life-time
of the defendant, that the revocation of the nomination	 was
bad  and  the  appellant was entitled  to  succeed  to	the
headship of the Mutt on the death of the defendant.



JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1677 of
1969.

Appeal by special leave from the judgment and order dated
the 12th January, 1968 of the High Court of Madras in
Letters Patent Appeals Nos. 4 and 29 of 1967.
K. S. Ramamurthy and K. Jayaram, for the appellant.
S. V. Gupte, S. K. Sastri, S. Gopalan and M. S.
Narasimahan, for the respondent.

The Judgment of the Court was delivered by
MATHEW, J. The appellant as plaintiff filed a suit for a
declaration that he was entitled to continue as the
Elavarasu or Junior Head of the Tiruppanandal or the Kasi
Mutt and for a perpetual injunction restraining the
defendant, the Head of the Mutt, from interfering in any way
with his functioning as the Elavarasu or Junior Head of the
Mutt.

The defendant, who is now dead, contended that the appellant
was not validly nominated as the Elavarasu of the Mutt, that
even if he was nominated as the Elavarasu, the appellant
acquired no right by :the nomination to continue as the
Elavarasu, that the appellant’s conduct after he became the
Elavarasu was such that he was unworthy to become the future
head of the Mutt, that he (the defendant) cancelled the
nomination and so the appellant had no right to get the decla
ration prayed for.

The questions which arose for consideration in the trial
court were: whether the appellant had been nominated by the
defendant as the Elavarasu of the Kasi Mutt; whether, by
virtue of the nomination, the appellant was holding an
office or had acquired any right or status; whether the
appellant was guilty of misconduct which disentitled him to
continue as the Elavarasu and whether the appellant
nomination as the Elavarasu was validly cancelled by the
defendant.

The trial court found that by Exhibit B-1 will, the
defendant nominated the appellant as the Elavarasu of the
Kasi Mutt, but that he acquired no status nor did he become
the holder of an office by virtue of the nomination. The
court further found that the defendant was competent to
cancel the nomination even though the appellant was not
guilty of any misconduct and that he had cancelled it by
executing Exhibit B-9 will. The trial court, therefore,
dismissed the suit.

The District Judge, in appeal by the appellant, confirmed
the findings of the trial court and dismissed the appeal.
In the second appeal filed by the appellant, a learned
single judge of the High Court of Madras found that by the
nomination of the appellant as the Elavarasu, he became the
holder of an office or that,
77
at any rate, he acquired a status and that the defendant
could terminate the office or status only for a good cause
and in the light of the finding of the trial court as
affirmed by the first appellate court that the appellant was
not guilty of any misconduct, the cancellation of they
nomination by Exhibit B-9 will was ineffective. The learned
judge, therefore, granted a decree to the appellant
declaring that he was the duly appointed junior head of the
Kasi Mutt and that he was entitled to continue as the junior
head, subject to the right of the head of the Mutt to
remove him for. good cause. The learned judge, however, did
not make a declaration that the appellant had a right to
succeed to, the headship of the Mutt after the life time of
the defendant, nor was the appellant granted an injunction
restraining the defendant from interfering with the
appellant exercising the right as the junior head.

Appeals were preferred against this decree by both the
appellant and the defendant to a. Division Bench of the High
Court.

The Division Bench reversed the decree passed by the learned
single judge on the basis of its finding that the
appellant did not become the holder of an office by virtue
of the nomination and so it was open to the defendant to
cancel the nomination without notice to the appellant and
without assigning any reason.

It is against this decree that this appeal has
been preferred by, special leave.

The questions which fall for consideration in this appeal
are, whether, by virtue of the nomination, the appellant
obtained a status or a right in law or became the holder
of an office, and, whether the defendant was competent to
cancel the nomination without good cause.
It is not disputed that on September 12, 1951, the defendant
executed a will (Exhibit B-1) reciting that he had nominated
the appellant as the Elavarasu of the Kasi Mutt. The will
also stated that certain ceremonies were performed on the
occasion of the nomination. It then provided that by virtue
of the nomination, the appellant win succeed the defendant
as the Head of the Mutt. There is also no dispute that till
January 2, 1960, when the defendant revoked they will
(Exhibit B-1) by Exhibit B-9 stating that “it was not
necessary to appoint the appellant as the Elavarasu”, the
appellant was the Elavarasu by virtue of his nomination.
In Giyana Sambendha Pandara Samadhi v. Kandasami Thambi-
ran(1) herinafter referred to as “Sambandha Case”, Muttusami
Ayyar, J. has traced the historical evolution of the Kasi
Mutt and the Dharmapuram Adhinam. The Dharmapuram Adhinam
and the Kasi Mutt are monastic institutions. They are
presided over by ascetics who have renounced the world. The
Mutt at Tiruppanandal i.e. Kasi Mutt was affiliated to the
Dharmapuram Adhinam as a disciple Adhinam. An Adhinam is a
central institution from which the chief ascetic exercises
(1) I.L.R. 10 Madras 375.

78

control and supervision over a group of endowed institutions
and religious trusts. A Thambiran is an ascetic attached to
an Adhinam and when he becomes the head of the Adhinam, he
is referred to as Pandara Sannadhi. A Mutt was originally
established at Benares by one Kumaragupara Thambiran of the
Dharmapuram Adhinam. The Dharmapuram Adhinam had come into
existence several centuries before the institution of the
Mutt at Benares. The Mutt at Tiruppanandal was established
later in aid of the Mutt at- Benraes by Tillanayaka Tham-
biran, a successor of Kumaragurupara Thambiran who
functioned between 1720 to 1756. In course of time, the
Mutt at Tiruppanandal became the principal Mutt and the Mutt
at Benares a subsidiary one. As the Mutt advanced in fame,
endowments and trusts began to come in. So, subsidiary
institutions came to be established and the Tiruppanandal
Mutt ceased to be, an isolated institution. It became an
important centre exercising supervision and ‘control over
several subordinate Mutts in. Southern India, over the Mutt
in Benares, and over Mutts at Merangi in Nepal and at
Achiram .in Travancore so much. so that in some of the later
correspondence one finds that Tiruppananddi is referred to
as an Adhinam. The Dharmapuram Adhinam was regarded, by the
Thambiran at Tiruppanandal as, Ms Gurupitham, the seat of
his religious preceptor. The Thambirans at Tiruppanandal
were, in a spiritual sense, subordinate to the Pandara
Sannadhi at Dharmapuram. In course of time,. a junior
Thambiran came to be associated with the senior Thambiran in
the management of the Tiruppanandal Mutt. The necessity for
the services of a junior at Tiruppanandal was felt, because,
it Would on the one hand, give an opportunity to the senior
to see whether the junior might be relied upon as a
competent successor, .while, on the other hand, it would
enable the junior to acquire experience before he became the
head of the Mutt. The practice in the Dharampuram Adhinam
of there being a senior and a junior Pandara. Sannadhi at
one and the same time was the probable origin of the double
agency at Tihuppanandal. But, as only a Pandara Sannadhi
could initiate a Thambiran, it came about that the
Thambirans for the Mutt at Tiruppanandal and Benares came
from the Dhaniapuram Adhinam. During the first part of the
19th century (1833 to 1841) there were two managing
Thambirans both at Benares and at Tiruppanandal, a senior
and a junior; and the peculiar feature of this period
consisted in this double agency at each centre of control,
which was probably due to the considerable increase in the
number and value of endowments to be superintended.
Succession to the office of Mahant or Head of a Mutt is to
be regulated by the custom of the particular Mutt and one
who claims the office by right of succession is, bound to
allege and prove what the custom of the particular
institution is, for, the only law regulating succession to
such institutions is to be found in the custom and practice
of that institution (see the decisions of the Privy Council
in Greedharee Doss v. Nandokissore Doss, Mohunt(1) and
Ramalingam Pillai v. Vythiaingam Pillai(2). As was observed
in Vidyapurna Tirthaswami v. Vidvanidhi Tirthswami(s), in
most cases,
(1) (1867) M.I.A. 405.

(2) (1893) 20 I.A. 150.

(3) I.L.R. 27 Madras 435.

79

especially in Southern India, the successor is ordained and
appointed by the Head of the Mutt during his own life time
and in default of such appointment, the nomination may rest
with the head of some kindred institution or the successor
may be appointed by election by the disciples and followers
of the Mutt or, in the last instance, by the court as
representing the sovereign. Where the head of a religious
institution is bound by celibacy, it is frequently the usage
that he nominates his successor by appointment during his
own life time, or by will. Such a power of nomination must,
however, be exercised not corruptly or for ulterior reasons,
but bona fide and in the interests of the Mutt; otherwise,
the appointment will be invalid [see Nataraja v.
Kaliasam(1); Ramalingam Pillai v. Vythialingam Pillai(2);
Ram Prakash Das v. Anand Das(3) and Vaidyanatha v.
Swaminatha
(4)].

From the decision in the Sambandha Case it is clear that the
custom in the Kasi Mutt is for the head of the Mutt for the
time being to nominate a successor to succeed him from one
among the Thambirans of Thirukkuttam of the Dharmapuram
Adhinam; that the nomination is made by will and that is
attended by certain religious ceremonies like Manthakashyam,
Deekshha,.Pooja and Arukattai.’
There was no contention in the written statement that the
necessary ceremonies for a valid nomination of a junior head
in the Kasi Mutt were not performed. Exhibit B-1 states in
unambiguous language that the ceremonies were performed.
Both the trial court as well as the first appellate court
found, on the basis of the oral evidence, that the religious
ceremonies for the nomination were not performed at the time
of the nomination, but at an anterior date. When the
defendant had himself admitted in Exhibit B-1 will that the
nomination was made after the ceremonies were performed,
there is no scope for any controversy as to whether the
ceremonies were performed. The statement in Exhibit B-1 that
the ceremonies were performed was made at a time when there
was no controversy between the parties. And, it was on the
basis that there was a valid nomination that the appellant
was associated with the defendant from 1951 to 1960 as the
Elavarasu of the Mutt.

Quite apart from these circumstances, we do not think that
for a nomination to be valid, performance of any religious
ceremony is necessary, unless, of course, the usage of the
institution has made it mandatory. “In many cases when a
successor is appointed by Mohunt, he is installed in office
with certain ceremonies.” This cannot be deemed to be
essential” (see B. K. Mukherjea, “Hindu Law of Religious and
Charitable Trusts”, 3rd ed. (1970), p. 257). This
observation was quoted with approval by this Court in M. B.
Bhagat v. G. N. Bhagat
(5). See also the decisions in
Krishnagiri Trikamgiri V. Sheriddar Kavlekar(6) and
Raghunath v. Ganesh(7).

The Division Bench of the High Court was of the opinion that
as the nomination was made by Exhibit B-1 will, there was no
reason.

(1) (1920) 48 I.A . 1. (2) [1893] 20 I.A. 150.
(3) (1916) 43 I.A.73. (4) (1924) 51 I.A. 282.
(5) (1972) 2 S.C.R. 1005 at 1010.

(6) A.I.R. 1922 Bombay 202.

(7) A.I.R. 1932 All. 603.

80

why that will could not be revoked under law and therefore
the nomination stood revoked by the execution of Exhibit B-9
will. In other words, one line of reasoning adopted by the
High Court was that, as a will is revocable at the pleasure
of the testator at any time before his death, the nomination
made by Exhibit B-1 will was revocable without assigning any
reason.

The definition of “will” in s.2(h) of the Indian Succession
Act
, 1925, would show that it is the legal declaration of
the intention of a testator with respect to his property
which he desires to be carried into effect after his death.
By exercising the power of nomination, the head of a Mutt is
not disposing of any property belonging to him which is to
take effect after his death. He is simply exercising a
power to which he is entitled to under the usage of the
institution. A nomination makes the nominee stand in a
peculiar relationship with the head of the Mutt and the
Hindu community and that relationship invests him with the
capacity to succeed to the headship of the Mutt. A
nomination takes effect in presenti. It is the declaration
of the intention of the head of the Mutt for the time being
as to who his successor would be; therefore, although it is
said that the usage in the Mutt is that the power of
nomination is exercisable by will, it is really a misnomer,
because, a will in the genuine sense of the term can have no
effect in presenti. There can be no dispute that a nomi-
nation can be made by deed or word of mouth. in such a case,
the nomination invests the nominee with a present status.
That status gives him the capacity to succeed to the
Headship of the Mutt on the death of the incumbent for the
time being. If that is the effect of nomination when made
by deed or word of mouth, we find it difficult to say that
when a nomination is made by will, it does not take effect
in presenti, and that it can be cancelled by executing
another will revoking the former will. Such, at any rate,
does not seem to be the concept of nomination in the law
relating to Hindu Religious Endowments. A nomination need
not partake of the character of a will in the matter of its
revocability, merely because the power of nomination is
exercised by a will. In other words, the nature or
character of a nomination does not depend upon the type of
document under which the power is exercised. If a
nomination is otherwise irrevocable except for good cause,
it does not become revocable without good cause, merely
because the Dower is exercised by a will. If the power of
nomination is exercised by a will, it is pro-tanto a non-
testamentary instrument. A document can be partly
testamentary and partly non-testamentary. In Ram Nath v.
Ram Nagina
(1), the head of the Mutt for the time being
exercised his power of nomination, more or less in terms of
Exhibit B-1 here, namely, by making the nomination of a
successor and providing that the will be the owner of the prope
rties and charities of the Mutt and also of the other
properties standing in the name of the head of the Mutt.
The court held that so far as the nomination and devolution
of the properties of the Mutt were concerned, the will
operated as a non-testamentary instrument. The Court said
that the condition which must be satisfied before a
(1) A.I.R. 1962 Patna 481.

81

document can be called a will is that there must be some
disposition of property and that the document must contain a
declaration of the intention of the testator not with
respect to any thing but with respect to his property.
According to the Court, if there is a declaration of
intention with respect to his successor, it cannot
constitute a will even if the document were to state that
the nominee will become the owner of the properties of the
Mutt after the death of the executant of the will as that is
only a statement of the legal consequence of the nomination.
In Kailasam v. Nataraja(1), the court expressed the view
that a will making a nomination is only the evidence of a
past event. In other words, a will is the record of a
nomination and that it is not by the will that a nomination
is made.

Exhibit B-1 makes it clear that the nomination had already
been made. It says:

“I have nominated as my successor Mahalinga
Thambiran, who is one among the Thambirans of
Thirukkuttam of Dharmapuram Adinam and
obtained Manthakashyam, Deeksha, Pooja and
Arukatti and who is performing pooja in our
Mutt.”

The statement in the will that after the death of the Head,
the Junior win be the owner of the properties pertaining to
the Mutt is a declaration as to the legal consequence of the
nomination. The fact that in the Kasi Mutt there is no
usage that the power of nomination was exercised otherwise
than by will does not mean that a nomination will stand
cancelled when the will is revoked.

Mr. Gupte for the respondent argued that Mahantship is
property and nomination by a Mahant of a successor is a
disposal of that property to take effect after the death of
the Mahant and, therefore, the power of nomination- can be
exercised only by a will, and, if it is exercisable only by
a will, it follows that when the will is revoked, the
nomination would stand cancelled.

We do not think that this contention is correct. As we
said, the power of nomination is a concept pertaining to the
law of Hindu Religious Endowments. It is not because the
Mahantship was treated as property that in the Sambandha
Case it was observed that in the Kasi Mutt nomination is
made by a will, but because, it was the custom of that Mutt.
The Privy Council has said that a nomination can be. made by
word of mouth (see Greedharee Doss v. Nandokissore Doss,
Mohunt(1). And there is no reason why it cannot be made by
a deed. If the power of nomination is exercised by word of
mouth or by deed, it is not clear how the exercise of the
power would be valid if Mahantship itself is property and
nomination is regarded as the disposition of that property
to take effect after the death of the head of the Mutt.
For, if nomination is merely a declaration of the intention
of the head of the Mutt as to the disposal of the office of
Senior Pandara Sannadhi
(1) A.I.R. 1918 Madras 1016, at 1018.

(2) [1867] MIA405
7-L447Sup.CI/74
82
which is generally regarded as property or of the properties
appertaining to the office, to take effect after the death
of the incumbent of the office for the time being, then the
power of nomination can be exercised only by a will. The
fact that according to the law of Hindu Religious
Endowments, a nomination can be made by deed or word of
mouth is positive proof that nomination is not a mere
disposal of the office or of the properties appertaining to
it, but the creation of a present relationship generating
the capacity to succeed to the office and to the properties
appertaining to the office. In other words, by word of
mouth or deed one cannot dispose of an office, if it is pro-
perty, to take effect after the death of the person uttering
the word or executing the deed and, therefore, nomination is
not a disposal simpliciter of the office of the headship of
the Mutt or its properties, to take effect after the death
of the incumbent. It is the creation of a relationship
generating a capacity in the nominee to succeed to the head-
ship of the Mutt on the death of the incumbent. What, then,
is the nature of that relationship ?

Mr. Gupte said that so long as no present right or status is
conferred or created by a nomination, the, Head of the Mutt
can cancel on revoke the nomination at any time he pleases
and that there is no foundation for the assumption that
nomination can be cancelled only for good cause.
As already stated, a nomination is a concept pertaining to
Hindu Religious Endowments. And it is sui generis. One
cannot put it in the straight jacket of any jurisprudential
concept.

The Division Bench was of the view that “the junior as the
successor designate of the headship of the Mutt carried with
him a certain status on account of that fact and received
dignity and honours befitting that status”.
The question is whether, by the nomination,- the appellant
acquired a status in law, and, if he acquired a status,
whether it was liable to be put an end to by the defendant
at his whim.

John Austin has said that status is “the most difficult
problem in the whole science of jurisprudence.” The question
whether the junior Pandara Sannadhi or the Second occupies a
status, has to be decided with reference to the law relating
to Hindu Religious Endowments. It is a well known custom in
several Mutts, for the heads to nominate their successors.
Junior heads so nominated form a class by themselves and as
they stand in a relationship with the senior heads which is
peculiar in the sense that no other’ class of persons hold
that relationship with them, the question is whether,
according to the law of Hindu Religious Endowments, they
acquire a status in law. The custom or usage will certainly
govern the question whether the head of the Mutt has the
power to make a nomination during his life time, and the
manner of its exercise and the religious ceremonies to be
performed at the time of the nomination. But, in the
absence of any ,custom or usage, the question whether
nomination would confer a
83
status upon the junior heads so nominated is a matter for
the court to decide in the light of the law relating to
Hindu Religious Endowments. And, in deciding it, the
interests of the Hindu religious community and of the Mutts
in general are of paramount importance. Whether or not a
particular condition or relationship is one of status
depends primarily on the existence and extent of the social
interest in the creation and supervision of such a condition
or relationship. The test is not a simple one of the
existence or non-existence of the concern of the society; it
is also one of the degree of such concern. It is, further,
abvious, that the degree and even the existence of this
concern in a particular condition will vary from time to
time in the same society. It is not possible to draw a
clear line of distinction in a dogmatic and a priori manner
between conditions of status and special conditions not of
status. In other words, the picture of status cannot be
painted in elemental colours of black and white on any a
priori considerations. “It is rather a matter for a court
to decide at the time of action whether a particular
condition does or does not involve a sufficient degree of
social interest to be characterised as status, assuming that
all other features of status are present” (11) Bentham’s
idea of status was that it was “a quality or condition which
generates certain rights and duties”(2). Beale defines
status as a personal quality or relationship not temporary
in nature nor terminable at the mere will of parties with
which third parties and even the State are concerned(3). C.
K. Allen said that status is a condition of belonging to a
particular class of persons to whom law assigns certain
capacities and incapacities(4). Status is defined by
Graveson as a special condition of a continuous and,
institutional nature, differing from the legal position of
the normal person which is conferred by law and not purely
by the act of the parties, whenever a person occupies a
position of which the creation, continuance or
relinquishment and the incidents are a matter of sufficient
social or public concem(5). The distinguishing mark of a
class for the purpose of status is that legal consequences
result to its members from the mere fact of belonging to it.
In Salvesan v. Administrator of Austrian Property(6), Lord
Haldane asked the question : “For what does status mean in
this connection ?” and answered it by saying that in the
case of marriage, it is something more than a mere
contractual relation between the parties to the contract of
marriage. He also said that status may result from such a
contractual relationship, but only when the contract has
passed into something which Private International Law
recognizes as having been superadded to it by the authority
of the State, something “which the jurisprudence of the
State under its law imposes when within its boundaries the
ceremony has taken place.”

(1) See R.H. Graveson, “Status in the Common Law”. p. 127.
(2) see Allen, “Legal Duties, p. 33.

(3) see “Treatise on the Conflict of Laws” (1935). p, 649,
(4) see “Status and Capacity” 46 Law Quarterly Review, 277.
(5) sec ‘Status in the Common Law”, p .2. [1927] A.C, 641
84
In Nibovet v. Nibovet(1), Brett, L. J. said :

“The status of an individual, used as a legal
term, means the legal position of the
individual in or with regard to the rest of
the community”.

The fundamental difference between status and capacity is
that the former is a legal state of being while the latter
is a legal power of doing. Status determines a person’s
legal condition in community by reference to some legal
class or group and cannot normally be voluntarily changed.
The imposition of status carries with it attribution of a
fixed quota of capacities and incapacities, but it does not
directly compel the holder to do or refrain from doing any
particular act. Capacity, on the other hand, is a legally
conferred power to affect the rights of oneself and other
persons to whom the exercise of the capacity is-directed,
subject to certain generally and legally defined limits-
which vary in relation to each particular form of capacity.
Capacity in this form is an incident of status. And, a
distinction therefore must be made between the legal
principles applicable to the major conception of status and
those affecting the minor conception of its incidents(2).
The closest approach to a judicial statement of the
distinction between status and its incidents is found in the
judgment of Gray, C. J. in Ross v. Ross(3) :

“The capacity or qualification to inherit or
succeed to property, which is an incident of
the status or condition, requiring no action
to give it effect, is to be distinguished from
the capacity or competency to enter into
contracts that confer rights upon-others.”

It would follow that status is a condition imposed by law
and not by act of parties, though it may be predicated in
certain cases on some private act as the contract of
marriage. Whether the condition of status will be imposed
as the result of private contract or private or public act
depends on the public interest in the relation created by
the contract or act. In other words, as we said, the
interest and concern of the society of which parties form
part determine whether or not status will be imposed or
conferred as the result of private contract or by private or
public act. Social interest is a feature of the concept of
status; unfortunately, this aspect has been little stressed
in the cases. “Austin’s neglect of this aspect of status
has made no small contribution to the judicial disregard of
social interest involved in the concept”(4).

In Ross v. Ross (20″ Chief Justice Gray
said
“A general principle that the status or
condition of a person, the relation in which
he stands to another person,. and by which he
is qualified and made capable to take certain
rights in that other’s property, is fixed by
the law of domicile’.

(1) (1878) P.D. (C.A.) 1 at II
(2) see V,.K. Allen, “Legal Duties and other Essays in
Jurisprudence”(1931) pp. 28 ff and also his article “Status
and Capacity”, 46 Law Quarterly
Review, 277.

(3) 129 Mass. 243 (1880).

(4) see R.H. Graveson, “Status in the Common Law”, p. 60.

85

In Tarak Chandra Das and Another v. Anukul
Chandra Mukherjee(1), B. K. Mukherjea, as he then was, said
:

“Now, legal character is the same thing as
status.”

What is the relationship in which junior heads stand to
their seniors ? In Sambandha Case (supra), Muttusami Ayyar,
J. said (at P. 493) :

“By appointment as junior, the Tambiran became
a spiritual brother or a brotherly companion
and by both the senior who appoints and the
junior who is appointed belonging to the same
Adhinam, they were associates in holiness.”

As we said, status is something apart from and beyond its
incidents. “The status of a child is not his duties or
disabilities in relation to his parents, but the legally
recognised fact of being a child”(2). The fact of a person
being legally nominated as junior, having a peculiar
relationship with the senior is status, and the capacity to
succeed to the head is the incident of that status. The
status, when created by a nomination, cannot be withdrawn or
cancelled at the mere will of the parties. The law must
determine the condition and circumstances under which it can
be, terminated. Merely because the status originated from
the act of a senior head in making the nomination, it would
not follow that the senior head can put an end to it by
another act. In other words, the junior heads as a class
occupy a position of which the creation, continuance or
reliquidate, and its principal incident, namely, succession
to the office of the headship of the Mutt are matters of
sufficient social or public concern in the sense that the
Hindu religious community is vitally interested in all of
them.

There was some debate at the bar on the question whether, by
nomination, the junior gets a contingent interest in the
office or in the properties of the Mutt, the contingency
being the survival by the junior of the head of the Mutt. A
contingent interest or ownership is a present right. But we
do not propose to decide that point in this appeal. As we
said, the concept of nomination is sui generis; and that
makes it rather difficult to bring it under any legal
rubric. Perhaps, it has its analogue in Canon Law and that
was the reason why Bhashyam Ayyangar, J. in Vidyapurna
Tirthaswaini V. Vidvanidhi Tirthaswami(3) likened the
position of a junior head to +,hat of a coadjutor in Canon
Law. A coadjutor stands in a peculiar relationship with the
Bishop. He has a right to succeed the Bishop; while be is a
coadjutor, he has no administrative functions of his own,
but has only to do the work assigned to him by the Bishop.
But, nevertheless, during the life time of the Bishop he
enjoys a status and is accorded honours and regard by the
religious community, second only to those accorded to the
Bishop.

Even if it is assumed that the position of a junior head is
not a status as known to law, we think that the relationship
created by the nomination is one which cannot be put an end
to by the head at his sweet will and pleasure.
(1) A.I.R. 1946 (33) calcutta 118, at 119.

(2) see R.H. Graveson, “Status in the common Law”. pp. 122-

127.
(3) 1. L. R. 27 Mad. 435.

86

In Tiruvambala Desikar v. Kanikkavachaka Desikar(1), the
question was whether the head of the Dharmapuram Adhinam
has, after making a valid nomination, an uncontrolled right
to concel it and nominate another person as the junior head.
A Division Bench of the Madras High Court consisting of
Wallis, C. J. and Seshagiri Ayyar, J. held that the Head of
the Mutt, after making a valid nomination cannot revoke the
nomination at his sweet will and pleasure, but only for good
cause Wallis, C. J. said (at P. 190) :

“It has been contended before us that the
defendant only held office at the pleasure, of
the Pandarasannadhi and that consequently the
latter was entitled to dismiss him without
giving him any opportunity of being heard.
The nomination and ordination of a junior
Pandarasannadhi is the customary manner of
providing for the line of succession in Mutts
of this kind, and it is not shown that the
Pandarasannadhi has any power of arbitrary
dismissal, while on the other hand, it has
been held in a previous suit relating to the
institution that he may dismiss for good
cause. In Hidyapurna Thirtha. swami v.
Vidvanidhi Tirthaswami(2) where the question
was whether a Pandarasannadhi forfeited his
position as such by reason of lunacy, recourse
was had to the analogies of the Canon Law and
applying those analogies to this case, the
position of the junior Pandarasannadhi during
the life time of the elder would appear to be
that of a coadjutor with the right of
succession, a right of which he cannot be
deprived except for grave cause.”

Seshagiri Ayyar, J., after stating that the ordinary mode of
succession in Mutts is by appointment by the head either by
will or by word of mouth observed :

“. . I feel no hesitation in holding that the
appointer has not the absolute power to
dismiss which is claimed for him …. I shall
refer to what takes place on the nomination of
a successor in this Mutt. Exhibit-C. . .
mentions the ceremonies that have to be gone
through in selecting a successor and also
those which the person selected has to
undergo. The most important of these is the
abishegam. The rites to be observed on this
occasion are described by the plaintiff as his
thirty-third witness. This may be taken to
represent correctly what happens when a junior
Pandarasannadhi is appointed. It is also in
evidence that the senior Pandarasannadhi
himself offers puja to the junior because by
the abishegam the junior attains Godhead. He
performs separate puja to Gods Vigneswara and
Subrahmanya. He is called the Sadbaka
Acharya, or co-adjutor with the senior…”
(PP. 194-195).

The learned judge, then said that a person appointed by will
and on whom abishegam has been performed becomes heir
presumptive entitled to succeed to the headship on the
happening of a vacancy.

(1) I.L.R. 40 Madras 177. (2) I. L. R. 27 Mad.435.

87

He further said that when the nomination carries with it
certain dignity and is construed by the worshipers as
implying sanctity of the person, it would lead to disastrous
results to hold that the appointee is dependent for his
position upon the will of the appointee as the conscience of
the people regards him as the unquestionable successor. He
then summarised his conclusions as follows : (at P. 197)
“(1) that the head of the Mutt is entitled to
appoint a Junior Pandharasannadhi; (2) that
this junior has a recognized status,- (3) that
he is entitled-to succeed to the headship, if
he survives the appointee; (4) that for good
cause shown he can be. removed; (5) that the
tenure of his position is not dependent upon
the goodwill of the appointee; and (6) that it
is not open to the head of the mutt to dismiss
him arbitrarily”.

Counsel for the appellant argued that this decision lays
down the correct law and there is no reason why it should
not apply to the case in hand. He said that it is from the
Dharmapuram Adhinam that the Kasi Mutt took its origin and
that the same principles must apply to the Kasi Mutt. As
regards the Dharmapuram Adhinam, Muttusami Ayyar, J. said in
Sambandha Case(1)
“It should be observed here that there were a
senior and a junior Pandara Sannnadhi at one
and the same time, and that the junior
succeeded the senior unless dismissed for
misconduct, and that a will was left at times
by the senior Pandara Sannadhi appointing his
junior as his successor. This indicates
probably the source from which the course of
succession at Tirupranandal was originally
derived.”

The, Division Bench of the High Court was of the view that
the decision in Tiruvambala Desikar v. Manikkavachaka
Desikar
(2) Was inapplicable to resolve the
controversy here for the reason that Achariya
Abishegam ceremony which invested the junior head there with
certain spiritual powers was admittedly not performed in the
instant case. It was submitted by Mr. Gupte for the
respondent that the foundation of the decision in the above
case was the finding in that case that there was the
ceremony of Achariya Abishegam on nomination and that had
the effect of investing the junior head with certain
spiritual powers and as the nomination of the appellant was
not attended with Achariya Abishegam, the nomination did not
invest the appellant with any spiritual capacity so as to
make the nomination irrevocable. In Sambandha Case(1),
Muttusami Ayyar, J. said :

“……. a ceremony called Adhariya Abhishegam
is performed only in the case of Tambirans who
are raised to the position of a senior or
junior Pandara Sannadhi. It consists in
anointing and bathing him as an achariya or
preceptor and consecrating him as such with
the recitation of religious texts prescribed
for the occasion. The belief with which it is
performed is that unless a Tambiran is
solemnly consecrated as a preceptor, he is not
competent
(1) I. L. R. 70 Mad. 375.

(2) I. L. R. 40 Mad. 177.

88

to initiate laymen in forms of prayer
conducive to their spiritual happiness and to
ordain laymen as Tambirans with efficacy”
(Para 8 of the judgment).

What this paragraph says is that Achariya Abhishekam
ceremony is performed only for raising a Tambiran to the
position of a junior or senior Pandara Sannadhi in the
Dharmapuram Adhinam. It would not follow from what
Muttusami Ayyar, J. has said that the right to succeed which
is the invariable legal incident of a nomination is
conferred by virtue of Achariya Abhishekam. Nomination
must, in logic and in fact, always precede the Achariya
Abhishekam. The effect of Achariya Abhishekam, according to
the learned judge, is to confer on the junior head the
spiritual capacity to ordain Tambirans or, in other words,
to initiate laymen into the spiritual fold (Thirukkuttam) of
Tambiran. The learned judge did not say. that Achariya
Abhishekam has the effect of investing the junior head with
an indefeasible right to succeed to the headship of the
Mutt. In other words, if revocability is otherwise a
characteristic of nomination, it would not cease to be so by
virtue of the religious ceremony of Achariya Abhishekam.
Even if it be assumed that Achariya Abhishekam would invest
a junior head with the power to ordain Tambirans which he
would not otherwise have, it would not follow that by virtue
of Achariya Abhishekam he would obtain a right, much less an
indefeasible right, to succeed if nomination per se has no
such effect.

In the judgment in Sambandha Case(1), Muttusami Ayyar, J.
has referred to a case where the head of the Dharmapuram
Mutt-one Sadayappa-made three wills in succession nominating
the same person. Counsel for the respondent wanted us to
infer from this that a power to nominate, if it is exercised
by a will, can also’ be revoked by another will; but as
already stated, the will, in most cases, is only a record of
the exercise of the power of nomination and the mere fact
that the head of the Mutt in question executed three wills
successively naming the same person as the junior head would
not in any way militate against the contention of the
appellant that nomination once made cannot be revoked
arbitrarily. if there was an instance in the particular
institution of a head who, after having exercised the power
of nomination by a will, executed another will nominating
another person, the position would probably have been
different.

Looking at the matter from another angle, we come to the
same conclusion. We have already said that the power of
nomination must be exercised not corruptly or for ulterior
reason but bona fide and in the interest of the Mutt and the
Hindu community. It then stands to reason to hold that
power to revoke the nomination must also be exercised bona
fide and in the interest of the institution and the
community. In other words, the power to revoke can be
exercised not arbitrarily, but only for good cause. We do
not pause to consider what causes would be good and
sufficient for revoking a nomination as the defendant had no
case before us that he revoked that nomination for a good
cause.

(1) I. L. R. 10 Mad. 375.

89

We hold that a nomination when made can be cancelled or
revoked only for a good cause and, as admittedly, there was
no good cause shown in this case for cancellation of the
nomination by Exhibit B-9, the cancellation was bad in law.
Therefore, it must be held that the appellant was holding
the status of the Elavarasu of the Kasi Mutt during the life
time of the defendant. Normally, a court will declare only
the rights of the parties as they existed on the date of the
institution of the suit. But, in this case, on account of
the subsequent event, namely, the death of the defendant, we
have to mould the relief to suit the altered circumstance.
If the defendant had been alive, it would have been
sufficient if we had declared, as the learned single judge
has done, that the appellant was the Elavarsu of the Kasi
Mutt.Now that the defendant is dead, we make a declaration
thatthe appellant was holding the position of the
Elavarasu during thelife time of the defendant, that
the revocation of the nomination ofthe appellant as
the Elavarasu by Exhibit B-9 was bad, and thatthe
appellant was entitled to succeed to the headship of the
Mutt onthe death of the defendant.

The decree passed by the Division Bench of the High Court is
set aside and the appeal is allowed. In the circumstances,
we make no order as to costs.

S.C.			   Appeal allowed.
90



Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information