{"id":247921,"date":"1973-10-19T00:00:00","date_gmt":"1973-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-mahalinga-thambiran-swamigal-vs-his-holiness-sri-la-sri-kasivasi-on-19-october-1973"},"modified":"2017-03-10T14:15:44","modified_gmt":"2017-03-10T08:45:44","slug":"sri-mahalinga-thambiran-swamigal-vs-his-holiness-sri-la-sri-kasivasi-on-19-october-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-mahalinga-thambiran-swamigal-vs-his-holiness-sri-la-sri-kasivasi-on-19-october-1973","title":{"rendered":"Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi … on 19 October, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi … on 19 October, 1973<\/div>\n
Equivalent citations: 1974 AIR 199, 1974 SCR (2)\t 74<\/div>\n
Author: K K Mathew<\/div>\n
Bench: Mathew, Kuttyil Kurien<\/div>\n
           PETITIONER:\nSRI MAHALINGA THAMBIRAN SWAMIGAL\n\n\tVs.\n\nRESPONDENT:\nHIS HOLINESS SRI LA SRI KASIVASI ARULNANDITHAMBIRAN SWAMIGAL\n\nDATE OF JUDGMENT19\/10\/1973\n\nBENCH:\nMATHEW, KUTTYIL KURIEN\nBENCH:\nMATHEW, KUTTYIL KURIEN\nBEG, M. HAMEEDULLAH\nMUKHERJEA, B.K.\n\nCITATION:\n 1974 AIR  199\t\t  1974 SCR  (2)\t 74\n 1974 SCC  (1) 150\n CITATOR INFO :\n R\t    1980 SC 707\t (30)\n\n\nACT:\nHindu  Law of Religious and Charitable Trust-By a will,\t the\nhead of the Mutt nominated the junior Elavarasu but  later,\nby  another will, terminated the appellant-If  valid-Whether\nstatus\twas acquired by the junior after  nomination-Meaning\nof 'Status'.\n\n\n\nHEADNOTE:\nThe  appellant\tfiled a suit for a declaration that  he\t was\nentitled  to continue as the junior head (Elavarasu) of\t the\nTiruppandal or the Kasi Mutt and for a perpetual  injunction\nagainst\t the  defendant, the head of the Mutt.\tfrom  inter-\nfering with his functioning as the junior head of the Mutt.\nThe  defendant, now dead, contended that the  appellant\t was\nnot  validly  nominated as the junior head of the  Mutt\t and\nthat  even  if\the  was nominated  as  such,  the  appellant\nacquired  no  right  by the nomination to  continue  as\t the\njunior\thead  after  the  head of  the\tMutt  cancelled\t the\nnomination by another document Ex.  B-9 will.\nThe  trial court found that by Ex.  B-1 will, the  defendant\nnominated  the appellant as the Elavarasu of the Mutt  but\nthat  he acquired no status nor did he become the holder  of\nan  office by virtue of the nomination.\t The  court  further\nfound  that  the  defendant  was  competent  to\t cancel\t the\nnomination and that he had cancelled it by executing Ex.  B-\n9  will.   The trial court. therefore, dismissed  the  suit.\nThe District Court also confirmed the findings of the  trial\ncourt and dismissed the appeal.\nIn  the second appeal, the learned single judge of the\tHigh\nCourt  granted a decree to the appellant on the ground\tthat\nby the nomination of the appellant he acquired a status\t and\nhe  became;  a holder of an office and\tthat  the  defendant\ncould terminate the office or status only on good cause; but\nsince  the appellant was not guilty of any misconduct,-\t the\ncancellation  of  the  nomination  by  Ex.   B-9  will\t was\nineffective.\nOn appeal, the Division Bench of the High Court reversed the\ndecree\tpassed\tby  the single judge on\t the  basis  of\t its\nfinding\t that  the appellant did not become a holder  of  an\noffice by virtue of the nomination and so it was open to the\ndefendant  to  cancel  the  nomination\twithout\t notice\t and\nwithout assigning any reason.\nThe questions for consideration before this Court were\n(1)  Whether.  by  virtue of the nomination,  the  appellant\nobtained a status or a right in law or became the holder  of\nan office, and\n(2)  whether  the  defendant  was competent  to\t cancel\t the\nnomination without good cause.\nAllowing the appeal,\nHELD  :\t (i) During the first part of the,,'  19th  century,\nthere  were two managing Thambirans both at Banaras  and  at\nTiruppanandal,\ta  senior  and a junior;  and  the  peculiar\nfeature\t of this period consisted in this double  agency  at\neach centre of control. [78F]\nSuccession  to the office of Mahant or Head of a Mutt is  to\nbe  regulated by the custom of the particular Mutt  and\t one\nwho  claims  the office by right of succession is  bound  to\nallege\tand prove what the custom of the  particular  insti-\ntution is. [78G]\nGiyana\tSambandha  Pandra Samadhi  v.  Kandasani  Thambiran,\nI.L.R.\t10 Madras 375; Greedharee Doss v. Nandokissore\tDoss\nMohunt\t[867] M.I.A. 405; Ramalingam Pillai v.\tVythialingam\nPillai<\/a>[1893] 20 I.A. 150 etc., ire referred to.\n75\n(ii) The  custom  in the Kasi Mutt was for the head  of\t the\nMutt to nominate a successor to succeed him by will and\t was\nattended by certain religious ceremonies.    The  appellant,\nin  the present case, was nominated by Exhibit B-1 will\t and\nwhether the nomination was accompanied by performance of any\nreligious ceremony was not essential[79C]\nB.   K.\t Mukherjea's Hindu Law of Religious  and  Charitable\nTrusts\" 3rd Ed 1940 p. 257 and M. B. Bhagat v. G. N.  Bhagat<\/a>\n[1972]\t2 S.C.R. 1005, Krishnagiri, Trikangiri v.  Sheriadar\nKavlekar<\/a>  A.I.R.  1922 Bombay 202 and  Raghunath  v.  Ganesh<\/a>\nA.I.R. 1932 Allahabad 603, referred to.\n(iii)\t  In  the  present  case,  although  the  power\t  of\nnomination  was exercised by a will, it is pro-tanto a\tnon-\ntestamentary  instrument.   The\t definition  of\t \"will\"'  in\nSection 2(h)<\/a> of the Indian Succession Act. 1925, would\tshow\nthat  it  is the legal declaration of the intention  of\t the\ntestator with respect to his property which  he\t desires  to\nbe  carried into effect after his death.  By exercising\t the\npower\t  of  nomination,  the,\t head  of  a  Mutt  is\t not\ndisposing any property belonging to\thim which is to take\neffect after his death.\t He is simply exercising a. power to\nwhich he is entitled to under the usage of the\tinstitution.\nA nomination   takes   effect\tin  present.   It   is\t the\ndeclaration of the intention of the head of the\t  Mutt\t for\nthe time being as to who his successor would be;  therefore,\nalthough  it is said that the usage in the Mutt is that\t the\npower  of nomination is exercisable by will, it is really  a\nmisnomer, because, a will in the genuine sense of the  term.\ncan  have  no  effect in praesenti and it  does\t not  become\nrevocable  without  good cause merely because the  power  is\nexercised by a will. [80B-F]\nRam Nath v. Ram Nagina<\/a> A.I.R. 1962 Patna 481 and Kailasam v.\nNataraja<\/a> A.I.R. 1918 Madras 1016 referred to.\n(iv) It\t is not correct to say that Mahantship\tis  property\nand nomination by a Mahant    of  a successor is a  disposal\nof that property to take effect after the depth of     the\nMahant.\t  Nomination is not a disposal\tsimipliciter.of\t the\noffice of Mahantship of the Mutt or its properties, to\ttake\neffect after the death of the incumbent.  It is the creation\nof a relationship generating a capacity in the\t  nominee to\nsucceed\t to  the Mutt on the death of the  incumbent.\tThis\nconcept, however, cannot be put in a straight jacket of\t any\njurisprudential concept.  The Division Bench opined that the\njunior\tas  the\t successor designate,  carried\twith  him  a\ncertain\t status and received dignity and  honours  befitting\nthat status. [82B]\n(v)  The  fundamental  difference  between  relationship  or\nstatus\tand capacity is that the former is a legal state  of\nbeing  while  the latter is a legal power  of'\tdoing.\t The\nimposition of status carries with it attribution or a  fixed\nquota  of  capacities  and incapacities,  but  it  does\t not\ndirectly compel the. holder to do or refrain from doing\t any\nparticular  act.  Capacity on the other hand, is  a  legally\nconferred  power to affect the rights of oneself  and  other\npersons\t to whom the experience of the capacity is  directed\nsubject to certain defined limits.  Capacity in this form is\nan incident of status. [84B]\nR.   H. Grareson's 'Status in the Common Law' p. 127,  Allen\non  Legal  Duties, P. 33, Treatise on the Conflict  of\tLaws\n1935  p.  649,\t\"Status\t and  Capacity\"\t 46;  Law  quarterly\nReview, 277, Salvesen v. Administrator of Austrian Property    [19\n27]\nA.C.  641.  Wibaret v. Niboret 1878 P.O. (CA) 1 and Ross  v.\nRoss 129 Mass. 243, referred to.\n(vi) The fact of a person being legally nominated as junior,\nhaving\ta peculiar relationship with the senior\t is  status,\nand  the capacity to succeed to the head is the incident  of\nthat  status.\tThe status, when created  by  a\t nomination,\ncannot\tbe  withdrawn or cancelled at the mere will  of\t the\nparties. [85C-D]\nTiruvambala  Desikar  v. Manikkavachaka Desikar,  I.L.R<\/a>.  40\nMad. 177,referred to.\nThe  nomination when made can be cancelled or  revoked\tonly\nfor a good cause and as admittedly, there was no good  cause\nshown in this case for cancellation of the nomination by Ex.\nB-9, the cancellation was bad in law.  The-\n76\n-appellant  was holding the status of the Elavarasu  of\t the\nKasi  Mutt during the life-time of the defendant.  Now\tthat\nthe defendant is dead, it is declared that the appellant was\nholding\t the position of the Slavarasu during the  life-time\nof the defendant, that the revocation of the nomination\t was\nbad  and  the  appellant was entitled  to  succeed  to\tthe\nheadship of the Mutt on the death of the defendant.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1677  of
\n1969.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nthe  12th  January,  1968 of the High  Court  of  Madras  in
\nLetters Patent Appeals Nos. 4 and 29 of 1967.
\nK.   S. Ramamurthy and K. Jayaram, for the appellant.
\nS.   V.\t  Gupte,  S.  K.  Sastri,  S.  Gopalan\tand  M.\t  S.
\nNarasimahan, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nMATHEW,\t J.  The appellant as plaintiff filed a suit  for  a
\ndeclaration  that  he  was  entitled  to  continue  as\t the
\nElavarasu  or Junior Head of the Tiruppanandal or  the\tKasi
\nMutt   and  for\t a  perpetual  injunction  restraining\t the
\ndefendant, the Head of the Mutt, from interfering in any way
\nwith his functioning as the Elavarasu or Junior Head of\t the
\nMutt.\n<\/p>\n
The defendant, who is now dead, contended that the appellant
\nwas not validly nominated as the Elavarasu of the Mutt, that
\neven  if  he was nominated as the Elavarasu,  the  appellant
\nacquired  no  right by :the nomination to  continue  as\t the
\nElavarasu, that the appellant’s conduct after he became\t the
\nElavarasu was such that he was unworthy to become the future
\nhead  of  the Mutt, that he (the  defendant)  cancelled\t the
\nnomination  and\t so the appellant had no right\tto  get\t the decla
\nration prayed for.\n<\/p>\n
The  questions\twhich arose for consideration in  the  trial
\ncourt were: whether the appellant had been nominated by\t the
\ndefendant  as  the Elavarasu of the Kasi Mutt;\twhether,  by
\nvirtue\tof  the\t nomination, the appellant  was\t holding  an
\noffice\tor  had acquired any right or  status;\twhether\t the
\nappellant was guilty of misconduct which disentitled him  to
\ncontinue   as  the  Elavarasu  and  whether  the   appellant
\nnomination  as\tthe Elavarasu was validly cancelled  by\t the
\ndefendant.\n<\/p>\n
The  trial  court  found  that\tby  Exhibit  B-1  will,\t the
\ndefendant  nominated the appellant as the Elavarasu  of\t the
\nKasi Mutt, but that he acquired no status nor did he  become
\nthe  holder of an office by virtue of the  nomination.\t The
\ncourt  further\tfound that the defendant  was  competent  to
\ncancel\tthe  nomination even though the\t appellant  was\t not
\nguilty\tof  any misconduct and that he had cancelled  it  by
\nexecuting  Exhibit  B-9 will.  The trial  court,  therefore,
\ndismissed the suit.\n<\/p>\n
The  District Judge, in appeal by the  appellant,  confirmed
\nthe findings of the trial court and dismissed the appeal.
\nIn  the\t second\t appeal filed by the  appellant,  a  learned
\nsingle judge of the High Court of Madras found that by\tthe
\nnomination of the appellant as the Elavarasu, he became the
\nholder of an office or that,
\n 77<\/span>
\nat  any\t rate, he acquired a status and that  the  defendant
\ncould  terminate the office or status only for a good  cause
\nand in\tthe  light of the finding of the  trial\t court\tas
\naffirmed by the first appellate court that the appellant was
\nnot  guilty  of\t any misconduct, the  cancellation  of\tthey
\nnomination by Exhibit B-9 will was ineffective.\t The learned
\njudge,\t therefore,  granted  a\t decree\t to  the   appellant
\ndeclaring that he was the duly appointed junior head of\t the
\nKasi Mutt and that he was entitled to continue as the junior
\nhead, subject to the right of the head of the\t  Mutt\t  to
\nremove him for. good cause. The learned judge, however,\t did
\nnot  make  a declaration that the appellant had a  right  to
\nsucceed to, the headship of the Mutt after the life time  of
\nthe  defendant, nor was the appellant granted an  injunction
\nrestraining   the  defendant  from  interfering\t  with\t the
\nappellant exercising the right as the junior head.\n<\/p>\n
     Appeals were preferred against this decree by both\t the
\nappellant and the defendant to a. Division Bench of the High
\nCourt.\n<\/p>\n
The Division Bench reversed the decree passed by the learned
\n\t  single judge on the basis of its finding that\t the
\nappellant did not  become the holder of an office by  virtue
\nof  the nomination and so it  was open to the  defendant  to
\ncancel\tthe nomination without notice to the  appellant\t and
\nwithout assigning any reason.\n<\/p>\n
\t  It  is  against this decree that this\t appeal\t has
\nbeen preferred by, special leave.\n<\/p>\n
The  questions which fall for consideration in\tthis  appeal
\nare,  whether,\tby virtue of the nomination,  the  appellant
\nobtained a status   or\ta right in law or became the  holder
\nof  an office, and, whether the defendant was  competent  to
\ncancel the nomination without good cause.
\nIt is not disputed that on September 12, 1951, the defendant
\nexecuted a will (Exhibit B-1) reciting that he had nominated
\nthe  appellant as the Elavarasu of the Kasi Mutt.  The\twill
\nalso  stated that certain ceremonies were performed  on\t the
\noccasion of the nomination. It then provided that by  virtue
\nof  the nomination, the appellant win succeed the  defendant
\nas the Head of the Mutt. There is also no dispute that\ttill
\nJanuary\t 2,  1960,  when the  defendant\t revoked  they\twill
\n(Exhibit  B-1)\tby  Exhibit B-9 stating\t that  “it  was\t not
\nnecessary  to appoint the appellant as the  Elavarasu”,\t the
\nappellant was the Elavarasu by virtue of his nomination.
\nIn  Giyana  Sambendha Pandara Samadhi v.  Kandasami  Thambi-
\nran(1) herinafter referred to as “Sambandha Case”, Muttusami
\nAyyar,\tJ. has traced the historical evolution of  the\tKasi
\nMutt  and the Dharmapuram Adhinam. The\tDharmapuram  Adhinam
\nand  the  Kasi\tMutt are  monastic  institutions.  They\t are
\npresided over by ascetics who have renounced the world.\t The
\nMutt  at Tiruppanandal i.e. Kasi Mutt was affiliated to\t the
\nDharmapuram  Adhinam as a disciple Adhinam. An Adhinam is  a
\ncentral institution from which the chief ascetic exercises
\n(1)  I.L.R. 10 Madras 375.\n<\/p>\n
78<\/span><\/p>\n
control and supervision over a group of endowed institutions
\nand religious trusts.  A Thambiran is an ascetic attached to
\nan  Adhinam and when he becomes the head of the Adhinam,  he
\nis  referred to as Pandara Sannadhi.  A Mutt was  originally
\nestablished at Benares by one Kumaragupara Thambiran of\t the
\nDharmapuram Adhinam.  The Dharmapuram Adhinam had come\tinto
\nexistence  several centuries before the institution  of\t the
\nMutt at Benares.  The Mutt at Tiruppanandal was\t established
\nlater  in aid of the Mutt at- Benraes by  Tillanayaka  Tham-
\nbiran,\t a   successor\tof  Kumaragurupara   Thambiran\t who
\nfunctioned  between  1720 to 1756.  In course of  time,\t the
\nMutt at Tiruppanandal became the principal Mutt and the Mutt
\nat Benares a subsidiary one.  As the Mutt advanced in  fame,
\nendowments  and\t trusts began to come  in.   So,  subsidiary
\ninstitutions  came to be established and  the  Tiruppanandal
\nMutt  ceased to be, an isolated institution.  It  became  an
\nimportant  centre exercising supervision and  ‘control\tover
\nseveral subordinate Mutts in.  Southern India, over the Mutt
\nin  Benares,  and  over Mutts at Merangi  in  Nepal  and  at
\nAchiram .in Travancore so much. so that in some of the later
\ncorrespondence one finds that Tiruppananddi is referred\t to
\nas an Adhinam.\tThe Dharmapuram Adhinam was regarded, by the
\nThambiran  at Tiruppanandal as, Ms Gurupitham, the  seat  of
\nhis  religious preceptor.  The Thambirans  at  Tiruppanandal
\nwere,  in  a  spiritual sense, subordinate  to\tthe  Pandara
\nSannadhi  at  Dharmapuram.   In course of  time,.  a  junior
\nThambiran came to be associated with the senior Thambiran in
\nthe management of the Tiruppanandal Mutt.  The necessity for
\nthe services of a junior at Tiruppanandal was felt, because,
\nit Would on the one hand, give an opportunity to the  senior
\nto  see\t whether  the  junior might  be\t relied\t upon  as  a
\ncompetent  successor,  .while, on the other hand,  it  would
\nenable the junior to acquire experience before he became the
\nhead  of the Mutt.  The practice in the Dharampuram  Adhinam
\nof  there being a senior and a junior Pandara.\tSannadhi  at
\none and the same time was the probable origin of the  double
\nagency\tat Tihuppanandal.  But, as only a  Pandara  Sannadhi
\ncould\tinitiate  a  Thambiran,\t it  came  about  that\t the
\nThambirans  for the Mutt at Tiruppanandal and  Benares\tcame
\nfrom the Dhaniapuram Adhinam.  During the first part of\t the
\n19th  century  (1833  to  1841)\t there\twere  two   managing
\nThambirans  both at Benares and at Tiruppanandal,  a  senior
\nand  a\tjunior;\t and the peculiar  feature  of\tthis  period
\nconsisted  in this double agency at each centre of  control,
\nwhich  was probably due to the considerable increase in\t the
\nnumber and value of endowments to be superintended.
\nSuccession  to the office of Mahant or Head of a Mutt is  to
\nbe  regulated by the custom of the particular Mutt  and\t one
\nwho  claims the office by right of succession is,  bound  to
\nallege\t and  prove  what  the\tcustom\tof  the\t  particular
\ninstitution  is, for, the only law regulating succession  to
\nsuch institutions is to be found in the custom and  practice
\nof that institution (see the decisions of the Privy  Council
\nin  Greedharee\tDoss  v. Nandokissore  Doss<\/a>,  Mohunt(1)\t and
\nRamalingam Pillai v. Vythiaingam Pillai<\/a>(2).  As was observed
\nin  Vidyapurna Tirthaswami v. Vidvanidhi  Tirthswami(s),  in
\nmost cases,
\n(1)  (1867) M.I.A. 405.\n<\/p>\n
(2) (1893) 20 I.A. 150.\n<\/p>\n
(3)  I.L.R. 27 Madras 435.\n<\/p>\n
79<\/span><\/p>\n
especially in Southern India, the successor is ordained\t and
\nappointed  by the Head of the Mutt during his own life\ttime
\nand in default of such appointment, the nomination may rest
\nwith  the head of some kindred institution or the  successor
\nmay be appointed by election by the disciples and  followers
\nof  the\t Mutt  or, in the last instance,  by  the  court  as
\nrepresenting  the sovereign.  Where the head of a  religious
\ninstitution is bound by celibacy, it is frequently the usage
\nthat  he nominates his successor by appointment\t during\t his
\nown life time, or by will.  Such a power of nomination must,
\nhowever, be exercised not corruptly or for ulterior reasons,
\nbut  bona fide and in the interests of the Mutt;  otherwise,
\nthe   appointment   will  be  invalid\t[see   Nataraja\t  v.
\nKaliasam(1);  Ramalingam Pillai v.  Vythialingam  Pillai<\/a>(2);
\nRam   Prakash  Das  v.\tAnand  Das(3)  and  Vaidyanatha\t  v.
\nSwaminatha<\/a>(4)].\n<\/p>\n
From the decision in the Sambandha Case it is clear that the
\ncustom in the Kasi Mutt is for the head of the Mutt for\t the
\ntime  being to nominate a successor to succeed him from\t one
\namong  the  Thambirans of Thirukkuttam\tof  the\t Dharmapuram
\nAdhinam;  that\tthe nomination is made by will and  that  is
\nattended by certain religious ceremonies like Manthakashyam,
\nDeekshha,.Pooja and Arukattai.’
\nThere  was no contention in the written statement  that\t the
\nnecessary ceremonies for a valid nomination of a junior head
\nin the Kasi Mutt were not performed.  Exhibit B-1 states  in
\nunambiguous  language  that the ceremonies  were  performed.
\nBoth  the trial court as well as the first  appellate  court
\nfound, on the basis of the oral evidence, that the religious
\nceremonies for the nomination were not performed at the time
\nof  the\t nomination,  but at an\t anterior  date.   When\t the
\ndefendant had himself admitted in Exhibit B-1 will that\t the
\nnomination  was\t made after the ceremonies  were  performed,
\nthere  is  no scope for any controversy as  to\twhether\t the
\nceremonies were performed. The statement in Exhibit B-1 that
\nthe ceremonies were performed was made at a time when  there
\nwas no controversy between the parties.\t And, it was on\t the
\nbasis  that there was a valid nomination that the  appellant
\nwas  associated with the defendant from 1951 to 1960 as\t the
\nElavarasu of the Mutt.\n<\/p>\n
Quite  apart from these circumstances, we do not think\tthat
\nfor  a nomination to be valid, performance of any  religious
\nceremony  is necessary, unless, of course, the usage of\t the
\ninstitution  has made it mandatory.  “In many cases  when  a
\nsuccessor is appointed by Mohunt, he is installed in  office
\nwith  certain  ceremonies.”  This cannot  be  deemed  to  be
\nessential” (see B. K. Mukherjea, “Hindu Law of Religious and
\nCharitable   Trusts”,  3rd  ed.\t (1970),  p.   257).\tThis
\nobservation was quoted with approval by this Court in M.  B.
\nBhagat\tv.  G.\tN. Bhagat<\/a> (5).\tSee also  the  decisions  in
\nKrishnagiri   Trikamgiri   V.  Sheriddar   Kavlekar<\/a>(6)\t and
\nRaghunath v. Ganesh<\/a>(7).\n<\/p>\n
The Division Bench of the High Court was of the opinion that
\nas the nomination was made by Exhibit B-1 will, there was no
\nreason.\n<\/p>\n
(1)  (1920) 48 I.A . 1. (2) [1893] 20 I.A. 150.
\n(3) (1916) 43  I.A.73. (4) (1924) 51 I.A. 282.
\n(5) (1972) 2 S.C.R. 1005 at 1010.\n<\/p>\n
(6) A.I.R. 1922 Bombay 202.\n<\/p>\n
(7) A.I.R. 1932 All. 603.\n<\/p>\n
80<\/span><\/p>\n
why  that will could not be revoked under law and  therefore
\nthe nomination stood revoked by the execution of Exhibit B-9
\nwill.  In other words, one line of reasoning adopted by\t the
\nHigh Court was that, as a will is revocable at the  pleasure
\nof the testator at any time before his death, the nomination
\nmade by Exhibit B-1 will was revocable without assigning any
\nreason.\n<\/p>\n
The definition of “will” in s.2(h) of the Indian  Succession
\nAct<\/a>,  1925, would show that it is the legal  declaration  of
\nthe  intention\tof a testator with respect to  his  property
\nwhich he desires to be carried into effect after his  death.
\nBy exercising the power of nomination, the head of a Mutt is
\nnot  disposing of any property belonging to him which is  to
\ntake  effect  after his death.\tHe is  simply  exercising  a
\npower  to  which he is entitled to under the  usage  of\t the
\ninstitution.   A  nomination makes the nominee\tstand  in  a
\npeculiar  relationship\twith the head of the  Mutt  and\t the
\nHindu  community and that relationship invests him with\t the
\ncapacity  to  succeed  to  the\theadship  of  the  Mutt.   A
\nnomination takes effect in presenti.  It is the\t declaration
\nof the intention of the head of the Mutt for the time  being
\nas to who his successor would be; therefore, although it  is
\nsaid  that  the\t usage\tin the Mutt is\tthat  the  power  of
\nnomination is exercisable by will, it is really a  misnomer,
\nbecause, a will in the genuine sense of the term can have no
\neffect\tin presenti.  There can be no dispute that  a  nomi-
\nnation can be made by deed or word of mouth. in such a case,
\nthe  nomination invests the nominee with a  present  status.
\nThat  status  gives  him  the capacity\tto  succeed  to\t the
\nHeadship  of the Mutt on the death of the incumbent for\t the
\ntime  being.  If that is the effect of nomination when\tmade
\nby  deed or word of mouth, we find it difficult to say\tthat
\nwhen  a nomination is made by will, it does not take  effect
\nin  presenti,  and  that it can be  cancelled  by  executing
\nanother\t will revoking the former will.\t Such, at any  rate,
\ndoes  not  seem to be the concept of nomination in  the\t law
\nrelating  to Hindu Religious Endowments.  A nomination\tneed
\nnot partake of the character of a will in the matter of\t its
\nrevocability,  merely  because the power  of  nomination  is
\nexercised  by  a  will.\t  In  other  words,  the  nature  or
\ncharacter  of a nomination does not depend upon the type  of
\ndocument   under  which\t the  power  is\t exercised.   If   a
\nnomination  is otherwise irrevocable except for good  cause,
\nit  does  not become revocable without\tgood  cause,  merely
\nbecause the Dower is exercised by a will.  If the power\t of
\nnomination  is exercised by a will, it is pro-tanto  a\tnon-
\ntestamentary   instrument.    A\t document  can\t be   partly
\ntestamentary  and partly non-testamentary.  In Ram  Nath  v.
\nRam  Nagina<\/a>(1),\t the  head of the Mutt for  the\t time  being
\nexercised his power of nomination, more or less in terms  of
\nExhibit\t B-1  here, namely, by making the  nomination  of  a
\nsuccessor  and providing that the will be the owner  of\t the prope
\nrties and charities of the Mutt and also of the\t other
\nproperties  standing  in the name of the head of  the  Mutt.
\nThe court held that so far as the nomination and  devolution
\nof  the\t properties  of the Mutt were  concerned,  the\twill
\noperated  as a non-testamentary instrument.  The Court\tsaid
\nthat the condition which must be satisfied before a
\n(1)  A.I.R. 1962 Patna 481.\n<\/p>\n
81<\/span><\/p>\n
document  can  be called a will is that there must  be\tsome
\ndisposition of property and that the document must contain a
\ndeclaration  of\t the  intention of  the\t testator  not\twith
\nrespect\t to  any  thing but with respect  to  his  property.
\nAccording  to  the  Court,  if there  is  a  declaration  of
\nintention   with  respect  to  his  successor,\t it   cannot
\nconstitute  a will even if the document were to\t state\tthat
\nthe  nominee will become the owner of the properties of\t the
\nMutt after the death of the executant of the will as that is
\nonly a statement of the legal consequence of the nomination.
\nIn  Kailasam  v. Nataraja<\/a>(1), the court expressed  the\tview
\nthat  a will making a nomination is only the evidence  of  a
\npast  event.   In  other words, a will is the  record  of  a
\nnomination and that it is not by the will that a  nomination
\nis made.\n<\/p>\n
Exhibit\t B-1 makes it clear that the nomination had  already
\nbeen made.  It says:\n<\/p>\n
\t      “I  have nominated as my\tsuccessor  Mahalinga
\n\t      Thambiran, who is one among the Thambirans  of
\n\t      Thirukkuttam   of\t  Dharmapuram\tAdinam\t and
\n\t      obtained\tManthakashyam,\tDeeksha,  Pooja\t and
\n\t      Arukatti\tand who is performing pooja  in\t our
\n\t      Mutt.”\n<\/p><\/blockquote>\n
The statement in the will that after the death of the  Head,
\nthe Junior win be the owner of the properties pertaining  to
\nthe Mutt is a declaration as to the legal consequence of the
\nnomination.   The  fact that in the Kasi Mutt  there  is  no
\nusage  that the power of nomination was exercised  otherwise
\nthan  by  will does not mean that a  nomination\t will  stand
\ncancelled when the will is revoked.\n<\/p>\n
Mr.  Gupte  for\t the respondent argued\tthat  Mahantship  is
\nproperty  and  nomination by a Mahant of a  successor  is  a
\ndisposal of that property to take effect after the death  of
\nthe  Mahant and, therefore, the power of nomination- can  be
\nexercised only by a will, and, if it is exercisable only  by
\na  will,  it  follows that when the  will  is  revoked,\t the
\nnomination would stand cancelled.\n<\/p>\n
We  do\tnot think that this contention is  correct.   As  we
\nsaid, the power of nomination is a concept pertaining to the
\nlaw  of Hindu Religious Endowments.  It is not\tbecause\t the
\nMahantship  was\t treated as property that in  the  Sambandha
\nCase  it  was observed that in the Kasi Mutt  nomination  is
\nmade by a will, but because, it was the custom of that Mutt.
\nThe Privy Council has said that a nomination can be. made by
\nword  of  mouth (see Greedharee Doss v.\t Nandokissore  Doss,
\nMohunt(1).  And there is no reason why it cannot be made  by
\na deed.\t If the power of nomination is exercised by word  of
\nmouth  or by deed, it is not clear how the exercise  of\t the
\npower  would be valid if Mahantship itself is  property\t and
\nnomination  is regarded as the disposition of that  property
\nto  take  effect after the death of the head  of  the  Mutt.
\nFor, if nomination is merely a declaration of the  intention
\nof the head of the Mutt as to the disposal of the office  of
\nSenior Pandara Sannadhi
\n(1) A.I.R. 1918 Madras 1016, at 1018.\n<\/p>\n
(2) [1867] MIA405
\n7-L447Sup.CI\/74
\n82<\/span>
\nwhich is generally regarded as property or of the properties
\nappertaining  to the office, to take effect after the  death
\nof the incumbent of the office for the time being, then\t the
\npower  of nomination can be exercised only by a\t will.\t The
\nfact   that  according\tto  the\t law  of   Hindu   Religious
\nEndowments,  a\tnomination can be made by deed\tor  word  of
\nmouth  is  positive  proof that nomination  is\tnot  a\tmere
\ndisposal of the office or of the properties appertaining  to
\nit,  but the creation of a present  relationship  generating
\nthe capacity to succeed to the office and to the  properties
\nappertaining  to  the office.  In other words,\tby  word  of
\nmouth or deed one cannot dispose of an office, if it is pro-
\nperty, to take effect after the death of the person uttering
\nthe word or executing the deed and, therefore, nomination is
\nnot a disposal simpliciter of the office of the headship  of
\nthe  Mutt or its properties, to take effect after the  death
\nof  the\t incumbent.  It is the creation\t of  a\trelationship
\ngenerating a capacity in the nominee to succeed to the head-
\nship of the Mutt on the death of the incumbent.\t What, then,
\nis the nature of that relationship ?\n<\/p>\n
Mr. Gupte said that so long as no present right or status is
\nconferred or created by a nomination, the, Head of the\tMutt
\ncan  cancel on revoke the nomination at any time he  pleases
\nand  that  there is no foundation for  the  assumption\tthat
\nnomination can be cancelled only for good cause.
\nAs  already stated, a nomination is a concept pertaining  to
\nHindu  Religious  Endowments.  And it is sui  generis.\t One
\ncannot put it in the straight jacket of any  jurisprudential
\nconcept.\n<\/p>\n
The  Division Bench was of the view that “the junior as\t the
\nsuccessor designate of the headship of the Mutt carried with
\nhim  a certain status on account of that fact  and  received
\ndignity and  honours befitting that status”.
\nThe  question is whether, by the nomination,- the  appellant
\nacquired  a  status in law, and, if he acquired\t a  status,
\nwhether\t it was liable to be put an end to by the  defendant
\nat his whim.\n<\/p>\n
John  Austin  has said that status is  “the  most  difficult
\nproblem in the whole science of jurisprudence.” The question
\nwhether the junior Pandara Sannadhi or the Second occupies a
\nstatus, has to be decided with reference to the law relating
\nto Hindu Religious Endowments.\tIt is a well known custom in
\nseveral\t Mutts, for the heads to nominate their\t successors.
\nJunior heads so nominated form a class by themselves and  as
\nthey stand in a relationship with the senior heads which  is
\npeculiar  in the sense that no other’ class of persons\thold
\nthat  relationship  with  them,\t the  question\tis  whether,
\naccording  to  the law of Hindu Religious  Endowments,\tthey
\nacquire a status in law.  The custom or usage will certainly
\ngovern\tthe  question whether the head of the Mutt  has\t the
\npower  to  make a nomination during his life time,  and\t the
\nmanner\tof its exercise and the religious ceremonies  to  be
\nperformed  at  the  time of the\t nomination.   But,  in\t the
\nabsence\t of  any  ,custom or  usage,  the  question  whether
\nnomination would confer a
\n83<\/span>
\nstatus\tupon the junior heads so nominated is a\t matter\t for
\nthe  court  to decide in the light of the  law\trelating  to
\nHindu  Religious  Endowments.\tAnd,  in  deciding  it,\t the
\ninterests of the Hindu religious community and of the  Mutts
\nin  general are of paramount importance.  Whether or  not  a
\nparticular  condition  or  relationship\t is  one  of  status
\ndepends primarily on the existence and extent of the  social
\ninterest in the creation and supervision of such a condition
\nor  relationship.   The\t test is not a\tsimple\tone  of\t the
\nexistence or non-existence of the concern of the society; it
\nis also one of the degree of such concern.  It is,  further,
\nabvious,  that\tthe degree and even the\t existence  of\tthis
\nconcern\t in  a particular condition will vary from  time  to
\ntime  in  the same society.  It is not possible\t to  draw  a
\nclear line of distinction in a dogmatic and a priori  manner
\nbetween\t conditions of status and special conditions not  of
\nstatus.\t  In  other words, the picture of status  cannot  be
\npainted\t in  elemental colours of black and white on  any  a
\npriori\tconsiderations.\t “It is rather a matter for a  court
\nto  decide  at\tthe  time of  action  whether  a  particular
\ncondition  does or does not involve a sufficient  degree  of
\nsocial interest to be characterised as status, assuming that
\nall  other  features of status are present”  (11)  Bentham’s
\nidea of status was that it was “a quality or condition which
\ngenerates  certain  rights and\tduties”(2).   Beale  defines
\nstatus\tas a personal quality or relationship not  temporary
\nin  nature nor terminable at the mere will of  parties\twith
\nwhich third parties and even the State are concerned(3).  C.
\nK.  Allen said that status is a condition of belonging to  a
\nparticular  class  of persons to whom  law  assigns  certain
\ncapacities  and\t incapacities(4).   Status  is\tdefined\t  by
\nGraveson  as  a\t special  condition  of\t a  continuous\tand,
\ninstitutional  nature, differing from the legal position  of
\nthe  normal person which is conferred by law and not  purely
\nby  the\t act of the parties, whenever a\t person\t occupies  a
\nposition    of\t which\t the   creation,   continuance\t  or
\nrelinquishment and the incidents are a matter of  sufficient
\nsocial\tor public concem(5).  The distinguishing mark  of  a
\nclass  for the purpose of status is that legal\tconsequences
\nresult to its members from the mere fact of belonging to it.
\nIn  Salvesan v. Administrator of Austrian Property(6),\tLord
\nHaldane\t asked the question : “For what does status mean  in
\nthis  connection  ?” and answered it by saying that  in\t the
\ncase  of  marriage,  it\t is  something\tmore  than  a\tmere
\ncontractual relation between the parties to the contract  of
\nmarriage.   He also said that status may result from such  a
\ncontractual  relationship,  but only when the  contract\t has
\npassed\tinto  something\t which\tPrivate\t International\t Law
\nrecognizes as having been superadded to it by the  authority
\nof  the\t State, something “which the  jurisprudence  of\t the
\nState  under its law imposes when within its boundaries\t the
\nceremony has taken place.”\n<\/p>\n
(1)  See R.H. Graveson, “Status in the Common Law”. p. 127.
\n(2)  see Allen, “Legal Duties, p. 33.\n<\/p>\n
(3)  see “Treatise on the Conflict of Laws” (1935). p, 649,
\n(4)  see “Status and Capacity” 46 Law Quarterly Review, 277.
\n(5) sec ‘Status in the Common Law”, p .2. [1927] A.C, 641
\n84<\/span>
\nIn Nibovet v. Nibovet(1), Brett, L. J. said :\n<\/p>\n
\t      “The status of an individual, used as a  legal
\n\t      term,   means  the  legal\t position   of\t the
\n\t      individual  in or with regard to the  rest  of
\n\t      the community”.\n<\/p><\/blockquote>\n
The  fundamental difference between status and\tcapacity  is
\nthat  the former is a legal state of being while the  latter
\nis  a  legal power of doing.  Status determines\t a  person’s
\nlegal  condition  in community by reference  to\t some  legal
\nclass  or group and cannot normally be voluntarily  changed.
\nThe  imposition of status carries with it attribution  of  a
\nfixed quota of capacities and incapacities, but it does\t not
\ndirectly  compel the holder to do or refrain from doing\t any
\nparticular  act.  Capacity, on the other hand, is a  legally
\nconferred  power to affect the rights of oneself  and  other
\npersons\t to whom the exercise of the  capacity\tis-directed,
\nsubject\t to  certain generally and legally  defined  limits-
\nwhich vary in relation to each particular form of  capacity.
\nCapacity  in  this form is an incident of  status.   And,  a
\ndistinction  therefore\tmust  be  made\tbetween\t the   legal
\nprinciples applicable to the major conception of status\t and
\nthose  affecting the minor conception of  its  incidents(2).
\nThe  closest  approach\tto  a  judicial\t statement  of\t the
\ndistinction between status and its incidents is found in the
\njudgment of Gray, C. J. in Ross v. Ross(3) :\n<\/p>\n
\t      “The  capacity or qualification to inherit  or
\n\t      succeed  to property, which is an incident  of
\n\t      the  status or condition, requiring no  action
\n\t      to give it effect, is to be distinguished from
\n\t      the  capacity  or\t competency  to\t enter\tinto
\n\t      contracts that confer rights upon-others.”\n<\/p><\/blockquote>\n
It  would follow that status is a condition imposed  by\t law
\nand  not by act of parties, though it may be  predicated  in
\ncertain\t cases\ton  some  private act  as  the\tcontract  of
\nmarriage.   Whether the condition of status will be  imposed
\nas  the result of private contract or private or public\t act
\ndepends\t on the public interest in the relation\t created  by
\nthe  contract  or  act.\t In other words,  as  we  said,\t the
\ninterest  and concern of the society of which  parties\tform
\npart  determine\t whether or not status will  be\t imposed  or
\nconferred as the result of private contract or by private or
\npublic act.  Social interest is a feature of the concept  of
\nstatus; unfortunately, this aspect has been little  stressed
\nin  the cases.\t“Austin’s neglect of this aspect  of  status
\nhas made no small contribution to the judicial disregard  of
\nsocial interest involved in the concept”(4).\n<\/p>\n
\t      In  Ross\tv. Ross\t  (20″\tChief  Justice\tGray
\n\t      said
\n\t      “A  general  principle  that  the\t status\t  or
\n\t      condition\t of a person, the relation in  which
\n\t      he stands to another person,. and by which  he
\n\t      is qualified and made capable to take  certain
\n\t      rights  in that other’s property, is fixed  by
\n\t      the law of domicile’.\n<\/p>\n
(1)  (1878) P.D. (C.A.) 1 at II
\n(2)  see  V,.K.\t Allen, “Legal Duties and  other  Essays  in
\nJurisprudence”(1931) pp. 28 ff and also his article  “Status
\nand Capacity”, 46 Law Quarterly
\nReview, 277.\n<\/p>\n
(3)  129 Mass. 243 (1880).\n<\/p>\n
(4)  see R.H. Graveson, “Status in the Common Law”, p. 60.\n<\/p>\n
85<\/span><\/p>\n
In    Tarak    Chandra\t Das   and   Another\tv.    Anukul
\nChandra Mukherjee(1), B. K. Mukherjea, as he then was,\tsaid
\n:\n<\/p>\n
\t      “Now,  legal  character is the same  thing  as
\n\t      status.”\n<\/p>\n
What  is  the relationship in which junior  heads  stand  to
\ntheir seniors ? In Sambandha Case (supra), Muttusami  Ayyar,
\nJ. said (at P. 493) :\n<\/p>\n
\t      “By appointment as junior, the Tambiran became
\n\t      a\t spiritual brother or a brotherly  companion
\n\t      and  by both the senior who appoints  and\t the
\n\t      junior who is appointed belonging to the\tsame
\n\t      Adhinam, they were associates in holiness.”\n<\/p><\/blockquote>\n
As  we said, status is something apart from and\t beyond\t its
\nincidents.   “The  status of a child is not  his  duties  or
\ndisabilities  in  relation to his parents, but\tthe  legally
\nrecognised fact of being a child”(2).  The fact of a  person
\nbeing  legally\tnominated  as  junior,\thaving\ta   peculiar
\nrelationship with the senior is status, and the capacity  to
\nsucceed\t to  the head is the incident of that  status.\t The
\nstatus, when created by a nomination, cannot be withdrawn or
\ncancelled  at  the mere will of the parties.  The  law\tmust
\ndetermine the condition and circumstances under which it can
\nbe,  terminated.  Merely because the status originated\tfrom
\nthe act of a senior head in making the nomination, it  would
\nnot  follow  that the senior head can put an end  to  it  by
\nanother\t act.  In other words, the junior heads as  a  class
\noccupy\ta  position of which the  creation,  continuance  or
\nreliquidate, and its principal incident, namely,  succession
\nto  the\t office of the headship of the Mutt are\t matters  of
\nsufficient  social or public concern in the sense  that\t the
\nHindu  religious community is vitally interested in  all  of
\nthem.\n<\/p>\n
There was some debate at the bar on the question whether, by
\nnomination,  the  junior gets a contingent interest  in\t the
\noffice\tor  in the properties of the Mutt,  the\t contingency
\nbeing the survival by the junior of the head of the Mutt.  A
\ncontingent interest or ownership is a present right.  But we
\ndo  not propose to decide that point in this appeal.  As  we
\nsaid,  the  concept of nomination is sui generis;  and\tthat
\nmakes  it  rather  difficult to bring  it  under  any  legal
\nrubric.\t Perhaps, it has its analogue in Canon Law and\tthat
\nwas  the  reason  why Bhashyam Ayyangar,  J.  in  Vidyapurna
\nTirthaswaini   V.  Vidvanidhi  Tirthaswami(3)  likened\t the
\nposition  of a junior head to +,hat of a coadjutor in  Canon
\nLaw.  A coadjutor stands in a peculiar relationship with the
\nBishop.\t He has a right to succeed the Bishop; while be is a
\ncoadjutor,  he has no administrative functions of  his\town,
\nbut  has only to do the work assigned to him by the  Bishop.
\nBut,  nevertheless,  during the life time of the  Bishop  he
\nenjoys\ta status and is accorded honours and regard  by\t the
\nreligious  community, second only to those accorded  to\t the
\nBishop.\n<\/p>\n
Even if it is assumed that the position of a junior head  is
\nnot a status as known to law, we think that the relationship
\ncreated by the nomination is one which cannot be put an\t end
\nto by the head at his sweet will and pleasure.
\n(1)  A.I.R. 1946 (33) calcutta 118, at 119.\n<\/p>\n
(2)  see R.H. Graveson, “Status in the common Law”. pp. 122-\n<\/p>\n
127.
\n(3)  1. L. R. 27 Mad. 435.\n<\/p>\n
86<\/span><\/p>\n
In  Tiruvambala\t Desikar v. Kanikkavachaka  Desikar<\/a>(1),\t the
\nquestion  was  whether the head of the\tDharmapuram  Adhinam
\nhas, after making a valid nomination, an uncontrolled  right
\nto concel it and nominate another person as the junior head.
\nA  Division  Bench of the Madras High  Court  consisting  of
\nWallis, C. J. and Seshagiri Ayyar, J. held that the Head  of
\nthe Mutt, after making a valid nomination cannot revoke\t the
\nnomination at his sweet will and pleasure, but only for good
\ncause Wallis, C. J. said (at P. 190) :\n<\/p>\n
\t      “It  has\tbeen contended before  us  that\t the
\n\t      defendant only held office at the pleasure, of
\n\t      the Pandarasannadhi and that consequently\t the
\n\t      latter  was  entitled to dismiss\thim  without
\n\t      giving  him  any opportunity of  being  heard.
\n\t      The  nomination  and ordination  of  a  junior
\n\t      Pandarasannadhi  is  the customary  manner  of
\n\t      providing for the line of succession in  Mutts
\n\t      of  this\tkind, and it is not shown  that\t the
\n\t      Pandarasannadhi  has  any power  of  arbitrary
\n\t      dismissal,  while\t on the other hand,  it\t has
\n\t      been  held in a previous suit relating to\t the
\n\t      institution  that\t he  may  dismiss  for\tgood
\n\t      cause.\tIn  Hidyapurna\tThirtha.  swami\t  v.
\n\t      Vidvanidhi  Tirthaswami(2) where the  question
\n\t      was  whether a Pandarasannadhi  forfeited\t his
\n\t      position as such by reason of lunacy, recourse
\n\t      was had to the analogies of the Canon Law\t and
\n\t      applying\tthose  analogies to this  case,\t the
\n\t      position of the junior Pandarasannadhi  during
\n\t      the life time of the elder would appear to  be
\n\t      that   of\t a  coadjutor  with  the  right\t  of
\n\t      succession,  a  right of which  he  cannot  be
\n\t      deprived except for grave cause.”\n<\/p><\/blockquote>\n
Seshagiri Ayyar, J., after stating that the ordinary mode of
\nsuccession in Mutts is by appointment by the head either  by
\nwill or by word of mouth observed :\n<\/p>\n
\t      “. . I feel no hesitation in holding that\t the
\n\t      appointer\t has  not  the\tabsolute  power\t  to
\n\t      dismiss which is claimed for him …. I  shall
\n\t      refer to what takes place on the nomination of
\n\t      a\t successor  in this Mutt.   Exhibit-C.\t.  .
\n\t      mentions\tthe ceremonies that have to be\tgone
\n\t      through  in  selecting a\tsuccessor  and\talso
\n\t      those   which  the  person  selected  has\t  to
\n\t      undergo.\t The most important of these is\t the
\n\t      abishegam.   The rites to be observed on\tthis
\n\t      occasion are described by the plaintiff as his
\n\t      thirty-third  witness.  This may be  taken  to
\n\t      represent correctly what happens when a junior
\n\t      Pandarasannadhi  is appointed.  It is also  in
\n\t      evidence\t that  the  senior   Pandarasannadhi
\n\t      himself  offers puja to the junior because  by
\n\t      the abishegam the junior attains Godhead.\t  He
\n\t      performs separate puja to Gods Vigneswara\t and
\n\t      Subrahmanya.    He  is  called   the   Sadbaka
\n\t      Acharya,\tor  co-adjutor with  the  senior…”
\n\t      (PP. 194-195).\n<\/p><\/blockquote>\n
The learned judge, then said that a person appointed by will
\nand  on\t whom  abishegam has  been  performed  becomes\their
\npresumptive  entitled  to  succeed to the  headship  on\t the
\nhappening of a vacancy.\n<\/p>\n
(1) I.L.R. 40 Madras 177.\t    (2) I. L. R. 27 Mad.435.\n<\/p>\n
87<\/span><\/p>\n
He  further  said that when the nomination carries  with  it
\ncertain\t dignity  and  is construed  by\t the  worshipers  as
\nimplying sanctity of the person, it would lead to disastrous
\nresults\t to  hold that the appointee is\t dependent  for\t his
\nposition upon the will of the appointee as the conscience of
\nthe people regards him as the unquestionable successor.\t  He
\nthen summarised his conclusions as follows : (at P. 197)
\n\t      “(1) that the head of the Mutt is entitled  to
\n\t      appoint  a Junior Pandharasannadhi;  (2)\tthat
\n\t      this junior has a recognized status,- (3) that
\n\t      he is entitled-to succeed to the headship,  if
\n\t      he  survives the appointee; (4) that for\tgood
\n\t      cause  shown he can be. removed; (5) that\t the
\n\t      tenure  of his position is not dependent\tupon
\n\t      the goodwill of the appointee; and (6) that it
\n\t      is not open to the head of the mutt to dismiss
\n\t      him arbitrarily”.\n<\/p>\n
Counsel\t for  the appellant argued that this  decision\tlays
\ndown  the correct law and there is no reason why  it  should
\nnot apply to the case in hand.\tHe said that it is from\t the
\nDharmapuram  Adhinam that the Kasi Mutt took its origin\t and
\nthat  the same principles must apply to the Kasi  Mutt.\t  As
\nregards the Dharmapuram Adhinam, Muttusami Ayyar, J. said in
\nSambandha Case(1)
\n\t      “It should be observed here that there were  a
\n\t      senior  and a junior Pandara Sannnadhi at\t one
\n\t      and  the\tsame  time,  and  that\tthe   junior
\n\t      succeeded\t the  senior  unless  dismissed\t for
\n\t      misconduct, and that a will was left at  times
\n\t      by the senior Pandara Sannadhi appointing\t his
\n\t      junior   as  his\tsuccessor.  This   indicates
\n\t      probably\tthe source from which the course  of
\n\t      succession  at  Tirupranandal  was  originally
\n\t      derived.”\n<\/p>\n
The,  Division Bench of the High Court was of the view\tthat
\nthe  decision  in  Tiruvambala\tDesikar\t v.   Manikkavachaka
\nDesikar<\/a>(2)\t      Was   inapplicable  to   resolve\t the
\ncontroversy  here  for the  reason\t      that  Achariya
\nAbishegam ceremony which invested the junior head there with
\ncertain spiritual powers was admittedly not performed in the
\ninstant\t case.\t It  was  submitted by\tMr.  Gupte  for\t the
\nrespondent that the foundation of the decision in the  above
\ncase  was  the\tfinding\t in that case  that  there  was\t the
\nceremony  of Achariya Abishegam on nomination and that\t had
\nthe  effect  of\t investing  the\t junior\t head  with  certain
\nspiritual powers and as the nomination of the appellant\t was
\nnot attended with Achariya Abishegam, the nomination did not
\ninvest\tthe appellant with any spiritual capacity so  as  to
\nmake  the  nomination irrevocable.   In\t Sambandha  Case(1),
\nMuttusami Ayyar, J. said :\n<\/p>\n
\t      “……. a ceremony called Adhariya Abhishegam
\n\t      is performed only in the case of Tambirans who
\n\t      are  raised  to the position of  a  senior  or
\n\t      junior  Pandara  Sannadhi.   It  consists\t  in
\n\t      anointing\t and bathing him as an\tachariya  or
\n\t      preceptor\t and consecrating him as  such\twith
\n\t      the  recitation of religious texts  prescribed
\n\t      for the occasion.\t The belief with which it is
\n\t      performed\t  is  that  unless  a  Tambiran\t  is
\n\t      solemnly consecrated as a preceptor, he is not
\n\t      competent
\n\t       (1) I. L. R. 70 Mad. 375.\n<\/p><\/blockquote>\n
\t       (2) I. L. R. 40 Mad. 177.\n<\/p><\/blockquote>\n
\t      88<\/span><\/p>\n
\t      to   initiate  laymen  in\t forms\t of   prayer
\n\t      conducive to their spiritual happiness and  to
\n\t      ordain  laymen  as  Tambirans  with  efficacy”
\n\t      (Para 8 of the judgment).\n<\/p><\/blockquote>\n
What  this  paragraph  says  is\t that  Achariya\t  Abhishekam
\nceremony  is  performed only for raising a Tambiran  to\t the
\nposition  of  a\t junior or senior Pandara  Sannadhi  in\t the
\nDharmapuram   Adhinam.\t It  would  not\t follow\t from\twhat
\nMuttusami Ayyar, J. has said that the right to succeed which
\nis  the\t invariable  legal  incident  of  a  nomination\t  is
\nconferred  by  virtue of  Achariya  Abhishekam.\t  Nomination
\nmust,  in  logic and in fact, always  precede  the  Achariya
\nAbhishekam.  The effect of Achariya Abhishekam, according to
\nthe  learned  judge,  is to confer on the  junior  head\t the
\nspiritual  capacity to ordain Tambirans or, in other  words,
\nto initiate laymen into the spiritual fold (Thirukkuttam) of
\nTambiran.   The\t learned judge did not\tsay.  that  Achariya
\nAbhishekam has the effect of investing the junior head\twith
\nan  indefeasible  right to succeed to the  headship  of\t the
\nMutt.\tIn  other  words, if  revocability  is\totherwise  a
\ncharacteristic of nomination, it would not cease to be so by
\nvirtue\tof  the religious ceremony of  Achariya\t Abhishekam.
\nEven if it be assumed that Achariya Abhishekam would  invest
\na  junior head with the power to ordain Tambirans  which  he
\nwould not otherwise have, it would not follow that by virtue
\nof Achariya Abhishekam he would obtain a right, much less an
\nindefeasible  right, to succeed if nomination per se has  no
\nsuch effect.\n<\/p>\n
In  the judgment in Sambandha Case(1), Muttusami  Ayyar,  J.
\nhas  referred  to a case where the head of  the\t Dharmapuram
\nMutt-one Sadayappa-made three wills in succession nominating
\nthe  same person.  Counsel for the respondent wanted  us  to
\ninfer from this that a power to nominate, if it is exercised
\nby  a  will, can also’ be revoked by another  will;  but  as
\nalready stated, the will, in most cases, is only a record of
\nthe  exercise of the power of nomination and the  mere\tfact
\nthat  the head of the Mutt in question executed three  wills
\nsuccessively naming the same person as the junior head would
\nnot  in\t any  way militate against  the\t contention  of\t the
\nappellant  that\t nomination  once  made\t cannot\t be  revoked
\narbitrarily.  if  there was an instance\t in  the  particular
\ninstitution of a head who, after having exercised the  power
\nof  nomination by a will, executed another  will  nominating
\nanother\t person,  the  position\t would\tprobably  have\tbeen
\ndifferent.\n<\/p>\n
Looking\t at  the matter from another angle, we come  to\t the
\nsame  conclusion.   We have already said that the  power  of
\nnomination  must be exercised not corruptly or for  ulterior
\nreason but bona fide and in the interest of the Mutt and the
\nHindu  community.   It then stands to reason  to  hold\tthat
\npower  to revoke the nomination must also be exercised\tbona
\nfide  and  in  the  interest  of  the  institution  and\t the
\ncommunity.   In\t other\twords, the power to  revoke  can  be
\nexercised  not arbitrarily, but only for good cause.  We  do
\nnot  pause  to\tconsider  what\tcauses\twould  be  good\t and
\nsufficient for revoking a nomination as the defendant had no
\ncase  before us that he revoked that nomination for  a\tgood
\ncause.\n<\/p>\n
(1)  I. L. R. 10 Mad. 375.\n<\/p>\n
89<\/span><\/p>\n
We  hold  that a nomination when made can  be  cancelled  or
\nrevoked only for a good cause and, as admittedly, there\t was
\nno  good  cause shown in this case for cancellation  of\t the
\nnomination by Exhibit B-9, the cancellation was bad in\tlaw.
\nTherefore,  it must be held that the appellant\twas  holding
\nthe status of the Elavarasu of the Kasi Mutt during the life
\ntime of the defendant.\tNormally, a court will declare\tonly
\nthe rights of the parties as they existed on the date of the
\ninstitution  of the suit.  But, in this case, on account  of
\nthe subsequent event, namely, the death of the defendant, we
\nhave  to mould the relief to suit the altered  circumstance.
\nIf  the\t defendant  had\t been  alive,  it  would  have\tbeen
\nsufficient  if we had declared, as the learned single  judge
\nhas  done, that the appellant was the Elavarsu of  the\tKasi
\nMutt.Now  that the defendant is dead, we make a\t declaration
\nthatthe\t appellant   was  holding  the\tposition   of\tthe
\nElavarasu during thelife  time of the  defendant,  that
\nthe revocation of the nomination ofthe\tappellant    as
\nthe Elavarasu by Exhibit B-9 was bad, and thatthe
\nappellant  was\tentitled to succeed to the headship  of\t the
\nMutt onthe  death of the defendant.\n<\/p>\n
The decree passed by the Division Bench of the High Court is
\nset aside and the appeal is allowed.  In the  circumstances,
\nwe make no order as to costs.\n<\/p>\n
S.C.\t\t\t   Appeal allowed.\n90<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247921","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi ... on 19 October, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sri-mahalinga-thambiran-swamigal-vs-his-holiness-sri-la-sri-kasivasi-on-19-october-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi ... on 19 October, 1973 - 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