IMPORTANT POINT
Shebaitship is a property which is heritable.
Counsel for the Parties :
For the Appellant : V. Prabhakar, Ramjee Prasad, V. Subramani and Mrs. Revathy Raghavan, Advocates.
For the Respondent : K.K. Mani, K.B. Sandeep, S. Balaji and S. Srinivasan, Advocates.

Headnote:Will – A will denotes a testamentary document – It means a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is in its own nature ambulatory and revocable during his life – A will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing – It is not a transfer but a mode of devolution. (Paras 19 and 21)
       AIR 2004 SC 1772 – Relied upon.
       AIR 1999 J&K 55 – Referred to.
       Will – Shebaitship – The endowed property has an inbuilt personal or beneficial interest in it which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property – It is well settled that shebaitship is a property which is heritable – The devolution of the office of shebait depends on the terms of the deed or the Will – Will in the normal connotation, takes effect after the demise of the testator, but in the case of nomination of a Shebait, the nomination takes effect from the date of its execution though it is styled as a Will – Such a nomination is also permissible being intervivos – A will being not a transfer, the bar contained in Section 6(d) of the Transfer of Property Act will have no application – Therefore the will is valid in law. (Para 22, 24, 26 and 34).
       (1971) 2 SCJ 527: (1970) 3 SCC 359; (1985) 2 SCC 524; (1997) 4 SCC 102; AIR 1976 SC 977 – Relied upon.
       (1974) 2 SCC 563 – Distinguished.
       Facts of the case :
       A private family temple known as ‘Pechiamman Temple’ was founded by one Palanichamy Chettiar.
       The founder of the trust dedicated properties for the maintenance of the temple and performance of Pujas consisting of four shop rooms in the front and a few residential buildings at the back of the temple. Disputes and differences arose between the two branches of the family.
       L.P. Lakshmanan Chettiar and his two sons, however, entered into a partition deed for division of their properties including the terms of management of the suit temple and its properties. It was agreed that Lakshmanan Chettiar himself shall hold the posts of pujari as well as trustee for two years, whereas his two sons shall hold the same for a period of eight months each.
       Lakshmanan Chettiar executed a will on or about 24.05.1962 bequeathing his share in favour of his son Chellam. He died on or about 10.04.1973. It is not in dispute that after the death of Lakshmanan Chettiar, Chellam had been acting as a Pujari as also a trustee for a period of sixteen months and Shanmugam and his sons had been managing the said properties for a period of eight months. Chellam died on 10.02.1980, leaving behind Respondent No.1 herein as his heir and legal representative. Shanmugam also appears to have executed a will in favour of his sons.
       Findings of the Court :
       Will is as regards shebaitship, is valid.

JUDGMENT

S.B. SINHA, J.—

1.Whether right to manage a temple and/or shebaitship can be a subject matter of testamentary succession is the question involved in this appeal, which arises out of a judgment and decree dated 09.08.2000 passed by a Division Bench of the High Court of Madras in L.P.A. No. 62 of 1991, affirming a judgment and decree dated 28.01.1991 passed by a learned Single Judge of the said Court in A.S. No. 661 of 1979.

2.A private family temple known as ‘Pechiamman Temple’ was founded by one Palanichamy Chettiar. The genealogical table of the said Palanichamy Chettiar is as under :

PALANICHAMI CHETTIAR

L.P. Lakshmanan ChettiarShanmugam @ Palanichami Chettiar

|Thangam @ Palanichami ChettiarShanmugam @ Chellam @ Subbiah

Palanichami Chettiar (Died) Ramalingam

L.S. Mariappan

Rathinam @ Lakshmanan Chellam @ Subbiah Patchaimuthu Shanmugham

Kuppumuthu (Died) Palanisami

3.The founder of the trust dedicated properties for the maintenance of the temple and performance of Pujas consisting of four shop rooms in the front and a few residential buildings at the back of the temple. Disputes and differences having been arisen between the two branches of the family, Thangam son of Shanmugam filed a suit, which was marked as O.S. No. 9 of 1943. The said suit was decreed, relevant portion whereof reads as under :

“Clause (iii) :That the C schedule properties be managed in turns between the Plaintiff and the Second Defendant on the one hand and Defendants 1 and 3 to 9 on the other, each branch for a period of two years.

Clause (iv) :That the said two branches also be in possession during their term of management of the temple jewels mentioned as items 1 to 6 at page 13 of the first Defendant’s written statement (specified hereunder) in addition to amend as per order in I.A. No. 375 of 1944 dated 15.04.1944) the bronze Soodam, thattu with Kalias referred tol in the same page of the written statement.”

4.The said decree has attained finality, pursuant whereto the branch of Shanmugam became entitled to a right of term of management for a period of two years. On or about 04.07.1956, L.P. Lakshmanan Chettiar and his two sons, however, entered into a partition deed for division of their properties including the terms of management of the suit temple and its properties. It was agreed that Lakshmanan Chettiar himself shall hold the posts of pujari as well as trustee for two years, whereas his two sons shall hold the same for a period of eight months each.

5.In respect of the properties in question, it was averred :

“No. 1 and 2 party shall hold, possess and enjoy the rent and income derived from the C Schedule property.”

6.Lakshmanan Chettiar executed a will on or about 24.05.1962 bequeathing his share in favour of his son Chellam. He died on or about 10.04.1973. It is not in dispute that after the death of Lakshmanan Chettiar, Chellam had been acting as a Pujari as also a trustee for a period of sixteen months and Shanmugam and his sons had been managing the said properties for a period of eight months. Chellam died on 10.02.1980, leaving behind Respondent No.1 herein as his heir and legal representative. Shanmugam also appears to have executed a will in favour of his sons.

7.For framing a scheme in respect of the said properties, a suit was filed by the appellants against the said Thangam and others, which was marked as O.S. No.222 of 1975. The learned Subordinate Judge dismissed the said suit by a judgment and order dated 19.02.1979. An appeal was preferred there-against, which was marked as A.S. No. 661 of 1979, to which we shall advert a little later.

8.However, after the death of Chellam, the sons of Shanmugam filed a suit, which was marked as O.S. No. 83 of 1982, inter alia, praying for a declaration that Respondent No.1 herein was not the legal heir of Chellam @ Subbiah. Validi

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2007 Supreme(SC) 830

2007(4) Supreme 397SUPREME COURT OF INDIA(From Madras High Court)S.B. Sinha & Markandey Katju, JJS. Rathinam @ Kuppamuthu & Ors— PetitionerversusL.S. Mariappan & Ors — RespondentAppeal (civil) 6616 of 2002Decided on : 18-05-2007

IMPORTANT POINTShebaitship is a property which is heritable.Counsel for the Parties :For the Appellant : V. Prabhakar, Ramjee Prasad, V. Subramani and Mrs. Revathy Raghavan, Advocates.For the Respondent : K.K. Mani, K.B. Sandeep, S. Balaji and S. Srinivasan, Advocates.

Cases Referred (8)

2007(4) Supreme 397
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha & Markandey Katju, JJ
S. Rathinam @ Kuppamuthu & Ors
— Petitioner
versus
L.S. Mariappan & Ors — Respondent
Appeal (civil) 6616 of 2002
Decided on : 18-05-2007

IMPORTANT POINT
Shebaitship is a property which is heritable.
Counsel for the Parties :
For the Appellant : V. Prabhakar, Ramjee Prasad, V. Subramani and Mrs. Revathy Raghavan, Advocates.
For the Respondent : K.K. Mani, K.B. Sandeep, S. Balaji and S. Srinivasan, Advocates.