# DR. K. S. PALANISAMI (DEAD) THROUGH LRS v. HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM AND OTHERS

- **Citation:** [2017] 4 S.C.R. 511
- **Court:** Supreme Court of India
- **Decided:** 2017-03-09
- **Case number:** Civil Appeal No.5924 of2005
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-k-s-palanisami-dead-through-lrs-v-hindu-community-in-general-and-citizens-of-32043
- **Pages:** 42

## Headnote

B
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 - s.108 - Bar under - Bar with regard to suit or other legal
C
proceeding is in respect of the administration or management of a
religious institution - There is no case set up by the appellant that
suit filed by the plaintiff related to a religious institution, as
contemplated by 1959 Act - Therefore, suit filed by the plaintiff
was not barred u!s. 108 of the Act.
D
Will - Joint or Joint and Mutual Will - In the instant case,
challenge was to the character of Will whether it was joint or joint
and mutual will - Reading of the Will in its entirety showed that the
testator and testatrix who were husband and wife had agreed to
devote their properties for carrying out charities - Will clearly
specified their intention to give property into charities and specified
E
the list of charities and the committee of three persons who was to
perform the charities - The element of mutuality was clearly found
in the Will - Therefore, the Will was joint and mutual Will and not
mere joint Will.
Will - General principles of construction of Will - Discussed -
F
In the instant case, testator and testatrix were husband and wife -
'['he Will provided that on the death of any of the spouse, survivor
shall enjoy the entire properties absolutely with all the rights -
"absolutely with all the rights"- Interpretation of - Held: The
intention in testamentary disposition has to be primarily found out
from the actual words used in the Will - The court is not entitled to
G
ignore clear words or add something of its own or dilute the meaning
of any clear word used in the Will - In the instant case, the Will
clearly intended that survivor shall have absolute right to the
properties and after his/her death, the charity shall be carried out
511
H
"
512
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A from the income of the properties without alienation of the
properties - The clear intention of testator/testatrix while executing
the Will that the charity shall be carried out from the income of the
properties is not given up even during lifetime of survivor - The
obligation to use the income of properties for charity is attached
B
c
with the property described in the Will subject to giving survivor
absolute right with regard to properties - Thus, unless the alienation
by the survivor was held to be completely in breach of object of
trust and fraud on trust, the court is to be slow in disregarding the
alienation - Alienation made by survivor in favour of appellants
after the death of joint testator was, therefore, fully covered by the
Will and was not null and void - Alienation made by defendant
no.4 and 5 on the basis of another Will bequeathing properties in
their favour by testatrix was null and void as the said Will alleged
to have been executed by survivor was not true and genuine will of
the survivor.
D
Disposing of the appeals, the Court
HELD:
1. Bar on suit under section 108 of Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959
. E
A plain reading of Section 108 indicates bar with regard to
suit or other legal proceeding in respect of the administration or
management of a religious institution. Unless the provisions of
Act are extended to charitable endowments, the bar under Section
108 shall not be attracted. There is no case set up by the appellant
that suit filed by the plaintiff related to a religious institution, as
F
contemplated by 1959 Act. Therefore, suit filed by the plaintiff
was not barred as under Section 108 of 1959 Act. [Paras 15, 17,
18) [525-G-H; 526-F-G)
2.1 Nature and content of WILL Dated 27.9.1968
G
The High Court rightly came to the conclusion that it was a
Joint and Mutual Will, since both the testator and testatrix agreed
to devote their properties for carrying out charities. The High
Court concluded that intention of both testator and testatrix to
give property to charities was manifest from the reading of the
Will in its entirety. Both the Husband and Wife inten

## Text

_Characters 0–39,934 of 95,060. This is a partial read: ask again with offset=39934 for what follows._

[2017] 4 S.C.R. 511
DR. K. S. PALANISAMI (DEAD) THROUGH LRS.
A
v.
HINDU COMMUNITY IN GENERAL AND CITIZENS OF
GOBICHETTIPALAYAM AND OTHERS
(Civil Appeal No.5924 of2005)
MARCH 09, 2017
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
B
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 - s.108 - Bar under - Bar with regard to suit or other legal
C
proceeding is in respect of the administration or management of a
religious institution - There is no case set up by the appellant that
suit filed by the plaintiff related to a religious institution, as
contemplated by 1959 Act - Therefore, suit filed by the plaintiff
was not barred u!s. 108 of the Act.
D
Will - Joint or Joint and Mutual Will - In the instant case,
challenge was to the character of Will whether it was joint or joint
and mutual will - Reading of the Will in its entirety showed that the
testator and testatrix who were husband and wife had agreed to
devote their properties for carrying out charities - Will clearly
specified their intention to give property into charities and specified
E
the list of charities and the committee of three persons who was to
perform the charities - The element of mutuality was clearly found
in the Will - Therefore, the Will was joint and mutual Will and not
mere joint Will.
Will - General principles of construction of Will - Discussed -
F
In the instant case, testator and testatrix were husband and wife -
'['he Will provided that on the death of any of the spouse, survivor
shall enjoy the entire properties absolutely with all the rights -
"absolutely with all the rights"- Interpretation of - Held: The
intention in testamentary disposition has to be primarily found out
from the actual words used in the Will - The court is not entitled to
G
ignore clear words or add something of its own or dilute the meaning
of any clear word used in the Will - In the instant case, the Will
clearly intended that survivor shall have absolute right to the
properties and after his/her death, the charity shall be carried out
511
H
"
512
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A from the income of the properties without alienation of the
properties - The clear intention of testator/testatrix while executing
the Will that the charity shall be carried out from the income of the
properties is not given up even during lifetime of survivor - The
obligation to use the income of properties for charity is attached
B
c
with the property described in the Will subject to giving survivor
absolute right with regard to properties - Thus, unless the alienation
by the survivor was held to be completely in breach of object of
trust and fraud on trust, the court is to be slow in disregarding the
alienation - Alienation made by survivor in favour of appellants
after the death of joint testator was, therefore, fully covered by the
Will and was not null and void - Alienation made by defendant
no.4 and 5 on the basis of another Will bequeathing properties in
their favour by testatrix was null and void as the said Will alleged
to have been executed by survivor was not true and genuine will of
the survivor.
D
Disposing of the appeals, the Court
HELD:
1. Bar on suit under section 108 of Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959
. E
A plain reading of Section 108 indicates bar with regard to
suit or other legal proceeding in respect of the administration or
management of a religious institution. Unless the provisions of
Act are extended to charitable endowments, the bar under Section
108 shall not be attracted. There is no case set up by the appellant
that suit filed by the plaintiff related to a religious institution, as
F
contemplated by 1959 Act. Therefore, suit filed by the plaintiff
was not barred as under Section 108 of 1959 Act. [Paras 15, 17,
18) [525-G-H; 526-F-G)
2.1 Nature and content of WILL Dated 27.9.1968
G
The High Court rightly came to the conclusion that it was a
Joint and Mutual Will, since both the testator and testatrix agreed
to devote their properties for carrying out charities. The High
Court concluded that intention of both testator and testatrix to
give property to charities was manifest from the reading of the
Will in its entirety. Both the Husband and Wife intended to give
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
513
AND CITIZENS OF GOBICHETTIPALAYAM
property into charities and the Will clearly specified the list of A
charities and the committee of three persons who was to perform
the charities. The mutuality to the above extent was clearly found
in the Will. [Paras 32, 37, 38] [539-H; 543-D-F]
2.2 The intention of testator/testatrix in testamentary
disposition has to be gathered from the Will itself and the words
B
used therein. The disposition made in the Will provides that on
the death of any of the spouse, survivor shall enjoy the entire
properties absolutely with all the rights. What is the connotation
of words 'absolutely with all the rights?', whether the above
provision in the Will can be read as only life estate i.e. right of C
enjoyment and receiving of rent, income or absolute right
indicates the exercise of all the rights including the right of
alienation. One more part of the Will, which is appended at the
end after description of the properties, is relevant. The said
provision in the Will clearly intends that any property purchased
shall treated to be added in the document and further any property D
sold shall be deleted from the document and the remaining
properties form part of this document. This clearly contemplates
possibility of sale of any property which shall be deleted from the
description of the properties as mentioned in the document. One
more aspect of the Will needs to be noted. In the last part of the
third paragraph after 'his/her lifetime' word used are "and carry
E
F
on under mentioned charities from and out of the income derived
from them without alienating the same". Reading the whole
paragraph together the word 'his/her lifetime' has been used in
reference to survivor who survives after the death of one of the
spouses. Thus, after the death of testatrix, the Will contemplates
that charities shall be carried out of the income derived from the
property without alienating the same. Thus, though in the same
paragraph, after the death of both the testators, the charities are
required to be carried out from the income derived from the
properties without alienation of the same, whereas the same
restriction i.e. "without alienation" has not been put in the earlier G
sentence of the same paragraph when the rights of testatrix have
been referred ~o as 'absolutely with all the rights'. On the reading
of the Will, the intendment of testator/testatrix is clear that
survivor shall have absolute right of enjoyment of properties.
H
514
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A There is no reason not to give effect to said intendment on the
ground that the testator and testatrix have mutually intended to
set apart the property for charity and holding that survivor shall
have right of disposition be not in the interest of the trust. [Paras
40, 41, 45, 46, 47, 49] [544-A-D; 545-E-H; 546-A-D; 547-B]
B
2.3 There is no word or any indication in the Will to give a
c
life estate to survivor. The testators intended that testatrix should
be given right of alienation. Why the same word "without right of
alienation" could not have been used in the earlier part of the
same paragraph when they used the same word in end of the
paragraph while providing for carrying out charities after the death
of the testatrix from the income derived from the properties
without alienating the same. Thus, the Will intended to give
survivor absolute right with regard to properties with further
intendment that after the death of testatrix, the remaining property
should be used for carrying out the charities. The clear intention
D of testator/testatrix while executing the Will that the charity shall
be carried out from the income of the properties is not given up
even during life time of testatrix. The obligation of survivor to
act in furtherance of object as agreed by both the testators survives
and binds the survivor.Although the Will was irrevocable after
E
F
the death of survivor but the Will expressly granted absolute
right to survivor.[Paras 50, 51, 52, 57] [547-C, D-F; 549-A-B]
2.4 Will dated 27.9.1968 was a joint and mutual Will, but .
with a rider that said joint and mutual Will was with an express
condition that survivor shall have absolute right to deal with the
property keeping the object of trust alive. Giving of right of
disposition to the survivor was also one of the joint decision and
agreement between the testator and testatrix which does not
diminish the nature and character of Will as ioint anq mutual Will.
Thus, unless the alienation by the survivor is held to be
completely in breach of object of trust and fraud on trust, the
G Court is to be slow in disregarding such alienations. In the suit
·filed by the plaintiff although reference to alienation made by
survivor were made and the High Court in its judgment detailed
the alienation but the challenge to the alienation before the trial
court as well as before the High Court was only on the ground
that survivor was not competent to alienate the property
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
515
AND CITIZENS OF GOBICHETTIPALAYAM
mentioned in the Will after the death of testator. Thus the A
alienation made by survivor in favour of appellants could not have
been declared null and void as was done by the High Court.
Alienation made by survivor during her lifetime after the death
of joint testator was fully covered by the Will. Thus the decision
of the High Court in so far as in declaring the alienation made by
B
survivor after the death of joint testator during her lifetime as
null and void deserves to be set aside. Thus alienation made by
survivor by registered sale deeds as noticed by the High Court
in favour of appellants needs to be deleted from the list of the
properties as described in the plaint and they shall not be included
in the trust property by virtue of the. Will deed dated 27.09.1968.
C
(Paras 58, 59, 60 and 61) [549-B-H]
3. Creation of Trust by Will dated 27.9.1968
There is no pleading or material on record to indicate that
during life time of testator and survivor at any point of time they
expressed their inability to carry out the charity or had requested D
the three members' committee to carry out the charity, Thus,
above eventuality as contemplated by the Will never came into
existence during their life time but as per provisions of Will dated
27.9.1968 on the death of survivor on 27.12.1980, the thre·e
members committee was obliged to carry out the charities and
E
the Trust came into operation. [Para 65] [550-A, H; 551-A-B)
4. Will dated 27.11.1980
Defendant no. 4 and 5 claimed that survivor by a registered
will dated 27.11.1980 bequeathed her entire properties in favour
of defendant no.4 and 5. After considering the oral evidence, the
F
trial court held that the Will was not proved. The trial court noticed
several suspicious circumstances and discrepancies and it held
that the said Will was not executed by survivor in a sound and
disposing state of mind and the same was not a true and valid
~document. Defendant Nos.4 and 5 challenged the judgment of G
the trial court. The High Court came to the conclusion that Will
dated 27.11.1980 alleged to have been executed by survivor was
not a true and genuine Will !Jf her. The said conclusion was arrived
at by the High Court after considering entire evidence on record.
There is no infirmity in the said conclusion. The appeal filed by
H
516
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A defendant Nos. 4 and 5 was rightly dismissed. The testatrix had
the absolute right to deal with the properties mentioned in the
Will and alienations made by her during her life time are saved
by the Will and the judgment of the High Court holding sales in
favour of the appellant as null and void is unsustainable and is
B
hereby set aside. The judgment of the High Court declaring sale
deeds executed by defendant Nos.4 and 5 as null and void is
maintained. All alienations made by defendant Nos.4 and 5 are
null and void and those properties shall be treated as part of the
Trust property. Judicial Officer who has been directed by the
High Court to frame the scheme for the Trust shall frame the
. C i;cheme expeditiously. [Paras 65, 68) (551-B, E-H; 552-A, D-F]
D
E
. F
G
H
Minakshi Ammal v. Viswanatha Aiyar ILR 33 Madras
406; Kochu Govindan Kaima/ & Others v. Thayankoot
Thekkot Lakshmi Amma and Others AIR 1959 SC 71 :
[1959) 1 Suppl. SCR 1; Kuppuswami Raja And Anr: v.
Perumal Raja And Ors. AIR 1964 Madras 291;
Dilharshankar C. Bhachecha v. The Controller of Estate
Duty, Ahmedabad (1986) 1 SCC 701 : [1986) 1 SCR
94; Sreemutty Soorjeemoney Dossee v. Denubundoo
Mullick (1854-57) 6 MIA 526; Rajendra Prasad Bose
and another v. Gopal Prasad Sen AIR 1930 PC 242;
Gnambal Ammal v. r Raju Ayyar and others AIR
1951 SC 103 : [1950] SCR 949; Navneet Lal alias
Rangi v. Gokul & Others (1976) 1 SCC 630 : [1976)
2 SCR 924; Govind Raja v. Mangalam Pillai AIR
1933 Madras 80; Birmingham & Ors. v. Renfrew &
Ors. 57 Commonwealth Law Report 666; Dufour v .
Pereira (1769) 21 ER 332 - referred to.
Halsbury s Laws of England s•h Edition Vol. 102 -
referred to.
Case Law Reference
ILR 33 Madras 406
[1959) 1 Suppl. SCR 1
AIR 1964 Madras 291
referred to
referred to
referred to
Para 24
Para 26
Para 27
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
517
AND CITIZENS OF GOBICHETTIPALAYAM
[1986) 1 SCR 94
referred to
Para 30
A
AIR 1930 PC 242
referred to
Para 33
[1950] SCR 949
referred to
Para 34
[1976] 2 SCR 924
referred to
Para 36
B
AIR 1933 Madras 80
referred to
Para 44
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5924
of2005.
From the Order dated 07.04.2005 by the High Court ofJudicature c
at Madras in A.S. Nos. 851 of 1989
WITH
C. A. Nos. 5925, 5926 and 6469 of2005.
M. S. Ganesh, K. Ramamoorthy, R. Balasubramaniam, Ratnakar
Das, S. Balakrishnan, Sr. Advs., R. Ayyam Perumal, K. Seshachary, D
Ms. Enakshi Mukhopadhyay, N. Shoba, Sri Ram J. Thalapthy,
V. Adhimoolam, Shilp Vinod, M. A Chinnasamy, Ms. C. Rubavathi, ..
G. Sivalamurugan, L. K. Pandey, Ram Lal Roy, R. N. Keshwani, P. Raja
Rani, V. Senthil Kumar, V. Prabhakar, Ms. Jyoti Prashar, S. Rajappa,
Mrs. Revathy Raghavan, M. Yogesh Kanna, Ms. Nithya, Partha Sarathi,
E
. Vikas Mehta, Ms. Anushree Menon, Karandeep Khanna, Mis. Keswani
& Co., Senthil Jagadeesan, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHO K BHUSHAN, J. 1. These appeals have been filed against
the common judgment dated 7'h July, 2005 of Madras High Court in
F
·.Appeal Suit(AS) No.851 of 1989 and Appeal Suit (AS)No.606of1989.
These appeals arise out of Original Suit No.76 of 1981 instituted by
respondent No. I to these appeals. The parties hereinafter shall be
referred to as described in the Original Suit No.76of1981.
2. Civil Appeal No.5924 of 2005 has been filed by Dr. KS. G
Palanisami who was defendant No.13 in the Original Suit. Civil Appeal
No.5925 of 2005 has been filed by G.K. Perumal and Ramayummal
who were defendant Nos.4 and 5 in the Original Suit. Civil Appeal No.5926
of 2005 has been filed by Thirugnanasambandam and Dr. M.R. Sibbian
who were defendant Nos.7and10 in the Original Suit. Civil Appeal No.
H
518
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A
6469 of 2005 has been filed by GK. Perumal and Ramayummal who
were defendant Nos. 4 and 5 in the Original Suit.
3. Brief facts of the case necessary to be noted for deciding these
appeals are:
(A) One Palaniappa Chettiar and his wife, Chinammal @
B
Rangarnmal possessed considerable properties in Gobichettipalayam
Taluk including 29 houses and 96.950 acres of Agriculture land.
Rangammal possessed certain agricultural land in Sa thy Taluk also. Both
Palaniappa Chettiar and his wife, Rangammal jointly executed a Will
dated 27.9.1968. It is stated in the Will that couple do not have any
c issue and there is no hope that they will live long and their relatives are
not fit to enjoy the properties. TheWill further stated that on the death of
any one of them, survivor shall enjoy the entire property. The Will
enumerated various charities to be carried from the income derived from
the properties. Three Members Committee was constituted for carrying
out the charitable objects. The Will in List No.I enumerated the details
D
of house properties, agricultural properties in the name of Palaniappa
Chettiar and List No.2 contained the house and agricultural properties in
the name of Chinammal @ Rangammal. After execution of the Will, on
5.10.1969 Palaniappa Chettiar died. After the death of Palaniappa
Chettiar, Rangammal alienated about I 0 properties by separate sale deeds
E
which were in her name as well few properties which were in the name
of her deceased husband.
(B) Defendant Nos.4 and 5 claimed that Rangammal by a registered
Will dated 27.11.1980 bequeathed her entire properties in favour of
defendant Nos.4 and 5. Smt. Rangammal died on 24.12.1980.Afterthe
F
death of Rangammal, defendant Nos.4 and 5 made several alienations
of the properties belonging to Rangammal and her deceased husband on
the strength of Will dated 27. 11.1980.
(C) Respondent No.I claiming to be representative of Hindu
Community in General and Citizens ofGobichettipalayam filed Original
G
Suit No.76of198 I impleading Commissioner of Hindu Religious and
Charitable Endowment, Madras as defendant No.I, Revenue Divisional
Officer, Gobichettipalayam as defendant No.2 and District Munsif,
Gobichettipalayam as defendant No.3 along with other defendants who
claimed to be transferees from Rangammal. Defendant Nos.4 and 5
were imp leaded who claimed a Will dated 27. I I. I 980 from Rangar_nmal
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
519
AND CITIZENS OF GOBICHETIIPALAYAM (ASHOKBHUSHAN,J.]
of the entire properties apart from sale deed from Rangammal. Plaintiffs'
A
case in the suit was that Palaniappa Chettiar and his wife, Rangammal
by registered Will dated 27. 9 .1968 created a Trust and made
arrangements for due performance of charitable objects. The power of
management and administration of the Trust was given in the Will to
defendant Nos. I to 3 who were authorised to deal with the Trust property
B
without any power of alienation. It was pleaded that Will dated 27.9.1968
was a mutual and irrevocable Will. It was pleaded that Palaniappa Chettiar
and his wife during their life time could not have acted in derogation of
the Will. The plaintiff further stated that purported Will dated 27 .11.1980
was not executed by Chinnammal @ Rangammal in a sound and
disposing state of mind and the same was brought by defendant Nos.4
C
and 5 by fraud, undue influence and coercion. Defendant Nos.6 to 13
are said to be purchasers of some of the items of the suit properties
from Rangammal and some from defendant Nos.4 and 5. Plaintiffs pleaded
that defendants are trespassers of the trust properties covered under
the Will dated 27. 9 .1968. The plaintiffs were interested in the Trust to be
D
administered by defendant Nos.I to 3 or other new .Trustees to be
appointed by the Court. The plaintiffs prayed for necessary arrangements
for the management of the Trust requiring defendant Nos. I to 3 to enter
upon their duties as Trustees and take up the management of the Trust
or make arrangement for the appointment of other Trustees for proper
management of the Trust. Defendants filed written statements in the
E
suit.
(D) The trial court framed 17 issues in the suit. The trial court
held that Will-Ex.P.5 dated 27.9.1968 is not a mutual Will but a joint Will
and after the death of Palaniappa Chettiar the Will became irrevocable.
(E) The trial court further held that Will dated 27. 9 .1968 is a true
and valid document. It was further held that plaintiffs were entitled to
represent the Hindu Community in General and Citizens of
Gobichettipalayam under Order 1 Rule 8 CPC. Trial court further held
that Will dated 27 .11.1980 claimed by defendant N os.4 and 5 is not proved
and it has not been executed in good, sound and disposing state of mind.
Ex.D-109, Will dated 27.11.1980 was held not a true and valid Will. The
trial court, came to the conclusion that Trust is not formed under the Will
dated 27. 9 .1968, hence, plaintiffs were not entitled for framing a scheme
under Section 92 CPC. The suit was dismisc"r1.
F
G
H
520
SUPREME COURT REPORTS
[2017) 4 S.C.R.
A
(F) Against the judgment of the trial court dated 2"'1 February,
1989 two Appeal Suits (AS) were filed in the Madras High Court.
A.S.No.851 of 1989 was filed by the plaintiffs against the trial court
judgment dismissing the Original Suit No.76 of 1981. A.S.No.606 of
1989 was filed by GK. Perumal and Ramayummal, defendant Nos.4
B
and 5 against the judgment of the trial court in so far as it rejected the
Will dated 27 .11.1980. Both the appeal suits were decided by the Madras
High Court by the impugned judgment dated 7'h April, 2005. The High
Court dismissed the A.S.No.606of1989 concurring with the judgment
of the trial court in so far as it has rejected Will dated 27 .11.1980.
A.S.No.851 of 1989 was allowed by the High Court and the judgment of
C
the trial court in so far as it was against the plaintiffs was set aside. The
High Court held the Will dated27.9.1968 as mutual and joint Will. It was
held that after the death of Palaniappa Chettiar, Rangammal had no
right to alienate any property and all alienations of the properties made
by her after the death of Palaniappa Chettiar were null and void.
D
(G) The High Court disposed of both the Appeal Suits in the
E
F
G
H
foll owing manner:
"116.In the result,
(i)
A.S.No.851 of 1989 stands allowed. The Judgment
of the Trial Court in so far as it is against the
Plaintiffs and the decree is set aside.
(ii)
A.S. No. 606 of 1989 stands dismissed. The finding
of the Trial Court on the issue No.13 framed by it
stands confirmed.
(iii) The result is, learned Subordinate Judge,
Gobichettipalayam or the Judicial Officer having
jurisdiction over the
matter is permitted to
discharge the Receiver after the Receiver '6ubmits
his accounts and on being satisfied that the Receiver
can be discharged.
(iv)
Learned Judicial Officer having jurisdiction over
the case is directed to frame a proper Scheme for
the trust and while framing the Scheme, he need not
include the District Munsif, Gobichettipalayam as
one of the trustees, though the makers of the Will
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
521
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.]
(Ex.A-5) have expressed their desire that the District A
Munsif, Gobichettipalayam should be one of
trustees. We are of the view, it will not be proper to
induct the District Muns if as one of the trustees as it
may happen that litigation in respect of the trust as
well as its properties may come up before him in his
B
official capacity and it may not be advisable to induct
him as one of the trustees. Learned Judicial Officer
is also directed to take into account the wishes of
the testators of Ex.A-5 while framing the Scheme, as
they wished that the relatives of either of them should
be excluded from the enjoyment and management of C
their properties. While appointing the trustees,
learned Judicial Officer is directed to keep in mind
that the persons of unimpeachable character and
high integrity and at least, some of them, if possible
from the community to which Palaniappa Chettiar D
belongs should be appointed as trustees.; It will be
open to the learned Judge to consider the entrustment ·
of the administration and management of the trust
to the Administrative General and Office Trustee (AG
& OT) of this Court as he will be functionirrg under
the guidance of this Court.
E
(v)
Since the plaintiffs have not prayed for costs, there
will be no order as to costs in both appeals. "
4. Civil Appeal No.6469 of2005 has been filed against the judgment
of the High Court in A.S.No.606of1989 by which judgment the appeal
filed by defendant Nos.4 and 5 has been dismissed. All other three appeals
have been filed against the judgment of the High Court in A.s .. No.851 of
1989 by which judgment the High Court set aside the judgment of the
trial court and decreed the suit of the plaintiffs as noted above.·
5. In Civil Appeal Nos.5925 of2005 and 6469 of 2005, w.e have
heard Shri M.S. Ganesh, learned senior counsel, appearing for the
appellants. Mr. K. Ramamoorthy, learned senior counsel has appeared
for the appellants in Civil Appeal No.5924 of 2005. Shri .R.
Balasubramaniam and Shri Ratnakar Das, learned senior counsel, have
appeared in Civil Appeal No.5926 of 2005. For the respondents, we
F
G.
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[2017] 4 S.C.R.
A have heard Shri S. Balakrishnan, learned senior counsel and Shri Vikas
Mehta, learned counsel.
B
c
6. The submissions made by the l~arned senior counsel for the
appellants in first three appeals are almost similar. Separate arguments
have also been advanced by Shri M.S. Ganesh in C.A.No.6469/2005.
Learned senior counsel for the appellants, Shri M.S. Ganesh contended
that the suit filed by the plaintiffs was not maintainable and was barred
by Section 108 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959(hereinafter referred to as '1959 Act'). He
contended that although trial court has specifically framed issue No.7,
as to whether the suit is barred by the provisions of Section l 08 of the
1959 Act, but trial court did not properly consider the issue and erred in
holding that there is no bar in filing the suit. It was further contended that
Will dated 27.9.1968 was not a joint and mutual Will but was only a joint
Will. A plain reading of the Will indicates that after the death of one of
the testators, the survivor had absolute right to deal with the property
D and there was no embargo on the right of survivor to dispose of the
property after the death of Palaniappa Chettiar. He submitted that
alienations made by Rangammal after death of Palaniappa Chettiar were
within her authority and High Court had committed error in holding the
said alienations as null and void. It is submitted that Will itself not created
E
F
G
I-I
any trust. It is contended that two essential conditions for mutual Will,
i.e., (i) Asurvivingtestator must have received benefit from the deceased
testator and (ii) It should have been executed in pursuance of an
agreement that the testators shall not revoke the mutual Will, were not
satisfied in the present case. A specific clause in the Will gives liberty to
the survivor to revoke the Will and confers an absolute right and title to
the properties to the survivor which fully indicates that Rangammal had
rigli.t to alienate the properties after the death of her husband. The
transferees were bona fide purchasers for value.
7. Shri Ramamoorthy, learned senior counsel attacked the judgment
of the High Court raising almost similar submissions. Shri Ramamoorthy
further contended that the contents of Will makes it clear that absolute
right was given to survivor and use of words "carva-cutantiram" in the
original Will which is in Tamil language, clearly indicates that absolute
right was given to survivor, Rangammal and alienations made by her in
favour of defendants were well within her authority. Defendants being
bonafide purchasers, who invested money in the property, should have·
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
523
ANDCITIZENSOFGOBICHETTIPALAYAM[ASHOKBHUSHAN,J.]
been considered by the High Court and at least purchasers who have
A
purchased from the survivor ought to have been protected. The Will is
not a mutual Will but only a joint Will. The Will clearly states that survivor
can revoke the Will and execute a new Will.
8. Learned counsel for other appellants have also adopted the
· above submissions.
B
9. Shri Ganesh in support of Civil Appeal No.6469 of 2005
submitted that the High Court failed to note that Will dated 27 .11.1980
does not appear to be on the whole an improbable, unnatural and unfair
instrument. The High Court failed to notice that mere exclusion of near
relations from the Will by the testatrix and preferring the appellants in c
recognition of their valuable services during her old age cannot be
' construed as suspicious circumstances. In the Will dated 27.9.1968 it
was categorically stated that their properties should not go to their
relations. The High Court committed error in relying on the suspicious
circumstances as found by the trial court with regard to Will dated
27.11.1980.
D
10. Learned counsel for the plaintiffs-respondents refuting the
submissions ofleamed counsel for the appellants contends that Will dated
27. 9 .1968 was mutual and joint Will. The Will was executed by the husband
and wife with one mind and with mutual agreement. Charitable disposition
of Palaniappa Chettiar is apparent even from his first Will executed on
E
l 5'h July, 1931 where he disposed of substantial part of his prope11ies for
charity. Although, his above Will was superseded on l 5'h July, 1956
executed in favour of his wife Rangammal, but both husband and wife
after acquiring considerable properties decided to devote their properties
to charity. Consequently, the registered Will dated 27.9.1968 was
F
executed. The object and purpose of the Will was to create a Trust of
their properties, income of which was to be utilised for the enumerated
charities as mentioned in the Will. After the death of Palaniappa Chettiar,
Rangammal had no authority to revoke the Will. She had no right of
alienation and giving any right of alienation of properties shall be simply
defeating the intention of testators as delineated in the Will dated G
27.9.1968. Smt. Rangammal was entitled to hold and enjoy the properties
upto her life but could not defeat the trust, subsequent alienation after
the death of Palaniappa Chettiar, had rightly been ignored by the High
Court. It is submitted that the suit is not barred by Section I 08 of Tamil
Nadu Hindu Religious and Charitable Endowments Act, 1959 as
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
A contended by the counsel for the appellants. The suit was rightly filed in
the representative capacity and leave of the Court was obtained under
Section 92. It is contended that the Will does not create any religious
endowment within the meaning ofTamil NaduAct. The suit under Section
92 was fully maintainable with regard to charitable endowment made by
B theWilldated27.9.1968.
11. Learned counsel for the parties have placed reliance on various
judgments of this Court, different High Courts as well as judgments of
foreign Courts which shall be referred to while considering the
submissions in detail.
c
12. From the submissions made by the learned counsel for the
parties and the materials on record following are the main points which
arise for consideration in these appeals:
( 1) Whether the suit filed by the plaintiff was barred under Section
108 of the Tamil Nadu Hindu Religious and Charitable
D
Endowments Act, 1959 ?
(2) Whether the Will dated 27.9.1968 was a joint Will or a joint
and mutual Will, irrevocable after death of one of the testators?
(3) Whether Will dated 27.9.1968 contemplated that after the
death of one of the spouse the surviver shall not possess
E
power of alienation of any of the properties and the word
"absolutely with all the rights" used in the Will should be read
to mean that surviving testator would have only life interest
to enjoy the rent and income?
(4) Whether alienations made by Chinnammal@ Rangammal
F
after the death of Palaniappa Chettiar were in violation of
the Will and invalid?
(5) Whether Will dated 27.9.1968 contemplated a creation of
trust and as per the terms and conditions of the Will the trust
was to come in the operation after the death of one of the
G
spouse or after the end of the life of the both or from any
other eventuality?
H
(6) Whether Will set up by defendant Nos.4 and 5 i.e. 27 .11.1980
has rightly been held to be not proved by the trial court as
well as by the High Court ?
DR. K. S. PALANISAMl (DEAD) v. HINDU COMMUNITY IN GENERAL
525
AND CITIZENS OF GOBICHETTIPALAYAM (ASHOKBHUSHAN, J.]
(7) The relief to which, if any, the appellants are entitled in these A
appeals.
BAR ON SUIT UNDER SECTION 108 OF TAMIL NADU
HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS
ACT, 1959
13. Learned counsel for the appellant submitted that suit filed by
B
the plaintiff being barred under Section 108 of 1959 Act, the High Court
erred in law in decreeing the suit. Learned counsel submitted that trial
court had framed an issue No. 7 to the following effect:
"Whether the suit is barred by the provision of Section 108 of
the Hindu Religious and Charitable Endowment Act. "
C
14. Trial court had answered the above issue against the defendant.
Before the High Court, it does not appear that the appellants have raised
the issue pertaining to the bar of the suit under Section 108. After
considering the sul:imission oflearned counsel for the parties, the High
Court had framed oniy four points of consideration which did not include
D
the bar under Section 108. Learned counsel for the appellant, however,
submitted that the issue being issue of jurisdiction, the appellants may be
allowed to raise in this appeal. We have permitted the learned counsel
for the appellant to raise the issue. Learned counsel for the appellant
submitted that under 1959 Act, Section 108 provides as follows:
E
"No suit or other legal proceeding in respect of the
administration or management of a religious institution or
any other matter of dispute for determining·or deciding which
provision is made in this Act shall be instituted in any court of
Law, except under and in conformity with, the provisions of F
this Act."
15. Learned counsel further relies on Section 5, according to which,
the provisions under Section 92 of the CPC 1908 shall cease to apply to
Hindu Religious Institutions. Refuting the above submission, learned
counsel for plaintiff-respondent contends that the bar under Section 108
G
is not attracted with regard to suit filed by the plaintiff in view of the fact
that suit did not relate to any Hindu Public Religious Institutions. A plain
reading of Section I 08 indicates bar with regard to suit or other legal
proceeding is in respect of the administration or management of a religious
institution. Section 5 on which reliance has been placed is, as follows:
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
A
"The following enactments shall cease to app~y to Hindu
religious institutions and endowments, namely:-
B
(a) The Tamil Nadu Endowments and Escheats Regulation,
1817 (Tamil Nadu Regulation Vll of 1817);
(b) The Religious Endowments Act, 1863 (Central Act XX of
1863);
(c) The Charitable Endowments Act, 1890 (Central Act VI of
1890);
(d) The Charitable and Religious Trusts Act, 1920 (Central
c
Act XIV of 1920); and
D
E
F
(e) Section 92 and 93 of the Code of Civil Procedure, 1908
(Central Act V of 1908)."
16. Section 3 of the Act contains a heading 'Power to extend Act
to charitable endowments'. Section 3 sub-section ( l) is as follows:
"3.(1) Where the Government have reason to believe that any
Hindu or Jain public charitable endowment is being
mismanaged, they may direct the Commissioner to inquire, or
to cause an inquiry to be made by any officer authorised by
him in this behalf. into th affairs of such charitable endowment
and to report to them whether, in the interests of the
administration of such charitable endowment, it is necessary
to extend thereto all or any of the provisions of this Act and
of any rules made thereunder. "
17. Thus unless the provisions of Act are extended to charitable
endowments the bar under Section I 08 shall not be attracted. There is
no case set up by the appellant that suit filed by the plaintiff relates to a
religious institution, as contemplated by 1959 Act.
18. In view of the above, we are of the view that suit filed by the
plaintiff was not barred as under Section I 08 of 1959 Act.
G NATURE AND CONTENT OF WiLL DATED 27.9.1968
19. The points No. 2, 3, 4 and 5 being inter-related are taken
together. Before we proceed to consider the respective submissions of
learned counsel for the parties, it is necessary to look into the Will dated
27.09.1968. As noted above, the Will dated 27.9.1968 was executed by
H Palaniappa Chettiar and his wife Chinnammal alias Rangammaljointly.
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL
527
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN,J.)
The original will is in Tamil Language; an English translation of which A
has been brought on record as annexure P. 1 in C. A. No. 6469 of2005
which translation has been referred and relied by learned counsel for
both the parties. At the end of the will, there is description of the property,
List 1 contain the properties in the name of Palaniappa Chettiar and List
2 contains the properties in the name of Chinnammal alias Rangammal.
B
The entire will( except the description of the properties) is extracted as
follows:
"Ex. AS dated 27-9-1968
The Registration of the Will executed by Palaniappa Chettiar
and Rangammal:
C
Doct. No. 7611968:
Sri Ramajayam
"This Deed of Will executed on this 27'" day of September,
l 968, corre.1pondi11g to Tamil 11'" day of Purattasi Keelaga D
year by N. Palaniappa Chettiar son of Sruvalur
Angampalayam Narayana Chettim; residing at Veerapandi
Village Cusba, Gobichettipa/ayam taluk-1 and Chinnammal
alias Rangammal wife of Palaniappa Chettaiar and daughter
of Karuppanna Chettiar-2 jointly and with full consent
WITTNESSETH:
E
We have executed this Will and register the same in respect of
our self acquired properties since we do not have any issue
though married long back, that we are not in a position to
adopt any one, that there is no hope th~t we will live long,
that our relatives are not flt to enjoy the properties and lay a · F
claim for whatever reason and that no one should go to a
Court, claiming right or interest therein.
On the death of anyone of us, the survivor shall enjoy
the entire properties, which are our self acquired properties,
absolutely with all the rights and after his/her life time, and G
carry on the under-mentioned charities from and out of the
income derived from them without alienating the same.
We have the right to modifY, or cancel this Will and to
write a new Will during our life time either jointly or
individually.
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528
A
B
c
D
E
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SUPREME COURT REPORTS
[2017] 4 S.C.R.
This deed will come into effect after our life time.
During our life time we shall manage the property
ourselves, do the desired charities either jointly or
individually.
In case we are not in a position to carry out the desired
charities during our life time a committee consisting of the
following authorities shall be formed to carry out the
following charities:
The details of the charities:
1) A good choultry in the name of us shall be constructed
at Palani for Hindus to use the same freely.
Its Administration will be with Endowment Commissioner.
2) A portion of the income from our Properties shall be
used for doing morning pooja permanently for Palani
Andavar.
3) A portion of the income from our properties shall be
spent for feeding the poors at the time of Thai Poosam in
our name.
4) At Gobichettipalayam where our life prospered, an
Educational Institution in our name shall be started and
its administration will be left either to the Government or
Municipality. The expenses therefore shall be met from a
portion of income derived from our properties.
5) A Maternity Ward shall be constructed at Gobi in our
name from out of a portion of the income from our
properties. The administration thereof shall be left to the
Government.
The details of 3 member committee to perform the charities.
1.