# SRI MAHALINGA THAMBIRAN SW AMIGAL v. HIS HOLINESS SRI LA SRI KASIV ASI ARULNANDI THAMBIRAN SWAMIGAL

- **Citation:** [1974] 2 S.C.R. 74
- **Court:** Supreme Court of India
- **Decided:** 1973-10-19
- **Bench:** K. K. Mathew, M. H. Beg, A. K. Mukherjea
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-mahalinga-thambiran-sw-amigal-v-his-holiness-sri-la-sri-kasiv-asi-arulnandi-6180
- **Pages:** 16

## Headnote

Hindu Law-of Religious and Charitab.'e Trust-By a will, the head 'Jf
the
A-full nominated the iunior Elavarasu but later, by another will, terminated the
appellant-If valid-Whether status was acquired by the junior after nomina·
tion-Meaning of 'Status'.
The appellant filed a suit for a declaration that he was entitled to continue
as the junior head (Elavarasu) of the Tiruppandal or the Kasi Mutt ·and for a
A
B
perpetual injunction against the . defendant, the head of the Mutt.· Iroμi inter·
C
fedng with his functioning as the junior head of the Mutt.
The defendant, now dead, contended that the appellant
was
not validly
nominated as the junior head of the Mutt and that even if he was nominated as
such, the appellant acquired no right by the
nomination to
continue as
the
junior head after the head of the Mutt cancelled the nomination by another
document Ex. B-9 will.
The trial court found that by Ex. B-1 will, the defendant nominated the
appellant as the Elavarasu of the Mutt but that he-'acquired no status nor did
D
he become the holder of an office by virtue of the nomination. The court
further fo1.in<l that the defendant was competent to cancel the noinination and
that he had cancelled it by executing Ex. B-9 will.
The trial court, therefore,
dismissed the suit.
The District Co.urt _also confirmed the findings of the trial
court and dismissed the appeal. ,
In the second appeal, the learned single judge of the High Court granted a
decree to the appellant on the .sround that by the nomination of the appellant
he acquired a status and be beCame a holder of an office and that the defendant
E
coqld terminate t_he office :o'"r status only on good cause; but since the appellant
was not guilty of any misconduct, the cancellation of the nomination by Ex. B-9
will was ineffective. "
On appeal, the Division Bench of the High Court reversed the decree passed
by the single judge on the basis of its finding that the appellant did not become
a h'Jlder of an office by virtue of the nomination and so it was open to
the
defendant to cancel the nomination without notice and without assigning any
reas·on.
F
The questions for .consideration before this Cou~t were :-
( 1) \Vhether. by virtue of the nomination, the appdlant obtained a status
or a right .in law or became the holder of an office, and
(2) whether the defendant was competent to cancel the nomination without
good cause.
Allowing the appeal,
HELD : (i} During the first part of the 19th century, there were two manaa:-
G
ing Thambirans both at Banaras and at Tiruppanandal, a senior and a junior;
and the peculiar feature of th'is period consisted in this double agency tit each
centre Of control. r7SF1
Succession to the office of Mahant or Head of a Mutt is ta be regulated by
the custom of the particular Mutt and one who claims the office by right of·
succession is bound to allege and prove what the custom of the particular insti ..
tution is.
[78GJ
Giyana Sambandha Pandra San11adhi
v.
Kandasanii
Thambiran,
l.L.R.
ff
10 Madras 375; Greedharee
Doss
v.
Nandokissore
Doss Mohunt [867]
M.l.A. 405: Ramalingam Pillai v. Vythial'ngam Pillai [1893] 20 I.A. 150 etc.,
!Ire referred to.
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MAHALINGA THAMIHRAN v. LA SRI KASIVASI (Mathew, J.)
7 s
(ii) The custom in the Kasi Mutt was for the head of the Mutt to nol'.hinate:
a successor to succeed him by will and was attended by c~rtain religious ceremonies.
The appellant, in th~ present case, was nominated by Exhibit B-1
will and whether the nomination was accompanied by perfornlance of any
religious ceremony was not essential-[79C]
B. K. J.fukherjea's Hindu Law of Religious and Charitable Trusts" 3rd Ed.
1940 p. 257 and M. B. Bhagat v.
G. N. Bhagat [1972]
2 S.C.R.
1005·
Krishnagil'i, Trikanigiri
v.
Slzeriddar Kavlekar A.I.R. 1922 Bombay 202 and
Raghunarh v. Ganesh A. I. R. 1932 Allahabad 603, refe·rred to.
(iii) In the present case, although the power of nominai:fon was exercised by
a will, it is pro-tanto a non-testamentary instrument.
The d

## Text

_Characters 0–39,927 of 49,784. This is a partial read: ask again with offset=39927 for what follows._

74
SRI MAHALINGA THAMBIRAN SW AMIGAL
v.
HIS HOLINESS SRI LA SRI KASIV ASI ARULNANDI
THAMBIRAN SWAMIGAL
October 19, 1973
[K. K. MATHEW, M. H. BEG AND A. K. MUKHERJEA, JJ.)
Hindu Law-of Religious and Charitab.'e Trust-By a will, the head 'Jf
the
A-full nominated the iunior Elavarasu but later, by another will, terminated the
appellant-If valid-Whether status was acquired by the junior after nomina·
tion-Meaning of 'Status'.
The appellant filed a suit for a declaration that he was entitled to continue
as the junior head (Elavarasu) of the Tiruppandal or the Kasi Mutt ·and for a
A
B
perpetual injunction against the . defendant, the head of the Mutt.· Iroμi inter·
C
fedng with his functioning as the junior head of the Mutt.
The defendant, now dead, contended that the appellant
was
not validly
nominated as the junior head of the Mutt and that even if he was nominated as
such, the appellant acquired no right by the
nomination to
continue as
the
junior head after the head of the Mutt cancelled the nomination by another
document Ex. B-9 will.
The trial court found that by Ex. B-1 will, the defendant nominated the
appellant as the Elavarasu of the Mutt but that he-'acquired no status nor did
D
he become the holder of an office by virtue of the nomination. The court
further fo1.in<l that the defendant was competent to cancel the noinination and
that he had cancelled it by executing Ex. B-9 will.
The trial court, therefore,
dismissed the suit.
The District Co.urt _also confirmed the findings of the trial
court and dismissed the appeal. ,
In the second appeal, the learned single judge of the High Court granted a
decree to the appellant on the .sround that by the nomination of the appellant
he acquired a status and be beCame a holder of an office and that the defendant
E
coqld terminate t_he office :o'"r status only on good cause; but since the appellant
was not guilty of any misconduct, the cancellation of the nomination by Ex. B-9
will was ineffective. "
On appeal, the Division Bench of the High Court reversed the decree passed
by the single judge on the basis of its finding that the appellant did not become
a h'Jlder of an office by virtue of the nomination and so it was open to
the
defendant to cancel the nomination without notice and without assigning any
reas·on.
F
The questions for .consideration before this Cou~t were :-
( 1) \Vhether. by virtue of the nomination, the appdlant obtained a status
or a right .in law or became the holder of an office, and
(2) whether the defendant was competent to cancel the nomination without
good cause.
Allowing the appeal,
HELD : (i} During the first part of the 19th century, there were two manaa:-
G
ing Thambirans both at Banaras and at Tiruppanandal, a senior and a junior;
and the peculiar feature of th'is period consisted in this double agency tit each
centre Of control. r7SF1
Succession to the office of Mahant or Head of a Mutt is ta be regulated by
the custom of the particular Mutt and one who claims the office by right of·
succession is bound to allege and prove what the custom of the particular insti ..
tution is.
[78GJ
Giyana Sambandha Pandra San11adhi
v.
Kandasanii
Thambiran,
l.L.R.
ff
10 Madras 375; Greedharee
Doss
v.
Nandokissore
Doss Mohunt [867]
M.l.A. 405: Ramalingam Pillai v. Vythial'ngam Pillai [1893] 20 I.A. 150 etc.,
!Ire referred to.
A
B
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MAHALINGA THAMIHRAN v. LA SRI KASIVASI (Mathew, J.)
7 s
(ii) The custom in the Kasi Mutt was for the head of the Mutt to nol'.hinate:
a successor to succeed him by will and was attended by c~rtain religious ceremonies.
The appellant, in th~ present case, was nominated by Exhibit B-1
will and whether the nomination was accompanied by perfornlance of any
religious ceremony was not essential-[79C]
B. K. J.fukherjea's Hindu Law of Religious and Charitable Trusts" 3rd Ed.
1940 p. 257 and M. B. Bhagat v.
G. N. Bhagat [1972]
2 S.C.R.
1005·
Krishnagil'i, Trikanigiri
v.
Slzeriddar Kavlekar A.I.R. 1922 Bombay 202 and
Raghunarh v. Ganesh A. I. R. 1932 Allahabad 603, refe·rred to.
(iii) In the present case, although the power of nominai:fon was exercised by
a will, it is pro-tanto a non-testamentary instrument.
The definition of ''Will".
in Section 2(h) of the Indian Succession Act, 1925, would show that it is the
legal declaration of the intention of the testator with respect to his :property
which he desires to be carried into effect after his death.
By exercising the
power of nomination, the head of a Mutt is not disposing any 'property belonging to him which is to take effect after his death. He is simply exerdsing a
power to which he is entitled to under the usage of the institution. A nomi ..
aation takes effect in praesenti. It is the declaration of the intention of the head
cf the Mutt for th~ time being as to who his successor would be; therefore,.
although it is said that the usage in the Mutt is that the power of nomination is
exercisable by will, it is really a misnomer, because, a will in the genuine sense·
of the term, can have no effect in praesenti and it does not become revocable
without good cause merely because the power is exercised by a will.
[80B·F]
Ram /'lath v. Ram Nagina A.LR. 1962 Patna
481
and
Kailasam
v.
Nc;ttu·aja A.LR. 1918 Madras 1016 referred to.
(iv) It is not correct to say that Mahantship is property and nomination by
a :t-.Jahant of a successor is a: disposal of that property to take effect after the
denth of the Mnhant. Nomination is not a disposal sinipliciter of the office of
Mahantship of the Mutt ot its properties, to take effect after the death of the
incun1bent. It is the creation of a relationship generating a capacity in the
nominee to Succeed to the Mutt on the death of the incumbent This concept,
however, cannot be put in a straight jacket of any jurisprudential concept. The
Division Bench opined that the junior as the succe~or designate, carried with
him a certain status and received dignity and honours befitting that status. [82BJ
(v) The fundamental difference-between relationship or status and capacity
is !hat tbe former is a legal state of being while the latter is a legal power of
doing.
The imposition of status carries with it attribution or a fixed quota of
capaci~ies and incElpacities, but it does not directly compel the holder to do or
refrain froffi doing any particular act.
Capacity on the other hand, ls a legally
conferred power to affect the rights of oneself and other persons to whom the
experience of the caparity is directed subject to certain defined limits. Capacity·
in this form is an incident of status.
rs4Bl
R. H. Grare!.on's 'Status in the Common Law' p. 127, Allen on Legal Duties,
p. 33: Treatise on the Conflict of Laws 1935 _p, 649; "Status and Capacity'' 46;
l.,aw flllrlrtrrlv Ri::view, 277:
.~alvese11
v.
Administrator of Austrian Property
[1927] A.C. 641: Wiborel v .. Niboret 1878 P.O. (CA) 1 and Ross v. Ross 129'
Mass. 243, referred to.
(vi) The fact of a person being legally nominated as junior, having a pecu··
liar relationship with the senior is status, and the capacity to succeed. to ,the
head is the incident of that status. The status, when created by a nomination,
cannot be withdrawn or cancelled at the mere will. of the parties.
[85C·D.l
Tiruvambala Desikar v. Manikkavachaka Desikar, I.L.R. 40 M3d,
177,.
H
referred to.
The nomination when made can be cancelled or revoked only for a good'
cause and as admittedly, there was no good cause shown in this case for can ..
cellation of the nomination by Ex. B·9, the cancellation was bad in Jaw.
The·
76
SUPREME COURT REPORTS
( 1974] 2 S.C.R.
~ppe~lant was holding the status of the Elavarasu of the Kasi Mutt during the
A
hfe-ttme of the defendant.
Now that the defendant is dead, it is declared that
the appellant was boldina" the position of the Slavarasu during the life-time of the
defendant, that the revocation of the nomination was bad and the appe1lant was
entitled to succeed to the headship of the Mutt on the death of the defendant
-[89CJ
'
CIVIL APPLLATE JURISDICTION : Civil Appeal No. 1677 of 1969.
Appeal by special leave from the judgment and order dated the
B
12th January, 1968 of the High Court of Madras in Letters Patent
Appeals Nos. 4 and 29 of 1967.
K. S. Ramamurthy and K. Jayaram, for the appellant.
S. V. Gupte, S. K. Sastri, S. Gopa/an and M. S. Narasimh1111,
ior
:the respondent.
The Judgment of the Court was delivered by
MATHEW, J. The appellant as plaintilf filed a suit for a declaration
that he was entitled to continue as the Elavarasu or Junior Head of
the Tiruppan~ndal or the Kasi Mutt and for a perpetual injunction
restraining the defendant, the Head of the Mutt, from interfering in
any way with his functioning as the Elavarasu or Junior Head of tine
Mutt.
The defendant, who is now dead, contended that the appellant was
not validly nominated as the Elavarasu of the Mutt, that even if he
was nominated as the Elavarasu, the appellant acquired no right by
the nomination to continue as the Elavarasu, that the appellant's con·
duct after he became tlie Elavarasu was such that he was unworthy
to become the future head of the Mutt, that he (the defendant)° cancelled the nomination and so the appellant had no right to get the
declaration prayed for.
The questions which arose for consideration in the trial court were:
whether the appellant had been nominated by the defendant as the
Elavarasu of the Kasi Mutt; whether, by virtue of the nomination,
the appellant was holding an office or had acquired any right or
status; whether the appellant was guilty of misconduct which disen·
titled him to continue as the Elavarasu and whether the appellant's
nomination as the Elavarasu was validly cancelled by the defendant.
The trial court found that by Exhibit B· 1 will, the defendant nomi·
nated the appellant as the Elavarasu of the Kasi Mutt, but that he
acquired no status nor did he become the holder of an office by
virtue of the nomination. The court further found that the defendant
was competent to cancel the nomination even though the. appellant ~as
not guilty of any misconduct and that he had cancelled it by executmg
Exhibit B·9 will.
The V-ial court, therefore, dismissed the suit.
The District Judge, in appeal by the
appellant, confirmed the
findings of the trial court and dismissed the appeal.
In the second appeal filed by the appellant, a learned single .iudge
of t"e High Court of Madras found that by the nomination of the
'llppellant as the Elavarasu, he became the holder of an office or that,
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MAHALINGA THAMBIRAN v. LA SRI KASIVASI (Mathew, 1.)
77
at any rate, he acquired a status and that the defendant could terminate
the office or status only for a good cause and in the light of the 'find·
ing of the trlal court as affirmed by the first appellate court that the
appellant was not guilty of any misconduct, the cancellation of the!
nomination by Exhibit B-9 will was ineffective. The learned judge
therefore, granted a decree to the appellant declaring that he was th~
duly appointed junior head of the Kasi Mutt and that he was entiUed
to continue as the junior head, subject to the right of the head of !he
Mutt to remove him for good cause. The learned judge, however did
not make a declaration that the appellant had a right to succeed to the
headship of the Mutt after the life time of the defendant, nor was the
appellant granted an injunction restraining the defendant from, interfering with the appellant exercising the right as the junior head.
Appeals were preferred against this decree by both the appellant
and the defendant to a Division Bench of the High Court.
The Division Bench reversed the decree passed by the learned
single judge on the basis of its finding that the appellant did noe
become the holder of an office by virtue of the nomination and so it
was open til the defendant to cancel the nomination without notice to
the appellant and without assigning any reason.
J t is against this decree that this appeal has been preferred by
special leave.
·
The questions which fall for consideration in this appeal are:
whether, by virtue of the nomination, the appellant obtained a statuJ
or a right in law or became the holder of an office, and, whether the
defendant was competent to cancel the nomination without good
cause.
Jt is not disputed that on September 12, 1951, the defendant eioecuted a will (Exhibit B-1) reciting that he had nominated t!Je appel·
!ant as the Elavarasu of the Kasi Mutt. The will also stated that certain ceremonies were performed on the occasion of the nomination. It
then provided that by virtue of the nomination, the appellant will
succeed the de(endant as the Head of the Mutt.
There is also no
dispute that till January 2, 1960, when the defendant ·revoked ,the
will (Exhibit B-1) by Exhibit B-9 stating that "it was not necessary to
appoint the appellant as the ElavarasU:', the appellant was the Elavarasu by virtue of his nomination.
H
In Giyana Sambendha Pandara Sannadhi v. ~andasami 7.'hambi- ,
ran(') herinafter referred to as "Sambandha Case:, Muttusam1 Ayyar,
J has traced the historical evolution of the Kasi Mutt and the Dharma·
puram Adhinam. The Dharmapuram AdbJnam, and the ~asi Mutt are·
monastic institutions.
They are presided over by asceucs who have
renounced the world. The Mutt at Tiruppanandal i.e. Kasi Mutt was
affiliated to the Dharmapuram Adhinam .as a disciple Adh,inam, ,An
Adhinam is a central institution from which the chief ascetic exercJSeS
(1) LL.R, 10 Madras 375.
78
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
control and supervision over a group of endowed institutions and religious trusts. A Thambiran is an ascetic attached to an Adhinam and
when he becomes the head of the Adhinam, he is referred to as Pandara
Sannadhi. A Mutt was originally established at Benares by one Kumaragurupara Thambiran of the Dharmapuram Adhinam.
The Dharmapuram Adhinam had come into existence several centuries before the
institution of the Mutt at Benares.
The Mutt at Tiruppanandal was
established later in aid of the Mutt at Benraes by Tillanayaka Thambiran,
a
successor
of
Kumaragurupara
Thambiran
who
functjpned
between 1720 to
1756.
In course
of
time,
the
Mutt at Tiruppanandal became the principal Mutt and the Mutt at
Benares a subsidiary one. As the Mutt advanced in fame,
endowments and trusts began to come in.
So, subsidiary institutions came
to be established and the Tiruppanandal Mutt ceased to be an isolated
institution. It became an important centre exercising supervision and
control over several subordinate Mutts in Southern India, over the
Mutt in Benares, and over Mutts. at Merangi in Nepal and at Acbiram
in Travancore so much so that in some of the later correspondence
one finds that Tiruppanandal is referred to as an Adhinam.
The
Dharmapuram
Adhinam
was
regarded
by
the
Thambiran at Tiruppanandal as his Gurupitham, the seat of his religious pre-
·ceptor. The Thambirans at Tiruppanandal were, in a spiritual sense,
subordinate to the Panda~a Sannadhi at Dharmapuram. In course
of time, a junior Thambiran came to be associated with the senior
Thambiran in the management of the Tiruppanandal Mutt. The necessity for the services. of a junior at Tiruppanandal was felt, because,
it would on the one band, give an opportunity to the senior to see
whether the junior might be relied upon as a competent successor,
while, on the other hand, it would enable the junior. to acquire experience before he became the head of the Mutt.
The practice in the
Dharampuram Adhinam of there being a senior and a junior Pandara
Sannadhi at one and the same time was the probable origin of the
double agency at Tihuppanandal. But, as only a Pandara Sannadhi
could initiate a Thambiran, it came about that the Thambirans for the
Mutt at Tiruppanandal and Benares came from the Dhamapuram
Adhinam. During the first part of the 19th century (1833 to 1841)
there were two managing Thambirans both at Benares and at Tiruppanandal, a senior and a junior; and the peculiar feature of this
period consisted iii this double agency at each centre of control, which
was probably due to the considerable increase in the number and
value of endowments to be superintended.
Succession to the office of Mahan\ or Head of a Mutt is to
be
regulated by the custom of the particular Mutt and one who claims
the office by right of succession is bound to allege and prove what
the custom of the particular insitiution is, for, the only law regulating
. succession to such institutions is to be found in the custom and practice of that institution (see the decisions of the Privy Council in
Greedharee Doss' v,
Nandokissore Doss, Mohunt(I) and Ramalingam Pillai
v.
Vythialingam Pillai('). As was observed in Vidyapurna Tirthaswami v.
Vidvanidhi Tirthswami('), in most cases,
(I) (1867) M.l.A. 405.
(2) (1893) 20 I.A. 150.
(3) I.L.R. 27 Madras 435.
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MAHALINGA THAMBIRAN v. LA SRI KASIVASI (Mathew, J.)
79
especially in Southern India, the successor is ordained and appointed
hy the Head of the Mutt during hi• own life time and in default of
such appointment, the nomination may rest with the head of some
kindred institution or the successor may be appointed by election by
the disciples and followers of the Mutt or, in the last instance, by
the court as representing the sovereign. Where the head of a religious
institution is bound by celib!fcy, it is frequently the usage that he
nominates his successor by appointment during his own life time,
or by will.
Such a power of nomination must, however, be exercised
not corruptly or for ulterior reasons, but bona fide and in the interests
of the Mutt; otherwise, the appointment will be invalid [see Nataraja
v. Kaliasam( 1); 11.amalingam Pillai v. Vythialingam Pillai('); Ram
Prakash Das v. Anand Das(') and Vailyanatha v. Swaminatha(<)l.
From the decision in the Samba11dha
Case it is clear that the
custom in the Kasi Mutt is for the head of the Mutt for the time being
to nominate a successor to succeed him from one among the Thambirans of Thirukkuttam of the Dharmapuram Adhinam; that the
nomination is mad,e by will and that is attended by certain religious
ceremonies like Manthakashyam, Deekshha, Pooja and Arukattai.
There was no contention in the written statement that the necessary ceremonies for a valid nomination of a junior head in the Kasi
Mutt were not performed.
Exhibit B-1 states in unambiguous language that the ceremonies were performed. Both the trial court as
,well as the first appellate court fpund, on the basis ·of the oral evidence, that the religious ceremonies for the nomination were
not
performed at the time of the nomination, but at an anterior date. When
the defendant had himself admitted in Exhibit B-1 will that the nomination was made after the ceremonies were performed, there is no
scope for any controversy as to whether the ceremonies were performed. The statement in Exhibit B-1 that the ceremonies were performed
was made at a time when there was no controversy between the parties.
And, it was on fhe basis that there was a valid nomination that the
appellant was associated with the defendant from 1951 to 1960 as the
Elavarasu of the Mntt.
Quite apart from these circumstances, we do not think that for a
nomination to be valid, performance of any religious ceremony
is
necessary, unless, of course, the usage of the institution has made it
mandatory. "In many cases when a successor is appointed by Mohunt,
he is installed in office with certain ceremonies." This cannot be
deemed to be essential" (see B. K. Mukherjea, "Hindu Law of Religious
and Charitable Trusts", 3rd ed. (1970), p. 257). This observation
was quoted with approval by this Court in M. B. Bhagc! v. G. N.
Bhagat('). See a110 the decisions in
Krishnagiri
Tr .• ·:2mgiri
v.
Sheriddar Kavlekar(') and Ra11hunath v. Ganesh(1).
The Division Bench of the High Court was of the opinion that as
the n(llllination was made by Exhibit B-1 will, there was no reason
.Pfo (1920) 48 I.A. I. (2) [1893] 20 I.A. I SO. (3) (1916) 43 I.A. 73.
(4) (1924) 51 I.A. 282.
(5) (1972) 2 S.C.R. 1005 at 1010.
(6) A.l.R. 1922 Bombay 202.
(7) A.l.R. 1932 All. 603.
80
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
why that will could not be revoked under law and therefore the nomination stood revoked by the execution of Exhibit B-9 will.
In other
words, one line of reasoning adopted by the High Court was that, as
a will is revocable at the pleasure of the testator at any time before his
death, the nomination made by Exhibit B-1 will was revocable without
assigning any reason.
The definition of "will" in s.2 (h) of the Indian Successon Act,
1925, would show that it is the legal declaration of the intention of a
testator with respect to his property which he desires to be carried
into effect after his death.
By exercising the power of nomination,
the head of a Mutt is not disposing of any property belonging to him
which is to take effect after his death. He is simply exercising a power
to which he is entitled to under the usage of the institution.
A nomination makes the nominee stand in a peculiar relationship with the
head of the Mutt and the Hindu community and that relationship
invests him with the capacity to succeed to the headship of the Mutt.
A nomination takes effect in presenti. It is the declaration of the
intention of the head of the Mutt for the time being as to who his
successor would be; therefore, although it is said that the usage in
the Mutt is that the power of nomination is exercisable by will, it is
really a misnomer, becii_use, a will in the genuine sense of the term
can have no effect in presenti.
There can be no dispute that a nomination can be made by deed or word of mouth.
In such a case, the
nomination invests the nominee with a present status.
That status
gives him the capacity to succeed to the headship of the Mutt on the
death of the incumbent for the time being. If that is the effect of
nomination whl.P made by deed or word of mouth, we find it difficult
to say that when a nomination is made by will, it does not take effect
In presenti,. and that it can be cancelled by executing another will
revoking the former will.
Such, at any rate, does not seem to be
the concept of nomination in the law relating to Hindu Religious
Endowments.
A nomination need not partake of the character of a
will in the matter of its revocability, merely because the power of
nomination is exercised by a will.
In other words, the nature or
character of a nomination does not depend upon the type of document
under which the power is exercised. If a nomination is otherwise
irrevocable except for good cause, it does not become revocable without good cause, merely because the power is exercised by a will. If
the power of nomination is exercised by a will, it is pro-tanto a nontestamentary instrument.
A document can be partly testamentary and
partly non-testamentary.
In Ram Nath v. Ram Nagina(l), the head
of the Mutt for the time being exercised his power of nomination, more
or less in terms of Exhibit B-1 here, namely, by making the nomination of a successor and providing that he will be the owner of the properties and charities of the Mutt and also of the other properties standing in the name of the bead of the Mutt.
The court held tbat so
far as the nomination and devolution of the properties of the Mutt
were concerned, the will operated as a non-testamentary instrument.
The Court said that the condition which must be satisfied before a
(I) A.LR. 1962 Patna 481.
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MAHALINGA THAMBIRAN V. LA SRI KAs!VASJ (Mathew, J.)
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document can be called a will is that there must be some disposition
of· property and that the document must contain a declaration of the
intention of the testator not with respect to any thing but with respect
to his property.
According to the Court, if there is a declaration of
intention with respect to his successor, it cannot constitute a will even
il' the document were to state that the nominee will become the owner
of the properties of the Mutt after the death of the executant of the
will as that is only a statement of the legal consequence of the nomination.
Ill Kailasam v. Nataraja( 1), the court expressed the view
that
a will making a nomination is only the evidence of a past event. In
other words, a will is the record of a nomination and that it is not by
the will that a nomination is made.
Exhibit B-1 makes it clear that the nomination had already been
made. It says :
"I have nominated as my successor Mahalinga Thambiran,
who is one among the Thambirans of Thirukkutta;n of
Dharmapuram Adinam
and
obtained Manthakashyam,
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Deeksha, Pooja and Arukatti and who is performing pooja
in our Mutt."
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The statement in the will that after the death of the Head, the Junior
will be the owner of the properties pertaining to the Mutt is a declaration as to the legal consequence of the nomination.
The fact that in
the Kasi Mutt there is no usage that the power of nomination was
exercised otherwise than by will does not mean that a nomination will
stand cancelled when the will is revoked.
Mr. Gupte for the respondent argued that Mahantship is property
and nomination by a Mahant of a successor is a disposal of that property to take effect after the death of the Mahant and, therefore, the
power of nomination can be exercised only by a wilJ, and, if it
is
exercisable only by a will, it follows that when the wi!J is revoked, the
nomination would stand cancelled.
We do not think that this contention is correct.
As we said, the
power of nomination is a concept pertaining to the law of Hindu Religious Endowments.
It is not because the Mahant.ship was treated as
property that in the Sambandha Case it was observed that in the Kasi
Mutt nomination is made by a will, but because it was the custom of
that Mutt.
The Privy Council has said that a nomination can be
made by word of mouth (see Greedharee Doss v. Nandokissore Doss,
Mo/111111(1), And there is no reason why it cannot be made by a deed.
If the power of nomination is exercised by word o! mouth or by deed,
it is not clear how the exercise of the power would be valid if Mahantship itself is property and nomination is regarded as the disposition
of that property to take effect after the death of the head of the Mutt.
For, if nomination is merely a declaration of the intention of the head
of the Mutt as to the disposal of the office of Senior Pandara Sannadhi
(!) A.I.R. 1918 Madra_s 1016, at 1018.
(2) [18671
MIA 405
7-L447Sup.CI/74
82
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
which is generally regarded as property or of the properties appertainA
ing to th~ office, to take effect after the death of the incumbent of the
office for the time being, then the power of nomination can be exercised only by a will.
The fact that ac~ording to the law of Hindu
Religious Endowments, a nomination can be made by doed or word
of mouth is positive proof that nomination is not a mere disposal of
the office or of the properties appertaining to it, but the creation of
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a present relationship generating the capacity to succeed to the office
and to the properties appertaining to the office.
In other words, by
word of mouth or deed_ one caonot dispose of an office, if it is property, to take effect after the death of the person uttering the word or
executing the deed and, therefore, nomination is not a disposal simpliciter of the office of the headship of the Mutt or its properties, to take
effect after the death of the incumbent. It is the creation of a relac
tionship generating a capacity in the nominee to succeed to the headship of the Mutt on the death of the incumbent.
What, then, is the
na!!Jre of that relationship ?
Mr. G~te said that so long as no present right or status is con•
!erred or created by a nomination, the Head of the Mutt can cancel
on revoke the nomination at any time he pleases and that there is
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no foundation for the a;sumption that nomination can be
canc•lled
only for good cause.
All already stated, a nomination is a c.oncept pertaining to ffindu
Religious Endowments.
And it is s•ui generis.
One cannot put it in
the straight jacket of any jurisprudential concept.
The Division Bench was of the view that "the junior as the suc-
<:essor designate of the headship of the Mutt carried with him a certain
status on account of that fact and received dignity and honours befitting that status".
'f!ie question is whether, by the nomination, the appellant ac9uired a status in law, and, if he acquired a status, whether it was liable
to be put an end to by the defendant at his whim.
John Austin has,said that status is "the most difficult problem in
the whole science of jurisprudence." The question whether the junior
Pandara Saonadhi or the __ Second occupies a status, has to be decided
with reference to the Jaw relating to Jilndu Religious Endowments.
It is a well known custom in several Mutts, for the heads to nominate
their successors.
Junior heads so nominated form _a class by themselves and as they stand in a relationship with the senior heads which
is peculiar in the sense that no other class of persons hold that relationship with them, the question is whether, according to the Jaw of
Hindu Religious Endowments, they acquire a status in law.
The
custom or usage will certainly govern the question whether the heac1
of the Mutt has the power to make a nomination during his life time,
and the manner of its exercise and the religious ceremonies to be performed at the time of the nomination.
But, in the absence of any
custom or usage, the question whether nomination would confer a
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MAHALINGA THAMBIRAN v. LA SRI KAslVASI (Mathew, !.)
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status upon the junior heads so nominated is a matter for the court ·
to decid~ in the light of the law relating to Hindu Religious Endowments. And, in deciding it, the interests of the Hindu religious community and of the Mutts in general are of paramount importance.
Whether or. not a particular condition or relationship is one of status
depends primarily on the existence and extent of the social interest
in the creation and supervision of such a condition or relationship.
The test is not a simple one of the existence or non-existence of the
concern of the society; it is also one of the degree of sqch concern. It
is, further, abvious, that the degree and even the existence of this
concern in a ·particular condition will vary from time to time in the
same society. It is not possible to draw a clear line of distinction in
a dogmatic and a priori manner between conditions of status and
special conditions not of status. In other words, the picture of status
cannot be painted in elemental colours of black and white on any
a priori considerations. "It is rather a matter for a court to decide
at the time of action whether a particular condition dues or does not
involve a sufficient degree of social interest to be characterised as
status, assuming that all other features of status are
present"('').
Bentham's. idea of status was that it was "a quality or condition.which
generates certain rights and duties"(•). Beale defines status as a
personal quality or relationship not temporary in nature nor terminable
at the mere will of parties with which third parties and even the State
are concerned('). C. K. Allen said that status is a condition of
belonging to a particular class of persons to whom law assigns certain
capacities and incapacities(<). Status is defined by Graveson as a .
special condition of a continuous and institutional nature, differing
from the legal position of the normal person which is conferred by
law .and not purely by the act of the parties, whenever a person occupies a position of which the creation, continuance or relinquishment
and the incidents are a matter of sufficient social or public concern(•). The distinguishing mark of a class for the
purpose
of
status is that legal consequences result to its members from the mere
fact of belonging to it.
In Salvesan v. Administrator of Austrian Property('), Lord
Haldane asked the question : "For what does status mean in this connection?" and answered it by saying that in the case of marnage,
it is something more than a mere contractual relation between the
parties to the contract of marriage. He also said that status may result from such a contractual relationship, but only when the contract
has passed into something which Private International Law recognizes
as havin~ been superadded to it by the authority of the State, so'llething "which the jurisprudence of the State under its law imposes when
"ithin its boundaries the ceremony has taken place."
(1) See RH. Oraveson, "Status ih the Common Law". p. 127.
(2) see Allen, "Legal Duties, p. 33.
(3) see "Treatise on the Conftict of Laws" (1935). p, 649.
(4) see "Status and Capacity" ,46 Law Quart"rly Review, 277.
(S) sec "Status in the Common Law", P .2.
(1927] A.C. 641
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SUPREME COURT REPORTS
[ !974) 2 S.C.R.
In Nibovet v. Nibovet('), Brett, L. J. said:
"The status of an individual, used as a legal term, means
the legal position of the individual in or with regard to the
rest of the community".
The fundamental difference between status and capacity is that
the former is a legal state of being while the latter is a· 1egal power of
doing. Status det~rmines a person's legal condition in community by
reference to some legal class or group and cannot normally be voluntarily changed. The imposition of status carries with it attribution of
a fixed quota of capacities and incapacities, but it does not directly
compel the holder to do or refrain from doing any particular act.
Ca_pacity, on the other hand, is a legally conferred power to affect the
rights of oneself and other persons to whom the exercise of the capacity
is directed, subject to certain generally and legally defined limits-limits
which vary in rel_ation to each particular form of capacity. Capacity
in this foqn is an incident o! status. And, a distinction therefore
must be made between the legal principles applicable to !he major
~onception of status and those affec.ting the minor conception of its
incidents (2). The closest approach to a judicial statement o( the
distinction between status and its incidents is found in the judgment
o.f Gray, C. J. in Ross v. Ross(•) :
"The capacity or qualification to inherit or succeed to
property, which is an incident of the status or condition,
requiring no action to give it effect, is to be distinguished
from the capacity or competency to enter into contracts
that confer rights upon others."
It would follow that status is a condition imposed by law and
not by act of parties, though it may be predicated in certain cases
on some private act as the contract of
marriage.
Whether
the
condition of status will be imposed as the result of private contract
or private or public act depends on the public interest in the relation
created by the contract or act. In other words, as we said, the interest
and concern of the society of which parties form part determine
whether or not status will be imposed or conferred as the result of
private contract or by private or public act.
Social interest is
a
feature of the concept of status; unfortunately, this aspect has been
little stressed in the cases. "Austin's neglect of this aspect of status
has made no small contribution to the judicial disregard of social
interest involved in the concept"(').
In Ross v. Ross('•~· , Chief Justice Gray said :
"A general principle that the status or condition of a
person, the relation in which he stands to another fJ'rson,
and by which he is qualified and made capable to take certain
rights in that other's property, is
fixed by the
law of
domicile".
(I) (1878) P. D. (C.A.) 1at11
(2) see C.K. Allen, "Le~al Duties and Other Essays in Jurisprudence";'(J93J)
pp. 28.ff and also his article "Status and Capacity", 46 Law Qu3:rterly
Review, 277.
(3) 129 Mass. 243 (1880).
l4)see R,H1 Graveson, "Status in the Common Law"-, p, 60.
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MAHALINGA THAMBIRAN v. LA SRI KASJVASI (Mathew, 1.)
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In Tarak Chandra Das and Another v. Anukul Chandra
Mukherjee('), B. K. Mukherjea, as he then was, said:
"Now, legal character is the same thing as status."
What is the telationship in which junior heads stand to their
seniors? In Sambandha Case (supra), Muttusami Ayyar, J. said (at
P. 493) :
"By appointment as junior, the Tambiran
became a
spiritual brother or a brotherly companion and by both the
senior who appoints and the junior who is appointed belonging to the same Adhinam, they were asJociates in holiness."
As we said, status is something apart from and be,yond its incidents,
"The status of a child is not his duties or disabihtiea in relation tG
his parents, but ·the legally recognised fact of
being a child"(').
The fact of a person being legally nominated as junior, having a
peculiar relationship with the senior is status, and the capacity
to
succeed to the head is the incident of that status. The status, when
created by a nomination, cannot be withdrawn or cancelled at the
mere will of the parties. The law must determine the condition and
circ.umstances under which it can be terminated. Merely because the
status originated from the act of a senior head in making
the
nomination, it would not follow that the senior head can put an end
to it by another act.
In other words, the junior heads as a class
occupy a position of which the creation, contlouance or relinquislament, and its prindpal incident, namely, sucmsion to the olliCe ot
the headship of the Mutt are matters of sufficient social or public
concern in the sense that the Hindu religious community is vitally
interested in all of them.
There was some debate at the bar on the question · whether, by
nomination, the junior gets a contingent interest in the office or in the
properties of the Mutt, the contingency being the survival by the junior
of the head of the· Mutt. A contingent interest or ownership is a present
right.
But we do not propose to decide that point in this appeal.
As we said, the concept of nomination· is sui generis; and that
makes it rather difficult to bring it under any legal rubric.
Perhaps, it has its analogue in Canon Law and that was the reason
why Bhashyam Ayyangar, J. in Vidyapurna Tirthaswami v. Vidvanidhi
Tirthaswami(')
likened the position of a junior head to that o{' a
co-adjutor in Canon Law. A co-adjutor stands in a peculiar relationship with the Bishop. He has a right to succeed the Bishop; while
he is a co-adjutor, he has no administrative functions of his own,
but has only to do the work assigned to him by the Bishop. But,
nevertheless, dμring the life time o~ the Bishop he enjoys a status
and is accorded honours and regard by the religious community,
second only to those accorded to the Bishop. ·
Even if it is assumed !hat the position of a junior head is not
a status as known to Jaw, we· think that the relationship created by
the nomination is one which cannot be put an end to by the head
at his sweet will and pleasure.
(!) A.I.R.1946 (33) Calcutta 118, nt 119,
(2) see R.H. Gravcson, "Status in the Common Law'\ pp, 122-127.
(3) I. L. R. 27 Mad. 435.
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SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
In Tiruvambala Desikar v.
Kanikkavachaka Desikar( 1), the
question was whether the bead of the Dharmapuram Adhinam has,
after making a valid nomination, an uncontrolled right to cancel it
and nominate another person as the junior head. A Division Bench
of the Madras High Court consisting of Wallis, C. J. and Seshagiri
Ayyar, J. held that the Head of the Mutt, after making a valid nomi·
nation cannot revoke the nomination at his sweet will and pleasure,
hut only for good cause Wallis, C. J. said (at P. 190) :
"It has been contended before us that the defendant only
held office at the pleasure of the Pandarasannadbi and that
consequently the latter was entitled to dismiss him without
giving him any opportunity of being heard.