Karnataka High Court
Mr. Sadhashivayya vs Mr. Vardhaman Dhurgaprasad Shetty on 31 October, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF OCTOBER, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE B.V.PINTO
WRIT PETITION NO.46167/2013 (GM-CPC)
C/W
WRIT PETITION NO.46819/2013 (GM-CPC)
IN WP.NO.46167/2013
BETWEEN:
1. MR.SADHASHIVAYYA,
S/O LATE PUTTAYYA ,
HINDU ,
AGED ABOUT 63 YEARS,
RETIRED FOREST GUARD,
R/AT MATTADAKERE HOUSE,
BELUVAI POST,
MANGALORE TALUK-574 213.
2. SRI RUDRAMUNI MAHASWAMY,
AGED ABOUT 32 YEARS,
R/AT MATADAKERE HOUSE,
BELUVAI POST-574 213,
MANGALORE TALUK D.K.
3. MR SATISH KUMAR,
S/O LATE CHANDRASHEKAREYYA,
HINDU,
AGED ABOUT 53 YEARS,
R/AT HOUSE NO.20, SRINIVASA NILAYA,
3RD MAIN, 1st CROSS, K.G.HALLI,
JALAHALLI, BANGALORE- 560064.
4. MR SHIVANANDAYYA,
S/O LATE ADUVAPPA SHETTY
@ BABAYYA, HINDU,
2
AGED ABOUT 62 YEARS,
CHAMANI ROAD,
GURUPUR P.O,
MANGALORE TALUK-574 147.
5. MR KUMARAYYA,
S/O LATE SIDHALINGAYYA,
HINDU,
AGED ABOUT 68 YEARS,
R/AT SOREKELA JANGAMMA MUTT, SHIRVA,
PILLAR VILLAGE, PERNAL POST,
UDUPI TALUK AND DISTRICT-574 148.
6. MR.SHIVAPRASAD @ APPU,
S/O.K.KUMARAYYA,
HINDU,
AGED ABOUT 36 YEARS,
R/AT SORKELA JANGAMA MUTT, SHIRVA,
PILLAR VILLAGE PERNAL POST,
UDUPI TALUK AND DISTRICT-574 148.
7. MR SANGAMESHA,
S/O KUMARAYYA, HINDU,
AGED ABOUT 32 YEARS,
R/AT SORKELA, JANGAMA MUTT, SHIRVA,
PILLAR VILLAGE, PERNAL POST,
UDUPI TALUK AND DISTRICT,
PRESENTLY R/AT C/O MR. SADHASHIVAYYA,
CHAMANI ROAD GURUPUR P.O,
MANGALORE TALUK-574 145.
8. MR.GIRISH KUMAR,
S/O LATE VISHWANATHAYYA,
HINDU,
AGED ABOUT 33 YEARS,
R/AT PANGALA JANGAMA MUTT,
PANGALA POST,
UDUPI TALUK AND
DISTRICT-574 148.
9. MR G.RAMESH BHAT,
S/O G.LAXMAN BHAT, HINDU,
3
AGED ABOUT 45 YEARS,
SUDHA BEKARY MAIN ROAD,
GURUPUR POST,
MANGALORE TALUK-574 114. ... PETITIONERS
(BY SRI S.M. CHANDRASHEKAR, SENIOR COUNSEL
FOR SRI S.B.MATHAPATI, ADV., )
AND:
1. MR. VARDHAMAN DHURGAPRASAD SHETTY,
S/O LATE K.P.SHETTY, HINDU,
AGED ABOUT 44 YEARS,
GADIKARARU GOLIDHADI GUTHU,
K.P.SHETTYU ROAD, GURUPUR,
MANGALORE TALUK-574 145.
2. MR C.M.UDAYA BHAT,
S/O LATE ANANTHARAM BHAT,
HINDU,
AGED ABOUT 37 YEARS,
R/AT MANJE HITHALU HOUSE,
GURUPUR, MANGALORE TALUK- 574 145.
3. MR K. DAMODHAR SHETTY,
S/O LATE BABU SHETTY, HINDU,
AGED ABOUT 49 YEARS,
R/AT KALLAKALEMBI HOUSE,
DONINJE GUTHU,
MANGALORE TALUK-574 145. ... RESPONDENTS
(BY SRI JAYAKUMAR.S.PATIL, SENIOR COUNSEL FOR
SRI KARUNAKARA FOR C/R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO SET ASIDE THE ORDER DATED
31.8.2013 IN M.A. NO. 84/2012 PASSED BY THE II
ADDITIONAL DISTRICT JUDGE, D.K. MANGALORE ON
I.A. NO.II IN O.S. NO.103/2012 PENDING BEFORE THE
III ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE
TO THE EXTENT THAT THE II ADDITIONAL DISTRICT
4
JUDGE, D.K. MANGALORE CONFIRMED THE GRANT
OF TEMPORARY INJUNCTION AGAINST THE
PETITIONERS
IN WP.NO.46819/2013
BETWEEN:
1. MR. VARDHAMAN DURGAPRASAD SHETTY,
S/O.LATE K.P.SHETTY,
HINDU, AGED ABOUT 44 YEARS,
GADIKARARU GOLIDHADI GUTHU,
K.P. SHETTY ROAD,
GURUPUR,
MANGALORE TALUK-574 145.
2. MR. G.M.UDAYA BHAT,
S/O.LATE ANANTHARAM BHAT,
HINDU, AGED ABOUT 37 YEARS,
R/AT MANJE HITHULU HOUSE,
GURUPUR-574 145,
MANGALORE TALUK, D.K.
3. SRI K. DAMODHAR SHETTY,
S/O.LATE BABU SHETTY, HINDU,
AGED ABOUT 49 YEARS,
R/AT KALLAKALEMBI HOUSE,
DONINJE GUTHU-574 145,
MANGALORE TALUK, D.K. ... PETITIONERS
(BY SRI KARUNAKARA.P, ADV.,)
AND:
1. MR. SADASHIVAYYA,
S/O. LATE PUTTAYYA, HINDU,
AGED ABOUT 63 YEARS,
RETIRED FOREST GUARD,
R/AT MATADKERE HOUSE,
BELUVAL POST-574 213,
MANGALORE TALUK, D.K.
5
2. KIRAN KUMAR,
AGED ABOUT 32 YEARS,
R/AT MATADAKERE HOUSE,
BELUVAI POST-574 213.
3. MR SATHISH KUMAR,
S/O LATE CHANDRASHEKARAYYA,
HINDU, AGED ABOUT 53 YEARS,
R/AT HOUSE NO.20,
SRINIVASA NILAYA, 3RD MAIN,
1ST CROSS, K.G. HALLI,
JALAHALLI, BANGALORE.
4. MR. SHIVANANDAYYA,
S/O. LATE ADUVAPPA SHETTY,
HINDU, AGED ABOUT 62 YEARS,
CHAMANI ROAD,
GURUPUR P.O.-574 145,
MANGALORE TALUK, D.K.
5. MR. K. KUMARAYYA,
S/O. LATE SIDDALINGAYYA,
HINDU, AGED ABOUT 68 YEARS,
R/AT SORKELA JANGAMA MUTT,
SHIRVA, PILAR VILLAGE,
PERNAL POST,
UDUPI TALUK & DISTRICT.
6. MR. SHIVAPRASAD @ APPU,
S/O. K. KUMARAYYA, HINDU,
AGED ABOUT 36 YEARS,
R/AT SORKELA JANGAMA MUTT,
SHIRVA, PILAR VILLAGE,
PERNAL POST,
UDUPI TALUK & DISTRICT,
7. MR SANGAMESH,
S/O K. KUMARAYYA, HINDU,
AGED ABOUT 32 YEARS,
R/AT SORKELA JANGAMA MUTT,
SHIRVA, PILAR VILLAGE,
PERNAL POST, UDUPI TALUK & DISTRICT,
6
PRESENTLY R/AT
C/O. MR SHIVANANDAYYA,
CHAMANI ROAD, GURUPUR POST,
MANGALORE TALUK-574 145.
8. MR. GIRISH KUMAR,
S/O LATE VISHWANATHAYYA,
HINDU, AGED ABOUT 33 YEARS,
R/AT PANGALA JANGAMA MUTT,
PANGALA POST,
UDUPI TALUK & DISTRICT.
9. MR. G. RAMESH BHAT,
S/O G. LAKSHMAN BHAT,
HINDU, AGED ABOUT 45 YEARS,
SUDHA BAKERY, MAIN ROAD,
GURUPUR POST,
MANGALORE TALUK-574 145. ... RESPONDENTS
(BY SRI S.M.CHANDRASHEKAR, SENIOR COUNCIL
FOR S.B.MATHAPATI, ADV., FOR C/R1, 2-9 )
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DT.31.8.2013
PASSED BY THE II ADDL. DISTRICT JUDGE D.K.
MANGALORE IN M.A.NO.84/2012 VIDE ANNX-A IN SO
FAR AS MODIFYING THE ORDER PASSED BY IIIRD
ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE,
D.K. ON I.A. NO.2 IN O.S. NO.103/12 VIDE ANN-F
THESE PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
These two writ petitions are filed challenging the order dated 31.08.2013 passed by the II Additional District Judge, D.K., Mangalore (herein after referred to 7 as the Lower Appellate Court) on IA No.II in MA No.84/2012 under which the Lower Appellate Court has modified the order passed on IA No.II in O.S.No.103/2012 under which the III Additional Senior Civil Judge & JMFC, Mangalore, D.K. (herein after referred to as the trial Court) has directed the petitioners herein or their men, agents or any other persons claiming through or under them to temporarily restrain themselves from appointing Uttaradhikari to Sri. Jangama Samsthan Mutt, Gurupur without concurrence of the Advisory Committee members mentioned under the last Will and Testament of Shri Shivaprakash Swamiyar dated 10.11.2011 till the disposal of the suit and further directed the petitioners herein to further restrain temporarily from interfering with the management, administration and control of the Mutt by the Advisory Committee as per the Will dated 10.11.2011 and their control over the movable and immovable assets of Shri Jangama Samsthana Mutt, Gurupur and the personal assets possessed and enjoyed by the Lingaikya Shri Ma. Ni. Pra. Shivaprakash 8 Swamiyar including the cultivation and collection of the income from all the properties and the management of all the educational institutions run by the Mutt and the S.N.E. Society (R) pending disposal of the suit.
2. The parties are referred to as per their rankings before the trial Court.
3. The plaintiffs filed suit in OS No.103/2012 before the trial Court praying to declare that the plaintiffs and other members of the advisory committee constituted by Lingaikya Shri.Ma. Ni. Pra. Shivaprakash Swamiyar of Gurupur Jangama Mutt as per the terms of the Last Will and Testament dated 10.11.2011 duly executed alone are to nominate and appoint the successor Swamiyar from amongst the Veerashiva Community/sect to Jangama Samsthan Mutt, Gurupur and after following requisite formalities as per the long standing customs that prevailed in appointing such successor sanyasi/swamiyar.
4. The plaintiffs have further prayed by way of consequential relief to grant a decree of permanent 9 prohibitory injunction restraining the defendants, their men, agents and any other persons claiming through or under them from appointing or nominating any person as successor Swamiyar to the Peetha of Jangama Samsthan Mutt, Gurupur, either by posing themselves as disciples of Sri. Jangama Samsthan Mutt, Gurupur or by constituting themselves as Veerashiva Community leaders and or Association members and by calling any meeting in the Mutt for the said purposes in derogation of and or contrary to the directions contained in the last registered Will and Testament dated 10.11.2011 executed by Lingaikya Shri. Ma. Ni. Pra. Shivaprakash Swamiyar and without obtaining prior consent and concurrence of the Advisory Committee members constituted in that regard by the Lingaikya Shri. Ma. Ni. Pra. Shivaprakash Swamiyar and also to prevent them from interfering with the management, administration and control by the Advisory Committee of Sri. Jangama Samsthan Mutt over all the moveable and immovable assets of Sri. Jangama Samsthan Mutt, Gurupur including the personal assets left behind by Lingaikya 10 Shri.Ma. Ni. Pra. Shivaprakash Swamiyar including the cultivation and collection of the income from those properties and also the management of all the educational institutions run by the said Mutt and S.N.E. Society (R) and also by means of permanent mandatory injunction to direct the Advisory Committee members to take control of all the assets of Mutt including Jewellary, gold and silver ornaments other articles and assets belonging to the Mutt and its institutions, the personal assets of Lingaikya Shri. Ma. Ni. Pra. Shivaprakash Swamiyar and also all other valuable records of the properties of the Mutt and the Swamiyar after taking an inventory of the same and drawing up proper mahazar in that regard.
5. The plaintiffs along with plaint have also filed an application under Order 39 Rule 1 & 2 and under Section 151 of C.P.C. praying the very same relief of injunction as mentioned above. The said prayer has been contested by the defendants by filing Counter. After hearing the parties, the trial Court has granted the injunction as prayed for as mentioned above. The 11 defendants thereafter approached the Lower Appellate Court in MA No.84/2012. The Lower Appellate Court while modifying the order passed by the trial Court has confirmed the second part of the order passed by the trial Court namely the order of temporary injunction granted against the defendant Nos.1 to 7 and 9 under the above order of the trial Court restraining the defendants, their men, agents or any other persons claiming through or under them from appointing Uttaradhikari to Shri. Jangama Samsthan Mutt, Gurupur without concurrence of the Advisory Committee members mentioned under the last Will of Shri. Shivaprakash Swamiyar dated 10.11.2011 till the disposal of the suit is confirmed., whereas the order restraining the defendants temporarily from interfering with the management, administration and control of the Mutt by the Advisory Committee as per the Will dated 10.11.2011 and movable and immovable assets of Shri. Jangama Samsthana Mutt, Gurupur and the personal assets possessed and enjoyed by Lingaikya Shri. Ma. Ni. Pra. Shivaprakash Swamiyar including the cultivation 12 and collection of the income from all the properties and the management of all the educational institutions run by the Mutt and the S.N.E. Society (R) pending disposal of the suit is set aside by the Lower Appellate Court. Being aggrieved by the said order, the plaintiffs and defendants have approached this Court. The plaintiffs are aggrieved by the order of setting aside the injunction order passed against the defendants, whereas the defendants have approached this Court being aggrieved by the confirmation of the order restraining the appointment of the Uttaradhikari to Shri.Jangama Samsthan Mutt.
6. Though the petitions are posted for preliminary hearing, with the consent of both the parties, the petitions itself are taken for final disposal.
7. Heard Sri Jayakumar S.Patil, learned Senior Counsel for plaintiffs and Sri S.M.Chandrashekhar, learned Senior Counsel for the defendants.
8. It is seen that the case arose out of a Will said to have been executed by the Pontiff of the afore 13 said Sri. Jangama Samsthan Mutt dated 10.11.2011. According to the Will of the late Pontiff who had died by Kidney failure and Cardiac arrest on 26.04.2012 at K.M.C. Hospital Mangalore while undertaking dialysis, the Swamiji has appointed an Advisory Committee consisting of 6 members as representatives heads from Veerashiava Community and General Public all being the disciples of the Mutt, for the purpose of appointment of Junior Swamiji and for the managerial activities of the Mutt and its institutions in the appointment of the successor Swamiji and he assuming the charge as Niranjana Charaplattadhikara of the Mutt. According to them, the entire property both movable or immovable and other assets of Mutt are to be taken care of by the aforesaid Advisory Committee headed by plaintiff No.1. According to the plaint, plaintiff No.1 has been given other responsibilities of convening the meetings of all the disciples of the said mutt and thereafter nominate the new Swamiji of the Mutt. However, the defendants have resisted the claims of the plaintiffs on the ground that the Swamiji did not 14 have the right to execute the Will mentioning the successor to the Mutt, since the successor to the Mutt cannot be the subject matter of the Will, which can be done only through well established customs of the mutt, even if he is to be appointed by the Swamiji himself. It is their case that the Swamiji is the only person who could have appointed the successor during his life time. It is the contention of the defendants that the plaintiffs do not belong to the Veerashiva Community to which the mutt belongs. Therefore, the plaintiffs could not illegally appoint the Junior Swamiji in the absence of the devotees who admittedly belong to the community to which the mutt belongs. Under the circumstances, they have contended that the orders passed by the trial Court as confirmed by the Lower Appellate Court is bad in law.
9. Sri. Chandrashekar, learned Senior Counsel for the defendants strenuously submits that from the date of the death of Swamij namely from 26.04.2012 the mutt has been left with no head and therefore the usual rituals of the mutt are in a stand still which is a denial 15 to the large number of the members of the community and the disciples of the mutt. It is also submitted that, right to succession could not have been willed away and the plaintiffs could not have been legally appointed as members of the Advisory Committee. Hence, he submits that, the order of the trial Court as confirmed by the Lower Appellate Court is liable to be set aside.
10. Learned Senior Counsel has relied upon the rulings reported in
i) AIR 1962 PATNA 481 (V 49 C 130) "RAM NATH DAS V. RAM NAGINA CHOUBE AND OTHERS"
(C) Succession ACT (1925) S. 2 (h)-Will-
Requirements- Document called will not disposing of properties but only appointing successor to office (Mahant of Matha)- Document does not constitute Will.
"The condition which must be satisfied before a document can be called a Will is that there must be some disposition of property. The document must contain a declaration of the intention of the testator not with respect to anything but with respect to his property. If there is a declaration of intention with respect 16 to his successor, it cannot constitute a will, as defined by the Succession Act. When, therefore, a document though called a will does not deal with any property, it will not be given effect to as a will, although it may operate to effectuate any other purpose provided therein.
The operative portion of a document alleged to be a Will executed by a Mahant of a math was as fallows: "After the death of me, the executant R, the disciple of me, the executant, will be the Mahant of the aforesaid kuties in my place. He will enter into possession of the entire property and assets of the kuties in place of me the executant. He will manage the affairs in the same manner as they are done during the time of me, the executant, and he will improve the property and the kuties so that puja path, Rag Bhog of Shri Ramjee and all other gods, and the sadhus and mahatmas may continue nicely. Whatever rights I, the executant have will pass on to R. He will get his name registered wherever necessary, in place of the name of me, I the executant, appoint R aforesaid as executor".17
Held that the language of the document was quite explicit and unambiguous. The operative portion of the document manifestly showed that there was no disposition of properties of the Math by the document. All that the testator purported to do by the document was to provide for his successor. The document, therefore, could not constitute a Will, strictly speaking".
ii) AIR 1974 SUPEME COURT 199 ("SRI
MAHALINGA THAMBIRAN
SWAMIGAL V. HIS HOLINESS SRI LA
SRI KASIVASI ARULNANDI
TAMBIRAN SWAMIGAL").
"18. The definition of "Will" in Section 2(h) if the Indian Succession Act, 1925, would show that it is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. By exercising the power of nomination the head of a Mutt is not disposing of any property belonging to him which is to take effect after his death. He is simply exercising a power to which he is entitled to under the usage of the institution. A nomination makes the nominee stand in a peculiar relationship with the head of the 18 Mutt and the Hindu community and that relationship invests him with the capacity to succeed to the headship of the Mutt. A nomination takes effect in presenti. It is the declaration of the intention of the head of the Mutt for the time being as to who his successor would be; therefore, although it is said that the usage in the Mutt is that the power of nomination is exercisable by Will, it is really a misnomer, because a Will in the genuine sense of the term can have no effect in presenti. There can be no dispute that a 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 when made by deed or word of mouth, we find it difficult to say that when a nomination is made by will, it does not take effect in presenti, and that it can be cancelled by executing another Will revoking the former Will. Such at any rate, does not seem to be the concept of nomination in the law relating to Hindu Religious Endowments.
A nomination need not partake of the character of a Will in the matter of its 19 revocability, merely because the power of nomination is exercised by a Will. In other words, the nature or character of nomination does not depend upon the type of document under which 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 non-testamentary instrument. A document can be partly testamentary and partly non-testamentary. It Ram Nath v. Ram Nagina AIR 1962 Pat 481 the head of the Mutt for the time being exercised his power of nomination more or less in terms of Exhibit B- 1here, 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 head of the Mutt. The Court held that so far as the nomination and devolution of the properties of the Mutt were concerned, the Will operated as a non-
testamentary instrument. The Court said that the condition which must be satisfied before a document can be called a Will is that there 20 must be some disposition of property and that the document must contain a declaration of the intention of the testator not with respect to any thing but with respect to his property. According to the Court , if there is a declaration of intention with respect to his successor, it cannot constitute a Will even if the document were to state that the nominee will become the owner of the properties of the Mutt after the death of the executant of the Will as that is only a statement of the legal consequence of the nomination".
11. Sri. Jayakumar. S.Patil, learned Senior Counsel for the plaintiffs on the other hand resisted the prayer of the defendants and prayed to quash the order passed by the Lower Appellate Court insofar as the modification of the order of the trial Court is concerned.
12. I have carefully gone through the orders passed by the Lower Appellate Court and the trial Court. I have also gone through the averments made in the Will of Late Swamiji dated 10.11.2011 which has been culled out in the order of the Lower Appellate Court. The Lower Appellate Court after carefully 21 scrutinizing the Will dated 10.11.2011 has come to the conclusion that the Swamiji has not at all given the control of administration of the properties of the mutt and therefore, the trial Court has erred in granting an order of injunction in favour of the plaintiffs and accordingly, the order of injunction passed against the defendants has been set aside by the Lower Appellate Court. However, the Lower Appellate Court has held that the right to nominate an Uttaradhikhari to Jangama Samsthana Mutt shall be exercised with the concurrence of the Advisory Committee members.
13. In view of the situation narrated both in the plaint and in affidavits accompanying IA, the interpretation of the Will by both the Courts below cannot be termed as either perverse or illegal. The orders passed by the Lower Appellate Court after considering the materials on record are fully in accordance with the well settled principles of law and therefore the order of the Lower Appellate Court cannot be found fault with at this stage. However, it is seen that from the date of demise of the Swamiji, the mutt is 22 not having no head. The Swamiji died on 26.04.2012 and since then there is no Uttaradhikari to the said Mutt.
14. Sri. Chandrashekar, learned Senior Counsel submits that, 2nd petitioner- Sri Kiran Kumar now named as Sri Rudramuni Mahaswamyji has been selected by them as Uttaradhikari to the said mutt. However, in view of the interim order passed by the Court below, he is not able to take charge and that no coronation has taken place.
15. Admittedly, the plaintiffs are not belonging to Veerashiava Community. Though they submit that, they are the disciples of the said Mutt, ultimately its community members are the rightful persons to appoint the Uttaradhikari to the mutt. In that view of the matter, despite the fact that the order of injunction is not found fault with by this Court, it is just and necessary in the interest of the Mutt and their devotees that the Uttaradhikari is annointed immediately. Therefore, the trial Court is requested to consider the 23 possibility of appointment of the Uttaradhikari with the co-operation of both the plaintiffs and defendants and other interested parties and it is hoped that such an exercise is taken up by the trial Court immediately on receipt of copy of the order of this Court.
16. Writ petitions stand disposed of in the above terms.
Sd/-
JUDGE KSR