LexDR. K. S. PALANISAMI (DEAD) THROUGH LRS. versus HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM AND OTHERS
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[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
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