9911796707
TMI Blog1979 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... Math and promises to administer the properties of the Math more or less as a trustee. The Bhayats have certain rights against the Mahant. Their rights even appear, to the extent, to deposing a Mahant if he was not administering the properties properly. These and other several facts which would be narrated in this order had been taken from various documents which had been furnished before us at the time of hearing. The first of the documents which was placed before us is a decision of the High Court of Baroda in an appeal filed by the then Mahant against the State. It would appear that the Government of Baroda asked the Mahant for accounts since in their opinion it was a Public Trust. The High Court of Baroda held that the Math was not a Public Trust. It also held that the properties are of the Private owner-ship of the Math. 2. The second document placed before us was in respect of the agreement entered into between the Mahant who assumed the office in 1928 and the Bhayats. This document states that the Mahant Madhubharti Dhanbharathi nominated his successor Kalyanbharathi. Kalyanbharathi will perform, all the rights and duties as per the tradition in consultation with all the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner had also made an enquiry under s. 19 of the Bombay Public Trust Act 1950 to find out whether the institution was a Public Trust. A copy of their finding in application No. 74 of 1959 dt. 16th Aug., 1966 has also been furnished before us. The finding of the Dy. Charity Commissioner is that the assessee is not Public Trust. 7. It is in this fact we have to consider whether on the death of the Mahant any property passes. The Asstt. Controller was of opinion that the entire property of the Math passed on the death of the Mahant. We may mention here that there is no dispute regarding the valuation of the properties. The Asstt. Controller had relied on four reasons to hold that property passes. The first reason is that a will was made by the deceased on 14th April, 1958 and in that will he had maintained that the properties were his personal estates. (2) Even if it were to be held that the properties were not his personal estate the Mahant was like a Sthanam and on the basis of the Madras High Court decision in Sree Manvikra Raja Zamorin Raja of Kozhikode (1), the property passes. (3) The Mahant had entire control and change of the properties so he was having full disposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Court was whether the Mahant was the exclusive owner of the properties and whether it vested in him by the will of 20th Oct., 1928. The finding of the Court for this finding. In Para 15 the Court found, after examining the will dated 26th Feb.,1889and will 23rd Oct.,1928 by which the Mahant nominated the successors: "This will does not lend support to the defendant's plea that a Mahant is the sole owner of the properties pertaining to the math. It is no doubt stated in para 3 of the will that Dhanabharathi is to be the owner of the properties attached to the math after the testator's death, but he is also enjoined to do the work of the institution in accordance with the old custom. In para 8 of the will he is directed, after the testator's death, to assume full authority as Mahant and to act according to the tradition of the Math. These and other directions in the will point unmistakably to the conclusion that the Mahant is bound to manage the properties of the Math for the benefit of the institution and with the view to complete fulfilment of the purpose of religion. There is nowhere any mention that the Mahant can use the properties as he likes or that he can hold them ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are blended together in the rights of the Mahant." Of these rights, the right to manage, although property, is to be excluded for estate duty purpose by virtue of s.22. So what remains is his personal right, as any other Bhayat. 13. The rights of a Bhayat is made clear in the various wills and agreements between the Mahants and Bhayats which we have already referred. They are the rights to be maintained, right for the residence and maintenance of the residence in good repair etc., according to the tradition. These rights appear to be akin to the rights of a member of a Hindu undivided family owning impartible estate. These rights are property and it cannot be doubted that when a Bhayat dies there is cessor of interest. The right of a member in an impartible estate is dutiable is well supported by the decision of the Madras High Court in Mammad Koyi's (7) case At page 17 they observe "It has been held in Govindan vs. Kunhappa that the right of a junior member to maintenance from the income of the properties of the tarwad is an incident of co-properties of the tarwad. It has been held to be an assignable and transferable interest. Therefore it seems to me that such interest can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council also considered the question of the valuation of cessor of interest under s. 17(6) of the Ceylon act which is exactly in pari materia of s. 40 of our Act. At page 41, they observed, "It is clear then that two elements must coincide. There must be not only a cessor of interest in property: there must be also a benefit arising by such cessor. And further, the benefit must be capable of valuation by reference to the income of the property which the deceased had enjoyed. The brief exposition already given of the law of the Hindu undivided family is sufficient to show how inept is the language of the Ordinance to embrace the case of the death of a coparcener. Their Lordships are so fully in agreement with what was said by Gratiaen J. in the Supreme Court that they quote and adopt his words. He (the deceased) Merely had a right to be maintained by the karta to ensure a recognition of his future maintenance rights and also to obtain compensation for his earlier exclusion. I find it impossible to be conceived of a basis of valuation which, in relation to such an "interest" Would conform to the scheme prescribed by s.17(6). Nor do I think that, upon a cessor of that so-called intere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
