Religious and charitable endowments

Submitted by
Mithelesh DK
B.A.L.L.B (Hons) Batch 2013-18 (Reg no: BA0130038)
Under the supervision and guidance of
Miss. Sanita Maria Stephen
Assistant Professor of law
THE TAMILNADU NATIONAL LAW SCHOOL
Navalurkuttapattu, Trichy.

LIST OF ABBREVIATIONS:
1

Section

Ss

Sub section

edt

Edition

AIR

All India Records

SC

Supreme Court

SCC

Supreme Court Cases

Mys

Mysore

Mad

Madras

Cal

Calcutta

MWN

Madras Weekly Notes

ILR

Indian Law Review

Pat

Patna

Bom

Bombay

HC

High Court

Kar

Karnataka

Nag

Nagpur

Lah

Lahore

MLJ

Madras Law Journal

BLR

Bombay Law Review

CWN

Calcutta Weekly Notes

MHC

Madras High Court

Mit

Mitakshara

TPA

Transfer or Property Act

ICA

Indian Contracts Act

TABLE OF CONTENTS:
2

CHAPTER I
1. SYNOPSIS4
CHAPTER II
2. Brief Analysis....6
CHAPTER III
3. Religious, Charitable Endowments & Dedication10
CHAPTER IV
4. The Administration and Legal Position...
15
5. Conclusion..24

Chapter 1 - Synopsis
3

Introduction:
First of all Endowments means, properties set apart or given as a gift to particular deity or to
some religious institutions like temples, which is useful for public in general or public in section.
It even includes the welfare and beneficial objects done in favor of mankind. Endowments are
mainly gifted to the fields of education, health, social welfare including old age homes;
orphanages etc., the practice of these endowments are mainly due to the religious beliefs of
attaining moksha after death. Moreover it is done to nullify the past sins done in the previous
births.

Significance of study:
From my aspect I think acquiring knowledge about religious endowments and charities would
pave way for the people to know the uses of endowments for which government has provided a
separate act and provisions. We can also come to know about the managing authority of the
endowments and managing scheme. And also the norms of endowments done by various trusts
are learnt. Even the process of endowing are given equal importance as compared with will of
the properties.

Research methodology:
This project research work is completely based on the methodology of doctrinal research work.
Thereby research work is done by collecting datas from books, journals, web articles, legal
Wikipedia etc.
The Citation method used is MLA ( Modern Language Association)

Objective of study:
1, To study the provisions relating to religious and charitable endowments in Hindu law.
2, To know about various endowing authorities and ways and limitation of endowments.
4

Scope of study:
The area of study is in regard with provisions made under Hindu law for the sake of religious
endowments and charities. To attain a wider knowledge about this project matter The hindu
religious and endowment act is studied.
Tentative chapterisation:
1.
2.
3.
4.
5.

Introduction
Historical significance of religious endowments
Specific emphasis on the requisites of a valid endowments
Kinds or Types of endowments.
Powers to managing authority and managing scheme.
a. Position and powers of shebait and mahant.
6. Conclusion.

Review of literature:
Hindu law by Sir Dinshaw Fardunji Mulla clearly gives the meaning and historical signifinace of
religious and charitable endowments. This book completely the full maintains schemes of the
endowments. This book also explains the roles of shebait and mahant. And also the book
elucidates the requisites for valid endowment.
Moreover I also referred Professor Maynes Hindu law which also clearly tells this subject matter
in detail.I also referred web articles in www.legalservices.com about the validity hindu religious
and charitable endowments. And also www.wikipedia.com

Chapter 2 Brief Analysis

Introduction

A Hindu who is of sound mind, and not a minor, may dispose of his property by gift or by will
for religious and charitable purposes, such as the establishment and worship of an idol 1, feeding
Brahmans and the poor, performance of religious ceremonies like Shraddha, durga puja and
Lakshmi puja, and the endowments of a university or an hospital2. A list of what conduces to
religious merit in hindu law can be exhaustive. However when any purpose is claimed to be valid
one for a perpetual dedication on the ground of religious merit, though lacking in public benefit,
it must be shown to have a shastric basis 3. The heads of religious purposes determined by belief
in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public
policy and the needs of modern society.
The English law relating to superstitious uses does not apply to Hindu religious endowments,
thus, a gift in favor of an idol or for the performance of worship of a deity is valid according to
the Hindu laws are concerned though, it may not be valid according to the English law.
Dispositions for religious purposes are highly favoured by Hindu law and the leaning of the
courts also is in the same direction. Dedication of property by a Hindu to a deity is not only
lawful, but also commendable in a high degree from the Hindu part of law.
In case of a trust setup an akhara, it cannot be said that there was a dedication for religious or
charitable purposes, even though two idol and tawsir were installed there to attract wrestlers of
both the Hindu and the Muslim community. Distinction has been drawn between cases where the
object of the dedication was the promotion of games and sports as part of education and cases
where the object was the promotion of games or sports simplicitor. The former only has been
upheld on the ground that the object was to promote education4.

1 Bhuati Nath V. Ram Lal, (1910) 37 Cal 128

2 Fanindra V. Adm Gen of Bengal , (1901) 6 CWN 321

3 Reference may be made to the decision of the SC in Nagu Reddiar V. Banu Reddiar AIR 1978 SC 1174
4 Ramchandra V. Shree Mahadoji AIR 1970 SC 458
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Endowment How created;

No writing is necessary to create an endowment, except where the endowment is created by a
will, in which case, the will must be in writing and attested by at least two witnesses, if the case
is governed by Sec 57 of Indian Succession Act, 1925

The Historical Significance:

It is certain that temples and Mutts did not exist in the Vedic period. In the Sutra period also
mutts did not exist, though it seems that temples in some form existed. Gautama-Dharmasutra
mentions a temple of God at more than one place, but we do not know what type of temple that
existed and which were the deities that Hindus worshipped then.
It is not easy to say when exactly idol worship came into existence. It is certain that it did not
exist in the vedic period. The Hindus have been worshipping Pouranic gods. The age of the
Pourannas is uncertain5. Between 4th century and 8th century A.D., the worship of the pouranic
gods became very popular. The Gupta Emperors were the patrons of Pouranic faith. The idea of
trinity of God- Brahma as God of creation, Vishnu as God of preservation and Siva as the God of
destruction is a Pouranic concept.
With the emergence of idol worship, there came to existence and dedication of property for the
construction and maintenance of temples, mutts and construction of idols. From this time onward
Hindus have been dedicating property for religious and charitable purpose. This has been mainly
under two heads, Ista and Purta. The former indicates the vedic sacrifices and rites associated
with such sacrifices, while the latter stands for all other religions and charitable acts and
purposes unconnected with the vedic sacrifices. The ista-purta have been considered as means
for going to heaven. The istha works as enumerated by Pandit Pran Nath Saraswati in his work
on Endowments are- (a) Vedic Sacrifices, (b) gift offered to priests at the vedic sacrifice, (c)

5 The pouranas are said to be eighteen in no. and are attributed to sage Vyasa. Most of them seem to be of the post-Buddhistic
compilat ions. The pouranas are a class of Hindu epic literature. They deal with various matters such as
exploits of gods, sages and kings how various Avatars of Vishnu came of rites of worshipping gods and goddesses
by praying, fasting, votive offering and pilramages, etc of genealogies and cosmogony .

preserving the Vedas, (d) religious austerity, (e) rectitude, (f) Vaiswaradeva sacrifices, (g)
Hospitality. The Purta works signify works of Public utility such as building tanks, wells, groves,
the gift of food, dharmashalas, schools, asylums, supplying drinking water, relief for sick, gift for
Promotion of education and knowledge, temples and processions of deities, etc. It is evident that
no clear cut distinction was made between religious and charitable acts. Hospitality was an
Ishtha work and the construction of temples was a purta work.

Ishta and Purta:

Gift for religious and charitable purposes were impelled by the desire to acquire religious merit.
They fall into two provisions, Ishta and Purta; the former meant sacrifices and sacrificial gifts
and the later meant charities. The former led to heaven and the latter led to moksha or
emancipation; charity was thus placed on a higher footing than religious and sacrifices 6( ishta )
and perform works of charity ( purta ) with faith; for offerings and charitable works made with
faith and with lawfully earned money procure endless rewards. Let him always practice,
according to his ability with a cheerful heart, the duty of liberality both by sacrifices and
charitable works if he finds a worthy recipient for his gifts7.

Public and private endowments:

Religious endowments are of two kinds, public and private. In a public endowment, the
dedication is for the use or benefit of the public at large or a specified class 8. But when the
property is set apart for the worship of a family god, in which the public are not interested, the
endowment is a private one. It is a question of fact whether a temple is a private or a public one.
The extent of properties belonging to the temple, the course of conduct of the devotees, the
6 Yama says: Heaven is attained by Ishta; Purta, one enjoys final emancipation.
7 Manu ,IV,226-227
8 Kannika parameswari V Educational Instituions 1990 1 MLJ 293;Bihar State Board of Religious Trust V. Ramsubaran Das
1997 HLR 475 SC.

supervision exercised by the founder and his descendants whether the rents and profits are
exclusively utilized for the temple for a long period are relevant factors to be taken into
consideration whether a temple is a public one or a private one, as also public visiting the temple
for darshan and worship, appearance of the temple, association of members of public with the
management and earlier statements or admission of parties. The mere fact that the Hindu
worshippers are freely admitted into the temples does not prove that the temple is public.
Installation of idol permanently on a pedestal and fact that the temple constructed on the ground
separate from the residential quarters are conclusive proof of dedication to public. However from
a long course of user by the public it would be reasonable to infer that the user was of a right. In
the absence of a document long user is the material factor in inferring dedication to the public.
The sites of the temples is also one of the factors to be taken into consideration in deciding
whether the endowment public or private. Where a temple is constructed in government site with
contribution from public, and where contribution was paid to HR and CE board and no assertion
that the temple was private previously made by the temple is a public temple and not a private
temple.
Merely because the festivals are celebrated or sadhus and other persons are visiting the temple
are given food and shelter or that the public are permitted to visit the temple it is not indicative of
the temple being a public temple9. In south India except Kerala state that as that state comprised
mostly of the territory of the erstwhile state of Travancore where the existence of private temples
was recognized.

Chapter 3 Religious, Charitable Endowments and Dedication

9 AIR 1970 SC 2025; Dhanewar Buwa V. Charity Commr AIR 1967 SC 871
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Religious Endowments:
Gifts for installation, consecration, worship and service of idols and gifts to idols already
installed and consecrated10, gifts for the building and renovation of temples, for the processions
of idols and their vehicles and for religious festivals, in other words, gifts to religious institutions
or for religious purposes of every kind are valid religious endowments. A permanent image of a
deity is not necessary before a valid gift to it can be made under hindu law 11. Where dedication
did not specify to particular idol but stated that the dedication was to Thakurji Maharaj, it was
held that there was no valid dedication as the idol could not be identified. Even a property
dedicated to an idol and idol is destroyed or mutilated, the endowment will not be affected in any
way. A new Bhajana Mattam could be created and pujas could be made. if god is omnipresent, he
is as much in the image elsewhere. It is also recognized that image worship is a lower form of
worship devised as suitable to be the competency of worshippers in particular grade. Raising a
tomb on the remains of ancestor, an ordinary person is not recognized as religious in nature. The
person who contends that it is religious practice shall prove it. But when the body is cremated
and then a memorial is raised for performing Sraddha ceremony and conducting periodical
worship, for this practice may not offend the hindu sentiment which does not ordinarily
recognize entombling the remains of the dead. A place of worship will not cease to be religious
because of its being in the memory of the person.

Maths:
Maths are in the main religious institutions. The primary purpose is maintenance of a competent
line of religious teachers for the advancement of religion and piety, for the promotion of religious
knowledge, the imparting of spiritual instruction to the disciples and followers of the math and
the maintenance of the doctrines of particular schools of religion or philosophy. Though there are
idols connected to with the maths, their worship is considered is quite a secondary matter. The
10 Shibessourie Debia V. Mothooroo Nath 1869 13 MIA 270
11 Purna Chandra V. Kalipada Roy 1942 46 CWN 477
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worship is primarily the concern of head of the institution; the public are generally admitted at
the time of worship to see the saint or the guru in his prayers to his Ishta Devata oer the presiding
deity to the math but the plac of worship does not thereby become a place to which the public
can claim admissions as of right. In addition to religious instruction, other charitable purposes
are also served by these institutions, some of those maths being more charitable than religious 12.
The question whether property is to be given to the head of math for his personal benefit has to
be decided either from the terms of grant or from the circumstances.
An inference can also be drawn from usage and customs of the institutions, or from the mode in
which property has been dealt with as also other established circumstances. In the debuttor e
central part of institution is the idol whereas in a math it is an ascetic or a religious teacher. An
institution being originally a debuttor cannot be converted or treated as neither a math nor a math
to a temple. Each category continues to maintain its distinctive characteristics. The beginning of
an institution as Samadhi will not have much bearing in deciding the question whether the
institution is a math or a temple. Each category continues to maintain its distinctive
characteristics.13

Charitable Endowments:
Under Charitable endowments are included all the endowments recognized under Hindu
Law except the Debutter and Math. A Hindu can make a gift for the ishta and the purta. The
Usual charitable gift or bequest for charitable purposes is the institution of the dharamshala,
annastrams, Sadavarts, for the establishment or maintenance of educational and medical
Institution, for construction and maintenance of source of supply of water, such as tanks and
wells, bathing ghats, etc. A Hindu can create a charitable trust for any of these purposes. He may
also dedicate property for any of these purposes and create an endowment. Such dedications are
made by the usual ceremony of sankalpa and utsarga, though as has been pointed out earlier that
12 Vidyapurna Tirtha Swami V. Vidyanidhi Tirthaswami 1904 27 Mad 435
13 Ramkishore Das Goswamy V. Anatha Ram 1970 36 Cut LT 229
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no particular ceremonies are obligatory. It will be very interesting to know in whose name the
Property actually vests when a dedication is made for a tank, well, grove or dharmashala. When
dedication to tanks and trees is made, private ownership ceases, but the question of the property
Vesting in a corporate body or institution does not arise. Nor does the question of administration
such property arise.

Bequest to Dharma:
It has frequently been held that a gift or bequest to Dharma or Dharama is void for vagueness
and uncertainty. In wilsons dictionary the term Dharma is defined as law virtue, legal or moral
duty. The reasons for holding such gifts or bequests to be void were examined by the privy
council in Runchordas Vandrawandas V Parvatibhat14 and that judgment of Lord Eldon in
Morice V Bishop of Durham was followed: as it is a maxim that the execution of a trust shall be
under that control of that the administration of it can be reviewed by the court, or if the trustee
dies the court itself can execute the trust a trust therefore which in case of mal-administration
could be reformed and a due administration directed, and then, unless the subject and objects can
be ascertained upon principles familiar in other cases, it must be decided that the court can
neither reform mal-administration nor direct a due administration15.
Dharama in Sanskrit means moral law of right conduct; dharman in tamil comprises something
more; it connotes a gift to some object of charity or for a pious purpose. Subramania Ayyar, J, in
parthasarathy pillai V Thiruvengada Pillai16 has pinted out that the word dharma when used in
connection with gifts of property by a hindu has a perfectly well-settled meaning and denotes
objects indicated by the terms ishta and purta donations. The word is compendious term
referring to certain classes of pious gifts and is not a mere vague or uncertain expression.

Dedication:
14 1899 26 IA 71
15 1804 9 Ves 399
16 1907 30 Mad 340,343.
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A dedication of property, whether movable or immovable, for a religious or charitable purposes,

may, according to hindu law, be validly made verbally. Even in the absence of a document and
ceremonies such as Sankalpa or Samarpan, dedication of a property as a question of fact may be
established by other evidence. No writing is necessary to create an endowment except where the
endowment is created by will, in which case the will must be in writing and attested by at least
two witnesses if the case is governed by the Indian Succession Act, sec 57. A dedication made
may be made by gift or by a bequest or by a ceremonial or relinquishment. But a mere credit
entry without setting aside and appropriating the sum credited is insufficient to constitute an
endowment under the hindu law. A dedication of land for a public temple is not a gift requiring a
registered deed and is not governed by Sec 123of transfer of property act. But property may be
transferred by way of gift to the trustee or trustees of the temple. Such being transfer, being one
made to a living person, must however comply with the requirements of this section .
No Trust Required
In order to create a valid dedication a trust is not required. An appropriation of property for
specific religious purposes or charitable purposes or charitable purposes ia all that is necessary
for a valid dedication. If the property is a tarwad and future income is allowed to spent, there is
valid trust and it cannot be terminated by non-performance of services. In vidyavaruthi V
Balusami Ayyar, the privy council observed that there is no trust required for dedication
Dedication may be absolute or partial:
A dedication of property for religious or charitable purposes may be either absolute or partial 17.in
the former case the property is given out and out to an idol or to a religious or charitable
institution and the donor divests himself of all beneficial interest in the property comprised in the
endowment18. Where the dedication is partial, charge is created on the property or there is a trust
to receive and apply a portion of the income for the religious or charitable purpose. Where record
show the property in the personal names, in the absence of a document showing the dedication it

17 Iswari Bhubaneshwari V. Brojo Nath Dey 1937 64 IA 203,211

18 Jagadindra Nath V. Hemanta Kumari 1904 31 IA 203
13

is partial dedication with charge in favour of the charity19. In such case , the property descends
and is alienable and partible in the ordinary way, the only difference being that it passes with the
charge upon it. When a deed was in favour of a person as a manager of a particular temple,
without mentioning the quantity of the expenditure for specific purposes and when the income
was found very meagre and there was no indication as to how any surplus has to be utilized, it
was held that it was a complete dedication to the temple.the dedication is not invalidated by
reason of the fact that the members of the donors family are nominated trustees and given
reasonable remuneration out of the endowment and out of the endowment and also rights of
residence in the dedicated property.
Proof of dedication:
Very strong and clear evidence of an endowment is required and the onus lies upon a party who
sets up a dedication to prove that property has been inalienably conferred upon an idol to sustain
worship or upon a religious right or charitable institution 20. To constitute a trust created or
existing for a public purpose of a charitable or religious nature, the author or authors of the trust
must be ascertained and the intention to create a trust must be indicated by words or acts with
reasonable certainity. Moreover the purpose of the trust, the trust properties and the beneficiaries
must be indicated so as to enable court to administer the trust if required. Where there is no
instrument of gift or trust, the mere fact that the rents and profits of immovable property have
been utilized for the support of an idol or religious or charitable institution is insufficient to
establish an endowment or a dedication.
In cases where there is no real dedication of property but only an attempt to create a perpetuity in
favour of ones own descendants, gifts to the idol is void 21. Where however the trust has been
effectually created, the fact that the trustees or other persons concerned have failed to carry out
the conditions of the trust will not invalidate it and neither the founder nor his heirs can resume

19 Gouri Shankar V Thakur Das AIR 1972 JK 53

20 Parma Nandan V. Nihalchand 65 IA 252: AIR 1938 PC 195
21 Promotho Dosee V. Radhika Persaud 1875 14 BLR 175
14

it22. The beneficial ownership in the trust properties cannot in such circumstances revert to the
founder or his family.

Chapter 4 The Administration and Law Aspects

The Administration of endowed property:
Female Manager:
A female can be the manager of a religious endowment though she cannot perform spiritual
functions23. It has been held that a Hindu female is not incompetent by reason of her sex to
succeed to the office of archaka or worshipper in a temple and to emoluments attached thereto;
for, she may appoint a qualified deputy to officiate in her stead; in case the female appointed as
shebait is a minor, or her legal guardian is competent to accept a gift on behalf of the idol 24.
Where a widow succeeds to shebaitship she has a widows estate in the same. Where a female
heir succeeds to shebaiti, her interest would be a limited estate unless she lived till after the
Hindu Succession Act of 1956. Any appointment made by her as limited owner ceases on her
death (before the Act 1956) unless there is any specific extra powers conferred on her as a coheir.

Position of Shebait, manager or dharmakarta:

22 Gardhan Das V. Chunnilal 1908 30 ALL 111,114

23 Keshavabhat V Bhagirathibai 1866 3 Bom HC 75
24 Amodelal Burman V. Girija Shankar AIR 1944 Cal 157
15

The manager of a temple is by virtue of his office the administrator of the properties attached to
it , as regards which he is in position of the trustee. As regards the service of the temple and the
duties appertaining to it, he is rather in the position of the holder of an office or dignity25.
The position of dharmakarta of a public temple is not that of shebait or pujari of a shrine or of the
head of a math. Those functionaries have a much higher right with larger powers of disposal
administration and they have a personal interest of a beneficial character. The dharmakarta is
literally no more than the manager of a charity and his rights are never in a higher legal category
than that of a mere trustee26. There is considerable difference between the position and functions
of tha dharmakarta of a religious endowment in the south on the one hand and pujari archakas,
mahants, head of the maths and shebaits in the north on the order. Dharmakarta is a mere
manager. His liability will be that of a trustee but he holds an office. It may be held individually,
collectively or by a family or by a number of families. Dharmakarta services with reference to a
temple and its properties are just a bundle of duties and obligations which he holds as an
honorary office. A pious Hindu may accept the trusteeship without material benefit though for its
religious benefits. Prestige and honours are not perquisites attached as such to the office; they are
mere marks of respect commonly shown on visiting dignitaries27.
The shebait is one who serves and sustains the deity whose image is installed in the shrine. The
duties and privilges of a shebait are primarily those of one who fills a sacred office 28. Shebaitship
in its true conception therefore involves two ideas, the ministrant of deity and its manager, it is
not a bare office, but an office together with certain rights attached to it. A shebaiti interest or
office is heritable. Where one dedicates his estate and appoints himself as a shebait it was held
that the property ceases to be heritable by his heirs. Shebaits and managers have different legal
incidents. Shebait has personal interest of beneficial character in the endowed property and rights
to the office property. A manager is only an administrator with bare management and his right to
25 Ramanathan Chetti V. Murugappan Chetti
26 Srinivasaachariar V. Evalappa Mudaliar 1922 49 IA 237,250
27 Manathu Nainatha Desikar V. Sundaralingam AIR 1971 Mad 1
28 Nagendra Palit V. Robindra 1925 53 Cal 132,145
16

the office is not property. A shebait so long as he continues to be so cannot claim adverse
possession against the idol. Where the shebait executed a document as power of attorney holder
of the deity it would not bind the deity but bind the shebait in his individual capacity. Changing
af sect to another sect which is also a hindu sect by a shebait or marfatdar is no disqualification
to act as shebait or marfatdar, in the absence of any custom prohibiting change of sect29.
The position of a shebait, dharmakarta or manager of a temple or other religious institutuion
towards debutter property is not similar to that in England of a trustee towards the trust property;
it is only that certain duties have to be performed by him which are analogous to those of
trustees. They have not the legal property which is vested in the deity of the institution. Each of
them has only the title of manager of a religious endowment and is as such entitled, subject to
usage , to the custody of the idol and its properties. The hereditary trustees of a temple have
generally only a bare right to administer the secular estate of the institution, or endowment. They
do not have any proprietary right of interest either in the corpus or usufruct of the estate. The
position of hereditary is equivalent to a dharmakarta.

Right to offerings:
The right of a shebait or of a priest to offerings made to an idol naturally depends upon the nature
of offerings in the absence of a custom or an express declaration by the founder to the contrary.
Where they are of a permanent character, they ordinarily belong to the temple. Where there are
perishable they may be appropriated by the priest or other persons entitled to it by custom. Right
to wrship does not carry right to receive offerings. A suit for division does not lie. But the right
of worship coupled with right to receive offerings is property and a suit against other joint
owners for division of such offerings lies30.

Borrowings and alienations for necessity:

The possession and management of the propertyof a religious endowment belong to a manager,
dharamakarta or shebait and this carries with it a right to bring whatever suits are necessary for
29 Raghunath Thakur V. Shyam Sundar AIR 1961 Ori 157
30 Muthu Krishnan V. Palani 1969 1 MLJ 129
17

the protection of the property. He is bound to do whatever is necessary for the benefit or
preservation of properties of idol. The limit set to his power of disposition is to maintain and
preserve the by proper management the endowment or religious institution. The nature and
extent of the power of alienation for necessity is laid down in Hanooman Persaud V Mussammat
Babooee31 the principle expounded by lord justice Knight Bruce in that case apply not only to a
mother acting a guardian of the property of her minor son and the Hindu widow and to the karta
of the HUF but to the managers of endowments as well. It is, therefore competent for the
manager, shebait or dharamakarta to incur debuts and borrow money for the proper expenses of
keeping up the religious worship, repairing the temples or other possessions of the idols,
instituting or defending hostile litigious attacks and to prevent the endowed properties from
being brought to sale in execution of decrees binding upon the institution. The power however to
incur debts must be measured by the existing necessity for incurring them. The authority of the
manager of an idols estate is thus analogus to that of the manager for an infant heir whose power
to alienate can only be exercised rightly in a case of need or for the benefit of the estate. The
lender to a math is bound to enquire into the necessity of the math before he lends money.
A debutter estate may therefore be mortgaged to secure repayment of money borrowed and
applied to prevent its extinction by sequestration. For an absolute alienation of debutter property,
there must it would seem, be an imperative necessity constraining the manager to make it.

Benefit of the Estate:

No indication is to be found in any of the cases to what is in this connection the precise nature of
the things to be included under the description benefit of the estate32. The preservation however
of the estate from extinction the defence against hostile litigation affecting it, the protection of it
or portions from injury or deterioration by inundation, these and such like things are held to be
benefits. But a manager would not be justified in selling debutter land for the purpose of
investing the price of it so as to bring in more income 33. In the case of public religious and
31 1856 6 MIA 393
32 Hunnoomanpersuads case 1856 6 MIA 393,394,395
33 Palanoappa chetty V. Devaskimony 1917 44 IA 147
18

charitable endowments it is submitted that benefit to the estate and necessity should mean one
and the same thing; to recognize benefit of the estate as a ground for supporting an alienation
of debutter property, apart from strict necessity, would be to enlarge the powers of shebaits or
Dharmakartas far too much and slowly to undermine the very foundation of the institution.

Permanent Leases Invalid:

It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of
unavoidable necessity for to fix the rent, though adequate at the time, in perpetuity in lieu of
giving the endowment the benefit of an augmentation of a variable rent from time to time would
be breach of duty on the part of the manager 34 and is not binding on the deity. In Palaniappa
chetty V Sreemath Deivasikamony35 , Lord Atkinson observed : three authorities have been cited
which establish that it is a breach of duty on part of a shebait, unless constrained thereto by
unavoidable necessity, to grant a lease in perpetuity of debutter lands at a fixed rent, however
adequate that rent may be at the time of granting, by reason of the fact that, by his means the
debutter estate is deprived of the chance it would have, if the rent were variable of deriving
benefit from the enhancement in value in the future of that land leased.

Obligation of Manager:
As the manager is subject to the obligation of a trustee, he should not however purchase any
property belonging to the endowment even though he pays an abundant price for it 36. For all
moneys expended in carrying out the obligations imposed upon him as trustee, all expenditure
incurred by him in defending his position as the shebait unsuccessfully assailed , he is entitled to
be reimbursed from the trust estate. This right of indemnity is incident to his position as trustee
and the liability in respect of that indemnity is a charge on the estate37.
34 Shibessourie Debi V. Mothoorraonath 1870 13 MIA 270,275
35 1917 44 IA 147, 155-156
36 Peary mohan Mukherjee V. Manohar Mukherjee
37 Peary mohan Mukherjee V. Narendranath.
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It is the duty of dharmakarta or manager or shebait to maintain the customary usages of the
institution and if he fails to do so, he is guilty of trust, and still more so, if he deliberately
attempts to effect a vital change of usage and make it binding on the worshippers by obtaining
the decree of a court to establish it38.
Liability to account -

A shebait, manager or dharmakarta is bound to keep true and correct

accounts of all moneys received and disbursed 39. Any negligence on the part of shebait in
maintaining accounts cannot lead to adverse inference against deity40.
A trustee or a shebait cannot delegate his authority, as fiduciary duties cannot be the subject of
delegation; but it is open to him to appoint a sub agent or manager of the property; such
appointment must only be as a means of carrying out of his own duties himself and not for the
purpose of delegating those duties by means of such appointment.

Position of Asthal and Head of a mathAs regards the class of institutions known as maths , particularly in South India, there have been
conflicting views as to whether the head of the math is a trustee 41 or a corporation sole. It is now
settled that he is neither the one nor the other; he is simply the manager of an institution with
wider powers those possessed by a dharmakarta, manager or trustee of a temple. Indeed he acts
in two distinct capacities; he is the spiritual head of the endowment, the shebait of the deity. He
is also the manager of the properties and temporal affairs. The interconnection of the two aspects
of the office council in Ram Prakash Das V Anand Das42 relating to an asthal and its mahant.

Limitation of Suits:
38 Sankaralinga Nada V. Rajeswari Dorai 1908 35 IA
39 Thackersey Dewraj V. Hurbhum Nursey 1884 8 Bom 432
40 Ram Das V. Shri Ram Lakshaman ILR 1943 ALL 845
41 Giyana Sambadham V. Kandasami 1887 Mad 375
42 1916 43 IA 73
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Special rules of limitation have now been enacted in respect of Suits for the recovery of
immovable and movable properties which have been alienated by the manager. Notwithstanding
that in law a manager of a religious or charitable institution is not an express trustee, for the
purpose of the Limitation Act the property comprised in a Hindu religious or charitable
endowments, is by section 10 of the Indian Limitation Act 1908 as amended by act 1 of 1929,
deemed to be property vested in trust for a specific purpose and manager is to be deemed the
trustee thereof. The result is that as against him and his legal representatives or his assigns, not
being assigns for valuable consideration a suit to follow the trust property or its proceeds or for
an account of such property or proceeds is not barred by a length of time.

To set aside Alienations:

A suit to set aside a transfer of property for value made by a manger of a religious or charitable
endowments is governed by Articles 134 A and 48 B of the limitation Act prescribing periods of
twelve and three years, according as the property is immovable or movable, from the time when
the transfer becomes known to the plaintiff. The articles relate to suits by persons interested in
the endowment to set aside alienation made by the manager43.

To recover property:
A suit by the manager of a religious or charitable endowment to recover possession of
immovable property comprised in the endowment which has been transferred, or of movable
property which has been sold, by a previous manager for a valuable consideration must be
brought within twelve years from the death, removal or resignation of the transferor or of the
seller under articles 134 B and 134 C of the Indian Limitation Act 44. Art 134 B would be apply to
a suit to recover possession of immovable property from alienee, even where there is an interval
of time between the death resignation of removal of the manager who effected the alienation in
question and the election or appointment of the subsequent manager45.
43 Chidambaranatha V. Nallasiva 1918 41 Mad 821
44 Ramsaroop V. Ramrachya 1945 24 Pat 208
45 Venkatasvera V Venkatesa ILR 1941 Mad 599 Fb
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Decrees against managers and heads:

A decree passed in a suit against a shebait, manager or dharmakarta, as representing an idol or
religious or charitable institutions is binding on his successors, provided it was passed without
any fraud or collusion. The reason is that the successors in office from a continuing
representation of the property of the idol or the math46 ,

Devolution of Managership:
The devolution of office of Shebait of an idol or of dharmakarta of a temple or manager of a
charitable endowment, upon the death or termination of office of the incumbent, depends upon
the term upon which it was created or the usage of each particular institution, where no express
deed of trust of foundation exists47. Where there is a failure of the line of succession to the office
of shebaitship prescribed by the founder, the shebaitship will not revert to the heirs of the
founder unless expressly stipulated. The vacancy can be supplied by court. Where the deed of
endowments provided that K shall be the manager and after his death his eldest son and this way
the only eldest son or daughters son only were to be the managers it was held that the line of
succession created by the founder was unknown to Hindu Law and succession of line is to be
held invalid.

Jurisdiction of Court:
The courts have jurisdiction to remove managers of public religious or charitable endowments
and to make them accountable for breaches of trust. There is however no hard and fast rule that
every manager of a shrine who has arrogated himself to the position of owner should be removed
from his trust; each case must be decided with reference to its circumstance. A person who has
been in de facto possession and management of the Astan and its properties for a long time
claiming to be its trustee under the decree of court (valid or invalid) has sufficient interest to
maintain proceedings for the warding off a cloud case by the dependents against the interests of
46 Prosunno Kumari V. Golab Chand 1875 2 IA 145
47 Greedharee V Nundo Kishore Marsh 1867 11 MIA 428
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the Astan. As courts have duty to see that the interest of the public trust are safeguarded will
allow that suit. The grounds for removing a shebait from his office may not be identical with
those upon which trustee would be removed. The close intermingling of duties and personal
interest which together make up the office of Shebait may well prevent the application of
analogy; but as part of office, it is indisputable that there are duties which must be performed that
the estate does need to be safeguarded and kept in proper custody; and if it be found that a man
in the exercise of his duties has put himself in a position in which the court thinks that the
obligations of his office can no longer be faithfully discharged by him, that is sufficient ground
for his removal. The true rule in such matters can be stated to be that if it is found by the court
that the functionary, in the exercise of his duties, has put himself in a position in which the court
thinks that the obligations of his office in connection with the endowment can no longer be
faithfully discharged without the danger to the endowments that is sufficient ground for his
removal, if need be, from both his offices (spiritually as well as secular). Where a trustee asserted
his own ownership of temple properties and supported his claim by concocted accounts, the
Privy Council held that it was not open on any sound principle of administration or of law to
continue such a person as a trustee. Where the properties in question belong to a math, the head
of the math is answerable for mal-administration as a trustee in a general sense, though he may
not be an express trustee in the English sense. Lacking the temple and going away in the part of a
poojari amounts to misconduct and disentitles him to hold the office48.

Legislature on religious or charitable purposes:

The ultimate decision on whether or not an endowment is religious or/and charitable rests not
with the settler but withthe legislature and the court. The definition of charitable and religious
endowments asgiven in the Rajasthan Public Trusts Act, 1950 may be taken as a model for the
legislatures understanding of these endowmwents,
Section 2(3) Charitable Endowments means all property given or endowed for the benefit of,
or used as of right by the community or any section thereof for the support or maintenance of
object of utility to the said community or section such as rest-houses, pathshalas, schools,

48 Muvji Kunwar ji V. Kunwarji Jetha AIR 1951 Kutch 62

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colleges, houses for feeding the poor and institutions for advancement of education, medical
relief and public health or other subjects of a like nature and includes institutions concerned.
Section 2(13) Religious Endowments or endowments means all property belonging to or given
or endowed for the support of a religious institution or given or endowed for the performance of
any service or charity connected therewith and includes the premises of the religious institution
as well as the idols, if any, installed therein and nay public charity associated with a festival or
observance of a religious character whether connected with a religious institution or not, but does
not include.
Section 2(15) of the Inco me Ta x Act, 1961 defines charitable purposes:Charitable purpose
includes relie f of the poor, education, medical relief and the advancement of any other object of
general public utility not involving the carrying on of any activity for profit. gifts of property
made as personal gifts to the trustee or hereditary trustee or working trustee of such institution or
to any service holder or other employee thereof.

Courts on Religious and Charitable purposes

In the following cases the court held the endowment to be for religious purposes under the Hindu
Law: for the worship of the family deity for the performance of the shradha of one s self and of
ones ancestors, for the propagation of Nama Dharma and continuance of Sarban Kirtan Dharma
for the shelter of sadhus, saints and religious mendicants.
In the following cases the object of the endowment was held not to be religious or charitable:
entombment of the settler and worship at his tomb. The Supreme Court held that the entombment
of ordinary individuals is not enjoined by the Hindu Shastras, nor does it enjoy wide recognition
as a religious practice of a substantial and large class of persons. But if the Samadhi is that of a
great saint who is deified and worshipped, it is a valid endowment.

Conclusion:
Studying this Religious and Charitable Endowments throws light on how people have been
dedicating their property in the name of Religion to Deities and Non Profitable Trusts. People
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have been doing this service to attain satisfactory Moksha after death. And from this project we
can get knowledge about the Administration, Uses, legal aspect of those endowed properties.
Though this is a minor subject matter it should not be left unlearned.

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