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From the SelectedWorks of Mubashshir Sarshar

2010

HINDU RELIGIOUS AND CHARITABLE


ENDOWMENTS
Mubashshir Sarshar, National Law University, Delhi

Available at: https://works.bepress.com/mubashshir/15/


HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS1

National Law University, Delhi

1
Mubashshir Sarshar, Student at National Law Un iversity, Delhi
Table of Contents

List of Abbreviations i

List of Statutes ii

List of Cases iii

CHAPTER – I INTRODUCTION 1

CHAPTER – II HISTORICAL SIGNIFICANCE 4

CHPATER – III ENDOWMENTS 6

CHAPTER – IV NEW LEGISLATION 8

CHAPTER – V PRINCIPAL HINDU ENDOWMENTS

1. DEBUTTER- ENDOWMENTS IN FAVOUR OF IDOLS AND


TEMPLES 14
2. MATHS 18
3. CHARITABLE ENDOWMENTS 21

CHAPTER – VI CONCLUSION 25

BIBLIOGRAPHY vi
i

List of Abbreviations

AIR All India Reporter

Ed Edition

Ibid Ibidem

IPC Indian Penal Code

J Justice

Op. cit Opere Citatao

SC Supreme Court

SCC Supreme Court Cases

sec. Section

v. Versus

Vol Volume
ii

List of Statutes

Andhra Inams (Abolition and Conversion into Ryotwari) Act, 1956

Charitable and Religious Trusts Act, 1920

Indian Contract Act, 1872

Indian Majority act, 1875

Indian Succession Act, 1925

Rajasthan Public Trusts Act, 1950

Societies Registration Act, 1860

The Charitable Endowments Act, 1890

Transfer of Property Act 1882

U.P Zamindari Abolition and Land Reforms Act, 1951


iii

List of Cases

A.G. v. Strangman, 6 Bom. L.R. 56

Bijoy Chand Mahapratap v. Kali Pada Chatterjee, (1913) 17 Cal WN 1013.

Chandra v. Jnanendra

Chaturbhuj Singh v. Sarada Charan Guha, AIR 1933 Pat 6

Chitra Dassi v. CIT, (1974) 3 SCC 616

D.A.V College v. S.N.A.S.H.S School, 1972 P AND H, 215

Dasami v. Paran, (1929) 51 All 621.


Doorga Prasad Dass v. Sheo Proshad Panah, (1881) 7 Cal 278

Durga Prasad Mullick v. Sri Rameshwar Jew Siba Thakur, AIR 1981 Cal 92

Dwarka Nath v. Bysack, (1875) 4 Cal. 443

Dwarka v. Burodad, (1875) 4 Cal. 443

Girjanund v. Sailajanund, ILR (1896) 23 Cal 645, 650

Guramma v. Mallappa, AIR 1964 SC 510

Hindu Public v. Rajdhani Puja Samithee, (1999) 2 SCC 583.

Income Tax Special Purposes Commissioners v. Pemsel, 1891 AC 531, 583

Juggut Mohini v. Sokheemoney, (1871) 14 MLA 289, 301-302

Kamaraju v. Sub-collector, Urgole, 1971 S.C 563

Kedar v. Atal, (1908) 12 C.W.N. 1083

Khaji Muhammad Hussain Sahib v. Majiday Mahmood Jamait Managing Committee, AIR 1940
Mad 167.
iv

Krishna Singh v. Mathura Ahir, 1980 SC 707

Maddun Lal v. Komul Bibee (1867) 8 WR 42.

Malayammal v. A. Malayalam Pillai, 1991 Supp (2) SCC 579

Mohohar v. Lakhiram, (1888) 12 Bom 247.


Narayan Bhagwantrao v. Gopal Vinayak, AIR 1960 SC 100, 112

Narshimha v. Venkatalingum, (1927) 50 Mad 687.


Radha Kanta Deb v. Commr. Of Hindu Religious Endowments, (1981) 2 SCC 226.
Ram Janki v. State, AIR 1992 Pat 135.
Ram Jankijee Deities v. State of Bihar, (1999) 5 SCC 50.

Ram Prakash v. Anand Das, (1916) 43 I.A. 73

Ranbir Das v. Kalyan Das, (1997) 4 SCC 102.


Ratilal v. State of Bombay

Saraswati Ammal v. Rajagopal Ammal, AIR 1953 SC 491

Saraswati Ammal v. Rajagopal Ammal, AIR 1953 SC 491

Shri Krishna v. Mathura, 1972 A.L.J. 155

Shri Ram Krishana Mission v. Dogar Singh, 1984 All. 72.

SNP Nadar v. TPT Charity, AIR 1971 Mad 253.


Sooniram Ramniranjendrass v. Alogu Nachyar Koli (1939) Rang 59.

Thenappa v. Karruppan, 1968 SC 915

Tiruvambala v. Manikkavachaka, 40 Mad 177.

University of Bombay v. the Municipal commissioner, 16 Bom. 217

Vidhyavaruthu v. Baluswami, (1921) 48 I.A. 302.

Vindhyawanuthi v. Balusani, (1921) 48 I.A. 302.


v

Yogendra Nath Naskar v. CIT, (1969) 1 SCC 555, 560.

Monie v. Schott, 43 Bom. 281.

Lilta v. Barhumanand, 1943 All. 449.


1

CHAPTER – I

INTRODUCTION

“Let him without tiring always offer sacrifices (istha) and perform works of charity (purta) with
faith, for offering 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 (danadharma) both by sacrifices (istha) and charitable work (purta) if he finds a
worth recipient for his gifts.”

- Manu Smriti, IV, 216-217.

The Hindu society has always been, at least apparently, a religious society. Therefore, there
are innumerable religious and charitable endowments built here and there all over the
country. But strangely enough the legal literature of the subject is very meagre. It does not
figure in the eighteen topics listed of legal action listed by Manu. 2 There is no treatise in it
unlike on subject of adoption and partition. This absence was for two reasons. First, the
priests who managed the institution has a high character giving little rise to disputes of claim.
Dispute is the mother of law, little dispute little law. 3 Secondly, the religious endowments
were regulated by their own customs and usage which were as much binding as the smritis. 4
Thus the law on the subjects has been largely constructed and developed by the courts. The
English judges who took considerable part in this job naturally introduced their own ideas
and ideals of such endowments.

The Shastric Hindu law authorized the ruler to exercise a right of supervision and
protection over the management and functioning of the religious and charitable endowments.
The British asserted this right as rulers. They passed a number of regulations and acts dating
from 1810. They were revised and at present there are only two all India enactments on the
subject of endowment. The Charitable Endowments Act, 1890 and the Charitable and
Religious Trusts Act, 1920. The former relates to charitable endowments but not religious
ones and the latter touches both. These Acts are not comprehensive: they legislate on only a

2
Manu, VIII: 4-7
3
Girjanund v. Sailajanund, ILR (1896) 23 Cal 645, 650.
4
B K Mukherjee, THE HINDU LAW OF RELIGIOUS A ND CHA RITA BLE TRUSTS (1979), p.2.
2

fraction of the subject. Section 92 of the CPC also provides for instituting a suit for the
proper management of endowment.

The Charitable Trusts Bill, 1960 was introduced in the Lok Sabha but it was permitted to
lapse because a report on the subject was awaited from the Law Commission. In 1962 the
Law Commission submitted its report with the suggestion that early steps should be taken to
implement its recommendation. So far the Central Government has paid little heed to this
suggestion.

But several States have passed their own acts in order to secure the proper management
and administration of the endowments situated in their territories. 5

1.1 Research sche me


The research scheme undertaken by the researcher would comprise of doing a
doctrinal study of the books available at the library of the National Law University, Delhi
and besides that the researcher would take the help of the internet to look into some of the
articles relating to the concept of Hindu religious and Charitable endowments.
1.2 Research Techniques for Data Collection
Research technique of analysis, critique, and review of the theories would be
intended to be employed.
1.3 Research Methodology

The researcher has followed the doctrinal method of research throughout the
project and the MLA system of formatting has been adopted by him.

1.4 Scheme of Chapte risation


The first chapter deals with giving brief overview of the topic. The second chapter
delves into the historical significance in the development of the concept of religious and
charitable endowments. The third chapter focuses on Endowments in general with
specific emphasis on the requisites of a valid endowment. The fourth chapter stresses on
the various statutes enacted by the State legislatures in the last few years relating to the
concept. The fifth chapter lays emphasis on the various Principal Hindu endowments

5
Bihar Hindu Relig ious Trusts Act, 1950; Bo mbay Public Trusts Act, 1950; MP Public Trusts Act,1951; Madras
Hindu Religious and Charitable Endowments Act, 1951, etc.
3

which includes the Debutter, Maths and Charitable endowments. Lastly, the sixth chapter
concludes the research project and it precisely discusses the concept of Hindu religious
and charitable endowments and its legality in the present scenario.
1.5 Footnoting Style to be adopted
National Law University standard style of footnoting will be followed throughout
the project.
4

CHAPTER – II

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 kno w 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 uncertain. 6 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) 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.

6
The pouranas are said to be eighteen in no. and are attributed to sage Vyasa. Most of the m 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 o f rites of worshipping gods and goddesses
by praying, fasting, votive offering and pilramages, etc of genealogies and cosmogony.
5

It is submitted that the philosophy that Hindu propounded the social structure that they
founded and the concept of law that they enunciated did not have any scope for such distinction
that we make today between religious objects and charitable objects. All objects of dana
enunciated by sages were meritorious as all dana led to heaven. In that context any distinction
between the religious charity and the charity proper were wholly unfounded. Various types of
gifts were emphasized. But merely by making gifts of performing sacrifices, a charitable or
religious endowment does not come into existence. An endowment will come into existence o nly
when some property or fund is dedicated for a religious or charitable purpose or object.
6

CHAPTER – III

ENDOWMENTS

Endowments are the dedication or entrustment of property either for a religious purpose
or for a charitable purpose or both: religious and charitable purposes. It may be called a religious
endowment or a charitable endowment depending upon its objects. A Hindu who is of sound and
not a minor may dispose of his property by gift or will for religious and charitable purposes shall
as the establishment and worship of an idol, feeding the Brahmins and the poor, 7 performance of
religious ceremonies like shradh, endowment of a hospital, etc. No list of what conduces to
religious merit in Hindu law can be exhaustive. However, when any purpose is claimed to be a
valid one for perpetual dedication on the ground of religious merit though lacking in public
benefit, it must be shown to have a Shastric basis. 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 needs of modern society. 8

3.1 Requisites of a valid endowme nt:

Following are the requisites of a valid endowment-

(1) The author or settler of the endowment must be competent to settle it.
(2) The object must be either religious or charitable or both.
(3) The dedication by the settler must be bona fide and unambiguous.
(4) The object or purpose of dedication must be definite or certain.
(5) The property dedicated must be ascertainable.
(6) The dedication must not be made in contravention of any provision of law.

When the question as to whether the endowment is real or fictitious, the mode of dealing with it
by its donors and successors is an important element for consideration. 9

3.2 Doubt as to certain gifts- The High Court of Calcutta has expressed a doubt as to whether
gifts to Pandits holding tolls for learning in the country at the time of the Durga Puja, or for the

7
Dwarkanath v. Burroda, (1878) 4 Cal 443.
8
Saraswati A mmal v. Rajagopal A mmal, AIR 1953 SC 491.
9
Chaturbhuj Singh v. Sarada Charan Guha, AIR 1933 Pat 6.
7

reading of the Mahabharata and Purana, or for the prayer of God during certain months are
valid. 10

3.3 Supe rstitious uses not forbidden- The English law relating to superstitious uses does not
apply to Hindu religious endowments. Thus, a gift in favour of an idol or for the performance of
the worship of a deity is valid according to the Hindu law, though it may not be valid according
to the English Law. 11 Disposition for religious purposes are highly favoured by Hindu law and
the learning of the court is also 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 point of view.

10
(1878) 4 Cal 443.
11
Juggut Mohini v. Sokheemoney, (1871) 14 M LA 289, 301-302.
8

CHAPTER – IV

THE NEW LEGISLATION

A number of statutes have been enacted by State legislature in the last few years dealing
with religious and Charitable trusts and endowments. The validity of the provisions of a number
of them has been challenged under various Articles of the Constitution and courts have
considered those provisions inter alia in context of property of the trust or endowments, deities,
idols, temples and institutions as also the income and management of the property and affair of
the same including the right to and management of the worship of certain deities and idols. It is
not necessary in this chapter to refer to those decisions in any detail or to the constitutional
questions raised and it will suffice only to mention several decisions.

4.1 Competence of an Endowe r

A person who has the following three qualifications can donate his property for an endowment
by a gift inter vivos or by testamentary disposition.

(a) Age of Majority- He must have attained the age of majority. It is not the Shastric Hindu
law which decides the age of majority here. There is no statutory provision aso for this
purpose under any act relating to the personal Hindu law. The age of majority here is to
be settled by the provisions of the Indian Majority act, 1875. Section 7 of the Indian
Trusts Act, 1882 provides that a trust may be created by or on behalf of a minor also with
the permission of a principal civil court of original jurisdiction. But that does not govern
the public or private religious endowments. 12 Hence, a minor is totally incompetent to
settle or create a religious or charitable endowment.
(b) Mental Soundness- He must be of a sound mind. Here, the law as laid down in Section
12 of the Indian Contract Act, 1872 is to be followed. The settler is of a sound mind if at
the time he endows the property, he is capable of understanding it and of forming a
rational judgment as to its effect upon his interests. A person who is usually of unsound
mind but occasionally of sound mind may settle his property for an endowment during a

12
Trusts Act, 1882, Section I.
9

lucid interval. Similarly, a person who is usually of sound mind but occasionally of
unsound mind is not capable of making the endowments when he is of unsound mind.
(c) Right over Property- An endowment is made by making a gift of one‟s property either
inter vivos or by one‟s will. The settler must respect the limitations, restrictions and
conditions imposed upon him while making a donation by gift or will for an endowment.
It was held by the Calcutta High Court that an endowment by a Hindu Widow in 1948
was invalid because she exceeded the reasonable limits within which she could endow
out of her Hindu women‟s estate. 13

4.2 Religious or Charitable purpose

The purpose of an endowment may be either exclusively religious or exclusively


charitable or both braided together. It is difficult to define which are religious purposes
exclusively. The religions are all pervasive and consider nothing to be out of fold of religious
purposes. But the secular and scientific thinkers limit the bounds of religion to what is
considered as the other- worldly and spiritual affairs. Even if the ultimate aim is the good of
human beings or any other creatures they are charitable purposes and not religious ones. The
religionists hold the charitable purposes also as religious purposes and vice versa.

(i) Ishta-Purta- The Hindu Shastras make little distinction between religious and
charitable purposes. They describe religious purpose by the concept of Ishta-Purta.
Prannath Saraswati has perused the Hindu shastras in his Tagore Law Lectures on the
Hindu Law of Endowments 14 and compiled the following as the ishti deeds which
include Vedic sacrifices, gifts offered to priests at the vedic offerings (Yajna),
Preserving the Vedas, Religious austerity, Rectitude, Vaisvadara sacrifices and
hospitality. While the Purta deeds included Gifts offered outside the Yajna ground,
gifts offered in an eclipse or solstice, the construction of well or tank, the construction
of temples for the gods, the gift of food, and the relief for the sick.
The distinction between the Ishta and Purta is that the former is vedic and the
latter is based on the smritis. According to Yama, smriti- writer, heaven is attained by

13
Durga Prasad Mullick v. Sri Rameshwar Jew Siba Thakur, AIR 1981 Cal 92.
14
Thacker, Spin k and Co. (1897)
10

Ishta and one gets emancipation by Purta. Eg- the Ardajame Kattalai grants in South
India, which is an endowment for midnight service.
(ii) Religious purpose under Hindu religion- There are several religions in the world.
Mostly they agree among themselves but there are areas of disagreements also.
Therefore what is a religious purpose according to the Hindu religion has to be
decided by the Hindu religion itself. If a purpose is not considered as religious by
Hinduism, it cannot be admitted as a religious purpose simply because some other
religion considers it to be so. The Supreme Court has made it clear in the case of
Saraswati Ammal v. Rajagopal Ammal 15 that “now it is correct to say that what is a
religious purpose under the Hindu Law must be determined according to Hindu
notions.”
(iii) Englis h Law- The English Law includes the religious endowments within the
meaning of „charitable‟ endowments. In his celebrated judgment in Income Tax
Special Purposes Commissioners v. Pemsel16 , Lord Macnaghten grouped the
charitable purposes under the following heads: Relief of Poverty, education, the
advancement of religion, and other purposes beneficial to the community not coming
under any of the proceeding heads. Thus the Indian Law and the English Law are
inclined not to separate the religious and charitable purposes. The former includes
charitable within the meaning of the religious 17 while the latter does it otherwise. In
the Hindu Public v. Rajdhani Puja Samithee 18 , the Supreme Court held that under the
Societies Registration Act, 1860 “charitable purposes” include religious purposes.
The only condition is that it should be for the benefit of the public. 19
(iv) Seperation between religious and charitable purposes- Theoritically speaking, the
distinction and separation between the exclusive religious purposes and the exclusive
charitable purposes is the contribution of the scientific and secular philosophies. They
hold that all the purposes which have been traditionally claimed as religious purposes
by the religions of the world are essentially not religious purposes. The purposes
which relate to the management of our life here in this world are not religious. If they

15
AIR 1953 SC 491,494.
16
1891 A C 531, 583.
17
Guramma v. Mallappa, AIR 1964 SC 510.
18
(1999) 2 SCC 583.
19
Khaji Muhammad Hussain Sahib v. Majiday Mahmood Jamait Managing Co mmittee, AIR 1940 Mad 167.
11

purport to promote the well- being of mankind or even other creatures without profit
motive 20 they are simply charitable and can be severed from the religious purposes.
The religious purposes are exclusively those which relate to the other world: the
relation between man and God. It is submitted that it would be profitable if we treat
these purposes as separate. It will enable the State to prevent mismanagement of those
affairs of the endowments which are not sp iritual and divine. In India, a proper
recognition is being given to the distinction between these two purposes. The
Charitable Endowments Act, 1890 does not include the purposes which relate
exclusively to religious teaching or worship within the meaning of the charitable
purposes. It includes within the charitable purposes the relief of the poor, medical
relief and the advancement of any other object of general public utility.
(v) 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 with
the legislature and the court. The definition of charitable and religious endowments as
given in the Rajasthan Public Trusts Act, 1950 may be taken as a model for the
legislature‟s 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, 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

20
Section 2(15) of the Inco me Tax Act, 1961 defines charitable purposes:”Charitable purpose includes relief 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.”
12

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.”
(vi) 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 deity21 for the performance of the shradha of one‟s self and of one‟s
ancestors 22 , 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. 23 But if the Samadhi is that of a great saint who is deified and
worshipped, it is a valid endowment. 24

4.3 Endowme nts- how to be created

No writing is necessary to create an endowment 25 except where the endowment is created


by a will, in which case the will must be in writing and attested by atleast who witnesses if the
case is governed by the Indian Succession Act, 1925, s. 57.

A mere entry in the account of a firm of moneylenders showing that the firm is indebted
to the temple followed by creating of interest does not create an endowment. 26 A Hindu who
wishes to establish a religious or charitable institution may according to his law express his
purpose and endow it. A trust is not required for that purpose. All that is necessary is that the
religious or charitable purposes should be clearly specified and that the property intended for the
endowment should be set apart for or dedicated to those purposes. Even in the case of a
dedication to an idol which cannot itself physically hold lands, it is not necessary, though it is
usual to vest the land in trustees. Nor it is necessary that there should be any express words of

21
Saraswati A mmal v. Rajagopal A mmal, AIR 1953 SC 491.
22
Ibid.
23
Malayammal v. A. Malayalam Pillai, 1991 Supp (2) SCC 579.
24
Supra.n. 20.
25
Maddun Lal v. Ko mu l Bibee (1867) 8 W R 42.
26
Sooniram Ramn iranjendrass v. Alogu Nachyar Koli (1939) Rang 59.
13

gift to the idol. 27 No religious ceremony such as sankela, samarpan or pranapratishta is necessary
and a clear and unequivocal manifestation of intention to create a trust vesting of the same in the
donor or another as a trustee is enough to constitute dedication. Such a dedication is valid, but
the subject of the endowment has to be certain. 28

The Indian Trusts Act does not apply to public or private religious or charitable
endowments.

The Transfer of Property Act 1882, s.123- it has been held by the High Court of Madras
that a dedication of land for a public temple is not a gift within the meaning of s. 122 of the
Transfer of Property Act. The provisions therefore of s. 123 of the Act, which require a gift of
land to be effected by registered instrument, do not apply to such a dedication. 29

Further, section 5 of Transfer of Property Act which states that “transfer of property”
means an act by which a „living person‟ conveys property, in present or in future, to one of more
other „living persons‟, or to himself, or to himself and one or more other living persons, and “to
transfer property” is to perform such act. Hence this provision does not apply in the case of
Hindu Endowments.

A valid endowment once created cannot be revoked by the donor. 30

27
SNP Nadar v. TPT Charity, AIR 1971 Mad 253.
28
Ram Janki v. State, AIR 1992 Pat 135.
29
Narshimha v. Venkatalingu m, (1927) 50 Mad 687.
30
Dasami v. Paran, (1929) 51 A ll 621.
14

CHAPTER – V
THE PRINCIPAL HINDU ENDOWMENTS

There are several forms of endowments accredited by Hindu religion and the Hindu
notions of charity and benevolence. Egs. the idol, Math, Ghoshala, dharamshala, well, baoli, tank
or pond, orchard, grove or garden, etc. The Supreme Court has held that library, mandap, garden,
shops and office rooms are meant for religious purposes of the Hindu community. 31 However,
the most important and popular of them are only two, the idol and the math. They represent the
two paths of spiritualism. The idol stands for the path of devotion and the math represents the
path of knowledge as the two are different means for salvation of the human soul.

1. DEBUTTER- ENDOWMENTS IN FAVOUR OF IDOLS AND TEMPLES

Idol worship prevails among the Hindus. The devotees believe the idol to be real form of
their god. They pray and worship it as if it entertains those expressions of their devotion. Though
the Hindu philosophers always held that it is an inferior kind of spiritualism, because it evidences
only mental smallness or retardation to think that the Creator of the limitless universe and the
omnipresent God can be bound in a small idol or image, yet the Indian landscape if full of
innumerable temples of numerous Gods and Goddesses. Some of them are very rich owing
immeasurable movable and immovable wealth and the enthusiastic devotees brave all troubles to
visit them.

Though there are different forms of Gods yet the Hindu idea is that there is no superiority
or inferiority amongst different Gods. The Supreme Court has held in Ram Jankijee Deities v.
State of Bihar, 32 that there cannot be any fake deity. If two deities are established by a single
person and they come to be managed by a single Sevayat, they remain separate and both of them
are entitled to property separately under the ceiling laws.

31
Hindu Public v. Rajdhani Puja Samithee, (1999) 2 SCC 583.
32
(1999) 5 SCC 50.
15

5.1.1 Legal Personality of Idol

The idol has been recognized by Hindu law as a juristic person. It is not an ordinary
chattel. 33 Law recognizes all those entities as legal persons who can sue or be sued in a court of
law- whether by themselves or through the medium of a guardian or manager. Generally, the
capacity of suing or being sued is possessed by human being but law confers this capacity upon
other institutions and things also. In the ancient Roman law also we find that legal personality
was conferred upon certain institutions.

The idol is an example of the non- human legal personality under Hindu law. As a legal
person it can own property. A temple is the property of the idol. It must be noted here that a
temple is not a juridical person. It is the house of the idol. It may be known by a different
designation. It is used as a place of religious worship. Besides a temple, the idol may own other
articles of movable and immovable property are the income of the idol. It can hold bhumidhari
rights under the U.P Zamindari Abolition and Land Reforms Act, 1951. 34

As a legal person, an idol is subject to the laws relating to the income tax and wealth tax.
The Supreme Court held in Yogendra Nath Naskar v. CIT35 :

“There is no principle why a deity as such a legal person should not be taxed if such a
legal person is allows in law to own property even though in the ideal sense and to sue for the
property, to realise rent and to defend such property in a court o f law again in the ideal sense. 36 ”

The court reiterated this position in the Official Trustee of W.B for the Trust of Chitra
Dassi v. CIT37 :

“….as a Hindu deity can hold property and be in recipt of income and can also sue and be
sued in a court of law there is no reason why its income should be held to be outside the ambit of
taxation of it can be brought within it without straining the language of the statutory provisions.
It would naturally be taxed through its shebaits who are in possession and manageme nt of its
property.”

33
Radha Kanta Deb v. Co mmr. Of Hindu Religious Endowments, (1981) 2 SCC 226.
34
Ranbir Das v. Kalyan Das, (1997) 4 SCC 102.
35
(1969) 1 SCC 555, 560.
36
Idid.
37
(1974) 3 SCC 616.
16

5.1.2 Kinds of Idols

Idols or images are of several kinds. 38 The first classification is made by the Padma
Purana into the self-created and the consecrated idols or images. If people find any shape which
is naturally inscribed on a piece of stone or wood and make it an object of worship, it is known
as the self created image or idol. It is called Anadi, i.e. without a beginning. It is not made but is
only discovered. It needs no consecration. Any idol or image which is made of inscribed on stone
or metal or clay or wood or is drawn on a piece of paper by a human being and which is
consecrated for worship, is known as the consecrated idol or image.

The Gautam‟s tantras divide the manmade idols into Lepya and Lekhya. The Lepya
images are the moulded figures of metal or clay. The Lekhya images are the pictorial images
drawn on wood or metal or paper.

The Matsya Purana has classified the images into four kinds. (i) inscribed on cloth, wall or
utensil, (ii) moulded from clay, (iii) moulded from metal, and (iv) chiseled on wood or stone. Yet
another classification is made between permanent and temporary images. The temporary images
are prepared for a particular occasion. They are offered to water after they have been
worshipped.

5.1.3 Consecration of Idol

Excepting the self-created idols, consecration imparts legal personality to the images. An
image is neither an object of worship nor a legal person before consecration. All kinds of images,
whether self-created or consecrated, Lepya or Lekhya, permanent or temporary are capable of
being clothed with justice personality.

5.1.4 Destruction of Idol

The endowment does not come to a end with the destruction of the idol. A new idol of the
same deity may be consecrated for the idol which is destroyed or burnt or broken. 39 If the idol is
unhurt it cannot be replaced by any other Idol. 40 But the unhurt idol also needs re-consecration if

38
B K Mukherjee, TLL (1951) THE HINDU LAW OF RELIGIOUS AND CHARITABLE TRUSTS (1979), P.154.
39
Bijoy Chand Mahapratap v. Kali Pada Chatterjee, (1913) 17 Cal W N 1013.
40
Doorga Prasad Dass v. Sheo Proshad Panah, (1881) 7 Cal 278.
17

it falls from its place, or is removed there from or is touched by an animal or an outcaste or the
hymns prescribed for another deity are recited before it. By these incidents, the idol is defiled
and it is believed that the deity leaves the idol. The deity returns when it is purified and
consecrated again.

What is the effect if the broken and mutilated idol is not reconstructed or if the defiled
one is not re-consecrated? It is believed that re-consecration of an idol has religious significance.
If it is not so done the idol remains unsuited for worship. But it is submitted that it does not
affect the legal personality. A failure in the re-consecration is an act of mismanagement. On this
ground the person responsible for the management may be sued.

5.1.5 Removal of Idol

An idol cannot be removed from its permanent place. That is tantamount to the
construction of a new temple. However, if the public agrees, it may be removed temporarily for a
good reason, e.g. flood, or earthquake or any other contingency. If the whole body of
worshippers is of one mind, the idol can be permanently removed to another habitation. 41

5.1.6 Property of Idol

The property of an Idol is known as the Devottar. It can come into existence once even
before the consecration of the Idol, its owner. This is a special rule of Hindu Law The purpose of
having this rule is that sometimes the Idol is constructed or purchased on consecrated with the
help of its own Devottar property. If the existence of the Devottar property of an idol is not
recognized before the latter comes into existence the endowment may not be created. This
special rule has entered into the law of gifts and will also. The general rule is that no gift or will
can be made in favour of a non-existing entity. But when a gift or bequest is made for an idol, it
is valid even when it is not in existence at the time the gift is made or the bequest takes place.

41
Narayan Bhagwantrao v. Gopal Vinayak, A IR 1960 SC 100, 112.
18

2. MATHS

In its ordinary parlance math means an abode or residence of ascetics. In its legal
connotation it is a monastic institution presided over by its head known as mahant, a superior
ascetic and established for the use and benefit of ascetics, generally or of ascetics belonging to a
particular, ordinarily the disciples of the mahant. The basic purpose of a math is to encourage
and foster spiritual learning and knowledge by maintenance of a competent line of teachers who
impart religious knowledge to disciples and followers of the Math and strengthen the doctrine of
the sect or school to which Math subscribes.

The presiding element in a math is the mahant or the religious teacher. Even when a
temple is attached with a math, the presiding element in the math remains the mahant. It is in the
Debutter that the presiding element is the idol. A math comes into existence when dedication of
properties is made to Math. A math may also come into existence as an off-shoot of an already
existing math. In such a case the second math is subordinated to the parent math and the latter
exercises some control over the former. There are several types of maths existing in our country.
Each of them is governed by its own customs and usages. Broadly speaking, Maths are of three
types: Mourushi Math, when the office of Mahant is elective and Hakimi math, when the founder
has reserved the power of nomination of mahant.

5.2.1 Property of a math vests with the Math

The mahant is the head of the Math, but the property dedicated to a math does not vest in
him. The Hindu law like the Roman law recognizes not only corporate bodies with right of
property vested in the corporations apart from its individual members, but also juridical person
or subject called foundation. 42 When property is dedicated for a particular purpose, the property
itself gets impressed with that purpose, is raised to the status of a juristic person and can become
in law, the bearer of rights and duties. 43 Thus the endowed property in the case of a Math vests in
the Math itself as a juristic person and not in the mahant. 44 A math is a juristic person and is
capable of acquiring, holding and vindicating legal rights through the medium of some human

42
Mohohar v. Lakhiram, (1888) 12 Bo m 247.
43
Mukherjee, HINDU LAW OF RELIGIOUS AND CHARITABLE TRUST, p.265.
44
Vidhyavaruthu v. Baluswami, (1921) 48 I.A. 302.
19

agency which is ordinarily the agency of mahant. 45 However the terms of a grant may provide
differently and may law down that the property will vest in an individual or a committee or a
body of trustees. In that case the property will vest accordingly.

5.2.2 Legal Position of Mahant

The mahant is neither a trustee nor a corporation sole. He is just the manager of the math
with wider powers than those possessed by a manager, trustee or dharmakarta of a temple. He
has dual capacity. He is the manager of properties and the spiritual head of the Math. In Ram
Prakash v. Anand Das, 46 the Privy Council observed: “the Mahant is the head of the institution.
He sits upon the gaddi, he initiates the candidates into the mysteries of the cult, he superintends
the worship of the idol and the accustomed spiritual rites, he manages the properties of the
institution, he administers its affairs.” In Vindhyawanuthi v. Balusani 47 the Privy Council said,
“Called by whatever name, he is only a manager and custodian of the idol or institution. In
almost every case he is given the right to a part of usufruct, the mode of enjoyment and the
amount of the usufruct, depending again on the usage and custom. In no case the property is
conveyed to or vested in him, nor is he a trustee in the English sense of the term, although in
view of the obligations and duties resting on him, he is answerable as a trustee in the general
sense for maladministration48 . This position clearly emerges from his power and functions. When
the Mahant himself is guilty of mismanagement or misappropriation, a suit can be filed by any
person interested in the endowment. In Thenappa v. Karruppan 49 , the Supreme Court held that
even in the case of a private trust, a suit can be filed for the removal of the trustee or for the
settlement of a scheme for the purpose of effectively carrying out of the object of the trust. If
there is a breach of trust in the mismanagement on the part of the trustee, a suit can be brought
by any person interested in the Math and in the proper administration of endowment.

45
Shri Krishna v. Mathura, 1972 A.L.J. 155.
46
(1916) 43 I.A. 73.
47
(1921) 48 I.A. 302.
48
Krishna Singh v. Mathura Ahir, 1980 SC 707.
49
1968 SC 915.
20

5.2.3 Termination of Mahantship

Apart from the termination of mahantship on the death of the holder of the office, there
are other ways also by which the mahantship may be terminated. The mahantship may be
terminated-

(a) By relinquishment of the office by mahant during his lifetime


(b) By supervising disability of mahant- The matter is not free from doubt. Incurring of a
subsequent disability law by a mahant does not amount to automatic forfeiture of office.
His removal will be necessary.
(c) By removal- A mahant may e removed from his office on account of his mental infirmity,
bodily disease or on account of mismanagement or waste. He may also be removed if he
is leading an immoral life, or is acting contrary to the tenets or usage of the math. 50

50
Tiruvambala v. Manikkavachaka, 40 Mad 177.
21

3. 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 are the institution of the dharamshala,
annastrams, Sadavarts, for the establishment or maintaince of educationa l 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
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 o f administration
of such property arise. 51

We may discuss dedications to some of these objects-

1. Tanks and wells- The excavation of tanks and wells has been a charitable purpose
recognized in Hindu law from the beginning. It lists at the forefront of the purta works. In
the Vishnu Dharamashula, a passage runs: “as there is no sustaining of life in both words
without water, the wise man should always construct reservoir of water. A well is equal
to Agnistoma sacrifice, in a desert it equals the Aswamedha. The well flowing with
drinking water destroys all sins. The well maker, attaining heaven, enjoys all pleasure.” 52

Elaborate ceremonies are for the dedication of tanks and wells. In Hindu law,
grant of land for the construction of a water reservoir is also va lid. In Kamaraju v. Sub-
collector, Urgole 53 certain lands as inams were granted for the repairs and maintenance of
a tank. The question arose that what was the effect on this inam of the Andhra Inams
(Abolition and Conversion into Ryotwari) Act, 1956? The S upreme Court held that grant
of the land for the maintenance of the tank is a charitable purpose and for the purpose of

51
Mukherjea, HINDU RELIGIOUS AND CHARITABLE TRUSTS, p. 28-34.
52
Idid, at p. 57.
53
1971 S.C 563.
22

the act the tank is an institution. With the abolition of Inam the property of tank gets
converted into Ryotwari land to be managed by its manager, though it will be registered
in the name of the Tank. The Court left open the question whether tank is a juristic
person.

2. Groves and Trees- The consecration of trees and groves is also a recognized charitable
purpose from the earliest times. According to the Mahabharata, “The trees honour the
Gods with flowers, the names with fruits, the guests with shade. The planter of trees
procure the salvation of his deceased ancestors as well as those of succeeding future
generations.” The same is true for groves and such dedications are valid. In Chandra v.
Jnanendra, the Calcutta High Court held a dedication of a piece of land upon which group
of five trees, known as panchvati, was planted. Elaborate ceremonies for the consecration
of trees and groves are provided.
3. Dharmashalas or Rest houses- Construction of dharamshalas too has been a popular
object of a charitable endowment from time immemorial. A dharamshala is a rest house.
In South India it is known as Choultry. In the choultries sometimes food is also provided
for travelers. In the ancient times they were known as Pratikshaya Griha.

The property dedicated to the Dharamshala vests in the dharamshala itself. The
management of the dharamshala may vest in the founder or may vest in other person or a
committee. Our country abounds in dharamshalas. The benefit of a dharamshala may be
available to the public in general or it may be restricted to members of a community or
followers of a particular religion. Even in the latter case it will not distract from the
charitable nature of the dedication. Once dedication is made absolutely, it is not
revocable. The provisions of the Indian Trusts Act or the Transfer of Property Act do not
apply to dedication of property to Hindu endowments. 54

4. Hospital, educational institutions and ghosalas- Gifts for education have always been
placed on a high pedestal. It is known as artidan or supreme gift. Imparting of free
education has been the cherished object of Hindus throughout the ages. The same is true
of hospital and dispensaries known as arogashalas. In the Nandi Purana we have the

54
Shri Ram Krishana Mission v. Dogar Singh, 1984 All. 72.
23

following passage: “One must establish a hospital furnished with valuable medicines and
necessary utensils placed under an experienced physician and having servants and rooms
for the shelter of patients.” Hindus hold the view that a person who consecrates a hospital
is the giver of everything. Bequest for hospitals and schools can be validly made. In the
University of Bombay v. the Municipal commissioner, 55 the question before the court
was whether a university which did not impart any instructions but merely granted
degrees to those who attained a certain standard was a valid endowment? The Bombay
High Court held that it was. In D.A.V College v. S.N.A.S.H.S School 56 , a full bench of
the Punjab and Haryana High Court held that an educational institution or school, the
object of which is charitable or religious under Hindu law will be regarded as juristic
person capable of holding property. A Hostel attached to an educational institution is a
valid charitable purpose. 57 The establishment and maintenance of ghosalas is a valid
charitable purpose. 58
5. Sradha and Sadabrats- The sradha or oblations to departed ancestor is considered to be
one of the obligatory duties of every Hindu. A hindu often by an act inter vivos or by a
bequest creates an endowment of the purpose of the performance of his sradha after his
death or for the performance of the sradha of his ancestors. Such endowments have been
held valid since very early times. In Dwarka Nath v. Bysack 59 a testator provided inter
alia, “I do direct my trustee to spend suitable sums for annual sradha or anniverseries of
my father, mother and grandfather as well as of myself after my demise, for the
performance of the ceremonies and the feeding of the Brahmins and the poor.” The
bequest was held valid.
The Sadabrat is the free distribution of food and alms to the needy and poor.
Langars and annastras are species of sadabrat. An endowment for the sadabrat has been
all along held. In A.G. v. Strangman. 60 an Annacharta was held valid. According to the
Court, “An Annacharta is an institution for distribution of food to Brahmins and

55
16 Bo m. 217.
56
1972 P AND H, 215.
57
Monie v. Schott, 43 Bo m. 281.
58
Lilta v. Barhu manand, 1943 All. 449.
59
(1875) 4 Cal. 443.
60
6 Bo m. L.R. 56.
24

mendicants, and varies from sadabrat in a particular case which is immaterial. A gift to
sadabrat has been held god.”
6. Reading of sacred books and gift to Brahmins- Endowments for reading of sacred
books and for gifts to Brahmins has been also very popular among Hindus. In Dwarka v.
Burodad 61 , a testator gave the following direction: “I do direct my trustee to…spend
suitable sums for the perusal of the Mahabharata and the Puranas and for the prayer of
God during the month of Kartick.” The bequest was held valid. In Kedar v. Atal 62 ,
Fletcher J. observed, “The testator was a hindu and his will must be construed with
reference to Hindu Law. There can be no doubt that the feeding and paying of the
Brahmins would be in accordance with Hindu ideas of meritorious act.”

61
(1875) 4 Cal. 443.
62
(1908) 12 C.W.N. 1083.
25

CHAPTER – VI

CONCLUSION

In the personal view of the researcher it is high time we discuss the legality of such
Hindu Endowment Acts.

Through these Endowment Acts, the Government feigns to bring in various regulatory
measures over management & administration of Hindu Religious Institutions under the pretext
that vast funds available to such religious institutions are ill- managed and there is not uniform
organisational framework for temples.

The first question is can government step in to regulate the functioning of any religious
institution? Haven‟t we been guaranteed freedom of religion under Articles 25-28 of the Indian
Constitution? Now According to Article 26,

Every religious group or denomination has right to-

(i) to establish & maintain institutions for religious & charitable purposes;
(ii) to manage its own affairs in matters of religion;
(iii) to own & acquire movable & immovable property and
(iv) to administer such property in accordance with law.

Thus from Clause (ii) & (iv), we may deduce that the religious institution enjoys full
autonomy in matters of „religion‟ at the same time the property to be managed by the institution
or trust must be in accordance with law. In case of Ratilal v. State of Bombay (1954), the Apex
Court has laid down that regulation by the State cannot interfere with things which are
essentially religious. That also implies that State can intervene in matters which are not
essentially religious. Also it may interfere if any religious practice offends against public health
or morality. So State may, if it feels, intervene in & regulate administrative & financial aspects
of the institution. But at the same time, it may be noted that discriminating /managing /reforming
/patronising any religion is totally outside the parameters of government jurisdiction.
26

Hence the real issues that come out are “To what extent can the government interference
be labelled as „legal‟?” and “Isn‟t such governmental control over only Hindu religious
institutions (and not any other religious institutions like Muslim/Christian) grossly
discriminatory?”

Some facts to start with would be in the State of Bihar itself, government control over the
temples through its endowment department, has resulted, according to Kishor Kunal, Religious
Trust Administrator, in loss of temple properties worth Rs. 2000 crore. The picture isn‟t different
in other States. Thus the governmental control does not necessarily translate into better
protection and transparent & efficient management. On the contrary, it‟s resulting into
temples/maths losing their properties. It cannot be denied that matters relating to spirituality &
religion require the guidance of qualified religious persons. And what competence &
specialisation that government possesses for controlling every aspect of Hindu cultural centres?
Government mismanagement resulting in deliberate & irreversible liquidation of endowment
lands clearly results in denying the temple/math/any other religious institution its vital functions.

In strict legal sense Government might be able to justify its interference in management
of temple trusts etc for healthier utilisation of large funds they possess. But why target only
Hindus? What about the Muslim/Christian religious institutions? In spite of their vast funds,
properties and endowments in addition to the immense flow of foreign funds the Waqf Board of
Muslims and the management of Christian religious institutions enjoy full freedom, self
governance and autonomy. Now this discrimination, I believe, is simply unjustifiable- socially
and also legally. This certainly can be labelled as gross misuse or abuse of State powers. The
Secular Constitution certainly does not permit such discrimination on basis of religion. Why not
allow an autonomous Hindu board to govern temples under the guidance of religious leaders, just
as in other religious formations?

If the government is really concerned about the mismanagement of funds in Hindu


religious institutions, the Allahabad High Court has recently suggested a solution. It has directed
the Central government to prepare a scheme for constituting a Board of the representatives of
Hindu religious organizations on the pattern of the UP Muslim Waqf Board. A socially
conscious and dedicated Board, working as an NGO, utilizing temple resources and donations,
27

could among other things develop a vast network of educational institutions, medical facilities
and orphanages for the benefit of the community, as is done by missionaries.

If lack of uniform organisational framework for temples is the matter of concern, it may
be suggested that convening an assembly of representatives of shrines, temples, Hindu
community and religious leaders from Dharma Sansad, Hindu Dharma Acharya Sabha, etc. for
clearly defining the new legal and organizational framework ensuring community governance of
temples and other religious places would be a welcome step. This body‟s jurisdiction could also
include training priests and constructing a religious based curriculum. Such an approach among
other things should make the proposed Board completely autonomous and thereby responsible
and accountable for the entire administration, including planning, executing, auditing, guiding,
investigating and taking corrective steps as and when needed.

Thus, it should the priority of the Central Government to find the current status of
temples, mutts and trusts under the endowment Trust; to help protect their religious assets; and to
ensure smooth transition to an autonomous Hindu Board. Easier said than done especially in a
country where political dictionary declares „Hindu bashing‟ and „secularism‟ as synonyms. The
Apex Court of the country still remains the hope though. Ultimately, litigation and hopefully,
future legislation will determine the proper and just sphere of interest of the government in the
nation‟s extensive religious affairs.
vi

BIBLIOGRAPHY