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M. Radhakrishna Gade Rao Sahib Vs. State of Madras - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC653; [1966]1SCR643
ActsMadras Hindu Religious and Charitable Endowments act, 1951 - Sections 6(14), 6(16), 32(1) and 62; Hindu law
AppellantM. Radhakrishna Gade Rao Sahib
RespondentState of Madras
Books referredMayne's Hindu Law, Eleventh Edition
Excerpt:
.....left behind was to go to appellant - commissioner declared 21 % of income of properties would form specific endowment - appeal filed under section 62 (ii) for cancellation of commissioner's order - trial court ruled against commissioner - on appeal by commissioner high court reversed trial court's ruling - appeal preferred to supreme court - appellant's argument that for specific endowment there must be transfer of title or divestment of title to property turned down - court observed that specific endowment attached to 'math' or temple can consist of merely charge on property - divesting of title to create endowment not necessary - appeal dismissed as specific endowment of right to receive certain temple amount out of income of properties was created though the same was subject to..........declaring that 21 per cent of the income of theproperties in schedule a would be deemed to form a specific endowment withinthe meaning of the act. thereupon the appeal land filed a suit under s. 62 [ii]of the act against the commissioner for cancellation of this order. the trialcourt decreed the suit, but on appeal by the commissioner to the high court atmadras it was declared that a specific endowment was created by the instrumentof 15.9 per cent of the income for the time being received from the propertiesmentioned in schedule a. the appellant challenges that decision in the presentappeal. the commissioner is represented by the state of madras. 3. the appellant contends that no specific endowment had been created by theinstrument. his contention is that all that was done was to create.....
Judgment:

Sarkar, J.

1. On January 10, 1914, the appellant's predecessors-in-interest executedan instrument which has been described in these proceedings as a deed ofsettlement. There is some dispute as to the interpretation of this instrumentbut this much is not in controversy that it provided that the properties setout in Schedule A to it would be responsible for meeting the expenses of thecharities specified in Schedule B. Schedule B set out 17 different charitiesand the amount to be spent on each. The total of the amounts mentioned came toRs. 4,311-0-0 and the instrument provided that 'in respect of the sum ofRs. 4,311-0-0 which has been set apart for the expenses of the aforesaiddhar-mams we have created a 'charge' on the entire properties mentioned in theA Schedule herein.' That the properties were charged with the payment ofthe amount is not disputed. It is unnecessary to refer to the other provisionsin this instrument in detail and it will be sufficient to state that theyprovided that the balance of the income of the properties in Schedule A leftafter meeting the expenses of the charities was to be taken by the male membersof the family after payment of certain maintenance, marriage and other expensesto various females.

2. On November 10, 1953, the Commissioner for Hindu Religious and CharitableEndowments, Madras, an officer appointed under the Madras Hindu Religious andCharitable Endowments act, 1951, made, in exercise of the powers conferred onhim by the Act, an order declaring that 21 per cent of the income of theproperties in Schedule A would be deemed to form a specific endowment withinthe meaning of the Act. Thereupon the appeal land filed a suit under s. 62 [ii]of the Act against the commissioner for cancellation of this order. The trialcourt decreed the suit, but on appeal by the Commissioner to the High Court atMadras it was declared that a specific endowment was created by the instrumentof 15.9 per cent of the income for the time being received from the propertiesmentioned in Schedule A. The appellant challenges that decision in the presentappeal. The Commissioner is represented by the State of Madras.

3. The appellant contends that no specific endowment had been created by theinstrument. His contention is that all that was done was to create a charge onthe properties to meet the expenses of certain charities but the settlors neverdivested themselves of those properties or any interest therein. It was saidthat the mere provision for meeting the expenses of the charities out of theincome of the properties and the creation of the charge would not amount to themaking of any endowment, for thereby the settlors could not be said to havedivested themselves of anything. The main question in this appeal is whetherthis contention is right.

4. There is no dispute that in order that there may be an endowment withinthe meaning of the Act, the settlor must divest himself of the propertyendowed. To create an endowment he must give it and if he has given it, he ofcourse has not retained it; he has then divested himself of it. Did thesettlors then divest themselves of anything We think they did. By theinstrument the settlors certainly divested themselves of the right to receive acertain part of the income derived from the properties in question. Theydeprived themselves of the right to deal with the properties free of the chargeas absolute owners which they previously were. The instrument was a bindinginstrument. This indeed is not in dispute. The rights created by it were,therefore, enforceable in law. The charities could compel the payment to themof the amount provided in Schedule B, and, if necessary for that purpose,enforce the charge. This, of course, could not be if the proprietors hadretained the right to the amount or remained full owners of the property asbefore the creation of the charge. It must, therefore, be held that theproprietors had divested themselves of that part of the income of theproperties which is mentioned in Schedule B. By providing that their liabilityto pay the amount would be a charge on the properties, the settlors emphasisedthat they were divesting themselves of the right to the income and the right todeal with the property as if it was unencumbered. By creating the charge theyprovided a security for the due performance by them of the liability which theyundertook. Further s. 32 of the Act provides that where a specific endowment toa temple consists merely of a charge on property, the trustees of the templemight require the person in possession of the properties charged to pay theexpenses in respect of which the charge was created. This section undoubtedlyshows that the Act contemplates a charge as an endowment.

5. Mr. Sastri for the appellant said that a charge would be an endowmentonly where it had first been created in favour of a person who made anendowment in respect of it, that is to say, transferred his rights under thecharge in favour of the charities. We see no reason for holding that anendowment was contemplated as consisting of a charge only in cases like that.We, therefore, think that the High Court was right in its view that theinstrument had created a specific endowment.

6. As we have earlier stated, Schedule B to the instrument set out 17difference kinds of charities on which different amounts wee to be spent. TheHigh Court held that six of these were not charities within the meaning of theAct because they were of a secular nature, and as the act dealt only withcharities of religious nature the deposition made for the purpose of those sixcharities could not form an endowment within the meaning of the Act. This isnot disputed by the respondent. The dispute before us concerned the remainingeleven charities. We have agreed with the High Court for the reasons earlierstated that what as given in respect of these eleven charities formed anendowment.

7. But there still remains a dispute as to the quantum of what was given inrespect of them. It was found that the total of the amounts specified in theinstrument in respect of these eleven items came to Rs. 1,590. It was howeverpointed out to the High Court that since 1914 when the instrument was executed,the income of the properties had gone up and the expenses of the charitiesdirected to be performed had also gone up. This is not disputed. The High Courtfound that the sum of Rs. 1.590/-was 15.9 per cent of Rs. 10,000/- which wasmentioned in the instrument as the current total income of the properties. Inview of the increase in the income and expenditure the High Court held that theinstrument created an endowment of 15.9 per cent of the income of theproperties whatever it might be at any particular time and not of the fixed sumof Rs. 1,590/-. Learned counsel for the respondent also said that underSchedule B the amount had in many cases been stated as approximate. He furtherpointed out that in one case 60 kalams of paddy had been directed to beprovided, the approximate cost of which was mentioned as Rs. 125/-. It wascontended that all these showed that what was given was- a percentage of thetotal income and not a fixed sum. We are unable to accept this view.

8. The fact that the expenses were stated to be approximate does not showthat a percentage of the total income formed the subject-matter of theendowment. What was given under each head was more or less a fixed sum. If theexpenses had not gone up, then on the present argument, the charities could notclaim more than what was stated in the instrument. The instrument cannot bear adifferent interpretation because of subsequent events which might or might nothave happened. The word 'approximate' which we may point out, doesnot occur in every item of the charities, only shows that the personsresponsible for paying moneys for the charities had a discretion to vary theamount mentioned slightly. That may have been because the charities were notvery clearly defined and because the acts constituting them were not rigidlyfixed. In any case, we do not see that the word 'approximate' createda right in the charities to a proportion of the income. We are, therefore,unable to agree with the High Court that an endowment had been created of 15.9per cent .f the income of the properties. We hold that an endowment had beencreated in respect of a right to receive out of the income of the properties asum of Rs. 1,590-00 only, leaving it to the proprietors who were the owners ofthe properties and were entitled to their management, in the exercise of theirhonest discretion to increase or decrease the amounts slightly as they thoughtthe occasion required. The declaration made by the High Court that an endowmenthad been created in respect of 15.9 per cent of the income of the properties isset aside and substituted by a declaration that an endowment of the right toreceive Rs. 1,590/-out of the income of the properties had been created subjectto the discretionary power of the owners of the properties to make a slightvariation in the amounts mentioned.

9. In the result, we dismiss the appeal subject to the variation earliermentioned. There will be no order for costs.

Ramaswami, J.

10. I agree with the order proposed by my learned brother Sarkar, J. But Iprefer to rely on rather different reasons.

11. The endowment known as Gade Rao Sahib Endowment attached to SriPushpavaneeswarar temple was created by one Sri Gopal Rao Gade Rao Sahib by theexecution of a settlement deed Ex. A. 1 dated January 10, 1914, Seventeen itemsof charities were mentioned in detail in Sch.'B' to Ex. A. 1 and the amount tobe spent was Rs. 4,311/- every year from out of the net income of theproperties mentioned in the document. The Deputy Commissioner, Hindu Religiousand Charitable Endowments, Thanjavur, by his order dated February 25, 1953 heldthat the endowment known as Gade Rao Sahib Endowment attached to SriPushpavaneeswarar temple was a pacific endowment as defined in the Madras HinduReligious and Charitable Endowments Act, 1951 [XIX or 1951] [Hereinafterreferred to as the Act]. Thereupon, the appellant took the matter in appeal tothe Commissioner. The commissioner, by his order dated November 10, 1953 inappeal no. 46 of 1953 while confirming the order of the Deputy commissionerthat the endowment in we question was a 'specific endowment', held that out of the charitiesmentioned in Sch. 'B' to Ex. A. 1, items 1, 4, 10, 1 1, &12 were secular charities. The appellant then filed a suitunder s. 62 (1 ) (ii) of the Act for cancellation of theorder of the Commissioner. It is contended on behalf of theappellant that none of the charities constituted a 'specific,endowment' within the meaning of the Act and, in any event,all the charities are private family charities. Thecontention of the appellant was accepted by the SubordinateJudge who granted a decree in his favour. Against the orderof the Subordinate Judge the defendant-respondent filedFirst Appeal A.S. 355 of 1955 in the Madras High Court whichallowed the appeal and restored the order of theCommissioner except with regard to item 17 which was treatedas secular charity and not falling within the purview ,ofthe Act. The present appeal is brought on behalf of theplaintiff against judgment and decree of the High Court ofMadras ,dated March 26., 1958 in the appeal.

12. The question presented for determination in this case is whether the 11items of charities mentioned in Sch. *B' to Ex. A.I which have been held to beof religious nature are 'specific endowments' within the meaning ofs. 6(16) of the Act which states :

13. '6. In this act, unless there is anything repugnant in the subjector context.

14. [16] specific endowment, means any property of money endowed for theperformance of any specific service or charity in a math or temple, or for theperformance of any other religious charity, but does not include an inam of thenature described in Explanation [1] to clause [14] :

Section 6 [14] of the act definesreligious endowment or endowment to mean:

All property belonging to orgiven or endowed for the support of maths or temples, or given or endowed forthe performance of any service or charity of public nature connected therewithor of any other religious charity; and includes the institution concerned andalso the premises thereof, but not include gifts of property made as personalgifts to the archaka, service holder or other employee of a religiousinstitution;

15. On behalf of the appellant it was contended that in order to attract theoperation of s. 6(16) of the Act there must be a transfer or divesting of theownership and there must be vesting of the title in the charity itself or thetrustees. It was submitted by Mr. Sastri on behalf of the appellant that in theSettlement deed, Ex. A.I there was only a direction to the trustees to performcertain religious charities from out of the income of the family properties. Itwas conceded by learned Counsel that the endowment was created in respect ofthe amount to be spent for the performance of the charities and a charge wasimposed on the immovable properties mentioned in Sch. 'A'. The argument wasstressed on behalf of the appellant that there was merely a charge on theproperties and there was no divesting of the title of the properties or vestingof such title in any body of trustees or in the temple itself. It was,therefore, submitted that there is no religious endowment within the meaning ofs. 6(14) of the Act and consequently there is no 'specific endowment'within the meaning of s. 6(16) of the Act and the finding of the High Court onthis question was defective in law.

16. I am unable to accept this argument as correct. In Hindu law adedication of property may be either absolute or partial Iswari Bhubaneshwariv. Brojo Nath Dey 64 I.A. 203. In the former case, the property is given outand out to an idol or to a religious or charitable institution and the donordivests himself of all beneficial interest in the property comprised in theendowment. Where the dedication is partial, a charge is created on the propertyof there is a trust to receive and apply a portion of the income for thereligious or charitable purpose. In such a case, the property descends and isalienable and partible in the ordinary way, the only difference being that itpasses with the charge upon it. [Mayne's Hindu Law, Eleventh Edition, p. 923].In my opinion, the expression religious endowment as defined in s. 6 [14] andspecific endowment as defined in s. 6 [16] of the Act must be construed so asto include both absolute and partial dedication of property. This view issupported by reference to s. 32 [1] the Act which states:

'32. [1] Where a specific endowment attached to amath or temple consists merely of a charge on property and there is failure inthe due performance of the service or charity, the trustee of the math ortemple concerned may require the parson in possession of the property on whichthe endowment is a charge, to pay the expenses incurred or likely to beincurred in causing the service or charity to be performed otherwise. Indefault of such person making payment as required, the Deputy Commissioner may,on the application of the trustee and after giving the person in possession areasonable opportunity of stating his objections in regard thereto, by order,determine the amount payable to the trustee.'

17. This section, therefore contemplates that specific endowment attached toa math or temple may consist merely of a charge on property. It is, therefore,not possible to accept the argument on behalf of the appellant that in order toconstitute a specific endowment within the meaning of the Act there must be atransfer of title or divestment of title to the property. In my opinion, Mr.Sastri is, therefore, unable to make good his argument on this aspect of theease.

18. For these reason I agree to the order proposed by my learned brotherSarkar, J.

19. Appeal dismissed and decree modified.


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