Alfred Henry Lionel Leach, C.J.
1. Appeal No. 144 of 1932 - In this appeal the Court is called upon to decide whether a mutt in the village of Chebrole, Guntur District, is a mutt within the purview of the Madras Hindu Religious Endowments Act, 1926 and as such is liable to make an annual contribution to the funds of the Board of Commissioners appointed under the Act. The appellants claim that the mutt does not constitute a public religious endowment. They say that it is entirely private in its nature and therefore it cannot be called upon in law to make any contribution. The Board having decided that the mutt is liable to make an annual payment, the suit out of which this appeal arises was filed by the appellants in the Court of the Subordinate Judge of Guntur for a declaration to the effect that the Board has no right to make a levy. The learned Judge agreed with the Board and dismissed the suit.
2. The appellants are brothers and are members of the sect known as Jangams or Vira Saivas. They worship the Lingam or symbol of Shiva which they wear suspended round the neck. According to ' the manual of the Nellore District' compiled by John A.C. Boswell, Collector of Kistna District in 1873, there are five seats of the principal priests of this sect, namely, (1) Gokarna Matam at Nizampatam; (2) Vibhuti Matam at Bangalore; (3) Saranga Matam at Srisailam; (4) Tota Matam in Plyderabad; and (5) Chebrole Matam at Chebrole. The Chebrole Matam is the mutt with which the suit is concerned. When it was founded is not known, but the evidence in this case shows that it was in existence in 1775, since when the members of the appellants' family have been entirely responsible for its management. It has been the custom for the head of the family for the time being or its members to choose a male member to be the head of the mutt. The person so chosen is required to take a vow of celibacy and is known as the Sambhu Devara. The Sambhu Devara receives the veneration not only of the members of his family, but of a large number of disciples to whom he gives religious instruction. The disciples do not live with him in the mutt, but in their own villages, many of them, of course, visiting the mutt;., from time to time. It is the custom for the Sambhu Devara to pay visits to his disciples periodically. In these visitations he is usually assisted by the male members of his family, who themselves at times visit the discipfes without him. The mutt is divided into three parts. In one part the Sambhu Devara lives and receives his disciples. In the second part are the residential quarters of the other members of the family and the kitchen. The third part consists of a courtyard in which there are the tombs of ancestors of the appellants who have held the office of Sambhu Devara. These tombs are ten in number and are regarded as shrines. Within the mutt premises the daily worship of the Lingam takes place and from time to time religious rites are performed at the tombs of the departed Sambhu Devaras. It is not suggested that these religious observances are confined to the first appellant and the members of his family. They are, in fact, participated in by members of the sect generally. The first plaintiff is the present Sambhu Devara. The mutt is maintained out of the income of lands situate in the villages of Koilmudi and Penumudi. The appellants claim that these properties do not constitute endowments of the mutt, but are in fact properties privately owned by the family. The appellants' case turns on the answer to this question.
3. Section 9(7) of the Act defines the word 'mutt'. It means:
An institution for the promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples and succession to whose office devolves in accordance with the directions of the founder of the institution or is regulated by usage; and includes places of religious worship other than a temple or places of religious instruction which are appurtenant to such institution.
4. Section 69 states that every mutt and every specific endowment attached to a mutt shall pay annually for meeting the expenses of the Board such contribution not exceeding one and a half per centum of its income as the Board may determine. The appellants contend that this section can have no application as the Act only applies to mutts of a public character, and in this connection point to Section 2 which says:
This Act extends to the whole of the Presidency of Madras except the Presidency Town and applies, save as hereinafter provided, to all Hindu Public Religious Endowments.
5. For the Board it is argued that every mutt which falls within the definition of Section 9(7) must be deemed to be a public mutt, but I think that this statement is too wide, and I am of the opinion that a mutt does not fall within the purview of the Act unless it can be regarded as being a public religious endowment. That there can be private mutts cannot be disputed, and where the property is given to the head of a mutt for his personal benefit it cannot constitute a public religious endowment. Some very apposite observations in this connection were made by Wallis, J., in the case of Kailasam Pillai v. Nataraja Thambiran (1909) 19 M.L.J. 778 : I.L.R. 33 Mad. 265:
Further in my opinion where gifts were given to heads of mutts without any specific trust the inference suggested by the circumstances of the case and by usage is that it was not intended to fetter the donees by any trusts in dealing with the gifts or to make them accountable in a Court of law for their manner of dealing with them. The ascetic character of the donees and the great reverence in which they were held would, I think, have rendered such restrictions in the eyes of the donors both unnecessary and unbecoming. The fact that the heads of mutts have more or less frequently abused their position is not of itself a sufficient reason for treating them as trustees of the mutt endowments. This is the only question in my opinion which arises, and my answer is that heads of mutts cannot be regarded as trustees of mutt endowments except in so far as it may be shown that any particular endowment was granted to them on trust.
6. But where the property has not been given to the head of the mutt for his own use, but has been given, for instance, for the purpose of defraying the cost of religious observances or the performances of pujas within the mutt, the position is very different. It is, therefore, necessary to ascertain the terms on which the lands were given.
7. I will deal first with the Koilmudi lands. These lands were granted in the year 1775 by the Zamindar of the day to the then Sambhu Devara. The grant is in the following terms:
We have granted 2 (two) kuchalas of Beedu Polam manyam (waste land) to Sambhu Devara Garu among the fields of the aforesaid village. 1185 fasli (1775-76). You should understand that you should get the said land separated and the boundaries fixed.' (Exhibit A.)
8. The grant was confirmed in 1791 by another document, which reads as follows:
We have granted two kuchalas of land in the fields of the aforesaid village to Sambhu Devara Garu. You should understand that the said land should be (separated)(torn) Vaisakha Bahula 7 of Paridhavi year (Exhibit C).
9. It will be observed that while the grant is to the Sambhu Devara it is not stated whether he is to hold the lands in his own right or on behalf of the mutt which was then in existence. If the matter remained there it might well be argued that this grant should be construed as a personal grant. But when we examine the Inam Register of 1862 and the statement which was filed by the Sambhu Devara of the time it is clear that these lands were given for the purpose of defraying the cost of lighting of lamps and performance of pujas at the shrines then within the mutt. In column 6 of the statement prepared by the Sambhu Devara and filed in the settlement proceedings there is this entry:
It was granted permanently by Rajah Vasireddi Ramanna Garu the then Zamindar of Koilmudi to the mutt for meeting the expenses of performing deeparadhana and other items.
10. Column 6 contains particulars as to how the grant was obtained and its conditions. In column 11 which requires particulars of the enjoyment of the grant there is this statement:
It is being enjoyed through Sambhuswamivaru for expenses for nitya deeparadhana and other items.
11. Now it is important to remember this is not a statement prepared by an official on information received which might be erroneous. It is a statement prepared and submitted for the purpose of the settlement by the Sambhu Devara himself. The entries in the settlement register are to the same effect. In column 8 of the register which requires particulars of the service for which the grant is held are the words:
For the Sambhu Devara Matam at Chebrole lighting lamps and making pujas to the shrine.
12. It has been suggested that the Court should disregard these entries and have regard merely to the terms of the grant itself. The learned Advocate for the appellants has here laid great stress on the decision in The Secretary of State for India in Council v. Srinivasachariar (1920) 40 M.L.J. 262 : L.R. 48 IndAp 56 : I.L.R. 44 Mad. 421 (P.C.), where their Lordships disregarded the entries in the Inam Register and decided the case on the terms of the grant itself. In that case, however, the grant showed that the entries in the register were erroneous. In the present case the grant does not state that the Sambhu Devara was to hold the property in his own right; it is silent in this respect. But we know the purposes for which the lands were given, because the grantee's successor stated them in 1862, and his statement put the matter beyond real dispute.
13. The learned Advocate for the appellants has relied on a number of documents to show that the appellant's ancestors treated these lands as being their private property. One of these documents is a tenancy agreement of the year 1847 which was executed by a tenant for a term of ten years in favour of the brother of the Sambhu Devara of that day. In 1852 the Sambhu Devara and a brother borrowed money on the security of the property and in 1854 the Sambhu Devara allowed his two brothers to partition it between themselves. But all these transactions took place before the settlement of 1862 when the same Sambhu Devara disclosed to the Settlement Commissioner the terms on which these lands were held. The fact that some of the appellants' ancestors did deal with this property as their own would not change the character of the grant. If it did constitute a religious endowment, a religious endowment it would remain. With regard to the partition it is to be observed that it did not deprive the mutt of the benefit of the lands permanently. That they came back into the possession of the Sambhu Devara is shown by the fact that in 1898 a tenancy agreement was executed in favour of the first appellant, the present Sambhu Devara. For the reasons indicated we hold that the Koilmudi lands did and do constitute an endowment of the mutt.
14. The original grant of the Penumudi lands has not been put in evidence. It is said that it was destroyed in a fire. The inam register, however, clearly shows that these lands also constitute a religious endowment. The entry in column 8 states that the lands are held for the maintenance of worship in the mutt and this in the circumstances must be regarded as conclusive.
15. The position then is this: - The lands in both the villages were granted to the mutt for religious purposes; the mutt has been in existence for at least a century and a half and is an institution which is venerated and visited by a large number of people; public worship takes place within its precincts and it provides religious instructions for members of the Vira Saiva sect. It is impossible, in these circumstances, for the appellants to maintain their contention that it is not a mutt of the character contemplated by the Madras Hindu Religious Endowments Act, 1926. Being a mutt governed by the provisions of the Act the Board has the right to call upon those in charge of it to make the contribution required by Section 69. The appeal consequently fails and must be dismissed with costs, which will be paid out of the mutt's funds. The appellants will also be allowed their costs out of those funds.
16. C.R.P. No. 1218 of 1933. - The petition is allowed. O.P. No. 91 of 1928 on the file of the District Court, Guntur, will be dismissed. No order as to costs.
Madhavan Nair, J.
17. I entirely agree. I add a few words only because of the insistence with which Mr. Krishnaswami Aiyangar argued that the Chibrolu Mutt is a private mutt. If the origin of the mutt is unknown, the history of the property of the mutt and the manner how it has been dealt with by the Matathipathi will often afford an answer to the question whether the mutt is a private institution or a public endowment. In this case the mutt in question is, in my opinion, a public religious endowment though the properties of the mutt were for sometime treated as if they were the private properties of the family of the appellants. It is clear from the inam statement that the head of the matam himself treated the property mentioned in it as having been given for public purposes. In its origin and narrow sense the term 'mutt' signifies the residence of an ascetic, or a sanyasi or a paradesi. (See Giyana SambandhaPandara Sannadhiv. Kandasami Tambiran I.L.R. (1887) Mad. 375.) As pointed out in Sammantha Pandara v. Sellappa Chetti I.L.R. (1879) Mad. 175:
A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mysteries of his order and instructs his religious tenets.
18. Gradually pious persons endow the preceptor with properties and in course of time we have associations of sanyasis devoted to divine worship who give upadesam or instruction to deserving candidates. It is in this manner that mutts come into existence. But there are many cases where mutts have been deliberately established from the very commencement as public institutions in order to maintain and strengthen the doctrines of particular systems of religious philosophy. The history of this class of what may be called 'endowed mutts', which came into existence in the nature of monastic institutions presided over by ascetics and sanyasis are mentioned in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran I.L.R. (1887) Mad. 375 already referred to. It is possible to conceive of gifts of properties by pious followers to the head of a mutt personally for his own use. These he may administer as properties of his own but over other properties which appertain to the mutt his responsibility is that of a trustee. Ordinarily properties though given to the head of a mutt will also be used as properties of the mutt as an ascetic is prevented from owning property for personal enjoyment. The question whether a particular mutt forms a public religious endowment or is a private institution must be judged in the light of the evidence in each case. The origin of the mutt if it is known, its antiquity, the nature of the gifts of property made to it, the way, how these have been treated by its head, the long-established usage and custom of the institution, all these throw valuable light on the question whether the mutt is a public religious endowment or a private institution. The mutt in the present case did not, in my opinion, come into existence as an 'endowed mutt' at its inception, but the sanctity of the life of the matam people the appellants' ancestors - attracted grants of property from pious donors and gradually the matam came to be treated as a public religious endowment. If we did not have the inam statement made by the then head of the Chibrolu Matam or the inam entries in the register to help us, it might have been a matter of some difficulty to hold with confidence that the matam in this case is a public religious endowment. It may be argued with great force as has been done by Mr. Krishnaswamy Aiyangar that the grants A and C show that the property referred to in them were granted to the Chibrolu Matam people for their enjoyment and not as trustees to hold them for a public purpose. The treatment of the property by them may also be said to support this argument; but that the properties were to be used for a public purpose becomes clear from the other evidence in the case. I would therefore hold that mutt in this particular case is a public mutt and comes within0 the description of 'a Hindu Public Religious Endowment' to which the Hindu Religious Endowments Act would apply.
19. I agree with the orders passed by my Lord both in the appeal and in the Civil Revision Petition.