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N. Ramaswami Mudaliar Vs. S.A. Aiyasami Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberAppeal No. 552 of 1956
Judge
Reported inAIR1960Mad467
ActsBihar Hindu Religious Trusts Act; Madras Hindu Religious and Charitable Endowments Act - Sections 58; Code of Civil Procedure (CPC), 1908 - Sections 9 and 92; Copyright Act; Code of Civil Procedure (CPC), 1882 - Sections 539; Hindu Law
AppellantN. Ramaswami Mudaliar
RespondentS.A. Aiyasami Chettiar and ors.
Cases Referred(Shoeshankar v. Ram Shewak
Excerpt:
trusts and societies - management - bihar hindu religious trusts act, section 58 of madras hindu religious and charitable endowments act, sections 9 and 92 of code of civil procedure, 1908, copyright act, section 539 of code of civil procedure, 1882 and hindu law - plaintiff sought scheme for management of trust - defendants disputed existence of trust as for charitable purpose - purpose of trust is to feed brahmins - 'dharmam' of feeding brahmins would constitute public religious or charitable trust - relief of framing scheme of management under section 92 can be granted - held, draft scheme for management of trust approved with modifications by court. - - the usual charities that were being done by narayanaswami mudaliar for feeding the poor during the festivals of thai poosan in.....ramaswami, j.(1) this appeal is directed against the decree and judgment of the learned subordinate judge of salem in o. s. no. 165 of 1954.(2) the suit out of which this appeal arises was for (a) settling a scheme, and (b) removing the defendant from trusteeship, (c) appointing a new trustee as per the scheme to be settled, (d) directing the defendant to render accounts of the income from the trust properties since 1945, and to direct him to pay to the trust whatever is found due on account of past and present income and profits in the suit properties and (e) any other directions regarding the suit charities and other reliefs.(3) the suit was filed on the foot of the following allegations: the plaint a schedule properties were endowed by the late narayanaswami mudaliar, the adoptive.....
Judgment:

Ramaswami, J.

(1) This appeal is directed against the decree and judgment of the learned Subordinate Judge of Salem in O. S. No. 165 of 1954.

(2) The suit out of which this appeal arises was for (a) settling a scheme, and (b) removing the defendant from trusteeship, (c) appointing a new trustee as per the scheme to be settled, (d) directing the defendant to render accounts of the income from the trust properties since 1945, and to direct him to pay to the trust whatever is found due on account of past and present income and profits in the suit properties and (e) any other directions regarding the suit charities and other reliefs.

(3) The suit was filed on the foot of the following allegations: The plaint A schedule properties were endowed by the late Narayanaswami Mudaliar, the adoptive father of the defendant, and the late Arunachalam Chettiar, the father of plaintiffs 1 and 2 and paternal uncle of the third plaintiff, from a portion of profits earned in their partnership business and set apart for charitable purposes. The partnership was dissolved under a registered document dated 30-11-1909. The document recites that at the instance of Narayanaswami Mudaliar the suit properties were purchased in his name and it was agreed that he should manage them as trustee, without any right or power to alienate, and that the income therefrom should be utilised for performing the usual Samaradhanai and other charities. At contemplated in the said document, a separate deed came into existence on 7-1-1910.

Narayanaswami Mudaliar till his death on or about 8-2-1933 was properly conducting the plaint B schedule charities. The defendant who is his adopted son was a minor on 8-2-1933, and there were disputes between the defendant's natural father and his adoptive mother Ratnammal with the result that the charities were neglected. The usual charities that were being done by Narayanaswami Mudaliar for feeding the poor during the festivals of Thai Poosan in Kalipati Kandaswami temple and the Chitra Poornami in Sri Sitheswarar temple in the choultry belonging to the parties, were done on a small scale without due regard to the income from the trust properties and also the scale in which the same was performed by Narayanaswami Mudaliar. The plaintiffs estimate that a sum of Rs. 10,000/- should have been collected by the defendant since he attained majority and there must be a large surplus left in his hands.

Having regard to the fact that the charities have been much neglected, it has become necessary to settle a proper scheme for the management of the trust properties and the retention and conduct of the charities as may be found commensurate with the income. The plaintiffs are persons interested in the charities since they were also participating in the performance of the charities during the lifetime of Narayanaswami Mudaliar and have also been doing some of the charities with their own moneys in a small way and anxious to have the charities performed as were being originally done. Even otherwise, plaintiffs 1 and 2 are the sons of Arunachalam Chettiar, one of the founders, and the third plaintiff is no other than the son of Ariyaputra Chettiar, the then undivided brother of Arunachalam Chettiar. The plaintiffs have therefore instituted the suit under S. 92 of the Code of Civil Procedure with the sanction of the District Collector of Salem.

(4) The contentions of the defendant are reflected in the following issues:

1. Whether the 'A' Schedule properties are properties of a trust or endowment created for public purposes for the performance of the charities mentioned in schedule 'B' of the plaint?

2. Whether the plaintiffs are entitled to maintain this suit?

3. Whether the plaintiffs are entitled to have a scheme framed?

4. Whether the defendant is liable to account?

5. Whether the description of the 'A' schedule properties is not correct?

6. Whether the defendant has made any improvements?

(5) The learned Subordinate Judge before whom the third plaintiff examined himself and six other witnesses and the defendant examined himself and nine other witnesses and Exs. A1 to A3 and B1 to B126 were filed, upheld the case of the plaintiffs and negatived the contention of the defendant and gave the following decree:

'In the result, there will be a preliminary decree granting the prayer for settling a scheme for the plaint B schedule charities, appointment of new trustees one of whom would be the defendant, and directing the defendant to render accounts of the income from the trust properties since 1945 onwards and make good the amount found due. The defendant will be entitled to have the amounts spent by him for charities other than the suit charities and also for the improvements effected by him for the suit properties, of course, both subject to proof before the commissioner. The plaintiffs will be entitled to have a commission appointed to go into the accounts for fixing the defendant's liability, if any. The defendant will produce all his accounts before the commissioner and both sides will be entitled to lead evidence, oral and documentary, before the commissioner. The plaintiff's costs of suit will come out from the defendant personally.

For filing of a draft scheme the suit will stand adjourned to 15-10-1956'.

Hence this appeal by the defeated defendant.

(6) The learned advocate for the appellant, Sri. T. M. Krishnaswami Ayyar, puts forward the following contentions viz., that this is not a public trust and therefore Sec. 92 of the Code of Civil Procedure is not applicable and no trust had been created at all; and secondly, this is not a case of private trust either and that no scheme can or ought to be framed. The learned advocate develops the contention about the suit charity not being a public trust by contending that the words 'Samaradhana Dharmam' means 'Brahmana Bhojanam' and that it is settled law that 'Brahmana Bhojanam' cannot constitute a religious charity and that therefore cannot be a charitable public trust. On a careful consideration of all the circumstances of the case we have come to the conclusion that these contentions are not acceptable and that in addition to the reliefs granted by the learned Subordinate Judge, we should frame a scheme in regard to which a draft was called by the learned Subordinate Judge and at which stage this appeal had been filed and further proceedings have been held up.

(6a) Before discussing the main contention raised by the learned Advocate Sri. T. M. Krishnaswami Iyer we shall briefly consider whether by reason of the uncertainty of the subject this Court will refuse to establish the trust. This is not one such case. (See Lewin on Trusts 15th Edition p. 83). The Samaradhana Dharmam or Brahmana Bhojanam as Mr. T. M. K. Iyer wants to construe it is not an uncertain subject. The subject is said to be uncertain where the gift was for such a charitable or public purpose as the trustee should think proper or to remember the church and the God and the poor etc. This is not certainly the case here as Samaratana Dharmam is both specific and definite and can be enforced without further ado. (P. R. Ganapathi Iyer pp. 97 and foll; Mukherjee pages 107 and foll.)

(6b) Before discussing the main contention raised by Sri T. M. K. Iyer we shall also dispose of the contention that no trust of any kind had been created at all. It is unnecessary to discuss this matter at length. The clear affirmative finding of the learned Subordinate Judge is based upon (a) trust deed itself; (b) the evidence adduced by the plaintiff; and (c) the admissions made in the written statement as well as in the defendant's evidence. We have no hesitation in holding that a charitable or religious trust has come into existence for the performance of the objects set out in the B schedule with the income of A schedule properties dedicated therefor. This futile contention need not be discussed further and it fails.

The point for determination before us is not whether any trust had come into existence and concerning which there can be no doubt, but whether it was a valid trust and secondly whether it is a public or private trust and thirdly whether a scheme can and should be framed for its future management.

(7) We must now briefly state the settled law relating to charitable and religious trusts, public and private, concerning which the law is practically the same, barring regarding details of application, in England, United States of America and India. These principles can be gathered from the standard treatises on the subject viz., Tudor on Charities, Fifth edition; Halsbury's Laws of England (Simonds Edition), Vol. 4, page 206 and following: (so far as England is concerned), 10 American Jurisprudence, page 584 and following and 14 Corpus Juris Secundum, page 408 and following (so far as United States of America is concerned) and P. R. Ganapathi Iyer's Law relating to Hindu and Mahomedan Endowments, Second Edition, and B. K. Mukherjee's Hindu Law of Religious and Charitable Trust (Tagore Law Lectures, 1936) and P. V. Kane's History of Dharma Sastra, Volume 2, Chapter III page 105 and following (so far as India is concerned) and James Hastings Encyclopaedia of Religion and Ethics Vol. III Charity p. 373 and following; ibid Charity-Almsgiving-Hindu p. 387; Vol. VI Food-Hindu p. 63 and following.

(8) The word 'charity', like many other words, has both a lay meaning and a legal meaning. In the common use of the term 'charity' means any act of kindness or benevolence, and it is usually defined as such by the lexicographers. Thus, by the lay mind it is undoubtedly considered an act of charity for one to aid another in the hour of sickness, distress or need. In law such an act would amount to benevolence and not to charity. Another definition that has been frequently quoted by the courts, but which is broader than the true legal definition, is that whatever is given for the love of God or for the love of a neighbour, in the catholic and universal sense--given from those motives and to these ends, free from the stain or taint of every consideration that is personal, private, or selfish--constitutes charity.

(9) In legal parlance the word 'charity' has a much wider significance than in common speech. While a precise and complete definition is difficult to frame, the most comprehensive and carefully drawn definition is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.

It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. Another definition capable of being easily understood and applied is that given by Lord Camden as follows: 'A gift to a general public use, which extends to the poor as well as the rich'. The theory of this is that the immediate persons benefited may be of a particular class, and yet if the use is public in the sense that it promotes the general welfare in some way, it has the essentials of a charity. The true test of a legal public charity is the object sought to be attained and not the motive of the donor in establishing the trust: 10 Am. Jur. S. 13.

(10) Again, charity has been declared to be active goodness--the doing good to our fellow men, fostering those institutions that are established to relieve pain, to prevent suffering, and to do good to mankind in general or to any class or portion of mankind. General gifts for the relief of the poor and unfortunate persons are for a charitable purpose: 14 C. J. S. 47.

(11) A gift for a religious purpose is one for a charitable purpose: In re, White; White v. White, (1893) 2 Ch. 41; Mukherjee14 C. J. S. 449.* Religion and charity overlap each other and do not admit of any differentiation. They are both integral parts of Dharma or rule of righteousness which the Hindu sages regard as the upholder of the entire fabric of universe, both in its physical and moral aspects. It has been pointed out by B. K. Mukherjee that flowing from the doctrine of Karma in the Hindu system is no line of demarcation between religion, and charity.

{* Charitable purposes take such varied forms that they cannot be limited by any narrow and stated formula and what is a charitable purposes also varies from time to time. 14 C. J. S. 440; 4 Halsbury 3rd edition p. 210.}

On the other hand charity is regarded as part of the religion. Hindu religious and charitable acts have been from the earliest time classified under two heads viz., Istha and Purtta. Justice Subramania Iyer in Parthasarathy Pillai v Thiruvengada Pillay ILR 30 Mad 340 pointed out with reference to original authorities that the word Dharma when used in connection with gifts of property connotes Istha and Purtta donations--vide also the observation of Mukherjee J. in Bhupati v. Ramlal ILR 37 Cal 128 and of Jailal J. in Naraindas v. Brijlal ILR 14 Lah 827 : AIR 1933 Lah 833. The two words are often used conjointly and they are as old as the Rigveda.

The compound word Istha-Purtta has been retained in the writings of all Brahminical sages and commentators down to modern days, and although the connotation of these two expressions was extended to some extent in course of time, the fundamental ideas involved in them remain practically the same. By Istha is meant Vedic sacrifices, and rites and Gifts in connection with the same; Purtta on the other hand means and signifies other pious and charitable acts which are unconnected with any Srauta or Vedic sacrifice. The meaning of these two expressions has been discussed elaborately by Pandit Pran Nath Saraswati, in his Tagore Law Lectures on the Hindu Law of Endowments.

Following a text of Sankara quoted by Hemadri, Pandit Pran Nath Saraswati makes the following enumeration of Istha works viz.:, (1) Vedic sacrifices etc. (2) Gifts offered to priests at the same. (3) Preserving the Vedas. (4) Religious Austerity, (5) Rectitude, (6) Vaiswadev sacrifice and (7) Hospitality. The Purtta works not only signified such works of public utility as excavation of tank, wells, etc. but included all acts which either conferred some kind of benefit on those who were in need of it, or were regarded as meritorious from the spiritual or religious point of view.

From the numerous Smriti texts bearing on the point, Pandit Pran Nath Saraswati has compiled a list of Purtta works which are generally recognised as such by Brahminical writers. These are: (1) gifts offered outside the sacrificial ground (2) gifts on the occasion of an eclipse, solstice and other special occasions (3) the construction of works for the storage of water, as wells, tanks etc. (4) the construction of temples for the Gods (5) the establishment of procession for the honour of Gods (6) the gift of food and (7) the relief of the sick.

(12) Charitable trusts are of two kinds--public and private. The Hindu law itself knows no distinction between public and private religious or charitable trusts: Rupa v. Krishnaji, ILR 9 Bom 169. Hence it was that West, J. remarked in general terms in Manohar v. Laxmiram, ILR 12 Bom 247 that a trust for a Hindu idol and temple is to be regarded in India as one created for public charitable purposes within the meaning of S. 539 of the Code of Civil Procedure, 1882, corresponding to S. 92 of the present Code. Still that distinction is not without its meaning in Hindu law as now administered. It is therefore necessary to show here where the distinction lies.

In English law the terms 'public' and 'private' are thus defined: By 'public' must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. The essential elements of a public charity are that it is not confined to privileged individuals but it is open to the indefinite public or some portion thereof or upon an indefinite class of persons. It is this unrestricted quality that gives it its public character: 10 Am. Jur. 588.

The line of distinction between purposes of a public and of a private nature is few and practically incapable of definition. 4 Halsburys 3rd edition page 211; see also Ram Saroop v. S. P. Sahi : AIR1959SC951 (a case under Bihar Hindu Religious Trusts Act); and also Moti Das v. S. P. Sahi : AIR1959SC942 . To this class 'public' belong all trusts for charitable purposes and indeed 'public' trusts and 'charitable' trusts may be considered in general as synonymous expressions. In 'private' trusts the beneficial interest is vested absolutely, in one or more individuals who are or within a certain time may be, definitely ascertained and to whom therefore collectively, unless under some legal disability it is, or within the allowed time will be, competent to control, modify, or determine the trust.

A public or charitable trust on the other hand has for its object the members of an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement upon a private trust: Lewin on Trusts, page 18. The same distinction has been expressed in a simpler language by Mr. G. S. Shastri in his Hindu Law at page 491. He says that when property is dedicated to charitable, education or religious uses for the benefit of an indeterminate body of persons the endowment is a public one and when property is set apart for the worship of a deity of a particular family in which no outsider is interested, the endowment is a private one. It seems that it was with this distinction in view that the Privy Council held in a Calcutta case that in the case of a family idol the consensus of the whole family might give the estate another direction: Konwar Doorganath v. Ramchunder Sen, ILR 2 Cal 341 (PC).

This decision appears to have been followed in another case which went up to that High Court and approved in a somewhat analogous case by the Bombay High Court: Gobinda v. Debendra, 12 Cal WN 98, Khetter Chudner v. Haridas, ILR 17 Cal 557, Rajaram v. Ganesh, ILR 23 Bom 131. These decisions are obviously based on the belief that the endowment in each case was a private one. Mr. Shastri has in view of the decisions gone so far as to assert that if all the members of the family to which an endowment belongs renounce Hinduism and choose to throw the family idol into the water of the Ganges and themselves enjoy its property no outsider can raise any objection to that course: (Shastri's Hindu Law, p. 491).

The Allahabad High Court had on the other hand occasion to define what a public endowment was in the case of Puran Atal v. Darshandas, ILR 34 All 468 : 9 All LJ 709. Therein Chamier, J., remarked:

'It seems beyond doubt that in order that a trust may be a trust for a public purpose it is not necessary that it should be a trust for the benefit of the public at large. It is sufficient to show that it is a trust for the benefit of a section of the public'.

It seems it was with some such definition of a 'public trust' in view that where a Hindu provided for the creation and maintenance of a religious endowment in favour of the sect known as the Bhagwatas, appointing managers and directing the manner in which the profits of the endowed property were to be spent, the Calcutta High Court held that there was a public religious endowment within the meaning of S. 539 of the C.P.C., 1882: Kanhayalal v. Shaligram, 1894 All WN 159.

(13) While distinguishing communal from religious trusts, West, J., says in ILR 12 Bom 247:

'There is no difficulty in conceiving the existence of a society having property and receiving gifts from its own members or from strangers which it then disposes of simply for its own benefit or at its own discretion. The guilds and companies in manufacturing and trading societies held and still hold estates without the attendant obligations of a religious trust. The property is their own distributable amongst the members or at the pleasure of the governing body of the society not held for the benefit of any class outside the society, or for the promotion of any purpose of recognised public utility. The latter characteristic is essential to a public charity but in its absence there may be a corporation existing by royal grant, prescription or legal allowance holding property for other than charitable purposes'.

As a family example of a communal trust may be cited the fund held by the Mahajan for communal purposes. Such a fund was held in the case of Thakersey v. Hurbhum, ILR 8 Bom 432, to be a purely secular fund and a suit with respect to such a fund was held not to fall within the purview of S. 539 of the C.P.C., 1882, corresponding with S. 92 of the present Code.

(14) The customary modes of charity amongst the Hindus are 'the consecration of images of the deity n temples for workshop, establishment of hospitals of Maths which are either monasteries for Sanyasis or residential colleges for students, asylums for the poor or religious mendicants, shelters for travellers, temples of learning, establishments of Suttaras, or alms-houses, Athithishalas, Pathashalas, excavation and consecration of shady trees and the like': Shastri's Hindu Law, VIII Edn. p. 665. These have been more succinctly and methodically stated by the Right Honourable Mr. Ammer Ali, in the judgment of the Privy Council in Vidya Varuthi v. Baluswami ILR 44 Mad 831 : AIR 1922 PC 123, in the following terms:

'Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind and for all purposes considered meritorious in the Hindu social and religious system, to Brahmins, Goswamis, Sanyasis, etc.'

(15) Amongst the Mussalmans all works of charity or public utility not condemned by the Mahomedan religion are proper objects of Waqf: Wilson Digest of Anglo-Mahomedan Law, S. 322.

(16) As for the members of the other communities, there are no settled rules defining what are and what are not public religious or charitable endowments. Cases do, however, arise from time to time in which the courts are called upon to decide whether the particular objects in question therein are or are not public and whether they are or are not charitable or religious in their nature. The fundamental principle which has been laid down once for all in the case of all the communities is that the English rules of law which prohibits the bequest for superstitious uses and the creation of perpetuities have no application in India: Joseph Ezekiel Judah v. Aaron Hye Nusseern Ezekiel Judah, 5 Beng LR 433; Andrews v. Joakin, 2 Beng LR OC 148; Das Merces v. Cones, 2 Hyde 65; Ramatonco v. Ram Gopal, 1 Knapp 245; Advocate-General of Bombay v. Vishwanath, 1 Bom HCR App 9; Khushalchand v. Mahadevgiri, 12 Bom HCR 214 ; ILR 9 Bom 169; Fatma Bi v. Advocate-General, of Bombay, ILR 6 Bom 42; Limji Nauroji v. Bapuji, ILR 11 Bom 441.

(17) These principles will be found also embodied in the following decisions: Mahomed Nabi v. Province of Bengal : AIR1942Cal343 , relying upon ILR 34 All 468, Md. Kazim v. Abi Saghir, : AIR1932Pat33 and Dhori Bhai v. Pragdasji, : AIR1938Bom471 ; Deoki Nandan v., Murlidhar : [1956]1SCR756 ; Administrator-General of Madras v. Money, ILR 15 Mad 448, and Rajendra Lall Agarwalla v. Raj Coomari Debi, ILR 34 Cal 5. That feeding of the poor--the term poor is a relative term not confined to the destitute (vide 4 Halsbury 3rd Edn. p. 214 and footnote (d)--is clearly a public charitable purpose has been held in Muthuswami v. Rayalu : AIR1925Mad689 , Chokkalingam Chettiar v. Raman Chettiar : (1945)2MLJ525 and Gurunatharudhaswami v. Gangadharappa . The relief of the poor of a particular denomination only is still charitable; 4 Halsbury 3rd Edn. p. 216.

{ In England the preamble of the statute 43 Elizabeth I (Charitable Uses Act 1601) enumerates many specific charitable purposes and Lord Macnaughton in I. T. Special Purposes Commrs. v. Pemsel, (1891) AC 531 grouped them under four heads (Mukherjee) p. 54). But they furnish no guidance to us.}

(18) To sum up, the distinction between public and trusts is: The requisites of a valid private trust and of one for a charitable use are material different. In the former there must be not only a certain trustee who holds the legal title, but a certain specified cestui que trust, clearly identified, or made capable of identification, by the terms of the instruments creating the trust, while it is an essential feature of the latter that the beneficiaries are uncertain, a class of persons described in some general language, often fluctuating, charging in their individual members, and partaking of a quasi-public character.

The most important distinction, however, between charities and other trusts is that in the time of duration allowed and the degree of definiteness required. Trusts for public charitable purposes, being for objects of permanent interest and benefit to the public, and perhaps being perpetual in their duration, are upheld under circumstances under which private trusts would fail.

Broadly, a charitable use or purpose may where necessary neither law nor public policy forbids be applied to almost anything tending to promote the well doing and well being of social man, but the use or purpose must be public as distinguished from a private one, for the benefit of the public at large or of a portion thereof or for the benefit of an indefinite number of persons: 14 C. J. S. 439. Halsbury Vol. IV 3rd Edn. p. 209 para 488 citing Oppenheim v. Tobacco Securities Trust Co., (1951) AC 297; Gilmour v. Coats, (1949) AC 427 : 1949 1 All ER 848; National Anti-Vivisection Society v. I. R. C., (1947) 2 All ER 217; Williams Trustees v. I. R. C., (1947) 1 All ER 513.

(19) In regard to abuses relating to public and private trusts and the powers of the civil Court to give reliefs like the framing of schemes of management etc., in the case of public trusts the powers are regulated by S. 92 of the C.P.C., and S. 58 of the Madras Hindu Religious and Charitable Endowments Act; and in the case of private trusts, by a long series of decisions. It is enough to refer here to the following decisions; In Narayanaswami Naidu v. Balasundaram Naidu : AIR1953Mad750 , it was held that:

'even in the case of private trusts, it is open to any member of the founder's family where his rights are impugned to seek redress in Courts of law....... The Court cannot refuse to frame a scheme in the matter of a private trust. So far as the members of the family are concerned who are interested in the trust, if the trustee for the time being mismanages or acts in breach of trust, it is a civil right which is infringed and under S. 9 C.P.C., they are entitled to seek redress in Court for the purpose of remedying the mischief'.

In Chellam Pillai v. Chatham Pillai, AIR 1953 Trav Co. 198, it has been held that

'though S. 92 C.P.C., in terms does not apply because it relates specifically and definitely to the case of public trusts, in the case of a private family trust the Court has got jurisdiction to frame a scheme for the management of the trust.'

In Vaithinatha Aiyar v. Thyagaraja Aiyar, 41 Mad LJ 20 : AIR 1921 Mad 563, two plaintiffs instituted the suit under S. 92 C.P.C., as the descendants of the founder of the charity, a chatram. On the question of their right to institute the suit it was held that

'The fact that the plaintiffs belong to the family of the founder would naturally give them an interest in the family charity so as to enable them to bring a suit under S. 92 of the C.P.C.'

In addition the powers of the civil Court in the case of private trusts to frame a scheme have been affirmed in a Bench decision of this Court in Shah Abdul Latif v. Mohd. Lebbai, A. S. No. 221 of 1951 (Mad), to which one of us was a party.

(20) Bearing these principles in mind, let us examine whether Samaradhana Dharmam means Brahmana Bhojanam and consequently it cannot form the basis of a religious or charitable public trust.

(21) The term 'Samaradhana' has been dealt with in the standard lexicons as follows:

I. Tamil Lexicon, Vol. III p. 1297:

Samaradhnai--Feeding of Brahmins (Brahman Bhojnam)

Tamil Lexicon, Vol. V, p. 2700:

Brahman Bhojanam: Brahmanarukku Seyyum Samaradhanai.

II. Canarese and English Dictionary of Sanderson (1858) p. 932:

'Peace, tranquillity, (2) Conciliation, consent, agreement. (3) reconciling differences. (4) to reconcile, console, comfort, appease'. III. The Arya-Bhushan School Dictionary--Marathi-English. p. 534; (by Shridhar Ganesh Vaze).

'Entertainment made to Brahmana on festive occasions' IV. V. Shivram Apte's Sanskrit-English Dictionary (1890) p. 1097:

Samaradhanam: (1) a means of satisfying, gratification. (2) attendance, service.

Page 254: Aradhana: service (as of a deity).

V. Apte's Sanskrit Dictionary (1957 Edn.) Vol. I, p. 352:

(Aradhanam):

1. Pleasing, satisfaction, entertainment, gratification.

2. Serving, worshipping, adoration, propitiation (as of a deity).

3. A means of pleasing.

4. Honouring, respecting.

5. Cooking.

6. Accomplishment, undertaking.

7. Acquirement, attainment.

VI. Sri Monier Monier-Williams: A Sanskrit-English Dictionary New Edn. (1951) p. 1161:

sam-aradh (cans)--radhayati: to conciliate, propitiate, win over:

Samaradhana (n): conciliation, propitiation, gratification.

VII. Series of Handbooks for Study of Sanskrit, edited by Max-Muller--A Sanskrit-English Dictionary (compiled by Benfey) 1866.

Page 1008: (sam) prep. 2. Combined and compounded with verbs and their derivatives and compounded with nouns: with, together, much, very, wholly, beautifully.

Page 85: (Aradhan) (3) Gratification.

Page 1012 (samaradhan) n. winning, gratifying.

VIII. Wilson--Sanskrit and English Dictionary, p. 645:

(sam) A participle and prefix implying

1. union, junction

2. Assemblage, collection

3. Beauty or perfection

4. Intensity

As a prefix it corresponds to con, co, com, etc.

Page 655 Samyak

1. all, wholly

2. properly, fitly.

IX. Wilson's Glossary (compiled and published under the authority of the Hon'ble The Court of Directors (MDCCCLV):

'Brahmanabhojana, S. etc.: Distribution of food to Brahmins.' (It is not equated with Samaradhana).

X. Rev. Niron Winslow (American Missionary, Madras)--The comprehensive Tamil-English Dictionary, of High and Low Tamil (1862):

(Samaradhanai): Conciliation or propitiation made by presenting food to Brahmins:

(Brahman Bhojantal Shanti Kalittal)

XI. Bailey's Dictionary of High and Colloquial Malayalam and English (1846).

'Santharpanantai--ceremony of feeding Brahmins.

(Brahmanargalukku Bakshanam Kodukkuha).

XII. Rev. H,. Gundert's Malayalam and English Dictionary:

'Samaradhanam: Worship, Bhagawanesa Chaidha'. Santharpana--gratifying Brahmins by a meal.

Sadhya: Bramin's daily meal.

Saddhi Kazhikka: Brahmins' treat.

XIII. C. P. Brown: Telugu-English Dictionary; 2nd Edn. (1903).

Sam-aradhanamu (Skt) N, Worship, chakkani Aradhanimu.

(22) The information culled out from these lexicons shows nothing more than that the Dharmam of feeding was one of the means of serving, worship, adoration and propitiation of the deity and that generally speaking the people who were fed were poor Brahmins. It stands to common sense that well-to-do Brahmins will not be the people who will go to this public feeding place and receive the small Bhoori Dakshina offered on the occasion after the serving of the meals. It has already been pointed out that poor does not mean destitute and the word 'Dharmam' takes in both Istha and Purtta. The accent on Brahmins as the persons eligible for being fed at Samaradhana is and Santharpanams is due to historical reasons.

An illuminating exposition of the same will be found in the classical work of P. V. Kane's History of Dharma Sastra, Vol. II, Part I, chapter III. The duties and privileges of Varnas occupy a very prominent place in all works of Dharma Sastra. The principal Virthi of the Brahmin was teaching, officiating at sacrifices or receiving gifts. The third means of livelihood permitted to Brahmins resulted from the previous two Virthis. The ideal set before the Brahmins was one of poverty, of plain living and high thinking, of forsaking the active pursuit of riches and cherishing cultural preservation and advancement. It is enough to point out for instance Manu lays down the general rule that when not in distress a Brahmin should acquire wealth only just sufficient to maintain himself and his family and that the accumulation of wealth beyond the requirements of immediate needs was a calamity for a Brahmana.

The Dharma Sastras also prescribe rigorous rules regarding Dana and Pratigraha. Gifts should be given to and taken by only worthy persons. But in spite of the noble ideas set before the Brahmanas, it appears that owing to the growth of the Brahmana population and the meagre emoluments derived by teaching and officiating as priests, the rules came to be relaxed. As Professor Kane puts it, teaching brought very little wealth. There was no State educational system as in modern times with stability of tenure and graded rates of salary. Nor was there any Copyright Act under which a learned man could make money by writing books for students and the general public. The Brahmanas had no organised corporate body like the Anglican Church with its high paid hierarchy.

The emoluments of officiating priests and gifts given by charitably disposed persons must have been fitful and offered only a precarious means of livelihood, as it depended upon the volition of others and as the Smritis recommend that even in Sradha too many Brahmins should not be invited. Besides all Brahmanas could not have possessed the memory, intelligence and patience required to be come Shotriyas. Therefore, whereas in the first instance only worthy Brahmins could receive Dana and Pratigraha, in course of time on account of the increasing population of the Brahmanas, various modifications came into existence, Brahmins began to follow other professions, like the profession of arms (like Drona, Aswathama, etc.) and with restrictions the occupations of money-lending, agriculture, trade and rearing of cattle which were once the privileged occupations of other Varnas.

This also led as just now mentioned to the relaxation of receiving Pratigraha and Dana and the Brahmins as a class became eligible for being the recipients of food etc. There is no difficulty also, because caste restrictions regarding food being taken at the houses of the members of the other Varnas were of a later growth. To mention one instance, Apasthamba allows non-Dvajas to be cooks of Brahmana households provided they were supervised by a member of the three higher classes to observe some hygienic rules about paring nails and cutting hair. Side by side with these increased opportunities of being fed, the Brahmins also increased the public inclination to feed them by eulogies of their sacredness and superiority merely on account of birth. To quote Professor Kane,

'Most exaggerated and hyperbolical descriptions of the greatness of Brahmans are sown, broadcast over all the Smritis and the Puranas.'

Professor Kane gives several samples at p. 135 and following. Therefore, the feeding of Brahmins as meritorious and a way of acquiring Punyam came to be stressed, with the result that equation has been sought to be made of Samaradhanai with Brahmana Bhojana.

(23) In the South India, however, these eulogies were countered by fierce counter-propaganda and the Varnas other than Brahmins have equally insisted upon religious and charitable activities being pursued without distinction of caste. 'The exclusive privileges arrogated by the Brahmins were denounced to be empty pretensions: Kanakasabhai Pillai Tamils Eighteen Hundred Years Ago. P. 232 (Reprint by the Saiva Siddhanta Works, Tirunelveli). It was in the South that the non Brahmin Paradesis and non-Brahmin Mutts? like the Dharmapuram, Tiruvaduthurai, Tiruppanandal, and Kunnakudi are to be found. The Dharmasivachariar Matam is also founded by Beri Chettis. In regard to the Mutt called Patharakudi, its head is the Guru of the Nattukottai Chetti community (the Elayathakudi Chettis). In these Mutts the Brahmins hold offices and the Brahmin inhabitants owe allegiance to them. It is not surprising therefore that when Chettiars and Mudaliar found Dharmam of feeding, it need not be confined only to the Brahmins.

{(?) Ramalingam Pillai v. Vythilingam, ILR 16 Mad 490; Daivasigamani Pandaram Sannidhi v. Noor Muhammed ILR 31 Mad 47; Kaliswara Gurukkal v. Nataraja Thambiran, 19 Mad LJ 772; Kaliasam Pillai v. Nararaja Thambiran, ILR 33 Mad 265; Thambu Chetti Subraya Chetti v. Arundel ILR 6 Mad 287; Arunachalam Chetti v. Venkatachalapathi 1915 Mad WN 650 : AIR 1916 Mad 88.}

In the instant case the Samaradhanai Dharmam has not been construed by both the parties as confined to feeding of the Brahmins. On the other hand the parties have always understood the feeding to be poor feeding. The plaint states that the usual charities that were being done by Narayanaswami Mudaliar were feeding the poor during the festivals of Thai Poosan in Kalipati Kandasami temple and the Chitra Pournami in Sri Sitheswarar temple in the choultry belonging to the parties. The defendant's case was also that he has been doing charities by feeding poor about 200 or 300 persons in Samadhi Kadu (Narayanaswami Mudaliar's Samadhi also is located there) and that in the month of Adi during Mariamman temple festival he used to give the poor kanji and pay the poor in small coins of three pies, six pies and also issue hotel tickets for their food. It is obvious that Samaradhana Dharmam prescribed and the Samaradhana followed by the heirs of the partners who founded the Dharmam was only feeding the poor and not feeding the Brahmins alone--an undoubted public charitable and religious trust.

(24) On these facts the contention of the learned advocate Mr. T. M. Krishnaswami Ayyar that Samaradhanai means Brahmana Bhojanam and that consequently it is not a religious or charitable trust which is based upon the following extract from P. R. Ganapathi Iyer's Law relating to Hindu and Mahomedan Endowments, 2nd edition, pages 305-307 cannot be accepted and that on the other hand the correct position is set out in B. K. Mukherjee's Hindu Law of Religious and Charitable Trust at pages 74-75 reproduced below:

P. R. Ganapathi Iyer:

'The only case bearing upon the question is that of Venkatachala Pillai v. Taluk Board, Saidapet, ILR 34 Mad 375. In that case the endowment was for a choultry in order that 12 Brahmins should be fed in Dwadasi days. There was also a direction that out of the income after the above expenditure a sum of one rupee should be spent on every Friday for performing Archanai to the Goddess in Tiruvottiyur and that the balance should be spent for distribution of Neermore (butter-milk), Tambulam (or betal and nut), or fans and sugar to people attending the festival of Moluvadi Servai in Tiruvottiyur. It was held that the trust was not religious in Character and that the Board could interfere under Regulation VII of 1817 (Madras).

Their Lordships (Benson and Sundara Ayyar, JJ.) observed: 'Mr. Venkatarama Sastri contended that the trust must be regarded mainly as a religious one, and that the Board had, therefore, no jurisdiction over it. He urged that the distribution of Neermore, etc., to people attending the festival of Tiruyottiyur should be regarded as a religious charity. We are clearly of opinion that this contention is not correct. The distribution no doubt is to be amongst those who attend the festival in the temple but it is not to be an offering to the deity and it is not any ceremony which is part of the temple festival itself. The learned vakil did not contend that the small provision for making Archana every Friday to the goddess would make the trust a religious one. We, therefore, confirm the finding that the trust is not religious in its character'.

'No doubt the feeding of a Brahmin is regarded as producing great spiritual or religious benefit to the person feeding or to the person who makes an endowment for such a purpose. Various texts may be cited for the purpose. But this is only a motive for the act and does not make the act of feeding a religious one. Thus establishing an annachatra or endowing property for a choultry where Brahmins are to be fed on all or on particular days are acts of a non-religious nature but the purposes are charitable.

In an original side case, the question was raised relying upon the above texts in Hindu Sacred writings relative to the merit which the act of feeding is supposed to confer on the doer that an endowment for feeding Brahmins in a Choultry was a religious one but no actual decision was come to as the case was compromised. (O. S. 315 of 1919). But the decision in ILR 34 Mad 375 is against this contention. It must, however, be pointed out that the question in this form was not raised in this case.

Whether a gift for feeding Brahmins without reference to the question of their poverty or indigence can be upheld as a charitable gift has not been considered in any of the cases though cases have decided that such gifts are good. The question may arise for future consideration by the Courts'.

B. K. Mukherjee (late Chief Justice of India) in his Hindu Law of Religious and Charitable Trust (Tagore Law Lectures) at pages 74-75 has the following to say:

'It will be clear from the decision in Dwarka Nath v. Burroda, ILR 4 Cal 443 that reading of sacred books of the Hindus like Mahabharat and Puran, or giving presents to Brahmins and Pandits on sacred occasions are proper objects of charity; so are trust for kirtan or chanting the names of God in His various forms. It will be seen that in the Hindu system there is a tendency to introduce a religious element in what appears to be a purely secular gift. Thus the feeding of the poor or the Brahmins is regarded as meritorious act, even from the religious point of view, and it is an invariable appurtenance to certain religious ceremonies like Sradh or celebration of periodical punjas.

In Kedar Nath Dutt v. Atul Kristo Ghosh 12 Cal WN 1083 the testator directed inter alia that the surplus of a certain reserve fund should be spent for the worship of the God Siva on the night called Sivaratri and for feeding Brahmins, and making presents to them on the day following. It was contended that the bequest for feeding of Brahmins was bad in law as it did not come within charitable purposes. Fletcher, J. overruled this contention. 'The testator was a Hindu' thus observed the learned Judge in his judgment, '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, a meritorious act'. A direction in the will to spend income 'in feeding poor indigent Hindus' ILR 34 Cal 5 is a valid charity, so is a bequest 'to give food and raiment perpetually to 50 persons who are lame, diseased or otherwise deserving of charity, (Rajesswree Debia v. Jogendra Nath 23 SWR 278) 'or a trust to feed fakirs and mendicants' (Shoeshankar v. Ram Shewak, ILR 24 Cal 77.) The fact that the recipients of the benefit are persons belong to particular communities or sects do not make any difference.

(25) The correct legal position therefore is, that even the dharmam of feeding Brahmins as a class--not necessarily destitute or only of the poor but an indefinite class not restricted to privileged individuals--would constitute a public religious or charitable trust.

(26) On this conclusion there can be no difficulty in holding even that this is a public charitable trust and we can certainly give the relief of framing of a scheme under S. 92 of the Code of Civil Procedure.

(27) Even assuming for the sake of argument that this is not a public but a private religious and charitable trust, the catena of decisions set out above clearly show that we can grant the reliefs prayed and frame a scheme.

(28) On this conclusion, the reliefs granted in the decree and judgment of the learned Subordinate Judge, based on acceptable & relevant evidence, are found to be irreproachable. His correct evaluation of the evidence for granting these reliefs has not been challenged before us except to the extent indicated above discussed by us. When on a correct evaluation of the evidence the reliefs granted by him flow there are no grounds to interfere with the decree and judgment of the learned Subordinate Judge and we affirm the findings and confirm the decree and judgment.

(29) The learned Subordinate Judge called for a draft scheme and before he could proceed further this appeal had been filed and further proceedings have been stayed. We have enough materials before us to come to our own conclusion regarding the scheme to be framed and both sides have also given us draft schemes and we frame the following scheme:

1. The charities shall be known as Neimandi Narayanaswami Mudaliar and Arunachalam Chettiar Samaradhanai charities. The objects of the charities are those mentioned in the First Schedule to the plaint.

2. The properties belonging to the charities and set out in the Second Schedule to the plaint and the administration thereof shall vest in a Board of two hereditary trustees. The defendant for life and after him his eldest male heir and in default his eldest female heir and similarly thereafter in succession shall be one of the trustees. The eldest male member in the family of the plaintiffs shall in succession be the other hereditary trustee for life. Each of the Trustees shall by turns of one year each be the Managing Trustee. The defendant shall be the first Managing Trustee with effect from the date of the decree.

3. The Board of Trustees shall apply the income from properties belonging to the charities for the objects mentioned in the First Schedule hereto and in accordance with a Dhittam to be settled by them. They shall maintain regular and proper accounts for all receipts and expenditure.

4. The Managing Trustee shall have the power to invest and operate on the bank account to be opened in the name of the charities.

5. The Managing Trustees shall be in charge of the actual day to day administration of the charities.

6. The Board of Trustees shall be the body to sue and to be sued upon.

7. The Board of Trustees shall meet at least once in three months.

8. The Board of Trustees or any of the Trustees or any person interested in the charities shall have the liberty to apply to the Court of the Subordinate Judge of Salem for directions for the proper working of the scheme.

(30) We have made this scheme purposely as simple as possible so that it can be easily worked.

(31) In the result, the decree and judgment of the learned Subordinate Judge which are irreproachable, are confirmed and appeal is dismissed. Costs of both parties to come out of the Estate.

(32) Appeal dismissed.


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