1. This is an appeal preferred by the State against the judgment of our learned brother Balakrishna Ayyar, J., in which he held that the charitable trusts founded by Urumu Seshachlam Chettiar did not constitute Hindu Public Charitable Endowments within the scope of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951). The learned Judge directed the issue of a writ of certiorari to set aside the Notification, dated 20th September, 1957, issued by the Government under Section 3 of that Act, extending the provisions of that Act to these charities. That Act has since been repealed and has been replaced by the Hindu Religious and Charitable Endowments Act (XXII of 1959). There has been no change in the relevant statutory provisions we have to consider in this appeal. We shall refer to the statutory provisions of Act XIX of 1951, and we shall refer to it as the Act in the rest of this judgment.
2. Paragraph 4 of the Trust deed, dated 12th November, 1952, executed by Urumu Seshachalam Chettiar provided:
The main objects of the Trust are:
(a) To run Educational and Industrial Institutions.
(b) To provide facilities for poor, helpless, and deserving Hindu boys and girls to get thfemselves equipped physically, mentally and morally for leading a good life and be of service to themselves and to society.
(c) To train young people for the service of the country.
(d) To imbibe our ancient culture rdto inculcate the same into the minds of our young boys and girls; and
(e) To do such other things as may in the discretion of the trustees be good and beneficial for the social and educational advancement of the boys and girls.
3. The provision in paragraph 7 (a) of the Trust deed was :
The trustees may for the purpose of carryingon the trust:
acquire the Urumu Dhanalakshmi Vidyalayam and the Urumu Seshachalam Chetty Hindu Orphanage and similar other institutions, conduct those institutions and make all necessary additions alterations and improvements for the all round expansion of the trust.
4. Balakrishna Ayyar, J., pointed out that the Vidyalayam referred to in paragraph 7 (a) of the Trust deed was not a wholly Hindu institution, but it was open to members of other communities as well. The learned Judge referred in particular to Clauses (a), (e), and (e) of paragraph 4 of the Trust deed, and his finding was:
It is clear that the settlor intended to bene fit communities other than Hindus alone.
5. The correctness of the finding of the learned Judge, that the benefits of the charities founded by Seshachala under the Trust deed were not confined exclusively to Hindus, could not be assailed, and we did not understand the learned Advocate-General, who appeared for the State (appellant), to challenge the correctness of that finding.
6. After pointing out that the Act applied to (1) Hindu Religious Institutions and Endowments, and (2) Hindu Public Charitable Institutions and Endowments the learned Judge observed:
The word 'Hindu' must be given the same connotation whether it is read in connection with religious institutions and endowments or whether it is read in connection with charitable institutions and endowments. Now, we can have a Hindu religious institution or a Christian religious institution or a Muslim religious institution. But I do not see how we can have a religious institution which is at one and the same time partly Hindu and partly Christian or partly Muslim.
7. The learned Judge observed further:
There can be no doubt whatever that so far as religious institutions are concerned, the Act is intended to apply only to religious institutions and endowments which are exclusively Hindu in character.
8. With reference to the endowments created by Seshachala the final conclusion of the learned Judge was thus expressed:
After having read the entire document and examined the various considerations urged by the learned Counsel for the Respondents, I am clear in my mind that it would not be right to say that the institution or endowment set up by the deed of trust is exclusively Hindu in character. That means that Section 3 of the Hindu Religious and Charitable Endowments Act cannot be invoked in relation, to this institution.
9. We are in respectful agreement with Balakrishna Ayyar, J., when he stated that the word 'Hindu' should be accorded the same significance in relation to both religious and charitable endowments in construing the scope of the Act and. its provisions. The principle laid down by the learned Judge, that a religious institution like a temple would not be a Hindu religious institution or a Hindu religious endowment unless it was exclusively Hindu in. character, was approved of by a Division Bench with reference to a temple in Sri Ramanasramam v. Commissioner for Hindu Religious and Charitable Endowments, Madras : AIR1961Mad265 . Rarnaswami, J., expressed his agreement with the test of exclusiveness at pages 370-371 of the report and Anantanarayanan, J., expressed his agreement with the test formulated by Balakrishna Ayyar, J., at page 378 of the report. That decision of a Division Bench is authority binding on us. Even had we been convinced that the test of exclusiveness formulated by Balakrishna Ayyar, J., with reference to both Hindu charitable endowments and Hindu religious endowments was not correct, we could only have referred the question for determination by a Full Bench, as the determination of that question necessarily involves an examination of the correctness of the decision of the Division Bench in Ramanasramam v. Commissioner for Hindu Religious and Choritable Endowments, Madras I.L.R. (1932) Cal. 452, which accepted that test as correct. We are not convinced that that decision requires reconsideration by a Full Bench. Normally that should have sufficed to reject this appeal. We shall, however, examine the question at issue, as if it were res Integra. Was the test of exclusiveness formulated and applied by Balakrishna Ayyar, J., correct? To constitute a Hindu public charitable endowment within the scope of Act XIX of 1951 is it necessary that the benefits of the endowment should be confined exclusively to Hindus?
10. The Act did not define what a Hindu public charitable endowment was. Nor did it define a Hindu religious endowment. The Act, however, defined a charitable endowment in Section 6(4) and a religious endowment in Section 6(14). Section 6(4) runs :
Charitable endowment' means all property given or endowed for the benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the support or maintenance of objects of utility to the said community or section, such as rest-houses, choultries, patasalas, schools i)hd colleges, houses for feeding the poor and institutions for the advancement of education, medical telief and public health or other objects of a like nature and includes the institution concerned.
11. Section 6(14) is:
'Religious endowment' or ' endowment' means all property belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaka, service-holder or other employee of a religious institution.
12. Temple, which itself is a religious endowment as defined by Section 6(14), was defined in Section 6(17) :
'temple' means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of or used as of right by, the Hindu community or any section thereof, as a place of public religious worship.
13. The learned Advocate-General contended that such concepts as Hindu charitable endowments and Hindu Religious Endowments were well-known before these expressions were employed in Act XIX of 1951. They had been used in Madras Act II of 1927, which was repealed and replaced by Act XIX of 1951. These expressions were used when the Limitation Act was amended in 1929 and when Articles 134-A and 134-B were introduced. Articles 134-A and 134-B referred to Hindu, Muhammadan or Buddhist religious or charitable endowments. The Limitation Act did not define either what a Hindu or Muhammadan charitable endowment was. But, the learned Advocate-General contended, the concept was clear enough. The further submission of the learned Advocate-General was, that the factors to. be taken into account in deciding what constituted a Hindu charitable endowment were: (i) was the endowment founded by a Hindu, that is, by a person who was governed by the personal law applicable to Hindus; (2) was the trust or endowment valid tested by the personal law, the Hindu Law, applicable to the founder; and (3) were the management and the devolution of the right to manage the trust regulated by the Hindu Law. The learned Advocate-General contended that to constitute a Hindu charitable endowment, or for the matter of that a Hindu religious endowment, it was not necessary that the benefits should be confined exclusively to Hindus. Even if the question, who the beneficiaries were, came into the picture at all in deciding whether a given endowment was a Hindu charitable endowment, it was enough if it was shown that the Hindus benefited by that endowment, even if it be that they shared those benefits with members of other communities. The learned Advocate-General referred to the passage at page 52 of Mukherjea's Hindu Law of Religious and Charitable Trust where the learned author set out the essentials of a valid religious or charitable trust that could be founded by a Hindu. The learned Advocate-General also referred to the passages in Chapter XI of Mulla's Hindu Law, 12th edition, which explained the factors necessary to establish the validity of a trust, that is, a public charitable endowment founded by a Hindu. The observations of Mukherji, J., in Manohar Mukherji v. Bhubendranath Mukherji I.L.R. (1932) Cal. 452, were also referred to.
14. We do not propose to express any concluded opinion of ours on the question, what constitutes a Hindu charitable endowment or a Hindu religious endowment within the meaning of Article 134-A or Article 134-B. Nor is it necessary for us to decide what the common law concept or the Hindu Law concept of a Hindu public charitable endowment should be. We have to address ourselves to the question before us, what constitute a Hindu public charitable endowment within the meaning of Section 3 of the Act, Act XIX of 1951. As we have pointed out, that expression was not defined by the Act. Obviously it has to be a charitable endowment, before it can be a Hindu public charitable endowment within the scope of Section 3. Charitable endowment was defined by Section 6(4) of the Act. We shall leave out of account the reference to the J ain community in Section 6(4) and confine ourselves to the Hindu community. If we split up Section 6(4) into some of its cornponent parts the resultant position is : (1) charitable endowment means all property given or endowed for the benefit of the Hindu community or any section thereof; (2) charitable endowment means all property given or endowed for the support or maintenance of objects of the utility to the Hindu community or any section thereof; and (3) charitable endowment means all property used as of right by the Hindu community or any section thereof. The institutions themselves in each of these cases are included in the statutory expression ' charitable endowment.' Of course the word 'exclusively' is not to be found in the definition. If that word can be read with this clause, that has to be read with reference to each of the three clauses we have mentioned above, that is, the endowment should be for the exclusive benefit of the Hindu community, or it should be used as of right exclusively by the Hindu community, or it should be for the support or maintenance of the objects of utility exclusively to the Hindu community. The use of the prefix 'Hindu' should have the same significance with reference to charitable and religious endowments for the purposes of the Act. We have already pointed out that a temple is a religious endowment. Temple has been defined in Section 6(17) of the Act:
'temple ' means a place by whatever designation known, used as a place of public religious worship, and dedication to, or for the benefit of or used as of right by, the Hindu community or any section thereof, as a place of public religious worship.
15. It seems clear to us that the very definition of temple in Section 6(17) of the Act postulates the test of exclusiveness. It will not be a temple at all as defined in Section 6(17) of the Act, if it is not dedicated for the benefit exclusively of the Hindu community or if it is not used as of right exclusively by the Hindu community. A place of public worship used as of right by members of all communities including the Hindus cannot be a temple as defined by Section 6(17); much less can it be viewed as a Hindu temple or a Hindu religious endowment. The expressions ' for the benefit of' and ' used as of right by the Hindu community' should, in our opinion, have the same significance in relation to charitable endowments, as they have in relation to temples which are religious endowments. They should have the same meaning in construing either Section 6(4) or Section 6(17). In our opinion, even apart from the prefix 'Hindu' in relation to public charitable endowments in Section 3, the very definition of charitable endowments in Section 6(4) postulates the test of exclusiveness. Unless, for example, the benefit of the endowment is confined wholly to Hindus it would not be a charitable endowment as defined by Section 6(4). The prefix 'Hindu' to the expression 'public charitable endowment' in Section 3 tends, if anything, to emphasise that feature. When the benefit of the endowments is made such a decisive feature of the statutory concept of a charitable endowment by the definition in Section 6(4) of the Act, we can see no scope for accepting the contention of the learned Advocate-General, that who the beneficiaries'of the trust are is not determinative of the question, what constitutes a Hindu public charitable endowment for purposes of Section 3 of the Act.
16. The learned Advocate-General submitted that anomalous results might follow if the test of exclusiveness were adopted in determining what constitutes a Hindu public charitable endowment within the scope of Section 3 of the Act. The learned Advocate-General pointed out that normally no Hindu would contemplate exclusion of members of other communities from the benefit of the public charity familiarly known as a Water Pandal, if he were founding such a public charity. That was given only as an example. Establishment of a Water Pandal charity may be establishment of a public charitable endowment. But it is not every public charitable endowment that is brought within the scope of Act XIX of 1951. Every public charitable endowment founded by a Hindu does not become a Hindu charitable endowment. The mere fact that the founder was a Hindu is not enough even to make a trust or endowment a charitable endowment as defined by Section 6(4) of the Act. Certainly it is not enough to make it a Hindu public charitable endowment. To bring a public charitable endowment within the scope of Section 3 of the Act it is necessary to establish first that it is a Hindu charitable endowment. It will not be a Hindu charitable endowment, if the benefit of the endowment can be shared as of right by members of the public other than Hindus.
17. We are in entire agreement with the conclusion of Balakrishna Ayyar, J:.I am clear in my mind that it would not be right to say that the institution or endowment set up by the deed of trust (by Seshachala) is exclusively Hindu in character. That means that Section 3 of the Hindu Religious and Charitable Endowments Act cannot be invoked in relation to this institution.
18. The appeal fails and is dismissed with the costs of the first respondent. Counsel fee Rs. 250.