M.J.Thulsiraman vs Commr.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.4676 OF 2010

M. J. THULASIRAMAN AND ANOTHER … APPELLANTS

VERSUS

THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENT ADMINISTRATION AND ANOTHER … RESPONDENTS

JUDGMENT

N.V. RAMANA, J.

1. This appeal is directed against judgment dated 27.11.2008,

passed by the High Court of Judicature at Madras in Appeal Suit No.

128 of 2000, whereby the appeal filed by the appellants under

Section 70(2) of the Tamil Nadu Hindu Religious and Charitable

Endowments Act, 1959 (hereinafter “the Act”) was dismissed.

2. Signature Not Verified The short issue before us relates to the nature of the institution Digitally signed by VISHAL ANAND Date: 2019.09.03

called “Bakers Choultry”, situated at No. 23, South Mada Street, 16:08:15 IST Reason:

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Mylapore, Chennai­ 600004, as well as the nature of the endowment

it has been burdened with.

3. The genesis of this dispute lies in the year 1987, when the

appellants’ predecessor­in­interest filed an application under Section

63(a) of the Act before the Deputy Commissioner, Hindu Religious

and Charitable Endowments Administration Department, Madras for

a declaration to the effect that the “Bakers Choultry” is a private

property belonging to him, with a duty cast on him to perform certain

private charities. This application was dismissed vide order dated

19.03.1990, and the appeal against the above order, before the

Commissioner, Hindu Religious and Charitable Endowments

Administration Department, Madras, also came to be dismissed vide

order dated 02.03.1994. Being aggrieved, the appellants’ predecessor­

in­interest then filed a civil suit, being Original Suit No. 4510 of

1994, under Section 70(2) of the Act, challenging the orders of the

Deputy Commissioner and the Commissioner. However, this civil suit

also came to be dismissed vide judgment dated 30.03.1999. An

appeal being Appeal Suit No. 128 of 2000 was thereafter filed before

the High Court of Judicature at Madras, wherein due to the demise of

the appellants’ predecessor­in­interest the present appellants were

brought on record as his legal representatives. The High Court

2 dismissed the appeal vide impugned judgment dated 27.11.2008. The

appellants thereafter filed the present Civil Appeal by way of Special

Leave. This Court, vide order dated 14.05.2010, directed that status

quo as to possession is to be maintained during the pendency of this

appeal.

4. The learned counsel for the appellants, in challenging the

concurrent findings of the Courts below, submitted that in the facts

of the present case the Courts were incorrect in holding that a

specific endowment existed with respect to the “Bakers Choultry’,

particularly one relating to a religious purpose. The learned counsel

has placed reliance upon two judgments of the High Court of

Judicature at Madras, viz., Commissioner for Hindu Religious

Endowments Board, Madras v. Vinayakar Arudra Tiruppani

Sabha, AIR 1953 Madras 407 and R.M.AR.AR.RM.AR. Ramanathan

Chettiar v. The Commissioner for Hindu Religious and

Charitable Endowments, Madras, (1978) 91 LW 337, to support his

submission that the rock inscription being vague, secular in nature,

and not resulting in any divestment of title thereby could not be

considered a “specific endowment” under the Act.

5. On the other hand, the learned counsel for the respondents

3 submitted that the appellants were, in effect, challenging four

concurrent findings by the Courts below and the respondent

authorities. He submitted that the arguments being raised by the

appellants were already canvassed before the High Court, which had

dismissed the appellants appeal by giving cogent reasoning vide the

impugned judgment which does not merit any interference. The

counsel for the respondents further submitted that the stone

inscription found inside the choultry would reveal that a specific

endowment has been created for the purpose of feeding “brahmins”

and poor people, during certain festivals, and would therefore be an

endowment which falls under the ambit of the Act. Lastly, the

counsel submitted that the predecessor­in­interest of the appellants

had taken part in earlier proceedings relating to same property

wherein he had claimed the property to be trust property, and as

such, could not now claim the same to be private property.

6. Heard the learned counsels for the parties at length.

7. It is pertinent to note that the counsels for both parties, for the

most part, confined their arguments to the interpretation of a rock

inscription which is found in the “Bakers Choultry”, allegedly of the

year 1834, to substantiate their respective claims. The rock

inscription admittedly states the following:

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“all of us who do the bakery business shall hereditarily utilize the balance for the feeding of Brahmins during the festivals of Thiruvotriyur and Mylapore and for other proper charity expenses and those who conduct the charities of the aforesaid choultries shall have no right whatsoever to alienate the said choultries and anything belonging to them by way of usufuctuary mortgage, gift, sale, etc., but they shall have power to conduct the charities of the choultries appropriately, to support Brahmins therein as they deem fit and receive offerings.”

8. The question that arises for our consideration in the present

case is to interpret the above inscription and determine whether the

same amounts to a specific endowment as defined by the Act, or not.

9. Before we proceed further, it is necessary to have a look at

Sections 6(19) and 6(16) of the Act. Section 6(19) of the Act defines

the phrase “specific endowment” and is as extracted below:

(19) “specific endowment” means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17);

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Section 6(16) of the Act defines a “religious charity” as below:

(16) “religious charity” means a public charity associated with Hindu festival or observance of a religious character, whether it be connected with a math or temple or not;

10. From the above, it is clear that a “specific endowment" means

any property or money endowed for the performance of any specific

5 service or charity in a math or temple or for the performance of any

other religious charity. As it is admitted that in the present case there

is no question of performing the service in the temple or a math, the

endowment in the present case must fall under the second category,

i.e., it must be for the performance of a religious charity, to be a

specific endowment.

11. A “religious charity” has been defined to mean a public charity

associated with Hindu festival or observance of a religious character.

The second part of Section 6(16) of the Act clarifies that there is no

requirement for the public charity to be connected with a temple or a

math.

12. While the phrase “public charity” has not been specifically

defined under the Act, some guidance as to its interpretation can be

derived from a Constitution Bench decision of this Court in Mahant

Ram Saroop Dasji v. S.P. Sahi, AIR 1959 SC 951, wherein the

Court, while determining whether the Bihar Hindu Religious Trusts

Act (1 of 1951) applied to both public trusts as well as private trusts,

observed as follows:

“6. ... [I]t is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and

6 fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust…” (emphasis supplied)

13. In the present case, the rock inscription in the “Bakers

Choultry”, which governs the functioning of the choultry, provides for

the feeding of Brahmins. This is clearly a charity which benefits the

“public”, in line with the holding of the aforementioned Constitution

Bench decision of this Court.

14. Further, the rock inscription specifically states that the charity

of feeding the Brahmins is to be done at the time of specific religious

festivals, viz., “Arubathumoovar Brahmotsavam” which is held in the

Mylapore temple, and the festival in Sri Thiagarajaswami temple,

Thiruvotriyur, Chennai. The phrase “associated with” in the definition

of religious charity has been interpreted in a three­Judge Bench

decision of this Court, in the case of The Commissioner, Madras

Hindu Religious and Charitable Endowments v. Narayana

Ayyangar and Ors., AIR 1965 SC 1916, which is extracted as below: 7

“5. … The expression “associated” in Section 6(13) of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the context in which the expression occurs, as meaning “being connected with” or “in relation to”. The expression does not import any control by the authorities who manage or administer the festival.” (emphasis supplied)

15. As such, the public charity described in the rock inscription,

being associated with a religious festival, constitutes a religious

charity as defined under the Act.

16. As already mentioned above, under Section 6(19) of the Act, the

definition of “specific endowment” includes any money that has been

endowed for the performance of a religious charity. Following our

holding that the rock inscription provides for a religious charity, it is

sufficient to show that money has been endowed for the performance

of the same for it to constitute a specific endowment under the Act.

17. While the word “endow”, and the connected word “endowment”,

have actually not been defined under the Act, from their usage in the

Act and judgments on the subject, it is clear that they relate to the

idea of giving, bequeathing or dedicating something, whether property

or otherwise, for some purpose. In the context of the Act, the purpose

is with respect to religion or charity. [See P. Ramanatha Aiyar: The

Law Lexicon, Second Edn., p. 634, 635; Pratapsinghji N. Desai v.

8 Deputy Charity Commissioner Gujarat, 1987 Supp. SCC 714,

paragraph 8]. In the present case, the rock inscription clearly

provides for the utilization of money from the “Bakers Choultry” for

the purposes of performing the charitable activity of feeding

Brahmins during the specified religious festivals. As such, it is clear

that the rock inscription creates a “specific endowment” as specified

under Section 6(19) of the Act, which falls within the ambit of the Act.

18. The same conclusion was reached by this Court in the

Narayana Ayyangar case (supra), wherein a Fund, instituted for the

purposes of feeding Brahmin pilgrims attending the Sri

Venkatachalapathiswami shrine at Village Gunaseelam on the

occasion of the Rathotsavam festival, was stated to be a religious

charity. In that case, the Court held that:

“7. On the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is not disputed that setting up a Fund for feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rathotsavam. This public charity has therefore a real connection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious charity within the meaning of Section 6(13) of Madras Act 19 of 1951…”

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19. Similarly, in the case of K.S. Soundararajan and Ors. v.

Commissioner of Hindu Religious and Charitable Endowments

and Ors., (2016) 15 SCC 597, this Court again dealt with a similar

issue. In this case, the Court was required to determine the nature of

certain charities mentioned in a Will, wherein it was stated that

persons of the same caste as the testator would be fed on the

occasion of Panguni festival every year. The Will also provided for the

supply of food to persons during the day of Chitra Pournami. In this

context, the Court held that the abovementioned two charities

constitute religious charities, and that it was within the ambit of the

High Court under the Act to pass orders regarding the framing of a

scheme for administering the same.

20. As regards the contention of the learned counsel for the

appellants, that the rock inscription did not constitute a specific

endowment as the same was vague, secular in nature and did not

result in any divestment of title, it must be stated that a bare perusal

of the inscription would indicate that the first two contentions ought

to be rejected. The rock inscription clearly stipulates the festivals

during which the activity of feeding of Brahmins should be

conducted. Not only are these festivals Hindu festivals, but the

10 reference to “Brahmins” in the rock inscription itself clearly indicates

that the endowment is not of a secular nature.

21. Finally, with respect to the learned counsel for the appellants’

submission regarding the absence of divestment of property for the

constitution of a specific endowment, the same would have to be

rejected. A three­Judge Bench of this Court, in the case of M.R.

Goda Rao Sahib v. The State of Madras, AIR 1966 SC 653, while

holding that divestment is necessary, decided on the facts of that

case that a settlement deed which provided for a charge on properties

for the payment of money amounted to a divestment:

“4. There is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of course has not retained it; he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were...” (emphasis supplied)

22. In the facts of the present appeal, the contents of the rock

inscription are sufficient for us to hold that there has been a valid

divestment and to reject the contention of the counsel for the

11 appellants. The rock inscription clearly indicates that the choultry is

to be managed by the community of bakers, who will use the balance

funds for the benefit of others. Further, the inscription also states

that the managers do not have any power of alienation with respect to

the choultry. In the present appeal therefore, as in the case of M.R.

Goda Rao Sahib (supra), there has been a clear divestment of the

right to receive a certain part of the income, with the inscription also

stipulating a bar on the right of the manager to transfer the choultry.

23. Another factor which merits our consideration is the fact that

the predecessor­in­interest of the appellants had been party to earlier

proceedings, before the Charity authorities and the Courts, wherein

he had filed pleadings to the effect that the “Bakers Choultry”

constituted a “specific endowment”. Although the predecessor­in­

interest of the applicant ultimately withdrew the application before

the Deputy Commissioner wherein he made the said pleading, it is

quite disingenuous of him to have subsequently filed an application

before the Commissioner claiming the same property to be his

personal property.

24. Therefore, taking into consideration the existing law and the

facts of the present case, we hold that the “Bakers Choultry”, and the

rock inscription therein, constitute a “specific endowment” as defined

12 under the Act, and the same is not the private property of the

appellants. The well reasoned judgment passed by the High Court,

impugned before us, therefore warrants no interference.

25. Appeal is consequently dismissed, with no costs. Pending

applications, if any, also stand disposed of. Needless to say that the

status quo granted vide order dated 14.05.2010 stands vacated.

..............................................J. (N.V. RAMANA)

..............................................J. (MOHAN M. SHANTANAGOUDAR)

..............................................J. (AJAY RASTOGI)

NEW DELHI;

SEPTEMBER 3, 2019.

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