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PETITIONER: M.   RADHAKRISHNA GADE RAO SAHIB

       Vs.

RESPONDENT: STATE OF MADRAS

DATE OF JUDGMENT: 27/08/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAYAL, RAGHUBAR RAMASWAMI, V.

CITATION:  1966 AIR  653            1966 SCR  (1) 643

ACT: Hindu  Religious & Charitable Endowments-Part of the  income of properties set apart for charities-If specific Endowment.

HEADNOTE: The appellants’ predecessors by an instrument provided  that out  of the income of the properties a specified sum was  to be  set apart for certain charities and the balance  of  the income  was to be taken by the members of tile family.   The Commissioner  of Religious Endowments declared that part  of the income set apart for charities, as a specific endowment. Thereupon the appellant filed a suit under s. 62(ii) of  the Act for cancellation of this order.  The Trial Court decreed the suit, but on appeal. by the Commissioner the High Court, set aside the Trial Courts decree.  In appeal to this Court, HELD  :(By Full Court) A specific endowment was  created  by the Per  Sarkar  and Dayal, JJ.  The  proprietors  had  divested themselves  of  that  part  of the income  to  be  spent  on charities.   By  providing that their liability to  pay  the amount  would be a charge on the properties, the  emphasised that  they  were divesting themselves of the  right  to  the income and the right to deal with the property as if it  was unencumbered.   By  creating  the  charge  they  provided  a security  for the due performance by them of  the  liability they  undertook.   Further s. 32 of the  Act  provides  that where a specific endowment to a temple consists merely of  a charge on property, the trustees of the temple might require the  person in possession of the properties charged  to  pay the  expenses  in of which the charge was  created.  section undoubtedly  shows that the Act contemplates a charge as  an endowment. [645 1646 A] It  cannot be said that a charge would be an endowment  only where  it had first been created in favour of a  person  who made  an  endowment  in  respect of it,  that  is,  to  say, transferred  his  rights under the charge in favour  of  the charities.  [646 B] per  Ramaswami, J. In Hindu Law a dedication may  be  either absolute  or partial.  In the former case, the  property  is -liven  out  and  out  to  an idol  or  to  a  religious  or charitable institution and the donor divests himself   of

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all  beneficial  interest in the property comprised  in  the endowment.     When  the dedication is partial, a charge  is created on the property or    there  is a trust  to  receive and  apply  a  portion  of the  income  for  religious   por charitable  purposes. in such a case, the property  descends and  is alienable and partible in the ordinary way,  the  of difference  being  that it passes with the charge  upon  it. The  expression religious endowment" as defined in s.  6(14) and  ’Specific endowment" as defined in s. 6(16) of the  Act must be construed so as to include both absolute and partial dedication  of the property.  This view is supported  by  s. 32(1)   of  the  Act,  which  contemplates  that   "specific endowment"  attached to a math or temple may consist  merely of a charge on property. [649 F-650 D] 6 44

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 444 of 1963. Appeal from the judgment and decree dated March 26, 1958  of the Madras High Court in Appeal Suit No. 355 of 1955. M.   S. K. Sastri and M. S. Narasimhan, for the appellant. A.   Ranganadham   Chetty   and  A.  V.  Rangam,   for   the respondent. The Judgment of Sarkar and Raghubar Dayal JJ. was  delivered by Sarkar J. Ramaswami, J. delivered a separate Opinion. Sarkar,  J. On January 10, 1914, the  appellant’s  predeces- sors-in-interest  executed  an  instrument  which  has  been described  in  these proceedings as a  deed  of  settlement. There  is  some  dispute as to the  interpretation  of  this instrument  but  this  much is not in  controversy  that  it provided  that  the properties set out in Schedule A  to  it would  be  responsible  for  meeting  the  expenses  of  the charities  specified  in Schedule B. Schedule B set  out  17 different charities and the amount to be spent on each.  The total  of the amounts mentioned came to Rs. 4,31  1-0-0  and the  instrument provided that "in respect of the sum of  Rs. 4,311-0-0  which has been set apart for the expenses of  the aforesaid dharmams we have created a ’charge’ on the  entire properties  mentioned  in the A Schedule herein."  That  the properties  were charged with the payment of the  amount  is not  disputed.   It  is unnecessary to refer  to  the  other provisions  in  this  instrument in detail and  it  will  be sufficient  to state that they provided that the balance  of the  income  of  the properties in  Schedule  A  left  after meeting the expenses of the charities was to be taken by the male  members  of  the  family  after  payment  of   certain maintenance, marriage and other expenses to various females. On  November 10, 1953, the Commissioner for Hindu  Religious and  Charitable  Endowments, Madras,  an  officer  appointed under  the Madras Hindu Religious and Charitable  Endowments Act, 1951, made, in exercise of the powers conferred on  him by  the  Act,  an order declaring that 21 per  cent  of  the income  of the properties in Schedule A would be  deemed  to form  a  specific endowment within the meaning of  the  Act. Thereupon the appellant filed a suit under S. 62(ii) of  the Act against the Commissioner for cancellation of this order. The  trial  Court  decreed the suit, but on  appeal  by  the Commissioner  to  the High Court at Madras it  was  declared that  a specific endowment was created by the instrument  of 15.9 per cent of the income for the time being           64 5 received from the properties mentioned in Schedule A.The appellant challenges that decision in the present appeal.The

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Commissioner is represented by the State of Madras. The  appellant contends that no specific endowment had  been created by the instrument.  His contention is that all  that was  done was to create a charge on the properties  to  meet the  expenses  of certain charities but the  settlers  never divested  themselves  of those properties  or  any  interest therein.   It was said that the mere provision  for  meeting the  expenses  of  the charities out of the  income  of  the properties  and the creation of the charge would not  amount to  the  making of any endowment, for thereby  the  settlers could  not be said to have divested themselves of  anything. The main question in this appeal is whether this  contention is right. There  is  no  dispute that in order that there  may  be  an endowment  within the meaning of the Act, the  settler  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 settlers 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 the charge as absolute owners which they  previously were.  The instrument was a binding instrument.  This indeed is  not  in  dispute.   The  rights  created  by  it   were, therefore,  enforceable in law.  The charities could  compel the  payment to them of the amount provided in  Schedule  B, and,  if  necessary for that purpose,  enforce  the  charge. This,  of  course,  could  not be  if  the  proprietors  had retained the right to the amount or remained full owners  of the property as before the creation of the charge.  It must, therefore,  be  held  that  the  proprietors  had   divested themselves  of  that part of the income  of  the  properties which  is mentioned in Schedule B. By providing  that  their liability  to  pay  the  amount would be  a  charge  on  the properties, the settlors emphasised that they were divesting themselves of the right to the income and the right to  deal with  the property as if it was unencumbered.   By  creating the charge they provided a security for the due  performance by  them of the liability which they undertook.  Further  s. 32 of the Act provides that where a specific endowment to  a temple consists merely of a charge on property, the trustees of the temple might require the person in possession of  the properties  charged to pay the expenses in respect of  which the charge was 646 created.   This  section  undoubtedly  shows  that  the  Act contemplates a charge as an endowment. Mr. Sastri for the appellant said that a charge would be  an endowment only where it had first been created in favour  of a person who made an endowment in respect of it, that is  to say,  transferred his rights under the charge in  favour  of the  charities.   We  see  no reason  for  holding  that  an endowment was contemplated as consisting of a charge only in cases  like that.  We, therefore, think that the High  Court was  right  in its view that the instrument  had  created  a specific endowment. As we have earlier stated, Schedule B to the instrument  set out  17  different  kinds of charities  on  which  different amounts  were to be spent.  The High Court held that six  of these  were  not  charities within the meaning  of  the  Act because they were of a secular nature, and as the Act  dealt only with charities of religious nature the disposition made for  the  purpose of those six charities could not  form  an

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endowment  within  the  meaning of the  Act.   This  is  not disputed by the respondent.  The dispute before us concerned the  remaining  eleven charities.  We have agreed  with  the High  Court  for the reasons earlier stated  that  what  was given  in  respect  of  these  eleven  charities  formed  an endowment. But there still remains a dispute as to the quantum of  what was  given in respect of them.  It was found that the  total of  the  amounts specified in the instrument in  respect  of these  eleven  items  came to Rs.  1,590.   It  was  however pointed  out  to  the High Court that since  1914  when  the instrument  was executed, the income of the  properties  had gone  up  and the expenses of the charities directed  to  be performed had also gone up.  This is not disputed.  The High Court  found that the sum of Rs. 1,590/was 15.9 per cent  of Rs.  10,000/- which was mentioned in the instrument  as  the current  total  income of the properties.  In  view  of  the increase  in the income and expenditure the High Court  held that the instrument created an endowment of 15.9 per cent of the  income  of the properties whatever it might be  at  any particular  time  and not of the fixed sum of  Rs.  1,590/-. Learned  counsel  for the respondent also  said  that  under Schedule  B  the  amount had in many cases  been  stated  as approximate.   He  further pointed out that in one  case  60 kalams  of  paddy  had been directed  to  be  provided,  the approximate  cost of which was mentioned as Rs.  125/-.   It was contended that all these showed that what was given  was a  percentage of the total income and not a fixed  sum.   We are unable to accept this view. 647 The  fact  that the expenses were stated to  be  approximate does  not show that a percentage of the total income  formed the  subjectmatter of the endowment.  What was  given  under each head was more or less a fixed sum.  If the expenses had not  gone  up, then on the present argument,  the  charities could not claim more than what was stated in the instrument. The  instrument  cannot  bear  a  different   interpretation because  of subsequent events which might or might not  have happened.   The word "approximate" which we may  point  out, does  not occur in every item of the charities.  only  shows that  the  persons  responsible for paying  moneys  for  the charities  had  a discretion to vary  the  amount  mentioned slightly.  That may have been because the charities were not very clearly defined and because the acts constituting  them were not rigidly fixed.  In any case, we do not see that the word  "approximate"  created a right in the charities  to  a proportion  of  the income.  We are,  therefore,  unable  to agree with the High Court that an endowment had been created of  15.9 per cent of the income of the properties.  We  hold that  an endowment had been created in respect of  right  to receive  out  of the income of the properties a sum  of  Rs. 1,590-00  only, leaving it to the proprietors who  were  the owners  of  the  properties  and  were  entitled  to   their management,  in the exercise of their honest  discretion  to increase  or decrease the amounts slightly as  they  thought the  occasion  required.  The declaration made by  the  high Court that an endowment had been created in respect of  15.9 per  cent of the income of the properties is set  aside  and substituted by a declaration that an endowment of the  right to receive Rs. 1,590/out of the income of the properties had been  created  subject  to the discretionary  power  of  the owners  of the properties to make a slight variation in  the amounts mentioned. In  the  result,  we  dismiss  the  appeal  subject  to  the variation  earlier  mentioned.  There will be no  order  for

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costs. Ramaswami,  J I agree with the order proposed by my  learned brother Sarkar, J. but I prefer to rely on rather  different reasons. The endowment known as Gade Rao Sahib Endowment attached  to Sri  Pushpavaneeswarar temple was created by one  Sri  Gopal Rao Gade Rao Sahib by the execution of a Settlement deed Ex. A.  I dated January 10, 1914.  Seventeen items of  charities were  mentioned in detail in Sch.  ’B’ to Ex.  A. 1 and  the amount  to be spent was Rs. 4,311/- every year from  out  of the net income of the properties mentioned in the  document. The  Deputy  Commissioner, Hindu  Religious  and  Charitable Endowments, Thanjavur sup./65-13 648 by his order dated February 25, 1953 held that the endowment known as Gade Rao Sahib Endowment attached to Sri  Pushpava- neeswarar  temple was a "specific endowment" as  defined  in the  Madras Hindu Religious and Charitable  Endowments  Act, 1951  (XIX  of 1951) (hereinafter referred to as  the  Act). Thereupon,  the appellant took the matter in appeal  to  the Commissioner.  The Commissioner, by his order dated November 10, 1953 in Appeal no. 46 of 1953 while confirming the order of  the Deputy Commissioner that the endowment  in  question was  a "specific endowment", held that out of the  charities mentioned in Sch.  ’B’ to Ex.  A. 1, items 1, 4, 10, 1 1,  & 12 were secular charities.  The appellant then filed a  suit under  s.  62 (1 ) (ii) of the Act for cancellation  of  the order of the Commissioner.  It is contended on behalf of the appellant that none of the charities constituted a "specific ,endowment" within the meaning of the Act and, in any event, all  the  charities  are  private  family  charities.    The contention of the appellant was accepted by the  Subordinate Judge who granted a decree in his favour.  Against the order of  the  Subordinate Judge  the  defendant-respondent  filed First Appeal A.S. 355 of 1955 in the Madras High Court which allowed   the   appeal  and  restored  the  order   of   the Commissioner except with regard to item 17 which was treated as  secular charity and not falling within the  purview  ,of the  Act.   The present appeal is brought on behalf  of  the plaintiff  against judgment and decree of the High Court  of Madras ,dated March 26., 1958 in the appeal. The  question  presented for determination in this  case  is whether the 11 items of charities mentioned in Sch.  ’B’  to Ex.  A. I which have been held to be of religious nature are "specific endowments" within the meaning of s. 6(16) of  the Act which states               "6.  In  this Act, unless  there  is  anything               repugnant in the subject or context-               (16)  ’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 (14);               Section  6(14) of the Act  defines  "religious               endowment" or "’endowment" to mean:               "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               649               nature  connected  therewith or of  any  other               religious    charity;   and    includes    the               institution  concerned and also  the  premises

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             thereof,  but does not include gifts  of  pro-               perty  made as personal gifts to the  archaka,               serviceholder or other employee of a religious               institution; On behalf of the appellant it was contended that in order to attract the operation of s. 6(16) of the Act there must be a transfer  or  divesting of the ownership and there  must  be vesting of the title in the charity itself or the  trustees. It  was submitted by Mr. Sastri on behalf of  the  appellant that  in  the Settlement deed, Ex.  A. 1 there  was  only  a direction  to  the  trustees to  perform  certain  religious charities  from out of the income of the family  properties. It  was conceded by learned Counsel that the  endowment  was created  in  respect  of  the amount to  be  spent  for  the performance of the charities and a charge was imposed on the immovable  properties mentioned in Sch.  ’A’.  The  argument was  stressed  on  behalf of the appellant  that  there  was merely a charge on the properties and there was no divesting of  the title of the properties or vesting of such title  in any  body  of  trustees or in the temple  itself.   It  was, therefore,  submitted that there is no  religious  endowment within  the meaning of s. 6(14) of the Act and  consequently there  is no "specific endowment" within the meaning  of  s. 6(16)  of the Act and the finding of the High Court on  this question was defective in law. I  am unable to accept this argument as correct.   In  Hindu Law  a  dedication  of property may be  either  absolute  or partial. Iswari Bhubaneshwari v. Brojo Nath Dey (1).  In the former case, the property is given out and out to an idol or to  a  religious  or charitable institution  and  the  donor divests  himself of all beneficial interest in the  property comprised  in  the  endowment.   Where  the  dedication   is partial,  a charge is created on the property or there is  a trust  to receive and apply a portion of the income for  the religious  or  charitable  purpose.  In  such  a  case,  the property  descends  and  is alienable and  partible  in  the ordinary way, the only difference being that it passes  with the charge upon it. (Mayne’s Hindu Law, Eleventh Edition, p. 923).   In my opinion, the expression "religious  endowment" as  defined in s. 6(14) and "specific endowment" as  defined in  s. 6(16) of the Act must be construed so as  to  include both absolute and -partial dedication (1) 64 I.A. 203. 650 of  property.   This view is supported by  reference  to  s. 32(1) of the Act which states :               "32.  (1) Where a specific endowment  attached               to  a  math  or temple consists  merely  of  a               charge on property and there is failure in the               due performance of the service or charity, the               trustee  of the math or temple  concerned  may               require  the  person  in  possession  of   the               property  on which the endowment is a  charge,               to  pay the expenses incurred or likely to  be               incurred in causing the service or charity  to               be  performed otherwise.  In default  of  such               person making payment as required, the  Deputy               Commissioner  may, on the application  of  the               trustee   and  after  giving  the  person   in               possession a reasonable opportunity of stating               his  objections in regard thereto,  by  order,               determine the amount payable to the trustee." This   section,   therefore  contemplates   that   "specific endowment"  attached to a math or temple may consist  merely of a charge on property.  It is, therefore, not possible  to

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accept the argument on behalf of the appellant that in order to  constitute a "specific endowment" within the meaning  of the  Act there must be a transfer of title or divestment  of title  to  the  property.  In my  opinion,  Mr.  Sastri  is, therefore,  unable to make good his argument on this  aspect of the case. For  these  reasons  I agree to the  order  proposed  by  my learned brother Sarkar, J. Appeal dismissed and decree modified. 6 51