REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2401 OF 2003
K.S. Soundararajan and Ors. .. Appellants
versus
Commissioner of H.R. & C.E.
and Ors. .. Respondents
J U D G M E N T
C. NAGAPPAN, J.
1. This appeal is preferred against the judgment and decree dated
13.12.2000 passed by the High Court of Judicature at Madras in Letters
Patent Appeal No.183 of 1994, wherein the Division Bench held that the
first object of the three charities mentioned in the Will, is of private
Trust and the rest are of public Trust and therefore, the respondent no.1
and 2 therein, have power under Section 64 of the Tamil Nadu Hindu
Religious and Charitable Endowment Act, 1959, to frame a scheme, in so far
as, the public Trust is concerned.
2. Briefly the facts are summarized as follows : One Sundararaja Naidu
had no male issues, except two daughters and his brother’s son is Kondasamy
Naidu and he executed a registered Will dated 7.12.1949 bequeathing
properties mentioned in Item nos.1, 2 and 3 absolutely in favour of them
and directed Kondasamy Naidu to be in possession of Item no.4 and perform
the charities mentioned in the Will from out of the income of the said
properties and prohibited the alienation of the said item of land. Later
Kondasamy Naidu alienated a portion of land in Item no.4 in the Will and
claimed to have purchased some other properties from out of the sale
proceeds.
3. Five persons claiming to belong to the community of the testator
filed application before the Deputy Commissioner for Hindu Religious and
Charitable Endowments under Section 64 of H.R. & C.E. Act for setting a
scheme in respect of the charities mentioned in the Will of Sundararaja
Naidu. The Deputy Commissioner held that the Trust is a private Trust and
no scheme could be framed. On appeal his order was set aside by the
Commissioner, who held that the Trust is a public Trust and charities
required to be performed are religious charities and the beneficiaries are
the members of the public and a scheme could be framed and in fact required
to be framed. Meanwhile Kondasamy Naidu died and his legal representatives
instituted a statutory suit for setting aside the order of the Commissioner
referred to supra. The trial court dismissed the suit and judgment was
affirmed by a single Judge of the High Court and in the Letters Patent
Appeal preferred, the Division Bench modified the order of the Commissioner
to the extent that the scheme to be framed shall be confined to the
specific endowments attached to the temple, namely, performance of Pooja
and Neivedyam to Subramania Swami on the occasion of Panguni Uthiram and by
feeding by way of Pundhi Bojanam on the occasion of God Kallalagar passing
through Vaigai river on the Chitra Pournami day to Vandiyur. Challenging
the same the plaintiffs have preferred the present Civil Appeal.
4. Mr. R. Venkataramani, learned senior counsel appearing for the
appellants contended that the pious acts to be performed under the Will,
have no relationship whatsoever to the Deities mentioned and there is no
charitable activity of public character and the pious acts do not
constitute public Trust and the High Court misconstrued Section 64(1) of
the Act by misreading the Will and by holding that the term ‘attached’
occurring in the explanation under Section 64(1) has to be understood
broadly. Per contra the learned counsel appearing for the respondents
contended that the High Court has rightly held that the pious acts
mentioned in the Will are religious charities and the framing of scheme in
respect of it, is within the ambit of power conferred under Section 64 of
the Act.
5. Provision is made in the Will for the performance of following
charities:
“1) During Panguni festival at Thirupparankundram every year according
to income supplying of food to the people of our own caste and performing
poojas and neivadhiyam to Swami without fail.
2) Also every year on Chitra Pournami when Kallalagar entering into
Vaigai River and going to Vandiur, supplying of food called Arasa.”
6. The Presiding Deity of the temple at Thirupparankundram is
Subramaniaswami and the performance of Neivedyam and Pooja to the said
Swami during festival mentioned as first charity is clearly a service to be
rendered to the Deity in the Temple. Supply of food on Chitra Pournami
day every year has to be done when God Kallalagar is taken in procession
through the Vaigai river on way to Vandiur, is the second charity mentioned
in the Will. It is necessary to refer at this stage to some of the
relevant provisions of the Act. “Religious institution” has been defined
in Section 6(18) as meaning a math, temple or specific endowment. “Specific
endowment” in Section 6(19) reads thus: “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)”.
“Religious charity” is defined in Section 6(16) as meaning a public charity
associated with a Hindu festival or observance of a religious character,
whether it be connected with a math or temple or not. “Religious
endowment” or “endowment” has been defined in Section 6(17) 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 nature connected therewith or of any other religious charity,
and includes the institution concerned and also the premises thereof but
does not include gifts or property made as personal gifts to the Archaka,
Service holder or other employee of a religious institution.
7. The Constitution Bench of this Court in the decision in Mahant Ram
Saroop Dasji Vs. S.P. Sahi and Ors. [1959 Supp.(2) SCR 583] has succinctly
stated the distinction in Hindu Law between religious endowments which are
public and those which are private, as under:
“To put it briefly, the essential distinction is that in a public trust the
beneficial interest is vested in an uncertain and 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.”
8. This Court in the decision in Commissioner, Madras Hindu
Religious and Charitable Endowments Vs. Narayana Ayyangar and Ors. [1965
(3) SCR 168], while considering the charity to feed Brahmins on the
occasion of Rathotsavam festival of Sri Prasanna Venkatachalapathiswami
Temple in Gunaseelam, when feeding is not done in the Temple premises but
at a separate place, held that it is a public charity by observing thus :
“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.”
The object of the second charity herein is to feed on the occasion of God
Kallalagar being taken out in procession on Chitra Pournami day by
entering into Vaigai river and going to Vandiyur, and therefore, it is a
religious charity and such a service should be regarded as one meant for
the Deity. Specific endowment is a religious institution as per the
definition stated supra. For the purpose of Section 64 of the Act, as per
explanation provided, the institution means a temple or a specific
endowment attached to a temple. The expression ‘attached’ in the
explanation to Section 64(1) has to be construed having regard to the
history of the legislation and the scheme and objects of the Act and as
rightly held by the High Court it is required to be understood broadly in
that sense of providing for the performance of any service or charity in
or connected with temple.
9. The charities of offering Neivedyam to Swami during Punguni Uthiaram
festival and the feeding by way of Pundhi Bojanam on the occasion of God
Kallalagar passing through Vaigai river to Vandiyur on Chitra Pournami day
are religious charities and constitute a service to the Deity in the temple
and in our view, the High Court is right in concluding that the
framing of a scheme in respect of these matters is within the ambit of
powers vested under Section 64 of the Act.
10. There are no merits in the appeal and the same is dismissed. No
costs.
………………….J.
(M.Y. Eqbal)
.…………………J.
(C. Nagappan)
New Delhi;
November 24, 2015.
