Madras High Court
The Commissioner Hr & Ce Administration ... vs C.V. Sudharsan And Another on 18 April, 2000
Equivalent citations: 2000(2)CTC559
Bench: R. Jayasimha Babu, Prabha Sridevan
ORDER
1. A person walking along the streets of what is now known as Chennai-1, will see many buildings on which stone slabs have been embedded and inscribed with the word "-------- Chetty Charities denoting an endowment created by the " Arya Vysyai Community". This Community is well known for its benevolence and piety. The intent and purpose behind these endowments is to secure to the founder spiritual benefits by the performance of charitable acts as Justice R.Sengottuvelan in his commentaries on the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 notes " In the Hindu system there is no line of demorcation between religion and charity. On the other hand charity is regarded as part of religion. This is because the Hindu Religion recongnises the existence of life after death and it believes in the law of Karma according to which good or bad deeds of a man produce corresponding results in the life to come. Therefore, all Hindu Sages concur in holding that charitable gifts are pious acts par excellence which bring appropriate rewards to the donor."
2. The Cheetalla Venkatachalam Chetty Charities, hereinafter referred to as the charities is one such endowment, founded by Cheetalla Venkatachalam Chetty in the year 1882. He had set apart his house bearing old No.171, New No.61, Govindappa Naicken St, George Town, for the performance of Thathiarathanal service in "Perumal Temples" at Madras, from which food had to be distributed to the "Desanthiris" in the temples. A slab inscription dated 22.9.1882 was also embedded on the wall of this property to denote the creation of this endowment. Sometime in the year 1969, the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madras initiated proceedings under Section 64(1) of the Hindu Religious and Charitable Endowments Act, 1959, (hereinafter referred to as the Act) to frame a scheme in respect of the charities on account of the mismanagement by the then trustee. The grandson of the founder one C.Ragavalu styling himself as a de facto-trustee also filed an application under Section 63(1) of the Act for a declaration that this endowment was a private trust. Both these matters were heard together by the Deputy Commissioner and while dropping the proceedings under Section 64(1) viz., O.A.No.19 of 1969, he dismissed the application under section 63(a) of the Act holding that the suit trust is s a religious charity. Against this , the aforesaid Sri. Ragavalu Chetty filed an appeal under Section 69(1) of the Act to the Commissioner, HR & CE. This appeal was also dismissed by the Commissioner holding that the property is a specific endowment under the Act. Aggrieved by this, the said Ragavalu Chetty, grandson of the founder of the charities filed the statutory suit under Section 70(1) of the Act before the City Civil Court at Madras viz., O.S.No.2114 of 1981. According to him, the trust was purely private. There was no specific direction by the founder to perform the charity in any particular religious institution and further there was no absolute dedication of the property for the performance of any "Kattalai" to make the charity, a specific endowment and therefore, he prayed that the order of the Commissioner, HR & CE, be set aside.
3. The Commissioner, HR & CE who was arrayed as the first defendant stated that the statutory authorities had correctly found that there was an absolute dedication by the founder and the clandestine removal of the stone inscription also proved that there was an attempt made by the present defacto-trustee to remove the property from the purview of the HR & CE Department. Therefore, the defendant prayed, that the suit should be dismissed.
4. Before the learned Trial Judge all the relevant documents produced before the Commissioner were marked and the plaintiff viz., the grandson of the founder viz., the said C.Ragavalu Chetty alone was examined as a witness. Ex.A1 marked before the learned Trial Judge is a registered copy of a partition deed executed by the founder of the charity and two others on 3.7.1885, where it is stated in para 8 as follows:-
"For the purpose of the permanent charity created by Venkatachalam Chetti No.3 of us a stone inscription has been made on 22nd September, 1882, setting apart the house bearing No.124, Govindappa Naidu St, Peddu Naidupet alienation such as gift exchange, sale etc., as per the aforesaid in we or our heirs shall not have nay manner of right whatsoever."
5. Therefore, the learned judge held that the property had been endowed by the donor for the performance of service of feeding the pilgrims in Vaishnavite temples in Madras City and dismissed the suit, holding that the suit endowment is of a public nature connected with the temples and that trust.
6. Against the judgment and decree the said C.Raghavalu Chetty filed in A.S.No.479 of 1984 before this Hon'ble Court. Pending appeal, he died and His son was brought on record as his legal heir. In the appeal it was urged that there was no dedication of any property as a specific endowment. The definitions of certain words as given in the Act are relevant:
Section 6(16) " religious charity means 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;
Section 6(17) " 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 charity and includes the institution concerned and also the premises thereof, but does not include gifts of property made as service - holder or other employee of a religious institution;
Section 6 (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).
7. From the very language of section 6 (16) according to the learned Single Judge, unless property of money had been endowed for the performance of any specific service or charity in a math or temple, there can be no specific endowment. He also in held that the endowment in the instant case was not specific and clean. The learned Single Judge relied on two decisions to arrive at this conclusion Arjun alias R.Umamaheswaran v. The Idol of Sri Kaliyuga Vardarajaperumal, 1982 (II) LW 251; R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner for HR & CE Madras, 1978 (91) LW 337 and held that no specific endowment was created. In the latter case referred to above and reported in R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner for HR & CE Madras, 1978 (91) LW 337 the endowment was for the performance of "Abishekam" in Siva Temples in the country. A Division Bench of this Hon'ble Court held that the endowment was vague and since the endowment was for the performance of the "Abishekam" in any Shiva temple, this endowment would not in a public endowment because the temple authorities could enforce the performance of this service. For the aforesaid reasons, the learned Single Judge allowed the appeal and setaside the judgment and decree of the trial Court.
8. The Defendant viz., Commissioner HR & CE is the appellant herein.
9. The appellant referred to the recitals in the partition Deed Ex.A.1 to show that there was an absolute dedication. As extracted in the para 4 above, para 8 of the partition Deed clearly shows that the founder totally diversted himself of any right in the property.
10. The learned counsel for the appellant also referred to para 9 of the Partition Deed to show that there was an absolute endowment of the property belonging to the founder to meet the expenses of the service mentioned therein. Para 9 of Ex.A.1 (English translation) reads as follows:
" We hereby agree to get the giant from the Collector's Office in our three names in respect of the house, the sale deed for which standing in the name of Venkatachala Chetti No.1 of us, carry out the repairs to the aforesaid house and meet the expenses for the Thadniyaradhana (offering food to devotees) as desired by three of us, and out of the income from the aforesaid house, after meeting the expenses for repairs and house tax etc., the remaining amount shall be utilised for the performance of Thadhiaradhana for the pilgrims in Perumal Temple, Madras. Therefore, it is also agreed among us, that the house rental agreements shall be taken in favour of three of us, that the same shall be in the custody of custody No.2, Raghavalu Chetti every month for inspection by No.3 Subbiah, that No.1 of us Venkatachalam Chetty shall be in charges of the Thadhiyaradhana tickets and expenses thereof and shall be in management of the enmity during his life time, that after his life time, No.2 Raghavalu Chetti and No.3 Subbiah Chetti shall perform the same in alternate month.
11. The learned counsel for the appellant would therefore say that all the three elements that are necessary for a dedication are present in the instant case. The founder had declared his intention to dedicate then property, he had formally divested himself of his rights over the property and he had also stated the object for which the dedication was made.
12. The learned counsel for the appellant referred to the judgment reported in G.Radhakrishna Chettiar and others v. Commissioner, HR & CE, 1960 (1) MLJ 494. This was a case decided by a Division Bench of this Hon'ble Court as to whether the Commissioner, HR & CE was justified in notifying a particular charity because it was a Religious Charity (Sec 6 (13)) or Religious Endowments (Sec 6(14)) or Specific Endowment (Sec 6(16)). That case also related to a trust created by a member of the Arya Vysya Community for the performance of Puja and, Naivedyam and Gunaseelam during the Rathothsavam. The Division Bench held as follows:-
1965 (1) MLJ 465 "Since the admitted facts of the present case are that this Charitable institution was intended to feed Arya Vysya pilgrims to these religious festivals, upon the stated occasions this endowments would be a religious charity, even apart from the performance of Puja and naivedyam. Those latter objects indisputably determine its character as religious charity and specific endowment to which the provisions of the Act are applicable.
13. The learned counsel for the appellant argued that this trust also intended to feed pilgrims in Perumal Temples. Therefore, there was both the public element as well as the religious and charitable element.
14. The learned counsel for the appellant relied on the decisions reported in The Commissioner, Madras Hindu Religious and Charitable Endowments, Madras v. Narayana Ayyangar and others, 1965 (II) MLJ SC 47. In this case a "Samaradhanai Fund" was created for feeding Brahmin Pilgrims attending Sri Venkatachalapathy Swami Shrine of Village Gunaseelam on the occasion of "Rathothsavam" festival and if there was any balance after incurring the above expenses, the same was to be used for "Vanabojanam" in Kariamanciakam Village in the month of "Karthigaiu" and on the "Dhuvadasi" following "Vaikunda Ekadasi". In that case, the Supreme Court explained the word "associated" which is used in the definition of religious charity, which is (Sec.6(16)) in the Act, 1959. The relevant paragraph in the said decision is as follows:
"We are unable to agree with the view so expressed by the High Court. The expression "associated" in section 6(13) of Act XIX 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. A Hindu Religious festival or observance may have a local significance in that it is celebrated or observed in a particular locality in connection with a shrine or math. In the case of such general festivals or observances there is no one who can be so said to control the celebrations and the definition of "religious Charity" includes such general festivals and observances. It cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance such a relation that the administration of the charity must be controlled by those who celebrate the festival or observance in a temple or math, besides being inapt in the case of general festivals and observances can only if evolved if words which are not found in the definitions of "religious Charity" are added thereto."
Therefore, the Supreme Court held that when the primary purpose of the charity is to feed Brahmin Pilgrims attending Rathothsavam, it cannot be disputed that it is a public charity and where there is an association with Rathothsavam, it has a contact with Hindu festival of a religious character. The Supreme Court therefore setaside the order of this Hon'ble Court allowing appeal of the HR & CE Department.
15. The learned Counsel for the appellant would therefore State that these two decisions squarely apply to the instant case and the endowment would definitely come within the purview of the Act.
16. In response, the learned counsel for the respondent submitted that it was only a private trust. There was nothing public about the dedication and that since there was no specific connection with any religious object or a particular math or a temple, it would not fall within the definition of "Religious Charity" "Religious Endowment" or "Specified Endowment".
17. The learned counsel for the respondent relied the decisions reported in 1985 (1) MLJ 360, where Dharmama done in the Chavadi of a house in the absence of any dedication was held to be not religious charity. In that decision this Hon'ble Court had held that merely because Arunachalapuraanam is read and feeding is done to those who assembled in the charity on particular day, it cannot partake of the character of a public charity. He further relied on the decision reported in R.Arjunan alias Umamaheswaran v. The idol of Sri.Kaliyuga Varadaraja Perumal, Kallankurichi, 1988 (2) LW 251 which was the decision relied upon before the learned single Judge. In that case, money was directed under a Will to be paid to an idol of a temple and the teamed Judge held that it was not a specific endowment.
18. The learned counsel for the respondent also relied on the decision of a Division Bench of this Hon'ble -Court reported in R.M.AR.AR.RM.AR. Ramanathan Chettiar v. Commissioner for HR & CE Madras, 1978 (91) LW 337 which was also relied on by him before the learned Single Judge where this Hon'ble Court held that Abishekams to be performed in a Siva Temple in the country from out of an endowment would not made the endowment a public one but it was a mere private endowment. The Division BEnch held that even in the Abishekams were witnessed by the public along with the donor or his representatives, such participation by the public of a private service in a public temple will hot make the service a religious endowment or a specific endowment.
19. The learned counsel for the respondent therefore argued that since what was directed to be performed was Thathiarathani service in Perumal Temples without even specifying the Perumal Temple, the endowment in the instants case cannot be brought within the definition of the "Religious Charity", "Religious Endowment" or "Specific Endowment".
20. In the decision reported in R.Arjunan alias Umamaheswaran v. The idol of Sri.Kaliyuga Varadaraja Perumal, Kallankurichi, 1988 (2) LW 251 referred to by the counsel for the respondent, explanation is given regarding the term "Desantharis". The extract from the relevant judgment is as follows:
"We have to deal now with the aspect of Kattalai said to have come into existence. Tamil Lexicon, Vol. II published by the University of Madras; 1982 special service in a temple distant from one for the general upkeep and maintenance of the institution".
"Provision for the free feeding of a certain number of pilgrims in a temple of mutt."
21. It is evident from this that what the founder of the Charities intended to create was provision for the free feeding of the pilgrims in a temple or a math. As such earlier, the Founder had also totally divested himself of any right to the property. Unless there is a clear divestiture of ownership, there cannot be an endowment. This requirement is satisfied in this case because the recitals show an unambiguous expression of intentions divest and in fact there was an actual divestment for the purpose specified by the founder.
22. Though the learned counsel for the respondent argued that there was no trust deed. Under the Act, an endowment be either by express dedication or necessary implication. In this case, not only has the founder inscribed a stone with the words that the property had been endowed for the charities and got in embedded in the property, but reference to this endowment is also made in the Partition Deed Ex. A1, which is later in point of time. So, the declaration and dedication are clear and unambiguous. Whether the trust is a public or private one will depend upon who the beneficiaries are. The following passage in throws light on this aspect:
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment."
23. Since Desantharis the beneficiaries under the suit Charities are incapable of being ascertained, the trust as a public one. As to whether the trust is a specific endowment, it must be granted that the two decisions relied on by the counsel for the appellant apply to the instant case. If it can be shown that there is an association with an observance of religious character whether it be connected with a math, temple or not, it would be a religious charities and any property if it is endowment for the performance of any religious charity would be a specific endowment.
24. The Charity to be performed here is the Thathirathanai service which is propitiation and offering of food to the deity at the Perumal temples and thereafter the founder intended the food to be distributed to the pilgrims. The feeding of pilgrims has been held in the aforesaid case to be a public charity and since it is associated with the offering at the Perumal Temples it partakes of a religious character also. It cannot also be denied that the pilgrims at Perumal Temples will only be Hindus.
25. The Supreme Court in the decision reported in The Commissioner, Madras Hindu Religious and Charitable Endowments, Madras v. Narayana Ayyangar and others, 1965 (2) MLJ 47 holds that to constitute association it is not necessary that the persons responsible for celebrating religious festival in a temple or math should control the administration of the charity.
26. The founder had set apart his house and clearly intended that the income there from should be utilised for feeding pilgrims who visit temples. Therefore all the elements that are required to constitute a specific endowment are present in this case. The Sanskrit, English Dictionary (Varan Shivram Apte 1993, ed.) also defines "Ladiya" (sic) as belonging to that, his, hers, its this and (sic) "Aradhanam" inter alia as worshipping, Adoration, Propitiation (as of a deity) indicating the religious aspect of Thathiarathanai.
27. The decision relied on by the learned counsel for the respondent which related to the performance of "Abishekam" in Siva Temples will not apply to this case, since in that case there is no element of public interest or participation by the public or derivation of some benefit by the public in the performance of the Abishekam. Therefore, that decision will not help the respondent.
28. For all the aforesaid reasons we come to the conclusion that the founder of the charities had created a specific endowment for the performance of the "Thathiarathani Service" to "Desantharis" in "Perumal Temples" in Chennai and the said endowment will definitely come within the purview of the Act. It is not a private trust as claimed by the respondent in the suit filed by him.
29. The appeal is therefore allowed and the order of the learned Single Judge is setaside and O.S.No.2114 of 1981 on the file of the City Civil Court is dismissed. No Costs.