S.P. Kailasa Bhattar vs Secretary to Government, Revenue Department and Another

P. Ramakrishnan, J.—The question that is raised in this Writ Petition for decision is the validity of a notification by the State Government u/s

of the Madras Hindu Religious and Charitable Endowments Act (XXII of 1959) (hereinafter referred to as the Act) declaring that the provisions

of the aforesaid act shall apply to a Hindu Public Charitable Endowment described as ""Dwadasi Kattalai"" for feeding a specified number of

Brahmins.

A certain lady by name Avudaiyammal executed a deed of endowment on 6th January, 1920, endowing certain wet lands and also a house in

Sankarankoil in the Tirunelveli District for the purpose of feeding to Brahmins on the two fortnightly Dwadasi days which fall in each month, and

directed her sister''s son-- Pothi Bhattar and his heirs to be in enjoyment of the property as hakdars and perform the charity. The terms of the gift

deed will be referred to presently in greater detail. After the death of Pothi Bhattar, his son Rathna Pothi Bhattar was enjoying the property.

According to the petitioner, he was also performing the charity without any interruption. On 6th July, 1963, Rathna Pothi Bhattar sold the property

to the petitioner Kailasa Bhattar. The contention of the petitioner in the writ Petition, was that the charity in question was a private family charity

and would not fall within the scope of the term ""a Hindu Public Charitable Endowment"" as defined in Section 6(5) of the Act. Secondly he

contended that on a proper construction of the deed of endowment, there was no endowment of property to a trust, but it was bequeathed to

Pothi Bhattar and his heirs with an obligation to perform the charity, and this obligation will, therefore, be only a charge on the property. In view of

(his, there will be no restraint on the alienation of the property as long as the charity was being performed. Thirdly it was contended by the

petitioner that there has been no default in the performance of the charity. On these allegations the petitioner sought for a writ of certiorari quashing

the order of the State Government of Madras, the respondent in the writ petition, holding that the charity had been mismanaged and therefore the

provisions of the Act should be extended to the charity in question u/s 3, Sub-section (3) of the Act.

The contention of the Government in the counter affidavit is this. In fact, the charity was not performed and no accounts were maintained for the

income and expenditure. The Inspector of the Hindu Religious Endowments, Koilpatti division, was directed to hold the prescribed statutory

enquiry u/s 3(2) of the Act, and he found that the house forming one of the properties of the endowment had been let out, with the result that a

particular direction in the deed of endowment, that the feeding should be done in the house could not be fulfilled. Only at a very late stage did the

petitioner produce before the Inspector a small note-book containing signatures of some persons stating that feeding had been done according to

the endowment, but the Government did not accept the correctness of this representation. In regard to the specific plea that there was no

endowment of property to the charity, but there was only a bequest of the property to the donee and his heirs with an obligation to perform the

charity which was therefore only in the nature of a charge, the counter affidavit of the Government merely referred to the terms of the document to

the effect that the properties were endowed for the upkeep of the charity after paying kist and other taxes as well as the restriction against

alienation. According to the Respondent, this circumstance would be sufficient to negative the plea of the petitioner in this regard.

To this counter affidavit, the petitioner filed a reply affidavit, again reiterating the claim that there was only a charge created for the charity and

not an outright dedication of the property. To support this specific plea the petitioner gave an estimate of income from the properties and the

probable expenses for performing charity which would leave a substantial surplus for the donee and his heirs. There was a further plea that the

Inspector who was authorised to hold the enquiry did not hold a proper enquiry, and if that had been done, the petitioner would have been able to

afford the necessary data to substantiate his contentions.

The deed of endowment in question contains the following main provisions:

From Avudaiyammal to Pothi Bhattar, son of Esaana Bhattar (deed of endowment for charity). I have no heirs. For the purpose of the salvation of

my soul, I am endowing the scheduled properties worth Rs. 1,500 to ensure that the Dwadasi Kattalai (as specified below) is performed in

perpetuity. You and your heirs should undertake to perform the abovesaid charity enjoying the scheduled properties as hakdars. You should feed

10 Brahmins on each Dwadasi day falling in the bright fortnight and in the dark fortnight of each month. The feeding should be done in the

scheduled house. For meeting the expenses of the above feeding you should utilise the income from the scheduled lands and the rent of the

scheduled house after paying the Government taxes. Even though the surplus that would remain would be sufficient for meeting the expenses of the

charity, if for any reason the land failed to yield, you should from your own properties perform the charity without any interruption. You and your

heirs should perform the ""charity with You can get the patta transferred of the above said property in your name. You and your heirs should only

enjoy the property for the performance of the above charity, but you should not create any encumbrances over them.

Two points arise for consideration with reference to the above document. The first is whether the charity in question will constitute a Hindu Public

Charitable Endowment as defined in Section 6(5) of the Act. That definition is in the following terms:

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 subjects of utility to the said community or section, such as rest-houses, choultries, patasalas,

schools and colleges, houses for feeding the poor and institutions for the advancement of education, medical reliefs and public health or other

objects 6f a like nature; and includes the institution concerned.

The Act draws a clear distinction between religious endowment or endowment (vide definition in Section 6(17) of the Act) and charitable

endowment (vide definition in Section 6(5) of the Act), which has been just now extracted. P.R. Ganapathi Iyer in his law of Hindu and

Mahomedan Endowments, second edition, at page 206, has summarised the broad distinction between what are known as ""ishta"" acts and

poortha"" and given instances of poortha acts. Bearing in mind this traditional meaning of poortha acts, the objects mentioned in Section 6(5) of the

charitable endowment conform more closely to poortha acts. At the same time, Ganapathi Iyer observes that no legal principles founded on any

distinction between gifts for religious and for non-religious purposes is evolved in the Hindu Law. Quoting Messrs. West and Buhler, the learned

author observes that religious and charitable purposes are found coupled in the Hindu authorities.

But this distinction between religious and charitable purposes need not detain us when a question of the application of the Act arises, because

the Act has defined the scope of a charitable endowment in a precise manner in Section 6(5) by stressing the requirements:(1) the endowment shall

be of property, (2) the beneficiaries of the endowment will be the Hindu community or a section thereof and (3) the object of the endowment will

be to support or to maintain the objects of utility to the said community or section. Then follows a catalogue of instances of such objects of utility

viz., rest-house, choultries, patasalas, houses for feeding the poor. These objects are made sufficiently wide so as to include institutions for the

advancement of education, medical relief, public health. There is finally an ejusdem generis clause ""objects of a like nature"". There can be no doubt

that feeding the poor section of the Hindu community will be an object within the scope of ""charitable endowment"" thus defined. Next we have to

consider the word ""section of the community"" as a beneficiary of the endowment. The specific direction in the deed of Avudaiammal is that 10

Brahmins should get the benefit of feeding on each fortnight in the month that is 20 Brahmins per month. It appears to me that 20 Brahmins per

month, the number for that purpose being picked out at random, will constitute an adequate section of the Hindu community, for attracting the

definition. There is no indication that the Brahmins thus benefited should have any nexus to the donor or her heirs. They form, clearly a random

section of the Hindu community. In the course of a year it is reasonable to expect that 240 Brahmins will be fed. It is also a matter of ordinary

knowledge, that only poor people accept the offer for such feeding. No doubt there is the religious object stated by the donor, namely the salvation

of her soul, but this may not be material, because as pointed out by Ganapathi Iyer, according to Hindu notions, the distinction between gifts for

religious and non-religious purposes is very thin and they could often be found coupleds

In this connection, my attention has been drawn to certain broad legal principles derivable from English Law of Charitable Endowments, which

will be useful for applying the tests regarding the term ""section of public"" used in the definition as beneficiaries of the charity.

In Oppenhelm v. Tobacco Securities Trust Co., Ltd. L.R. (1951) A.C. 297 the House of Lords observed:

Then the question is whether that class of persons can be regarded as such a ''section of the community'' as to satisfy the test of public benefit.

These words ''section of the community'' have no special sanctity, but they conveniently indicate first, that the possible (I emphasise the word

possible) beneficiaries must not be numerically negligible, and secondly that the quality which distinguishes them from other members of the

community, so that they form by themselves a section of it, must be a quality which does not depend on their relationship to a particular individual.

This distinction has been quoted with approval by Chagla, C.J., in a case arising out of Section 4(3)(i) of the Income Tax Act, which deals with

exemptions of income from charitable or religious trusts, viz., Commissioner of Income Tax, Bombay City, Bombay Vs. Walchand Diamond

Jubilee Trust, , following the principles in the English decision just cited, the learned Chief Justice observed:

In other words, the bounty of the settlor must be directed towards the public as a whole or a section of the public. If the object of his bounty is

neither the public nor a section of the public but merely a conglomeration of men who constitute a mere group and the nexus which ties them is not

a nexus which constitutes them a section of the public, then the trust would not be a trust which would fall within the ambit of Section 4(3)(i).

I am satisfied that bearing in mind the definition in Section 6(5) of the Act and the principles above mentioned, two out of the three tests (i) for

attracting the section viz., of a section of the public of the Hindu community being the beneficiaries, and (ii) the object of the endorsement being one

of the objects within the scope of Section 6(5) namely poor feeding are satisfied in this case.

The third and an equally important requirement of the definition, is whether there has been property endowed for the trust or whether the

endowment constitutes only a charge on a property endowed to specific persons. It appears to me that on this point, the authorities empowered to

administer the Act have not bestowed in this case, the necessary attention and have also missed the real principles required to be applied for a

decision. In regard to the principles, there is guidance provided by the judgment of the Supreme Court in the decision in Dasaratharami Reddi v.

Subba Rao (1957) 2 A.W.R. 175 : (1957) 2 M.L.J. 175 : (1957) S.C.J. 835. The Supreme Court stressed that the use of the word ""trust"" or

trustee"" in the deed of endowment, may not be decisive of the question whether or not the dedication was complete, and that the question can be

answered only by gathering the true intention of the document considered as a whole. The Supreme Court observed:

If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is

allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If on the

other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used, and a substantial surplus is left

in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication.

In an earlier decision of this Court in Kandasami v. Munisami AIR 1932 Mad. 580, dealing with the construction of a will, it was observed:

In determining whether the will of a Hindu gives the testator''s estate to an idol subject to a charge in favour of the heirs or makes the gift to the idol

a charge upon the estate, there is no fixed rule depending upon the use of particular terms in the will; the question depends upon the construction of

the will as a whole.

The circumstances that the expenditure on charity would require only a small proportion of the income might indicate that the heirs should take the

property subject to a charge for the purpose of the named religious purposes.

I have already referred to the facts that the document in the present case uses the word ""hakdar"" or ""trustee"", and that the deed is described as a

and there is also a restraint on alienation. But at the same time there is reference to There is also a reference to the donees being required to

perform the charity even if the crops fail in any year, when they should utilise their own assets for the purpose. For the purpose of the test

prescribed above, it will be relevant to refer to a specific finding in his report by the Inspector who made the enquiry under the heading of

probable income of the charitable endowment "". He found that the building in 1963 was fetching a rental income of Rs. 58 per month and that the

land was yielding 18 kotahs of paddy or Rs. 900 per year which will give an annual income of Rs. 1,596 or Rs. 1,600 in a round sum. As against

this, there is no estimate made by the enquiry officer as to what it will cost to feed 240 persons in a year, what proportion of the income such

feeding will absorb, and whether the surplus that will be left, will be such a proportion of the total income as would enable the principles above

cited to be applied to the deed in question, in one way or the other. As against this, in the reply affidavit of the petitioner, there is a specific plea

that in 1920 when the bequest was made, 2-28 acres of wet land would yield an annual net income of 6 kotahs of paddy and the house would

fetch a monthly rent of Rs. 20. It is urged that for feeding 240 persons under the easy economic conditions which prevailed in 1920, 1 kottah of

paddy and Rs. 60 per annum would have sufficed, and the surplus thus left would be sufficiently substantial for justifying the inference that the

property was not endowed outright for the charity, but it was a gift to the donee and his heirs burdened with an obligation.

I do not propose to give my finding on this aspect of the case except to catalogue the pleadings and also refer to certain findings of fact given in

the report of the Inspector. It will be for the concerned authorities to gather more precise evidence if necessary, and give a decision on this

question. Though the petitioner repeatedly raised this question for decision, I find that in the order of the Government no specific issue has been

raised thereon and dealt with in accordance with the legal principles mentioned above. They have referred in their counter affidavit to certain

circumstances which are really extraneous and have no conclusion bearing on this question. According to the counter affidavit the recitals in the

document (sic) and the provision against alienation would be sufficient for rejecting the contentions of the petitioner in this respect. But that is not

the correct way of approach to the question. The question has to be dealt with and answered in the light of the principles set out earlier, but this has

not been done in this case.

Before leaving this case, I would like to point out that under the provisions of the Act, power is taken to control the management of charitable

endowments like the present one which have remained in private hands for several generations without outside interference. When control is

proposed to be exercised over them for the first time under the Statute, if necessary after removing persons in management of the property or

taking away endowed property from such persons, a careful judicial approach is necessary and proper attention has to be bestowed upon the legal

principles as well as on the forms of procedure which are outlined in Section 3(2) of the Act. Section 3(2) prescribes a formal enquiry in

accordance with the procedure authorised in the CPC accompanied by the hearing of parties and the recording of evidence. It cannot be

overstressed that the officer who thus makes this enquiry should act in a judicial capacity, and afford the parties the fullest opportunity, and also

deal with the question in all its aspects before a decision is taken to assume control over the management of such endowments.

In view of the foregoing considerations, I allow the Writ Petition and quash the orders of the respondent. It will be open to the respondent to

take appropriate steps for the holding of a full-fledged enquiry u/s 3(2), when the relevant questions for consideration should be formulated and a

proper decision arrived at in accordance with law and the observations above. No order as to costs.