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Judgment
Mishra, J.—The plaintiffs who are the charitable trust founded by one Sri Singan Chetty Ateendrooloo Chetty under a will and a settle meat
deed duly probated and registered on 28-6-1899 and 17-7-1899 are the appellants. Under the said two deeds (Sri S.A.) Chetty had dedicated
his property movable and immovables and cash to charities and the income from the same to be spent upon charitable purposes, some of them
connected with temples within the State of Tamil Nadu. According to the plaintiffs, the trust was denominational in nature for and on behalf of
Thennachara Tengalai confined to Thennachara Vaishnavite community and its income solely devoted to the object and purposes connected with
Vaishnavite Tengalai community. The founder had framed its constitution under which the charity was administered, controlled and managed by a
board of trustees. The founder, according to the plaintiffs, disposed of the income for definite purposes and allotted specific amounts for each
charitable purposes or objects. The dedicated properties thus were fully separated and the trustees were bound to utilise the income derived from
such properties only for such purposes for which they had been earmarked. According to the plaintiffs, some of the purposes of the charity were
not entirely or exclusively Hindu, some were Charities of secular nature, some, specifically earmarked as contributions to a girls'' school in Madras
in which all communities studied and the staff consisted of teachers of all communities such as Christians and Muslims etc. and hence neither the
corpus of the trust nor its income was dedicated to Hindu objects and Hindu purposes. It appears that some disputes arose between the trustees
on the one hand and the Hindu Religious Endowment Board (respondent) on the other hand. Proceedings were instituted by the secretary of the
Board under S.77 of the Hindu Religious Endowments Act 1927 (Act 2 of 1927) in C.A. No.10 of 1947 to determine what portion of the
endowment in question should be allotted to religious use. At this enquiry, the charities were represented by an advocate. The trustees filed their
statement pleading inter alia that S.77 of the said Act was not applicable to the endowment in question because (1) there was no endowment made
or property given for the support of any institution within the meaning of S.77 of the Act and (2) a mere direction to pay specific sums from the
income of certain properties for religious purposes cannot be deemed to constitute specific religious endowment. By its order dt. 10-12-1947, the
board held that it had jurisdiction to go into the question of apportionment between the religious part of the charities and the secular part of the
charities in regard to the suit trust. The board concluded that by reason of the relative amounts earmarked for the religious and non-religious
portion of the charities, as stated in the deed of trust, 50 per cent of the income from the trust should form the Religious endowment to which the
provisions of the Madras Hindu Religious Endowments Act will apply. The trustees however allowed the said order to become final and preferred
no challenge to the same within the time allowed for the said purpose under the act. They however applied under S.57(g) of the Madras Act 19 of
1951 (the successor Act of the 1927 Act) for a declaration that the order issued under S.77(1) of the 1927 Act was not binding upon them. One
of the contentions in the said petition was that the endowment covered by the trust would not come under S.57(g) of the Act 19 of 1951 and that
the petitioner should be permitted to administer and carry out the endowment under the trust deed as per provisions made therein. The deputy
commissioner who heard the said petition on 13-9-1952 ordered that the earlier order passed under S.77 of the 1927 Act had become final and
that the only remedy available to the petitioner under those circumstances was to get that order modified or rescinded which could be done only
under S. 103(g) of the Act 19 of 1951 by the State Government. The trustees then applied to the State Government for modifying the said order
of the board under S.77 of the 1927 Act. The government however declined to interfere-vide order dated 2-1-1954 in which it was however
observed that the president, honourary secretary and treasurer were informed that the Deputy Commissioner, Hindu Religious and Charitable
Endowments, (Administration Department) Coimbatore, could be moved for a fresh order under S.57(g) of the 1951 Act, if they were so advised.
Acting on this direction, they again applied to the Deputy Commissioner, Hindu Religious and Charitable Endowments, Coimbatore and this time
specifically sought the relief inter alia (1) that the charities mentioned in schedule B of the trust deed are to be carried out with the amounts
provided for therein, and (2) to declare that the endowments do not come within the purview of S.57(g) of the Act and that the allotment made by
the ex-board in its order dated 10-12-1947 was illegal. The deputy commissioner after observing that he had power to determine in the case of a
mixed endowments which portion of the endowment be regarded as religious and which secular, stated that S.57(g) does not confer on him the
power to declare that an order passed by the ex-board was illegal and not binding, and that the 1951 Act has not conferred on him the power to
sit in judgment over the order of the ex-board which had become final. The trustees then appealed to the Commissioner. The Commissioner
rejected the appeal by his order dated 17-10-1954. They then decided to file O.S. No. 245 of 1955 under S.62 of the Hindu Religious Charitable
Endowments Act, 1951. The trustees succeeded in the suit; but the Hindu Religious and Charitable Endowments'' (Administration Dept), Madras
represented by the Commissioner preferred appeal, being Appeal No. 188 of 1960 See H.R. & C.E. (Admn.) Dept. by Commissioner v. Sri
Singan Chetty etc. Charities 83 L.W. 126.�It is regretted that the printing of the judgment in the Law Report does not appear to have been
noticed before the court. That appeal was heard by a division bench of the court in which the court first examined the scope of a statutory suit
under S.62 of the Act and noticed that S.62 gave right to a party aggrieved by an order passed by the Commissioner under S.67 of the Act of
1951 to institute a suit in the court against such order within 90 days from the date of receipt of the order and the court could modify or cancel
such order. It then took notice of the contentions of the learned additional government pleader who appeared for the appellant that the
commissioner''s order which confirmed the order of the Deputy Commissioner dated 25-6-1954 only held that the Deputy Commissioner had no
power to interfere or modify or declare as invalid an earlier order of Hindu Religious & Charitable Endowments under S. 77 of the Act 1927
which had become final because the aggrieved party had not taken steps within the period as provided in S.77 of the Act to get that order
modified. His jurisdiction under S.57(g) of the Act of 1951 was only to make an apportionment when there was a dispute as to how a property
endowed partially for religious and partially secular purposes should be apportioned. It was entirely outside his jurisdiction under S.57(g) of the
Act of 1951 to determine the vires of an earlier order passed by the board on an identical matter dealing with the question of apportionment. The
court observed:
It appears to us that this contention of the additional government pleader is entitled to weight. It forms, in our opinion, a valid preliminary objection
to the maintainability of the suit.
The appellate court then proceeded to make a comparison of the relevant provisions in S.77 of the 1927 Act and S.57 of the 1951 Act and
observed:--
It shows that so far as the present dispute is concerned, the provisions are practically identical. The difference if any are immaterial. S.77(1) of the
Act of 1927 says that where an endowment made or property given is appropriated partly to religious and partly to secular uses, the Board may
determine what portion of the property or income therefrom shall be allotted to the religious uses. S.57(g) says that where any property or money
has been given for the performance of any service or charity connected with a religious institution of the performance of a charity which is partly of
a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses and
a dispute arises as to what portion of such property or money shall be allocated to religious uses, the Deputy Commissioner shall have power to
enquire and decide the question. S.77(1) of the Act of 1927 refers to an endowment, S.57(g) of the Act of 1951 does not refer to an endowment,
but S.57(f) provides for the determination as to whether an endowment is wholly or partly of a religious or secular character and whether any
property or money has been given wholly or partly for religious or secular uses. Therefore S.57(g) and (f) have to be read together in the Act of
1951 in the context of S.77(1) of the Act of 1927 So far as the question as to whether the trust in this case provides for an apportionment of
property between religious and charitable uses is concerned, there is no essential difference between S.77 of the Act 1927 and S.57 of the Act of
1951 That is why the Deputy Commissioner in his order held that the previous decision of the Board under S.77 of the Act of 1921 dealing with
the same question of apportionment under the same deed of trust, would preclude him as the corresponding authority under the amended act of
1951, from going into the matter over again. This appears to us to be correct view of the matter.
We have quoted this in extenso because one of the contentions reiterated before us centres around the scope of S.77 of the 1927 Act and S.57 of
the 1951 Act, and S.63 of 1959 Act. But before we go to the problem in hand, to complete the story we may state that one of the arguments
advanced before the court was that the court in the said suit should also decide independently the vires of the earlier order of the board. After
referring to the various provisions of law and the authorities, the court noticed that the trust deed mentioned several religions services for which
specific sums are earmarked and also mentioned secular objects like payment of money towards school and school fees for which fixed amounts
are provided and observed:--
There is a scope for an argument that as only payment of fixed sums should be made under this endowment, there cannot be a question of
apportionment. Equally, it is possible to argue that as there is outright dedication of property in this case for religious and secular purposes, the
question whether fixed payments are to be made for the two purposes or they can be properly substituted by a ratio or percentage can be
considered as a question of apportionment.
It also added:--
In the present case, there was outright divestiture of the properties from the owner to the trust. They were completely entrusted to the trustees.
Thereafter the owner had directed the manner in which the trustees should devote particular sums of money from the income for particular
charities, which were partly religious and partly secular. They also created a reserve fund for future needs of charities There is, therefore a
possibility of a view being taken from provisions in the deed of trust that this was a case of properties completely divested from the owner and
vested in the bands of trustees which involved apportionment of the income not necessarily on the basis of percentage, but on the basis of fixed
sums of money between religious and secular purposes. The dispositions in the trust deed, so viewed, may be considered as an apportionment and
the dispute may be held to fall within the jurisdiction of the Board, under S.77 of the Act of 1927. But as we mentioned earlier, it is not necessary
in view of our finding in the earlier portion of the judgment to find out which of these rival contentions is the proper one. It is sufficient for our
purposes that a bonafide dispute about apportionment could and did arise in 1947. We have already held that viewed as a statutory suit, the scope
of the present suit has to be limited to the points which the Deputy Commissioner can investigate and decide under S.57 of the Act of 1951. The
scope of the suit has to be confined to determining whether the decision of the Deputy Commissioner (subject to the decision in appeal by the
Commissioner) was a proper one or not and whether it should be modified. There can be no doubt at all that, in the circumstances of this case, the
Deputy Commissioner had no jurisdiction under S.57 of the Act of 1951 to decide an issue about the vires of the earlier decision of the Board on a
dispute about apportionment. Therefore, the lower court was not justified in setting aside the order of the Deputy Commissioner and
Commissioner and in passing thereafter a decree in favour of the plaintiff.
It is thus a case where there were two rival contentions, one in support of the jurisdiction of the deputy commissioner who acted under S.77 of
the 1927 Act and the other opposite and the division bench of this court although noticed the two contentions, declined to decide one way or the
other, for, it felt that its own jurisdiction was limited to the jurisdiction conferred under S.63 of the 1951 Act. As a result of the above, we have to
countenance two judgments delivered separately by learned single judges in suit No. 245 of 1951 which was set aside on a technical ground of
jurisdiction, nonetheless, the learned Judge delved into the question of the nature of the trust and the jurisdiction as to the apportionment exercised
by the deputy commissioner under the Act of 1927 and the other judgment under appeal before us in which again these aspects of the case have
been examined. We thus complete the events thus far as what transpired at the behest of the appellant or the respondent with the hint at the
amendment of law or repeal of 1927 Act by Act 1951 and the repeal of 1951 Act by the Act of 1959. S.77 of the 1927 Act provided inter alia:--
(1) Where an endowment his been made or property given for the support of an institution which is partly of a religious and partly of a secular
character or for the performance of any service of charity connected there with or,
where an endowment made or property given is appropriated partly to religious and partly to secular uses, the Board may, notwithstanding
anything contained in the Madras Endowments and Escheats Regulation 1917, determine what portion of such endowment or property or of the
income therefrom shall be allocated to religious uses. Such portion shall thereafter be deemed to be a religious endowment and its administration
shall be governed by the provisions of this Act.
(2) Any party affected by an order under sub-S.(1) may within such time as may be prescribed apply to the court to modify or set aside such
order but, subject to the result of such application, the order of the Board shall be final.
The corresponding provision in 1951 Act provided:--(S.57)
Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to enquire into and decide the following
disputes and matters:--
(a) whether an institution is a religious institution;
(b) whether a trustee holds or held office as a hereditary trustee;
(c) whether any property or money is a religious endowment;
(d) whether any property or money is a specific endowment;
(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the
established usage of a religious institution is in regard to any other matter;
(f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given
wholly or partly for religious or secular uses; and
(g) whether any property or money has been given for the support of an institution which is partly of religious and partly of a secular character, or
the performance of any service or charity connected with such an institution or the performance of a charily which is partly of a religious and partly
of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of
such property or money shall be allocated to religious uses.
S.63 of the 1959 Act now holds the field which runs as follows:--
Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following
disputes and matters:--
(a) whether an institution is a religious institution;
(b) whether a trustee holds or held office as a hereditary trustee;
(c) whether any property or money is a religious endowment;
(d) whether any property or money is a specific endowment;
(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the
established usage of a religious institution is in regard to any other matter;
(f) whether any institution or endowment is wholly or partly of a religious or secular character; and whether any property or money has been given
wholly or partly for religious or secular uses; and
(g) where any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or
the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly
of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of
such property or money shall be allocated to religious uses.
The provisions of S. 63 of the 1959 Act and S.57 of the 1951 Act are pari materia. A division bench of this court in the earlier judgment inter-
parties in Appeal No. 188 of 1960 has noticed the similarity for the purpose of deciding whether a certain property or the income thereof has been
allocated partly to religious use and partly to secular use and making an order for apportionment under S.77(1) and (2) of the 1927 Act and under
S.57 (g) and (f) of the 1951 Act.
The main provision, in S.63 of the 1959 Act, on a comparison with S.77(1) and (2) of the 1927 Act, shall convey the same conclusions as were
derived by this court in Appeal No. 188 of 1960 on a comparison of the provisions of S.77(1) and (2) of the 1927 Act and S.57(g) and (f) of the
1951 Act. The division bench in the earlier judgment has said:
A comparison of the relevant provisions of S.77 of the Act of 1927 and S.57 of the Act of 1951 can be made. It shows that so far as the present
dispute is concerned, the provisions are practically identical. The difference, if any, is immaterial S.77(1) of the Act of 1927 says that where an
endowment made or property given is appropriated partly to religious and partly to secular uses, the Board may determine what portion of the
property or income therefrom shall be allotted to the religious uses. S.57(g) says that where any property or money has been given for the
performance of any service or charity connected with a religious institution or the performance of a charity which is partly of a secular character or
where any property or money given is appropriated partly to religious and partly to secular uses and dispute arises as to what portion of such
property or money shall be allocated to religious uses, the Deputy Commissioner shall have power to enquire and decide the question. S.77(1) of
the Act of 1927 refers to an endowment. S.57(g) of the Act of 1951 does not refer to an endowment. But S.57(f) provides for the determination
as to whether an endowment is wholly or partly of a religious or secular character and whether any property or money has been given wholly or
partly for religious or secular uses. Therefore, S.57(f) and (g) have to be read together in the Act of 1951, in the context of S.77(1) of the Act of
1927. So far as the question as to whether the trust in this case provides for an apportionment of property between religious and charitable uses is
concerned, there is no essential difference between S.77 of the Act of 1927 and S.57 of the Act of 1951.
This finding, inter parties, is not open to challenge. What was done by the deputy commissioner under S.77 of the Act of 1927 would have been
done under S.57(f) and (g) of the 1951 Act and similarly under S.63 of the 1959 Act. This aspect of the adjudication being final, although there
has been some attempt on behalf of the appellant to reopen it, we advisedly refrain from going behind it. In Appeal No.188 of 1960 it was
observed:--
The scope of the suit has to be confined to determining whether the decision of the Deputy Commissioner (subject to the decision in appeal by the
Commissioner), was a propel one or not and whether it should be modified. There can be no doubt at all that, in the circumstances of this case, the
Deputy Commissioner had no jurisdiction under S.57 of the Act of 1951 to decide an issue about the vires of the earlier decision of the Board on a
dispute about apportionment........ We are not mentioning any opinion as to whether the plaintiffs can agitate for their relief in independent
proceedings for vacating the order of the Board. It will be open to them to take appropriate proceedings for that purpose if they are so advised.
We feel obligated to consider whether there is any cause to question the vires of the order of the deputy commissioner passed under S.77 of the
1927 Act. S.84 of the 1927 Act provided:
If any dispute arises to :
(a) whether an institution is a math or temple defined in this Act;
(b) whether a trustee is a hereditary trustee as defined in this Act or not, or
(c) whether any property or money endowed is a specific endowment as defined in this Act or not, such dispute shall be decided by the Board and
no Court in the exercise of its original jurisdiction shall lake cognizance of any such dispute.
Religious endowment or ''endowment'' had been defined under S.9 (11) of the said Act to mean all property belonging to, or given or endowed for
the support of, maths or temples or for the performance of any service or charity connected therewith and includes the premises of maths or
temples but does not include gifts of property made as personal gifts or offerings to the head of a math or to the archaka or other employee of a
temple. ""Specific endowment"" was defined by introduction of sub-S.11A in S.9 thereof by Madras Act 10 of 1946, to mean any property or
money endowed for the performance of any specific service or charity in a temple or math.
S.77 of the Act, which for all purposes is similar to S.63 of the 1959 Act and which has already been extracted by us, vested the board to
determine what portion of endowment or property or of the income therefrom shall be allocated to religious use in cases where the endowment
made or property given to an institution was partly of religious and partly of a secular character or for the performance of any service or charity
connected therewith. S.84 of the Act which we have extracted above, however, does not appear to impose a bar upon the jurisdiction of a court
with respect to determination by the board under S.77 of the Act. In the 1959 Act, however, the bar as to jurisdiction of the court has been
prescribed in S.108 thereof in the following words:
No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for
determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the
provisions of this Act.
A comparison, therefore, of the provisions prescribing bar of jurisdiction of the court leads to the conclusion that while the suit, if deemed to have
been instituted, not with respect to an order passed under S.63 of the 1959 Act, but with respect to an order under S.77 of the 1927 Act, a court
of competent jurisdiction may go into the merits of the dispute and find out whether any illegality was committed or any error vitiating the
determination effected was made, Under S.108 of the 1959 Act, however, the jurisdiction of the court is expressly barred.
We have already noticed that the Act of 1951 was in force when the earlier suit had been instituted under the provisions of the Act and the
Court in Appeal No. 188 of 1960 confined its considerations to the jurisdiction with respect to adjudications under S.77 of the Act, corresponding
to S.57 of the 1951 Act. The court rejected the argument that its jurisdiction had been enlarged under the Act to go into the question of the validity
or otherwise of the order of the deputy commissioner on a reading of the provisions of S.77 of the 1927 Act and S.57 of the 1951 Act. Had the
Court been informed about the order dealt with the case under the 1959 Act, perhaps it would have come to a different conclusion. It is, indeed
necessary to know, therefore, what may be the ambit of the determination of the controversy brought before us and what may be the limitations
under which this court may exercise jurisdiction.
In Patna Municipal Corporation Vs. Ram Bachan Lal, , it has been pointed out thus:
The first principle which must be kept in view is that the Civil Court is a Court of plenary jurisdiction, and is competent under S.9 of the CPC ''to
try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred''. I may also refer in this connection to
the observations of Lord Thankerton in the decision of the Judicial Committee in Secretary of State v. Mask and Co. AIR 1940 P.C. 105,
110=52 L.W. 1 (P.C.) which are as follows:
It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly
expressed or clearly implied. It is also well-settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases
where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles
of judicial procedure.
Another principle which is firmly established is that a local authority, an administrative authority or any tribunal of limited jurisdiction cannot assume
jurisdiction to do anything or to pass any order by arriving at a wrong decision on facts. Such facts have been referred to in various decisions as
preliminary or collateral facts or as jurisdictional facts. The Civil Court or the High Court, in exercise of its power to issue an appropriate writ in
suitable cases, can investigate the correctness of the decision of the inferior tribunal of limited jurisdiction relating to such facts.
In the words of the full bench supra, to hold otherwise would create a curious and illogical situation because a tribunal of limited jurisdiction would
have unlimited power to assume jurisdiction in any case in which, on a correct decision on the jurisdictional facts, it cannot possibly have any
jurisdiction. There is a long line of decisions of English courts and by now a large number of judgments of the courts in India, including the Supreme
Court, are available in which these principles have been reiterated--vide Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, ),
Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, , and Kamala Mills v. Bombay State AIR 1965 S.C. 1912. On principle,
therefore, the following emerges: (1) whether there were such facts available under which the board (deputy commissioner) got jurisdiction to
decide what portion of the income should be allocated to religious use. (2) Whether any provision of law was not complied with. (3) Whether the
deputy commissioner failed to act in conformity with the fundamental principles of judicial procedure. Any attempt to go beyond it even if assumed
that there is no express bar to the jurisdiction, will mean a reiteration of the dispute and adjudication into the facts on merits upon which the deputy
commissioner decided the quantum of the property or the income from the property allocated to religious uses. This, no doubt, will be a complete
negation of the scheme under which the deputy commissioner was vested with the power to decide about the quantum to be allocated for religious
uses, exclusively, leaving the residue for the other purpose of the institution The finding of the learned trial judge that the institution is a
denominational institution of Hindus is on record and not challenged by the learned counsel for the appellants before us. A perusal of the deed of
endowment also leaves no scope to doubt the denominational nature of the endowment. The appellants herein had, in fact, admitted in the earlier
proceedings before this court that the trust was purely Hindu in character and submitted to the jurisdiction of the board and its successors The
learned trial judge had gone into the question and found :
In the present case as per toe trust deed, the beneficiaries are persons belonging to the vaishnavite sect following Thengalai Thennacharya
Sampradayam.............The only conclusion that can be arrived at is that the trust deed, Ex.P1, is intended solely for the benefit of the Thengalai
Vaishnavitee following Thennachara Sampradayam and there is no recital in the trust deed by which the endowment is made for the benefit of
persons belonging to any religion other the Hindu religion.
Learned counsel for the appellants, however, has contended that there is a clear recital in the trust deed that besides the purpose of service to
Vaishnavites, secular charity would be provided for the benefit of not only the Hindus or any denomination of Hindus, but Christians and Muslims
as well. Therefore, this finding recorded by the learned trial Judge is vitiated. On facts, as noticed in the recitals of the deed of trust (Ex.P1), there
is no doubt that a provision has been made for contribution, for the education of the poor among Vaisyas and contribution to the three schools
providing secular education. The learned trial judge has read the document, in our opinion, correctly and come to a correct conclusion that the trust
is a Hindu religious and charitable trust having a specific endowment for religious purposes.
The 1959 Act has defined in S.6(5) ''charitable endowments to mean 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 objects 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
relief and public health or other objects of a like nature, and include the institution concerned.
Arts 26, 29 and 30 of the Constitution of India give complete right of freedom to manage religious affairs. Subject to public order, morality and
health, every religious denomination or any section thereof shall have the right--
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Art.29 of the Constitution of India states that any section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same. Art.30 of the Constitution of India states that all minorities, whether
based on religion or language, shall have the right to establish and administer educational institutions of their choice. Any establishment of a school
for the benefit of a denomination of community shall not lose its denominational character only because secular education is provided therein or
teachers are appointed to impart training to the students their religious and denomination other than the denomination for the benefit where of the
institution has been established. Any attempt to read, just because the secular education is provided in the schools or by such education provided
in the schools established by a denominational institution, people belonging to other religions are benefited, or people belonging to other religions
are appointed as teachers, that the endowment has ceased to be a religious and charitable endowment, will mean permitting an establishment of an
educational institution for the benefit of the students of a particular denomination only Doing such a thing will be against the guarantee under Art.30
of the Constitution of India which says all minorities, whether based on religion or language, shall have the right to establish and administer
educational institutions of their choice. In the case of religious minority deciding to establish an institution for secular education, this right will stand
infringed if it is insisted that it must benefit the students belonging to the denomination or the religion concerned to qualify as a religious public
denominational institution. We thus find no error in the conclusion of the learned trial judge that the endowment is meant for the denomination of
Hindu religion.
The only other question which it appears to us would fall for decision is the observations of this court in its earlier judgment in Appeal No. 188
of 1960. We have already quoted from the above judgment the two competing contentions. One is, as there is out right devolution of property for
religious and secular purposes, the question whether fixed payments are to be made for the two purposes or they can be properly substituted by a
ratio or percentage. The second is whether under the deed there is an effective disbursement with a residue provided to meet the expenses for any
year in the event of a deficiency should have been allowed to work for itself without any interference by the deputy commissioner. The deed in
question provides for appointment of ten trustees who have been put in possession of the properties mentioned in the list A, B, C and D. List F of
the charities are to be provided for from the income of the properties in list A. It provides for outright sums of money to be incurred once for all,
for various purposes which are mostly connected with the temples and that after the expenditure for the charities in list F is met with the income of
the properties in list A by sale of some of them, the balance may be invested in securities. List C contains jewels which are to be sold by public
auction. List B contains mortgages of landed property valued at Rs. 61,475. The jewels are valued approximately at Rs. 14,000. List D contains
government securities of the face value of Rs. 1,00,000, wherein it is stated that in anything outstanding from the list B and the sale proceeds of the
jewel in list C shall be invested in suitable securities and deposited along with list D securities in the office of the official trustee or any other office in
the name of the charities and the interest accruing therefrom should be drawn and expended on the termination of charities mentioned in list E
which list mentions several religious services with a specific sum earmarked. Herein are mentioned some objects like payment of money towards
school and school fees for which fixed amounts are provided, which learned counsel has stated are secular objects. While dealing with the question
of allocation, the board obtained the total value respectively of the religious and secular charities mentioned in list E and decided that as the total
amounts ear-marked for these two purposes were approximately equal, it was justified in holding that 30% (50%) of the income from the trust
properties should be ear-marked for religious purposes. The trust deed provides that from the rents of the landed properties (List A) and from the
interest and other incomes derivable from the properties, the charges for the repair of houses and landed properties, taxes etc., establishment and
other expenses, the permanent expenses mentioned in list E and the expenses mentioned in list C shall be deducted. List G mentions certain
payments to specified persons during their lifetime. Then it is provided that out of the balance of money, 20% shall be used as reserve and the
residue shall be utilised for repairing the houses of Thangalai Vaishanavas, devotees in sacred places and if the income was not sufficient to meet
the expenses for any year, such deficiency should be met from the reserve of 20% set apart in previous years.
It is on these facts that a question arises as to whether this is not a case in which under the deed itself each specific endowment and purpose
had been separately ear-marked and the deed itself had fully apportioned such sums which were required to be spent for secular purposes.
Although not directly taking up the questions as above, since the learned counsel for the parties addressed the Court with reference to issues, such
as whether the Hindu Religious and Charitable Endowments Act of 1927 or of 1959 was applicable to the suit trust and whether the second
defendant had jurisdiction to deal with the plaint trust or allocate portions of the trust, yet the learned Judge has been conscious of this aspect and
dealt with it while considering the issue of jurisdiction of the second defendant and the question whether the dedicated properties or income are not
susceptible of apportionment or not. The learned trial Judge has taken notice of the statement of the Commissioner in the written statement in which
it has been stated that the order of the board dated 10-12-1947 making apportionment of 50% of the income from the E schedule properties for
religious purposes was a valid order passed by the board and the same had become final. The learned Judge of the City Civil Court, on a
consideration of the trust deed, found that separate sums were set apart in the deed of trust for a few religious items and separate sums were set
apart for secular uses. In such circumstances, there was no common fund for common use of both secular and religious objects. Consequently, the
Board had no jurisdiction under S.77 of the Act of 1927 to pass the order dated 10-12-1947. He has then proceeded to take notice of the
various provisions of the law and the orders passed by this Court in the previous proceedings and held:
The only conclusion that can be arrived at in this case is that the Hindu Religious and Charitable Endowments Department has got jurisdiction over
the plaintiff trust in the management of the secular affairs of the trust under the provisions of Act 22 of 1959 and the Department cannot interfere
with the religious practices involved in the performance of the trust.
The dedicated properties comprised of house, cash and jewels which were converted into cash were deposited with the official trustee. No doubt,
several provisions are made for the performance of several kaingaryams in the trust deed. Ex.P1. The founder of the trust estimated the income
from the properties and then made an apportionment with reference to the exigencies then prevailed. Due to efflux of time, the circumstances have
changed and the income also changed considerably. The amount set apart for religious purposes accounted for half the income from the trust
properties at the time of Ex.P1. Inferring from this, the deputy commissioner came to the conclusion that 50% of the income of the properties is to
be allocated for religious purposes in respect of which the provisions of the Hindu Religious and Charitable Endowments Act will apply since the
charitable and religious managements are different in nature and the income from the dedicated properties can be apportioned in accordance with
the intention of the founder. The reason assigned by the learned trial Judge is clear enough to show that the trustees had deviated in course of time
from the allocation made in the deed of trust for religious as well as secular purposes. They had known the intention of the founder. They would
have accordingly adhered to the scheme under the deed and a portion according to the intention in the deed show that 50% of the income from the
properties, as allocated in the deed, were utilised for religious purposes. That was not done, was a good cause for the competent authority under
the 1927 Act to take notice of the deviation and then decide to implement the intention of the founder. That he had the power to do so in case it is
found that the dedication was for religious and charitable purposes has not been disputed before us. The jurisdiction question has been answered
by the learned trial Judge. He says so without hesitation, correctly, as in Sri Venkataramana Devaru and others v. The State of Mysore and others
1958 S.C.R. 995. The Supreme Court has expressed the view that the expression ""matters of religion"" occurring in Art.26(b) of the Constitution
includes practices which are regarded by the community as part of its religion and under the ceremonial law pertaining to temples, just as who are
entitled to enter into them for worship and where they are entitled to stand for worship and how the worship is to be conducted are all matters of
religion. It is well-settled that where the original dedication is proved to have been for the benefit of a particular community, the fact that members
of other communities were allowed to worship cannot lead to the inference that the dedication was also for their benefit. This is the law that has
held the field and reiterated in several sequence of cases including Sri Digyadarsan Rajendra Ramdassjivaru Vs. The State of Andhra Pradesh, and
Sardar Syedna Taher Saifuddin Saheb Petitioner v. State of Bombay, respondent, Hussein Kurbanhuse in Sardar Syedna Taher Saifuddin Saheb
Vs. The State of Bombay, .
Since we are of the opinion that there has been no error of jurisdiction or any error in deciding the jurisdictional facts committed by the Deputy
Commissioner (Board?) who exercised powers under S.77 of 1927 Act, we uphold the judgment of the learned trial Judge. There is no merit in
this appeal. The appeal is accordingly dismissed. No costs.