PETITIONER: NAGU REDDIAR AND ORS. ETC. Vs. RESPONDENT: BABU REDDIAR AND ORS. ETC.AND VICE VERSA DATE OF JUDGMENT27/04/1978 BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH CITATION: 1978 AIR 1174 1978 SCR (3) 770 1978 SCC (2) 591 ACT: Settlement of trust on tombs under the Hindu Law whether valid in law-Meaning of "Poruthataravu"-Onus is on the person who claims regular worship of the samadhi a religious practice in the community, to prove. HEADNOTE: By a deed Ex. A I dated 10th September 1885, five members of the family of one Nagi Reddi dedicated certain properties belonging to their family described in Schedule A and B to the plaint to two charities one called Annadhana-Chatram and the other called Sachindananda Matam situated in the village Vairichettipalayam, After the death of Ramalingachi Reddiar his. adopted son Nagu Reddiar appellant in C.A. 2456/68 assumed management of the trust properties, in accordance with the succession indicated in Ex. A2, in 1942. A suit O.S. 152155 under Section 92 of the Civil Procedure Code was filed by the plaintiffs respondents herein in the Court of Sub-Judge Trichirapalli. for removing the appellant No. I from the trusteeship of the suit charities and for framing a scheme for the said charities. The Trial Court found that the two charities in question were public Trusts and comprised all the alienated properties except item 7 of the Plaint 'A' Schedule of the trust properties; that 'B' Schedule properties were bequeathed for performance of Puja in Samadhi and for feeding the 'agathis' and `paradesis' in the Matam and that the samadhi could not be separated from the Matam and therefore the dedication of the 'B' Schedule properties in forum of the matam and samadhikoil is invalid in 'law. The Court ordered the removal of the defendant from the office of the trusteeship and directed him to render accounts and ordered the framing of a scheme for plaint 'A' Schedule properties except item 7 which was found to be not a trust property. Aggrieved by the said decision both the plaintiff respondent and defendant appellant preferred appeals to the High Court. A.S. 114/68 is an appeal preferred by the first defendant appellant against the decree removing him from, trusteeship, directing the framing of a scheme and declaring alienations made by him to be not binding on the Trust. A.S. 194/58 is an appeal preferred by the plaintiff against that part of the decree of the judgment dismissing the suit in respect to Sachidananda Matam and 'B' Schedule properties and declaring item 7 of the plaint 'A' Schedule as property not belonging to the Chatnam Trust. Both the appeals were disposed of by the High Court by a common judgment dismissing A.S. 114/58 of the defendant appellant subject to the modification of the decree of the lower Court that he would be liable to render accounts in respect of the trust properties only for five years prior to the date of the suit and allowing in part A.S. 194/58 of the plaintiff respondent holding that item 7 of the plaint 'A' Schedule properties was also part of the Trust properties. It also found that alienations 7, 8 and 15 of 'B' Schedule properties were not valid or binding on the Trust. Differing from the Trial Court it held that the Matam and the Samadhikoil were not inextricably mixed up and that the endowment for Sachidananda Matam was a valid endowment. The High Court allocated half the properties mentioned in 'B' Schedule to the Sachidananda Matam and feeding charity and directed the other half of the 'B' Schedule properties should go to the defendant No. I because it related to the Puja in the Samadhi, the endowment for which purpose not being valid. Allowing the appeals by certificate, in part the Court HELD : 1. The samadhi was a tomb of ancestors of the settlors of the Trust and as such the settlement in favour of the tomb is not valid in law. [776 D] 771 2. The word "Poruthatharavu" in the words "Dharumathirkaga Ezhuthivaitha Poruthatharavu" does not mean a 'charge'. The words mean a document evidencing the transaction 'Atharavu' means 'support' and 'Poruthatharavu means a document in support. The document also explicitly states that the properties are given absolutely for the charities. A reading of the documents makes it clear that the properties were absolutely endowed in favour of the charities and the settlors specifically relinquished all their rights in the endowed properties. [776 F, G. H] 3. The recital makes it clear that the endowment was in favour of not only Sachidananda Swami Matam but also the Samadhikoil, but the properties as described in the schedule were intended to be vested in the Matam with a direction that income from specified properties were to be spent for the purpose mentioned in the schedule itself. The intention was that while all the properties were endowed for the purpose of charities mentioned, the vesting was to be as directed in the schedule with the obligation that the income from the properties as mentioned should be utilised for upkeep of the Nandavaram attached to the Annadanam Choultry and for the purpose of Puja in the samadhi also from the income of the properties that were allotted to the Sachindananda Matam. [777B, D-E] The properties described in the schedule referred to as the properties allotted to Sachidananda Swami Matam vested in the Matam with a charge that part of the income should be spent on the Puja to be performed in the samadhi [777 E]. In this view (i) the conclusion arrived at by the High Court that properties were endowed for the Matam and the samadhi and that as the purposes of charities were distinct and separate, they could be separated cannot be accepted. (ii). The allotment of half the 'B' Schedule proper-ties for the charities concerned with the Matam is not correct and (iii) The direction that the other half of 'B' Schedule properties should go to the first defendant (appellant No. I in C.A. 2456/68) cannot be sustained in law for on the findings of the High Court the properties would have to revert back to the settlors and their descendants. [777 F-G] 4. For the settlement to be valid and for the trust to claim exemption from the rule against perpetuity, it must be for a religious and charitable purpose The English law relating to settlement on tombs does not apply to Hindu religious endowments. What are purely religious purposes and what religious purpose will be charitable must be entirely decided according to Hindu law," and Hindu notions. [777G-H, 778A, C] 5. The determination of what conduces to religious merit in Hindu law is primarily a matter of shastric injunction and therefore any purpose claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit must be shown to have a shastric basis as far as Hindu are concerned. Other religious practices and beliefs have also grown up and obtained recognition from certain classes as constituting purposes conducive to religious merit. But if such beliefs are to be accepted by Courts as being sufficient for valid perpetual dedication of property therefore without the element of actual or personal public benefit, it must be shown that they have obtained wide recognition and constitute the religious practice of a substantial and large Class of persons. [778C-E] The building of a samadhi or a tomb over the remains of a person and the making of provision for the purpose of 'Gurupooja' and other ceremonies in connection with the same cannot be regarded as charitable or religious purpose according to Hindu law. [778 E-F] Saraswathi Ammal and Anr. v. Rajagapal Ammal, [1954] SCR 277; Kunha mutty v. Thondikodan Ahmed Mudaliar and two Ors., I.L.R. 58 Mad. 204 A. Drainasundaram Pillai v. N. Subramania Pillai, I.L.R. 1945 Mad. 854 Veluswami Gounder v. Dandapani, [1946] 1 M.L.J. 304 referred to. 772 6. The rule that a provision for the purpose of puja over the tomb of the remains of a person is invalid is subject to certain exceptions. Cases of Hindu saints having been entombed deified and worshipped stand on a different footing from the case of an ordinary private individual who is entombed and worshipped therein. Samadhi over one who comes to be regarded as of the illuminate and the tombs of heroes may evolve in course of time as a shrine of Hindu public religious worship [778 G, 779 A] Saraswathi Ammal and Anr. v. Rajagopal Ammal, [1954] SCR 277, Sri Ramanasramam by its Secretary G. Sambasiva Rao and Ors. v. The Commissioner for Hindu Religious and Charitable Endowments, [1960] 2 M.L.J. 121; Board of Commissioners for Hindu Religious Endowments, Madras v. Pidugu Narsinham and Ors., [1939] 1 M.L.J. 134, Ratnavelu Mudaliar v. Commissioner of H.R. & C.E. [1953] 2 M.L.J. 574; Ramaswami v. The Board of Commissioners, Madras, [1958] 2 M.L.J. 511 referred to. The raising of a tomb over the remains of an ancestor, an ordinary person is not recognised as religious in nature. The burden is on the person setting up a case of religious practice in the community to prove it. This prohibition may not apply when an ancestor is cremated and a memorial raised for performing sharaddha ceremonies and conducting periodical worship for this practice may not offend the Hindu sentiment which does not ordinarily recognise entombing the remains of the dead. A place of worship will not cease to be religious because of its being in the memory of a person. In the instant case, it was never pleaded that any religious practice existed amongst the community of building samadhis over the remains of the ancestors and performing pujas. [779 E, F-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2456-2457
of 1968.
Appeals by Special Leave from the Judgment and Decree dated
2-2-1962 of the Madras High Court in A. S. Appeal Nos. 114
and 198 of 1958.
P. R. Mridul, K. Jayaram, K. Ram Kumar for the Appellant
in C.A. 2456/68 and Respondent in C.A. 2457/68.
T. S. Krishna Murthy Iyer and Miss Lilly Thomas for the
Appellant in C.A. 2457/68 and Respondents C.A. 2456/68.
The Judgment of the Court was delivered by
KAILASAM, J.-These two appeals are by certificates granted
by the High Court of Madras against a common judgment in
A.S. No. 114 and A.S. No. 194 of 1958.
These appeals arise out of a suit filed by the plaintiffs in
the Court of the Subordinate Judge, Tiruchirapalli in O.S.
No. 152 of 1955 under section 92 of the Code of Civil
Procedure for removing one Nagu Reddiar, the first
defendant, from the trusteeship of the suit charities and
for framing a scheme for the said charities. The trial
court found that the two charities in question were public
trusts and comprised all the alienated properties except
item 7 of plaint-A Schedule of the trust properties. The
Trial Court found that B-Schedule properties were bequeathed
for performance of Puja in the Samadhi and for feeding the
Agathies and Paradesies in the Matam and that the Samadhi
could not be separated from the Matam and therefore the
dedication of the B Schedule properties in favour of the
Matam and Samadhikoil is invalid in law. The Court ordered
the removal of the defendant from the
773
office of the trusteeship and directed him to render
accounts and ordered the framing of a scheme for Plaint A
Schedule properties except item 7 which was found to be not
a trust property. Aggrieved by the judgment both the
plaintiffs and the defendants preferred appeals to the High
Court of Madras, the appeal by the defendants being A.S. No.
114 of 1958 and by the plaintiffs A.S. No. 194 of 1958. The
High Court disposed of both the appeals by a common judgment
dismissing A.S. No. 114 subject to the modification of the
decree of the lower court that the first defendant would be
liable to render accounts in respect of the trust properties
only for five years prior to the date of the suit and not
for the entire period of his management as ordered by the
sub-Judge. The High Court allowed the appeal in A.S. No.
194 of 1958 in part holding that item 7 of the plaint A
Schedule properties was also part of the trust properties.
It also found that alienations of items 4., 7, 8 and 15 of
B-Schedule properties were not valid or binding on- the
trust, Differing from the trial court, it held that the,
Matam and the Samadhikoil were not inextricably mixed up and
that the endowment for Sachidhananda Matam was a valid
endowment. The High Court allocated half the properties
mentioned in the B Schedule to the Sachidananda Matam and
feeding charity and directed that the other half of the B
Schedule properties should go to the first defendant because
it related to the Puja in the Samadhi, the endowment for
which purpose not being valid. Aggrieved by the judgment of
the High Court the parties have preferred appeals against
the common judgment in A.S. Nos. 114 and 194 of 1958. For
the purpose of ,convenient reference, we will refer to the
parties as plaintiffs and defendants according to their rank
in the trial court.
The facts of the case are briefly as follows. By. a deed,
Ex. A-1, dated 10th September, 1885, five members of the
family of one Nagi Reddi dedicated certain properties
belonging to their family described in Schedules A and B to
the plaint to two charities one called the Annadhana
‘Chatram and the other called Sachidananda Matam situated in
the village of Vairichettipalayam. Besides the two
charities properties were endowed for the upkeep of one
Karpaka Vinayakar temple constructed in the village by the
ancestors of the founders and for certain Kattalais in
Sabhanayagar temple in Chidambaram, Subramanyaswami temple
in Palani and Arunachaleswaraswami temple in Tiruvannamalai.
On the same day the founders of the trust under Ex-A-2
nominated one of them, Ramalingachi Reddiar, as a trustee
for the charities for life. After his life-time his son,
grandson and their descendants were to succeed Under Ex. A-
1 separate sets of properties were dedicated for each of the
charities particulars of which will be referred to in due
course. Ramalingachi Reddiar was managing the charities
till be died in 1942. He had no natural issue and therefore
adopted the first defendant in 1918 as his son. The first
defendant assumed management of the trust properties in
accordance with the line of succession indicated in Ex. A-
2. In the plaint it was alleged that after, the first
defendant took charge of the properties in 1942, be had not
carried out the directions of the trust, alienated the trust
properties by sale and exchange and had not maintained any
774
accounts. On the ground of misfeasance, malfeasance and
misappropriation of trust properties the plaintiffs prayed
for the removal of the first defendant from the office of
the trusteeship and asked for accounts and for framing of a
scheme. The main contesting defendant was the first
defendant, the second defendant being the wife of the first
defendant’s brother-in-law. The second defendant and the
other defendants are either alienees or persons in
possession of the trust properties.
In these two appeals before us the concurrent finding of the
courts below that the Annadhara Chatram is a public trust
and that it is valid is not disputed. The finding of the
High Court that the trust properties were improperly
alienated and that they are not valid is also not questioned
before us. The findings of the courts below that the first
defendant was guilty of breach of trust in relation to the;
properties and directing his removal from the office of
trusteeship for a period of five years and the direction
calling upon him to render accounts for a period of five
years before the filing of the suit are not challenged. In
both the appeals before us the only point that was raised
was regarding the B Schedule properties. The contention on
behalf of the plaintiffs is that the endowment is a valid
one as it was mainly in favour of the Matam and feeding of
the poor who visited the Matam and that the performance of
the Puja in the Samadhi was not connected with the main
endowment as the properties vested absolutely in favour of
the Matam. On behalf of the defendants it was submitted
that the endowment is not valid in law as its purpose war.,
for maintenance of a tomb (Samadhi) of an ancestor of the
defendant which is invalid in law.
The trial court held that the Samadhikoil referred to in
Exs. A-1 and A-2 means the tomb or tombs built over the
place where the mortal remains of certain ancestors of the
executants of Exs. A-1 and A-2 were interned and that from
the description that the Samadhikoil adjoining or
appurtenant to the Matam and the fact that the properties
were bequeathed for performance of Puja at the Samadhikoil
and feeding the Agathies and Paradesies, the bequest is one
in connection with the performance of Puja at the Samadhi.
It also found that the Samadhi and the Matam premises were
adjoining each other and so closely intertwined that they
cannot be separated and therefore. the bequest for the
performance of Puja at the Samadhikoil or the feeding of the
poor in the Matam cannot be separated and therefore bequest
in favour of the Matam and Samadhikoil should be declared as
invalid. The High Court while agreeing with the conclusion
of the trial court that the Samadhi is really a tomb of an
ancestor of the defendants’ family disagreed with the
finding of the trial court that the Matam and the Samadhi
are intertwined or so inextricably mixed up that the
endowment under Ex. A-1 of B-Schedule properties must be
held to be an invalid document as it benefits a Samadhi.
The High ,Court came to the conclusion that the charity in
favour of the Matam for feeding of the poor is a valid
endowment and was a distinct charitable object and therefore
valid endowment. While, confirming the endowment in favour
of the Sachidananda Matam, it found the endow-
775
ment as regards the Samadhi or the tomb as invalid. Having
regard to the nature of the services rendered by the Matam
and the Samadhi the High Court allocated half the properties
mentioned in the B Schedule to Sachidananda Matam and
feeding charities but directed the other half of the
properties in the B Schedule to be delivered to the first
defendant.
The question that falls for determination is the nature of
the endowment as regards the B Schedule properties and as to
bow far it can be held to be valid: As rightly pointed out
by the trial court the determination of this question will
solely depend upon the construction of the two documents,
Exs. A-1 and A-2 particularly Ex. A-1, the trust deed.
The trust deed was executed on 10th September, 1885 by five
persons in respect of the under-mentioned charities :
Karpaka Vinayakar temple constructed by their
ancestors, Annadana Choultry and the
Nandavanam (flower garden) attached to it,
Sachidananda Matam and the Samathikoil (tomb)
attached to it, Sabanayagar temple in
Chidambaram, Subramaniaswami temple in Palani
and Arunachaleswaraswami temple in
Thiruvannamalai.
The recital in the document provides that the settlors had
allotted 84.8 acres described in the Schedule absolutely
under the document for being utilised for the charities
mentioned. The settlors declared that they would have no
rights whatsoever in respect of the aforesaid properties.
The recitals are followed by the schedules. The first
Schedule recites that the properties mentioned thereunder
are allotted to the Karpaka Vinayakar temple. After giving
description of the various items of properties it is
directed that the income from the properties will be
utilised for conducting Pujas twice a day and Abishekam on
special occasions by employing Brahmins for the Vinayakar
deity. A separate schedule is given regarding the pro-
perties which are allotted to the Annadanam choultry. The
schedule starts by saying that the properties described are
allotted to the Annadanam choultry. At the end of the
Schedule, it is directed that the income from the properties
be spent for feeding the Brahmins that come to the choultry
and for expenses of the nandavanam attached to the choultry.
The next Schedule- is relevant for our purpose. The
Schedule in the question is captioned as follows :-
Matam” Description of the properties allotted to
Sachidananda
It may be noted that the description does not include the
Samadhi but at the end of the Schedule it is provided that
the income from the properties mentioned in the Schedule be
spent for feeding the Agathies and Paradesies and for
conducting Puja in the Samadhi attached to the Matam. The
other Schedules describe the properties that are allotted to
the various temples, Sabanayagar temple at Chidambaram,
Arunachaleswaraswami temple at Thiruvannamalai and
Subramaniaswami temple at Palani.
776
On behalf of the defendants Mr. Mridul, the learned counsel,
submitted that the endowment under the B Schedule was for
the purpose of feeding the Agathies and Paradesies who
visited the Samadhi and the Matam was for the purpose of
accommodating such visitors to the Samadhi and as such the
principal object of the endowment was for Samadhi and that
it is invalid in law. In any event, the learned counsel
submitted that the finding of the lower court that both the
charities were so inextricably intertwined that they cannot
be separated which would entail the invalidation of the
entire endowment was correct. On the other hand, Mr.
Krishnamurthy Iyer, the learned counsel for the plaintiffs,
submitted that the Samadhi was in fact a kovil and the
entire endowment was valid as it was for the purpose of
feeding the poor who came to the temple. In any event he
submitted that the vesting of the properties under Schedule
B was only in favour of the Matam and that only direction
was to spend some moneys for performing that Puja in the
Samadhi. In the event of the direction for the Puja of the
Samadhi being held unsustainable in law that part of the
endowment alone is liable to be declared invalid.
We find no difficulty in rejecting the extreme contentions
of both the parties and agreeing with the finding of the
courts below that the Samadhi was a tomb of ancestors of the
settlors of the trust and as such the settlement in favour
of the tomb is not valid in law. The question therefore
that remains for consideration is as to what part of the
endowment under B Schedule could be found to be valid.
Strong reliance was placed by both the learned counsel on
the Tamil words that are used in the settlement deed. Mr.
Mridul, the learned counsel for the defendants, submitted
that the document if properly construed would show that only
a charge was created on the properties for performing the
various charities, and the properties continued to vest with
the settlors. In any event, he submitted that the
properties described in Schedule B were jointly endowed for
the Matam as well as for the Samadhi and were inextricably
intertwined and as such invalid. Particular stress was laid
by the learned counsel on the words “Dharumathirkaga
Ezhuthiyaitha Poruthatharavu” which means “a document for
charity in writing evidencing the transaction. The learned
counsel would construe the words “Poruthatharavu” as meaning
a charity. We are unable to agree. The words mean a
document evidencing the transaction. ‘Atharavu’ means
support’ and ‘Poruthatharavu would mean document in support.
The, plea of the learned counsel is unsupportable as the
document explicitly states that the properties are given
absolutely for the charities.
This unequivocal statement is followed by the recital that
the settlors will have no right whatsoever in the properties
endowed. Again to place the matter beyond all doubt, it is
specifically recited that for the purpose of conducting the
charity Ramalingachi Reddiar, his son, grandson and their
descendants will be Dharmakartas. On a reading of the
document we have. no doubt that the properties were
absolutely endowed in favour of the charities and the
settlors specifically relinquished all their rights in the
endowed. properties. This leaves us with the consideration
of the question whether the properties
777
were endowed in favour of both the Matam and the Samadhi or
the Matam alone. The schedule commences as follows
“The description of the lands allotted to the Sachidananda-
swami Matam.”
This description standing alone would mean that the
properties were to vest in the Sachidanandaswami Matam
alone. But the recital in the body of the trust deed
includes the Samadhikovil attached to ‘he Matam as one of
the beneficiaries which would indicate that the endowment
was in favour of the Samadhi also. While agreeing with the
learned counsel that the above recital would support the
plea that the endowment was in favour of the Samadhi also,
we are inclined to hold that the properties as described in
the Schedule were intended to be vested in the Matam with a
direction that incomes from the specified properties were to
be spent for the purposes mentioned in the Schedule itself.
We find that in the Schedule under which properties era
allotted to the Annadana choultry, while the Schedule begins
by stating that the properties are allotted to the Annadana
choultry, at the end of the Schedule it is directed that the
income from the properties be spent for feeding the poor in
the choultry and for maintaining Nandavanam. Reading the
entire document as a whole, we feel that the intention was
that while all the properties were endowed for the purpose
of charities mentioned, the vesting was to be as directed in
the Schedule with the obligation that the income from the
properties so mentioned should be utilised for the upkeep of
Nandavanam attached to the Annadanam choultry, and for the
purpose of Puja in the Samadhi also from the Income of the
properties that were allotted to the Sachidananda Matam. On
a careful reading of the document, we are satisfied that the
properties described in the Schedule referred to as the
properties allotted to Sachidananda Swami Matam vested in
the Matam with a charge that a part of the income should be
spent on the Puja to be performed in the Samadhi.
In this view we are unable to accept the conclusion arrived
at by the High Court that the properties were endowed for
the Matam and the Samadhi and that as the purposes of the
charities were distinct and separate they could be
separated. We are equally unable to agree with the
allotment of half the B Schedule properties for the
charities concerned with the Matam. The direction that the
other half of B Schedule properties should go to the first
defendant cannot be sustained in law, for even on the
finding of the High Court, the properties would have to
revert back to the settlors and their descendants.
We are of the view that only a charge was created for the
expenses for conducting the Puja in the Samadhi on the
properties that vested with the Matam. The question arises
as to how far such a direction in the settlement could be
held to be valid in law. It is not in dispute that for the
settlement to be valid and for the trust to claim exemption
from the rule against perpetuity, it must be for a religious
and charitable purpose recognised as such by Hindu law. The
English law relating to settlement on tombs does not apply
to Hindu
15-315SCI/78
778
religious endowments. The Courts in India have adopted the
technical meaning of charitable trusts and charitable
purposes which the courts in England have placed upon the
term ‘charity’. But, in addition, under the head of
advancement of religion, there are other charitable objects
in Hindu law which will not be charitable according to
English law for that law forbids bequests for what are
termed superstitious uses. Under the Mussalman Wakf
Validing Act, 1913, Act VI of 1913, a wakf for the
maintenance and support, wholly or partially, of his family
or descendants is valid provided the ultimate benefit is
expressly or impliedly reserved for the poor or for any
other purpose recognized by the Mussalman law as a
religious, pious or charitable purpose of a permanent
character.
What are purely religious purposes and what religious
purpose will be charitable must be entirely decided
according to Hindu law and Hindu notions. In Saraswathi
Ammal and Another v. Rajagopal Ammal(1) it was held that the
determination of what conduces to religious merit in Hindu
law is primarily a matter of Shastraic injunction and
therefore any purpose claimed to be a valid one for
perpetual dedication on the ground of religious merit though
lacking in public benefit, must be shown to have a Shastraic
basis so far as Hindus are concerned. While stating so,
this Court recognised that other religious practices and
beliefs may have grown up and obtained recognition from
certain classes as constituting purposes conducive to
religious merit. But if such beliefs are to be accepted by
courts as being sufficient for valid perpetual dedication of
property therefore without the element of actual or presumed
public benefit, it must at least be shown that they have
obtained wide recognition and constitute the religious
practice of a substantial and large class of persons. After
referring to the Madras decisions in Kunhamutty v. Thondik-
kodar Ahmad Musaliar and two Others(1) A. Draivlasundram
Pillai v. N. Subramania Pillai(3) and Veluswami Gounder v.
Dandapani,(4) this Court observed that it was held in the
above decisions that the building of a samadhi or a tomb
over the remains of a person and the making of provision for
the purpose of Gurupooja and other ceremonies in connection
with the same cannot be recognised as charitable or
religious purpose according to Hindu law.
The rule that a provision for the purpose of Puja over the
tomb of the remains of a person is invalid is subject to
certain exceptions. As pointed out by this Court in
Saraswathi Ammal’s case (supra) there have been instances of
Hindu saints having been defied and worshipped but very few
if at all have been entombed. Such cases stand on a
different footing from the case of an ordinary private
individual who is entombed and worshipped thereat. After
referring to the, decision in Saraswathi Ammals case, a
Bench of the Madras High Court in Sri Ramanasramam by its
Secretary G. Sambasiva Rao
(1) 1954 S.C.R. 277.
(2) I.L.R. 58 Mad. 204.
(3) I.L.R. 1945 Mad. 854.
(4) [1946]1 M.L.J. 354.
779
and Ors. v. The Commissioner for Hindu Religious and
Charitable Endowments, Madras,(1) observed that as samadhi
over one who comes to be regarded as of the illuminati or
even the tombs of heroes may evolve in course, of time as a
shrine of Hindu public religious worship, as was held in the
Board of Commissioners for Hindu Religious Endowments,
Madras v. Pidugu Narasimham and Others,(1) Ratnavelu
Mudaliar v. Commissioner, for H. R. & C. E., (3) and Rama-
,swami v. The Board of Commissioner, Madras.(4) This Court
referring to the decision of Board of Commissioners for
Hindu Religious Endowments, Madras v. Pidugu Narasimham and
Others (supra) observed that the Judges of the High Court
were inclined to hold that the worship was religious. But
this was a case of a grant from a sovereign authority and
was not an endowment for worship of a tomb. In (1953) 2 M.
L. J. 574 a Bench of the Madras High Court held that the
samadhi or tomb of one Apparswami is a place of religious
worship taking into account that the institution was for
over a century regarded as a place of religious worship.
Viswanatha Sastri J. in T. R. K. Ramaswami Serval and Anr v.
The Board of Commissioners. for the H. R. E., Madras, (4)
through its President, expressed his view that it was
sufficient if the worshippers considered themselves likely
to be the recipients of the bounty or blessings of a Divine
Presence, which they believed to exist at the place.
Samadhis of saints are recognised as religious institutions
in the South. It is well-known that the Samadhi of saint
‘Pattinathar’ is considered as a place of worship in
Tiruvottiyar near Madras. According to tradition great
saints have attained Yoga Samadhi in the well-known pilgrim
centres; Saint Tirumoolar attained’ Samadhi in Chidambaram,
Saint Konganavar at Tirupathi, Saint Valmiki at Srirangam
and Bhgamuni at Palani.
The raising of a tomb over the remains of an ancestor, an
ordinary person is not recognised as religious in nature.
The burden is on the person setting up a case of religious
practice in the community to prove. it. This prohibition
may not apply when an ancestor is cremated and a memorial
raised for performing Sharadha ceremonies and conducting
periodical worship for this practice may not offend the
Hindu sentiment which does not ordinarily recognise
entombing the remains of the dead. A place of worship will
not cease to be religious because of its being in the memory
of a person.
It may be stated that the case before us relates to the tomb
of an ancestor of the settlors. It was never pleaded that
any religious practice existed amongst the community, of
building samadhis over the remains of the ancestors and
performing pujas. The plea of the defendant in Para 8 of
the written statement is that the dominant purpose of the
dedication of B Schedule properties was Samadhi
(1) 1960 (2) M.L.J. 121.
(2) 1939 (1) M.L.J. 134.
(3) 1953 (2) M.L.J. 574.
(4) 1950 (2) M.L.J. 511.
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Kainkaryam i.e. worship of the ancestors in their entombment
and as such invalid in law.
It only remains for us to consider what appropriate
directions should be given in the case. In view of our
finding that the vesting of B Schedule properties was in
favour of the Matam alone with a charge on the properties
that the expenses for Puja at the Samadhi should be met out
of the income of the property, the vesting will not fail but
the direction to meet expenses for the Puja at the Samadhi
is, unsustainable in law.
The High Court directed framing of a scheme for the adminis-
tration of the two trusts. The High Court also agreed with
the trial Judge that the Board of Trustees should consist of
three persons, two of whom should be respectable residents
of Vairichattipalayam and the third should be, a member of
the family of the first defendant. We agree that a scheme
should be framed with a Board of Trustees consisting of
three members, one belonging to the family of the donors and
two other respectable residents of the village. As the
prohibition against the first defendant for being a trustee
for five years has expired his claim to be appointed as one
of the trustees from the members belonging to the family of
the settlors may be considered by the Subordinate Judge.
The three trustees appointed by the Subordinate Judge will
administer the scheme that may be framed subject to the
directions that may be issued by the Subordinate Judge from
time to time.
It is the common case of the parties that due to changed
circumstances very few people visit the village on their way
to various places of pilgrimage and therefore there are not
many visitors to be fed in the choultry. The income from
the properties that is allotted to the Karpaka Vinayakar
temple under Ex. A-1 will be used in conformity with the
directions in the document. Regarding the property which
had been allotted to the Annadana choultry the direction is
that from the income of the property, the Brahmins that
visit the choultry should be fed and the Nandavanam should
be maintained. The direction will be adhered to but if
there are not enough Brahmins as envisaged in the document
the income will be utilised for feeding the poor boys and
girls of the schools of the village even though they may not
belong to the Brahmin community. Regarding the properties
that are allotted to the Sachidanandaswami Matam, it is seen
that there are not enough pilgrims passing through the
village due to improved transport facilities. The-direction
to incur expenses for the Puja in the Samadhikovil has
failed. The income from the properties after feeding the
Agathies and paradesies that visit the Matam will be uti-
lised for feeding the poor boys and girls of the schools of
the village. It will be open to the Subordinate Judge to
utilise the surplus income from the properties allotted to
Anandana choultry and Sachidanandaswami Matam for feeding
the poor school-going- boys and girls in the village. We
are satisfied that the settlement is predominantly for a
781
charitable purpose and as the direction regarding feeding of
the Brahmins in the Annadanam choultry and for Agathies and
Paradesies in the Matam cannot be duly carried out as
intended by the settlors, applying the Cypres doctrine we
direct as indicated above that the, funds may be utilised
for a purposes which are as nearly as possible with the
intention of the donors.
There will be no order as to cost& S.R. Appeals allowed in
part.
S.R. Appeals allowed in part.
782