PETITIONER: PT. RAM CHANDRA SHUKLA Vs. RESPONDENT: SHREE MAHADEOJI, MAHABIRJI AND HAZRAT ALIKANPUR & ORS. DATE OF JUDGMENT: 15/10/1969 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. VAIDYIALINGAM, C.A. DUA, I.D. CITATION: 1970 AIR 458 1970 SCR (2) 809 1969 SCC (3) 700 ACT: Hindu Law-Property dedicated for promotion of the sport of wrestling whether constitutes a valid trust under Hindu Law- Such property along with other property acquired under Land Acquisition Act, 1894-Compromise during reference proceedings-Endowed property purchased by manager and price adjusted against total compensation-Whether on such purchase property loses its character as trust property. HEADNOTE: One Mani Ram, a wrestler, owned certain properties including a groveland. In the groveland he maintained an Akhara or wrestling ground. He spent the income from the groveland as well as his other income for the promotion of wrestling. On the archgate of the Akhara was installed an idol of mahabirji and over a small room nearby a Shiv Lingam was installed. In order to attract Muslim wrestlers a tasweer of Hazrat Ali was also placed in the Akhara. In 1830 Mani Ram partitioned his properties. He took a one eighth share including the said groveland for himself and wife. In the partition deed the said groveland was described as a wakf. After Mani Ram's death his wife entered into possession of his property and continued to maintain the A khara out of the income of the groveland. In 1862 she made a will wherein she described the groveland having the Asthan of Mahabirji and Mahadeoji as having been dedicated by her husband. She enjoined her son Mangli Prasad to continue to maintain the Akhara 'as heretofore,' and empowered him to appoint his successors in management from among the descendants of Mani Ram. Mangli Prasad was succeeded in management by his widow. After the later's death there was litigation between her legate and Mangli Prasad's daughter Sheodei Kaur. The Court declared the said groveland and Akhara to be endowed property and held that Sheodei Kaur was entitled to the possession thereof as manager. The property came into the possession of Ishwar Narain, the son of Sheodei Kaur, in 1906. He built a cinema house on a part of the said groveland in 1914-15. In 1937 the Improvement Trust of Kanpur acquired the groveland, the structures on it, as well as the surrounding property. In reference proceedings regarding compensation a compromise was arrived at whereby the Improvement Trust agreed to sell to ishwar Narain the portion of the acquired property corresponding to the endowed property along with the structures thereon for Rs. 25,000 which amount was adjusted against the total compensation payable to him for the acquired property. On Ishwar Narain's death in 1948 the property which was described in his will as his personal property passed to his sister's sons who were enjoined to maintain the Akhara and the Asthan. The respondents through their next friend instituted a suit in which they challenged the bequest on the ground that the Akhara and the groveland constituted trust property. The trial court held that the possession of the property in question by Mani Ram and his successors was that of managers or trustees, it further held that the dedication was in favour of the Manager or trustee for the maintenance of the Akhara. The High Court held that the dedication was in favour of the idols of Mahabir and Mahadeoji. In appeal to this Court by certificate the main question for consideration was whether there was 810 a valid trust under Hindu law in favour of the respondents. The appellant also urged that what was dedicated was not the groveland but the grove, and that after the purchase by Ishwarlal of the groveland and the structures thereon from the Improvement Trust that property could no longer be treated as a trust. HELD : (i) (a) The documents on record as also the evidence as to the conduct of Mani Ram and those who held the property after him clearly showed that Mani Ram dedicated the groveland and not merely the trees standing thereon. [816 C] (b) The purchase of part of the said property after its acquisition was from out of the compensation received by Ishwar Narain and not out of his personal funds so that if the trust was in law a valid one, the property purchased by him out of the trust funds would he stamped with the trust and he would in that event be holding that property as a trustee or manager and no as an owner. [816 D] (ii) However the trust could not in the present case be held to a valid one under Hindu law. [822 B-C] A dedication of property for a religious, or a charitable purpose can, according to Hindu law, be validly made orally and no Writing is necessary to create an endowment extent when it is created by a will. An appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication. Hindu piety found expression in gifts to idols to religious institutions and for all purposes considered meritorious in the Hindu social and religious system. There is no line of demarcation in the Hindu system between religion and chairity : gifts both (or religious and charitable purposes are impaled by the desire to acquire religious merit. They may take the form of Istha (sacrifices and sacrificial gifts) or Purta (charities such as maintenance of temples, tanks, wells etc.). But the terms Istha and Purta themselves are elastic and admit of no rigid definition. As times advanced more and more categories of acts considered to be beneficial to the public would be recognize depending on the needs and beliefs of the time. [819 C-G, 820 B-C] But there is nothing- to show that the promotion of a particular game either for entertainment of the public or as encouragement to those who take part in it has ever been reconised as a charitable trust according It) Hindu law. Neither Pandit Prannath Saraswati, nor mukherjea, nor Maynt suggests in his treatise that a dedication for the promotion of particular game or sport is a charitable trust under Hindu law. [820 F-G] The English law of trusts as found in the Statute of Elizabeth or the law relating to Superstitious Uses is not applicable to India. But even in English cases dedication for promotion of games, except as a part of education, his not been treated as a charitable trust. [820 H; 821 E] As held by this Court in Saraswathi Ammal's case, in determining the validity of a trust under Hindu law it is the dominant purpose of the turst which is relevant. In the present case the purpose of installing the two idols and the tasweer clearly was to enable the wrestlers to pay their homage and salutations to the patron deities of the game before entering into the wrestling arena. On the facts it must be held that the dominant object of the dedication was the Akhara and the said idols and the tasweer were installed only to attract persons of both the communities to the Akhara and to provide for them there the facility for invoking the divine benediction before they participated in wrestling [818 E-G] 811 That being the position it was impossible, in the absence of any authority textual or by way of a president, to hold that the dedication in question was for either a religious or charitable purpose recognised by, Hindu law. [822 B-C] The appeal must accordingly be allowed. Saraswathi Ammal & Apr. v. Rajagopal Ammal, [1954] S.C.R. 277, Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao, [1957] S.C.R. 1122 at 1128 and " Vidyavaruthi v. Balusami Ayyar, ( 1921 ) 48 I.A. 302 at 311, relied on. Commissioners for special Purposes of the Income-tax v Pemsel, [1891] A.C. 581 at 583 In Notage, Jones v. Palmer, [1895] Ch. 649, In re Hadden Public Trustee v., More, [1931] 1 Ch. 133, In re Marietta, Marietta v. Governing Body of Aldenham School, [1915] 2 Ch. 284, In re Daley v. Lloys Bank Ltd. [1945] 114 L.J Ch 1, Trustees of the Tribune press v. Commissioner of income-tax I.L.R. [1945] Bom. 153 and cricket Association , Bengal v. Commissioner of Income tax, Calcutta, A.I.R. 1959 Cal. 296. referred to.). Mayne's Hindu Law 11th Ed. p. 192, mukherjea's Hindu law and Religious and Charitable Trust 2nd Ed.p. 11, and Pandit Prannath Sarasvati's Hindu Law of Endowments 1897, pp. 26- 27. relied on. JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1393 of 1967.
Appeal from the judgment and decree dated August 5, 1965 of
the Allahabad High Court in First Appeal No. 187 of 1957.
C. B. Agarwala, Ravinder Bana. and O. P. Rana, for the
appellant.
J. P. Goyal and P. N. Tiwari, for respondent No. 1 (1).
Yogeshwar Prasad and M, Veeraappa, for respondent No. 1 (11)
The Judgement of the Court was delivered by
Shelat, J. This appeal, by certificate, is directed against
the judgment and decree of the High Court of Allahabad dated
August 5, 1965 and related to a piece of land together with
buildings thereupon including an Akhara (Wrestling ground).
The property is situate in Kanpur and bears at present
Municipal No. 26/72, its original No. being 26/30.
Sometime prior to 1830, one Mani Ram, well-known during his
life-time as a wrestler, purchased a groveland with trees
standing thereon. Whether he pruchased one such groveland
and divided it into two, or pruchased tow such grovelands
and amalgamated them into one is not quite certain. Along
with this land he was possessed of other properties adjacent
to the said groveland. It appears that being himself a
wrestler and fond of that sport Mani Ram pruchased the said
groveland for setting up and main-
812
taining an Akhara where wrestlers of both Hindu and Muslim
communities could come for wrestling. Besides the income
from the said groveland, Mani Ram spent large amounts for
promoting wrestling and to that end made a number of
disciples.
He had by his first wife six sons and a seventh son, Mangali
Prasad, a wrestler of repute, from his second wife, Rahas
Kaur. By a deed of partition dated June 23, 1830 he divided
all his properties into eight shares giving one share to
each of his seven sons and retained the 8th share for
himself and the said Rahas Kaur. This 8th share included
the said groveland on which stood the said Akhara as also
certain other structures. The Akhara ground was bounded by
a compound wall with an archgate to enter into. It appears
that with the object of attracting wrestlers he installed on
the archgate an idol of Mahabirji, a Shiv Lingam over a
small room which stood next to the said gate, and a tasweer
of Hazrat Ali. The two idols and the Tasweer were obviously
intended to give a religious bias to the Akhara, the first
two to attract Hindu wrestlers and the third to attract
Muslim wrestlers. The said deed of partition stated with
regard to the said 1/8th share and the said groveland that
none of his seven sons would have any interest or right in
them as the “one eight (1/8th) share and the grove, which is
a waqf property and which 1, the executant, have taken for
myself the executant and my second wedded- wife shall remain
owner thereof till our life time.” It would thus appear that
even before 1830 Mani Ram had already dedicated the said
groveland for the purposes of the said Akhara and that was
why he referred to it as waqf property. Mani Ram managed
the said groveland in the aforesaid manner using the income
thereof for the said Akhara. On his death the property came
under the management of his widow, the said Rahas Kaur. On
May 12, 1862 Rahas Kaur made a will in which after reciting
the partition deed of 1830 she stated as follows :
“He (Mani Ram) dedicated two grooves-situate
in Philkhana Bazar, which has Asthan of
Mahadeoji and Mahabir and Akhara and Taswir of
Hazrat Ali-The Akhara and Asthan-up to this
day are continuing as theretofore, and Mangli
Prasad, my son, is unparalleled in wrestling.
In order that it may continue I execute a
will that (paper torn) shall be spent over it
as mentioned in the will of my husband. The
Akhara and Asthan shall continue as
heretofore.”
The will then provided that the management of the Akhara and
the Asthan should remain with Mangli Prasad and authorised
Mangli Prasad to appoint managers after him from the issues
of Mani Ram and thus the management should go on from
generation to generation.
813
From a deed of lease dated June 28, 1862, executed by one
Mst. Tejia, it appears that the said groveland was given on
lease to her at the annual rent of Rs. 23 by Mangli Prasad.
The deed of lease also described the said groveland as
having “Asthan of Mahadeoji and Mahabir and Akhara and
Taswir of Hazrat Ali” and as having been dedicated to them.
In 1862, one Bansgopal filed suit No. 490 of 1862 against
Mangli Prasad and others for partition and for 1/3rd share
in the said groveland. Mangli Prasad filed a written
statement therein explaining how the groveland was purchased
by Mani Ram from out of his own funds and how he had
dedicated it and referred to (be said partition between Mani
Ram and his sons. He also described how after Mani Ram’s
death in 1849, the property was administered first by Rahas
Kaur and after her death under the directions of her said
will by him. Mangli Prasad in this written statement denied
that the plaintiff in that suit had any right or interest in
the said groveland, the same having been dedicated by Mani
Ram for the purposes aforesaid.
It appears that after Mangli Prasad’s death his widow, Janki
Kaur, entered into possession of the said property. From
the judgment in First Appeal No. 279 of 1901 of the High
Court of Allahabad dated December 23, 1903 it would appear
that Janki Kaur left a will in favour of one Kishan Sarup
and on the latter claiming the property Mangli Prasad’s
daughter. Sheodai Kaur, filed a suit for a declaration of
her right of possession to the said property. That judgment
has some bearing on the question as to the nature of the
property in this appeal as it clearly stated that the
groveland in question was an endowed property, and that
herefore, Sbeodei Kaur could not claim that property by
inheritance, but was entitled to the possession thereof as
the manager since Mangli Prasad had not appointed any one as
such manager. By this judgment the High Court declared that
“as regards the two, grovelands and Akhara-we declare that
the plaintiff is entitled to be the manager of the said
property”. From the description in the decree of the
property declared by the High Court as the endowed property
there can remain no room for doubt that the endowed property
consisted of the two grovelands and the enclosure known as
Buag-Akhara.
The property came into possession of Ishwar Narain, the son
of the said Sheodei Kaur, in 1906. In 1914 he applied to
the Kanpur Municipality for permission to build a theatre in
a part of the Buag-Akhara and in September 1915 he executed
a mortgage to secure repayment of a loan of Rs. 6,000/- he
had borrowed to, complete the said theatre. Though the
Akhara and the Asthan continued to be maintained by him, it
appears that he treated the
814
endowed property as belonging to him. In or about 1937 the
Improvement Trust of Kanpur acquired the whole of the
property which consisted of the said two grovelands, Buag-
Akhara and the structures standing thereon and the property
lying outside and around them. The award of the Collector
dated February 19, 1937 shows that for the entire property
compensation was calculated at Rs. 94,934/-. Ishwar Narain,
thereafter, filed a reference under S. 18 of the Land
Acquisition Act. Pending the reference, a compromise was
entered into between the Improvement Trust ,and Ishwar
Narain under which in consideration of the latter not
pressina the reference the Improvement Trust agreed to sell
to In the portion corresponding to the said endowed property
for Rs. 25,000/-. In accordance with this compromise, the
said land together with the Akhara, the Asthan, the said
theatre and certain other structures were conveyed to Ishwar
Narain who was paid Rs. 94,934/- less Rs. 25,000/- as
compensation for the rest of the acquired property. Ishwar
Narain died in 1948 having prior thereto made his will dated
November 11, 1947 claiming therein that on the death of his
mother. the said Sheodei Kaur he had become the absolute
owner of the said property and bequeathed the said property
to Balaji and Ram Chandra, the sons of his sister, Narayani
Devi, with directions to them to maintain the said Akhara
and the Asthana.
The principal question which was agitated before the Trial
Court was as to the existence of a valid trust and the
nature of possession of Mani Ram during his life time and
his successors thereafter. To the latter part of the
questions the answer of the Trial Court was that possession
of the property In question by Mani Ram and those who came
into possession after him was that of managers or trustees.
As to the first part of the question, the Trial Court held
“The next part of the issue is about the
endowment being valid-It is true that Mani Ram
Pande was not competent to make a dedication
in favour of Hazrat Ali but he had not done so
in this case. The various documents referred
above do not prove that the dedication was
made in favour of Hazrat Ali or even Mahadeoji
and Mahabirji. Wherever there is an
allegation of the dedication it is mentioned
that the Ahata in question is a dedicated
property and there are “Asthana” of Mahaclevji
and Taswir of Hazrat Ali and also an Akhara.
It means that the dedication was not made in
favour of any juristic person such as Mahadev
Ji or Mahabir Ji or even to the Akhara or
Hazrat Ali. No dedication evolve in favour of
A khara could have been made as the A khara
was also not a juristic person. The intention
of Mani
815
Ram Pande, as appears from the partition deed,
Ex. 6, was that the dedication was in favour
of a trustee or manager, the objects of which
was to maintain the Akhara and the worshipping
of Mahabirji and Hazrat Ali by the wrestlers
of the two communities, Hindus and Muslims.
The main purpose of dedication was the
maintenance of the Akhara which meant for the
wrestlers of both the communities.”
In this view the Trial Court decreed the suit and directed
the appellants to hand over possession and pay Rs. 23,000/-
as mesne profits in addition to Rs. 1100 a month as further
mesne profits for the period pending the suit.
In appeal all against the judgment and decree of the Trial
Court, the High Court took the view that though there was no
deed of dedication available, the evidence on record was
clear that Mani Ram had dedicated the said property, that he
and those who succeeded him right upto Ishwar Narain held
the properties as trustees or managers, that the said
judgment of the High Court of Allahabad of 1903 also held
that the said Sheodei Kuar was to hold the property in the
capacity of a manager, and lastly, that the dedication was
in favour of the two idols of Shri Mahadeoji and Mahabirji.
In this connection the High Court expressed itself in the
following terms :
“It may be that establishing an A khara is not
a religious or a charitable purpose. But this
was not the only object of the trust now in
question. There was an Asthan in addition to
the Akhara. Dedication of property for the
benefit of an idol is recognized in Hindu Law
as a religious object. Mr. V. P. Misra
further contended that Mani Ram was not
competent to create a trust for the benefit of
Hazrat Ali. On this point, the learned Civil
Judge observed that Mani Ram was not competent
to make dedication in Hazrat Ali’s favour.
But Hazrat Ali is not the sole plaintiff in
this case. Sri Mahabirji, Sri Mahadeoji and
Hazrat Ali have come to Court as co-
plaintiffs. If the dedication in Hazrat Ali’s
favour cannot be recognised, there should be
no difficulty in treating the endowment as a
trust for the benefit of Mahadeoji and
Mahabirji. The decree passed by the Trial
Court can well be treated as a decree in
favour of Sri Mahadeoji and Sri Mahabirji
only.”
In disputing the correctness of the High Court’s judgment
and decree, Dr. Agarwala for the appellants raised the
following contentions : (1) that the endowment was in
respect of the grove and not the groveland, i.e., only of
the income from the trees which
816
existed during Mani Ram’s life time; (2) that on acquisition
of the entire property including the Akhara-buag by the
Improvement Trust, the trust, in any event, was extinguished
and the purchase by Ishwar Narain after the acquisition from
the Improvement Trust did not and could not revive the
trust; (3) that the trust was invalid by reason of one of
its objects being the image or tasweer of Hazrat Ali; and
(4) that the dominant object of the trust was to establish
and maintain in perpetuity the said Akhara, which object in
Hindu Law is neither religious nor charitable, and there-
fore, the trust was not a valid trust.
So far as the first and the second contentions are
concerned, we have no difficulty in rejecting them. The
documents on record as also the evidence as to the conduct
of Mani Ram and those who held the property after him
clearly show that Mani Ram dedicated the groveland and not
merely the trees standing thereon. The purchase of part of
the said property after its acquisition was from out of the
compensation received by Ishwar Narain and not out of his
personal funds, so that if the trust was in law a valid
one, the property purchased by him out of the trust funds
would be stamped with the trust and he would in that event
be holding that property as a trustee or manager and not as
an owner.
The question, therefore, on which the result of this appeal
would turn is whether the trust created by Mani Ram and
which he referred to in the said deed of partition was a
valid trust recognised in Hindu law as religious and/or
charitable. The principle of law applicable to trusts made
by Hindus is succinctly stated by this Court in Saraswathi
Ammal & Anr. v. Raiagopal Ammal-(1). A Hindu widow there
settled certain properties for the following trusts, (1)
expenses in connection with the daily pooja of the, samadhi
where her husband’s body was entombed in accordance with his
last wishes and the salary of the person conducting the said
pooja; (2) Gurupooja and annadhanam to be performed annually
at the samadhi on the anniversary day of his death; and (3)
any balance leftover after meeting the above expenses to be
spent for matters connected with education. The contention
was that though the first object was not a religious object,
the performance of Gurupooja and the feeding at the annual
shradha and the utilisation of the balance, if any, for
educational purposes were the main destination of income,
and therefore, the main object of the settlement and that
accordingly the dedication was valid. This contention was
negatived and it was held that notwithstanding that the
major portion of the income may have to be spent for
Gurupooja and annadhanam in connection with the annual
shradha, the dominant purpose of the dedication was the
samadhi kainkarivam,
(1) [1954] S.C.R. 277.
817
i.e., the worship of and at the tomb. The validity or
otherwise of the dedication, therefore, had to be determined
on that footing and not as though it was dedication for the
performance of the annual shradha on a substantial scale or
for annadhanam as such. It was held that it did not make
any difference that the surplus was to be utilised for
educational purposes. That surplus was contingent,
indefinite as well as dependent on the uncontrolled
discretion of the manager as to the scale on which he chose
to perform the services at the samadhi. The dominant
purpose of the settlement thus being the pooja of and at the
samadhi, the validity of the settlement had to be decided on
that footing, namely, whether such trust was recognised in
Hindu law. On that question the Court relied on a passage
from Mayne’s Hindu Law, ( 1th ed.) at p. 192, which
states,that what are purely religious purposes and what
religious purposes will be charitable must be entirely
decided according to Hindu law and Hindu notions. The Court
observed that in finding out such purposes, the insistence
of English law on the element of actual or assumed public
benefit would not be the determining factor, but the Hindu
notions of what a religious or a charitable purpose is. The
Court further held that to the extent that any purpose is
claimed to be a valid one for perpetual dedication on the
ground of religious merit though lacking in public benefit,
it must be shown to have a Shastraic basis so far as Hindus
are concerned. To the argument that new religious practices
and beliefs may have since then grown up and obtained
recognition, the Court answered that if they are to be
accepted as being sufficient for valid perpetual dedication
they should have obtained wide recognition and constituted
the religious practice of a substantially large class of
persons and that the heads of religious purposes determined
by belief in acquisition of religious merit cannot be
allowed to be widely enlarged consistently with public
policy and the needs of modern society. In the result, the
Court confirmed the High Court’s view that the settlement
was invalid.
There being no deed of endowment, the intention of Mapi Ram
in settling the property in question has to be principally
gathered from the said deed of partition and the said will
of Rahas Kaur, the rest of the documents executed by Mangli
Prasad and others being useful only in aid of the
interpretation of that deed of partition and the said will.
There can be no doubt whatsoever that Mani Ram, being an
eminent wrestler and fond of that game, purchased out of his
own money the said groveland for the purpose of setting up
an Akhara thereon. The question then would be whether he
settled that property upon trust, and if so, for what trust.
As already seen, Mani Ram recorded in the said partition
deed the fact of his having partitioned the property into
eight shares,
818
his having given one share to each of his seven sons and
having retained the eighth share for himself and his second
wife and the said groveland as waqf property. The deed,
however, does not set out the purpose or purposes for which
the said groveland was regarded ‘by him as waqf property.
But it does show that he regarded that property as already
dedicated. The purposes for Which the groveland was so
dedicated are to be found in the said will of Rahas Kaur,
wherein she has in clear terms stated that Mani Ram had
dedicated the groveland “which has Asin of Mahadeo Ji and
Mahabir Ji and Aklhara and tasweer of Hazrat All”, that the
Akhara and the Asthan were upto that dale maintained and
that they should continue as heretofore. The will thus
provides a key to. the mind of Mani Ram who, as aforesaid,
hall purchased the said property and set up thereon the said
wrestling arena. Obviously, he was anxious that wrestlers
of both Hindu and MUSlim Communities should take part in
that Akhara. It is equally obvious that to attract
wrestlers from both ,lie communities he installed in that
Akhara the tasweer of Hazrat Ali an the idols of Shr Mahadeo
and Mahabir, the two patron deities of wrestling. Once
these idols were put up in the Akhara, their worship had to
be provided for, it is well-known amongst Hindus that it is
irreligious to let such idols remain unworshipped. It is
not possible to know from the evidence as to where Hazrat
Ali’s taswreei, was installed, but it is clear from the
evidence that the idol of Mahabir Ji was located at the top
of the aggregate which led into the Akhara and the Shiva
Lingam was installed over a small room built next to the
gate. Clearly, the purpose of- installing the two idols and
the tasweer was to enable the wrestlers to pay their homage
and salutation to the patron deities of the game before
entering into the wrestling arena. The dominant object of
the dedication was thus the Akhara and the Asthan of God
Shiva and Mahavir, spoken of in the will of Rahas Kaur, was
only an adjunct to the Akhara. There is evidence, no doubt,
to show that pooja and Shringar of the two idols were
performed. But that apparently was because the idols once
installed could not be left unworshippe On these facts we
are inclined to take the view that the dominant object of
the dedication was the Akhara and the said idols and the
tasweer were installed only to attract persons of both the
communities to the Akhara and to provide for them the
facility for invoking the divine benediction before they
participated in wresting. As laid down in Saraswathi
Ammal’s case(1), it is on this foot in that the validity or
otherwise of the trust has to be considered.
It must be made clear at very outset that although the will
of Rahas Kaur provided that persons who are to manage the
trust were to be in the first instance her son, Mangli
Prasad, and later
(1) [1954] S.C.R. 277.
819
on those appointed by him from amongst the issues of Mani
Ram, the trust was obviously not a private but a public
trust in the sense that it was for the benefit of those, who
are devoted to the sport of wrestling irrespective of
whether they are Hindus or Muslims. But the contention was
that in spite of the trust being a public trust, it was not
one recognised by Hindu law as being a religious and / or a
charitable one. As stated earlier, the fact that the Akhara
idols installed in it makes no difference as the dedication
was the Akhara and not the or the tasweer of Hazrat Ali.
A dedication of property for a religious or a charitable
purpose can according Hindu law, be validly made orally and
no to create an endowment except where it is (cf. Menakuru
Dasaratharami Reddi v. Duddukuru Subba Rao(1). It can be
made by a gift inter vivo or by a bequest or by a ceremonial
or relinquishment. An appropriation of property for
specific religious or charitable purposes is all that is
necessary for a valid dedication. As stated by the Privy
Council in Vidyavaruthi v. Balusami Ayyar(2), a trust in the
sense in which it is understood in English law is unknown in
the Hindu system. Hindu piety found expression in gifts to
idols, to religious institutions and for all purposes
considered meritorious in the Hindu social and religious
system. Therefore, although Courts in India have for a long
time adopted the technical meaning of charitable trusts and
charitable purposes which the Courts in England have placed
upon the term ‘charity’ in the Statute of Elizabeth, and
therefore, all purposes which according to English law are
charitable will be charitable under Hindu law, the Hindu
concept of charity is so comprehensive that there are other
purposes in addition which are recognised as charitable
purposes. Hence, what are purely religious purposes and
what religious purposes will be charitable purposes must be
decided according to Hindu notions and Hindu law.
As observed by Mukherjea in Hindu Law and Religious and
Charitable Trust (2nd ed.), p. 11, there is no line of
demarcation in the Hindu system between religion and
charity. Indeed, charity is regarded as part of religion,
for, gift both for religious and charitable purposes are
impelled by the desire to acquire religious merit.
According to Pandit Prannath Saraswati these fell under two
heads, Istha and Purta. The former meant sacrifices and
sacrificial gifts and the latter meant charities. Among the
Istha acts are Vedic sacrifices, gifts to the priests at the
time of such sacrifices, preservations of Vedas, religious
austerity, rectitude, Vaisvadev sacrifices and hospitality.
Among the, Purta acts are construction and maintenance of
temples, tanks, wells, planting of ground had the two
dominant object of worship of the idols A dedication of
pose can, according writing is necessary created by a will.
(1) [1957] S.C.R. 1122 at 1128,
(2) (1921) (48) I.A. 302 at 311.
L5Sup.CI-7
820
groves, gifts of food, dharamshalas, places for drinking
water, relief of the sick, and promotion of education and
learning. (cf. Pandit Prannath Saraswati’s Hindu Law of
Endowments, 1897, pp. 26-27) Istha and Purta are in fact
regarded as the common duties of the twice born class. (cf.
Pandit Saraswati, p. 27)
Though Pandit Saraswati sought to enumerate from different
texts Various acts which would fall under either of the two
Categories of Ishta and Purta, no exhaustive list of
charitable purposes can be possible as the expressions
‘Ishta’ and ‘Purta’ themselves are elastic and admit no
rigid definition. As times advance, more and more
categories of acts considered to be beneficial to the public
would be recognised depending on the needs and beliefs of
the time. (cf. Mukherjea, p. 74). Neither the Statute of
Elizabeth nor the Law relating to Superstitious Uses was
applied at any time to India. Consequently, the English
decisions based on one or the other of these statutes would
not be applicable nor can they be commensurate with the
conditions prevailing in India, though those decisions might
undoubtedly be of some guidance.
Is then the trust for the maintenance and up-keep of a
wrestling ground a valid charitable trust ? The evidence
shows that Mani Ram, being personally fond of wrestling had
a number of disciples and attracted several wrestlers to the
Akhara. But that, according to Rahas Kaur’s will, he did
out of his own love for this particular sport and by
spending large amounts out of his own moneys. The only
thing which seems to have been done by his successors was to
hold wrestling tournaments and award prizes to the success-
fuloges out of the income of the property and to maintain
the Akhara. It may be that people might have come to these
tournaments and even practised wrestling but there is no
evidence whatsoever that wrestling was taught or its
knowledge was imparted to those wishing to know it. At
best, therefore, it can be said that by maintaining the
Akhara and holding therein the tournaments wrestling was
sought to be encouraged or fostered. But there is nothing
to show that the promotion of a particular game either for
entertainment of the public or as encouragement to those who
take part in it has ever been recognised as a charitable
trust according to Hindu law. Neither Pandit Prannath
Saraswati, nor Mukherjea, nor Mayne suggests in his treatise
that a dedication for the promotion of a particular game or
sport is a charitable trust under the Hindu law.
In Englalnd it is held not to be so, of course within the
scope of the statute of Elizabeth as interpreted in
Commissioners for Special Purposes of the Income Tax v.
Pemsel(l). Thus, In re Notage, Jones v. Palmer(2), a gift
for encouraging the sport of
(1) [1891] A.C. (2) [1895] Ch. 649
821
yatch-racing was not upheld as a charitable trust, though as
Lindley, L.J., remarked every healthy sport is good for the
nation. In re Hadden, Public Trustee v. More(1), while
acknowledging the principle laid down in In re Notage(2),
the court held that a trust providing for recreation grounds
and parks for the benefit of working classes was valid on
the ground, however, that such uses were intended for the
health and welfare of the working classes. So too, in In re
Marietta, Mariette v. Governing Body of Aldenham School(3),
where bequests for building squash racket courts or some
similar purpose within the school premises and for a prize
to the winner in the school athletics were held valid on the
ground of its being essential in a school of learning that
there should be organised games as part of the daily
routine. It is clear from the judgment of Eve, J., that he
upheld the bequest on the ground not of promoting athletic
games but on the ground that the object of the charity was
education in the school and that training in such games
would be part of the educational activities of the school.
There is, however, one decision of a marginal nature. if we
may say so, namely, in In re Daley v. Lloyds Bank Ltd.(1),
where a gift for holding an annual chess tournament limited
to boys and young men under the age of 21 years residing in
a particular locality was upheld. But that was done after a
good deal of hesitation and only by basing it on the ground
that training of youth in a game of skill which also
required concentration was part of their education.
Coming to the cases in India, the decisions in the Trustees
of the Tribune Press v. Commissioner of Income-tax(5), All
India Spinners Association v. Commissioner of Income-tax(6)
and the Cricket Association, Bengal v. Commissioner of
Income-tax, Calcutta(1) were all cases under s. 4(3) (i) of
the Income-tax Act, 1922 and therefore would have no
relevance to the present case arising, under the Hindu Law.
The decisions above referred to thus lay down a distinction
between cases where the object of the dedication was the
promotion of games as part of the education of those who
participate in them and cases where the object was promotion
of games simplicitor, the former only having been upheld on
the ground that such promotion or encouragement is part of
the educational training and the latter not having been
upheld. In the case of Cricket Association, Bengal(7),
though arrangements of cricket tournaments of both domestic
and foreign teams were said to promote and foster love for a
healthy game, s. 4(3) (i) was held not to be applicable.
(1) [1932] (1) Ch. 133. (2) [18951 Ch. 649.
(3) [1915] (2) Ch. 284. (4) (1945) 114 L.J. Ch. 1.
(5) 661.A. 241. (6) I.L.R. [1945] Bom. 153.
(7) A.I.R. 1959 Cal. 296.
822
On a reading of the relevant documents on record and the
oral testimony led by the parties we are not in a position
to agree with the High Court that the trust created by Mani
Ram was a religious trust in favour of the two idols of Lord
Shiva and Mahabir Ji. As aforesaid, our conclusion is that
the dominant intention of the settlor was to set up and
maintain an Akhara, the said two idols as also the tasweer
of Hazrat Ali having been installed there only to attract
wrestlers of the two communities. That being the position,
reluctant though we are, particularly in view of the fact
that the said Akhara has been maintained for nearly a
century, we find it extremely difficult, in the absence, of
any authority, textual or by way of a precedent, to hold
that the dedication in question was for either a religious
or charitable purpose as recognised by Hindu Law. For the
reasons aforesaid we are constrained to allow the appeal and
set aside the judgment and decree passed by the High Court.
In the circumstances of the case, however, we consider it
just that there should be no order as to costs. Collector
will be at liberty to recover the Court fees payable in the
plaint from the next friend of the plaintiffs.
G.C. Appeal allowed.
823