{"id":230280,"date":"1970-12-02T00:00:00","date_gmt":"1970-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kakinada-annadana-samajam-etc-vs-commissioner-of-hindu-religious-on-2-december-1970"},"modified":"2017-07-19T18:08:12","modified_gmt":"2017-07-19T12:38:12","slug":"kakinada-annadana-samajam-etc-vs-commissioner-of-hindu-religious-on-2-december-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kakinada-annadana-samajam-etc-vs-commissioner-of-hindu-religious-on-2-december-1970","title":{"rendered":"Kakinada Annadana Samajam Etc vs Commissioner Of Hindu Religious & … on 2 December, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kakinada Annadana Samajam Etc vs Commissioner Of Hindu Religious & … on 2 December, 1970<\/div>\n
Equivalent citations: 1971 AIR 891, \t\t 1971 SCR (2) 878<\/div>\n
Author: A Grover<\/div>\n
Bench: Shah, J.C., Mitter, G.K., Hegde, K.S., Grover, A.N., Ray, A.N.<\/div>\n
           PETITIONER:\nKAKINADA ANNADANA SAMAJAM ETC.\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF HINDU RELIGIOUS & CHARITABLEENDOWMENTS, HYDE\n\nDATE OF JUDGMENT:\n02\/12\/1970\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nSHAH, J.C.\nMITTER, G.K.\nHEGDE, K.S.\nRAY, A.N.\n\nCITATION:\n 1971 AIR  891\t\t  1971 SCR  (2) 878\n 1970 SCC  (3) 359\n CITATOR INFO :\n R\t    1973 SC2237\t (2)\n RF\t    1976 SC 475\t (4)\n\n\nACT:\nHereditary   trustee-Office  of-If  'property'\twithin\t the\nmeaning of Art. 19 of the Constitution.\nAndhra\tPradesh Charitable and Hindu Religious\tinstitutions\nand Endowments Act (17 of 1966), ss. 15, 17, 27, 36 and\t 97-\nIf violative of Art. 19 of the Constitution.\n\n\n\nHEADNOTE:\nThe  appellants\t were hereditary trustees of  religious\t and\ncharitable  institutions and endowments.  They\tclaimed\t the\nright  to  manage and administer the secular estate  of\t the\ninstitution  or\t endowment  of which  they  were  hereditary\ntrustees   but\tnever  claimed\tproprietary  or\t  beneficial\ninterest  either  in the corpus or in the  usufruct  of\t the\nestate.\t They challenged the validity of s. 15 read with ss.\n17,  27,  36 and. 97 of the Andhra  Pradesh  Charitable\t and\nHindu  Religious Institutions and Endowments Act,  1966,  on\nthe  ground that they are violative of Art. 19 of  the\tCon-\nstitution.    The  High\t Court\theld  that  the\t office\t  of\nhereditary  trustee was property but that  the\trestrictions\nimposed by the various provisions of the Act are  reasonable\nand are in the interests of the public.\n In appeal to this Court,\nHELD : (1) The position of a hereditary trustee who claims a\nbare right to manage and administer the secular estate,\t is\nthe  same  as  that of a Dharmakarta or a  mere\t manager  or\ncustodian  of  an  institution except  that  the  hereditary\ntrustee succeeds to the office as of right and in accordance\nwith  the rules governing succession.  He cannot be  equated\nto  a shebait, methadhipathi or a mahant in whose case,\t the\ningredients  of\t both  office and property,  of\t duties\t and\npersonal  interest and rights are blended  together.   Hence\nthe  office  of such a hereditary trustee  is  not  property\nwithin the meaning of Art. 19.\tThe observation in  Sambuda-\nmurthi Mudaliar v. State of Madras, [1970] 2 S.C.R. 424 that\nthe  office  of\t a hereditary trustee is in  the  nature  of\nproperty is obiter.  The pronouncement of the Privy  Council\nin Gnanasambanda Pandara Sannadhi v. Velu Patrdaram, 27 I.A.\n69, Ganesh Chander Dhur v. Lal Behary Dhur, (1936) 71 M.L.J.\n740  (P.C.) and Bhaba Tarini Debi v. Asha Lata Debi,  I.L.R.\n[1943]\t2 Cal. 137 (P.C.) that the rule in the Tagore  case,\n(1872)\t9  B.L.R. 377 applies to  succession  of  hereditary\ntrustees does not afford any assistance in deciding  whether\nan  office holder. who has a bare right of  management,\t can\nclaim to have a right or interest in the nature of  property\nwithin the meaning of Art. 19(1)(f).\n[886 B-D; 887 F-H]\nTilkayat  Shri\tGovindlalji Maharaj v.\tState  of  Rajasthan<\/a>\n[1964] 1 S.C.R. 561 and Raja Birakishore V. Orissa,<\/a> [1964] 7\nS.C.R. 32, followed.\n(2)Even if the right constituted property the restrictions\nwhich have been imposed by the provisions of the Act on\t the\nhereditary  trustees are reasonable and are in the  interest\nof the general public. [888B]\n 879\nThe  statute has been enacted because, a high powered  body,\nnamely\t the  Hindu  Religious\tEndowment  Commission,\t had\nreported  that\tthere was mismanagement\t invariably  of\t the\nendowment  property by the trustees.  The power\t to  appoint\nnon-hereditary\ttrustees or executive officers under ss.  15\nand 27, even where there is already a hereditary trustee  or\ntrustees, notwithstanding that there is no mismanagement, is\nonly  for  the\tpurpose of  ensuring  better  and  efficient\nadministration\t and  management  of  the   institution\t  or\nendowment.   Under  s.\t17, the hereditary  trustee  is\t not\nremoved but is to be the chairman of the Board of  Trustees,\nand  if there are more than one hereditary trustee,  one  of\nthem is to be chairman by rotation.  Instead of managing the\ninstitution  alone he has to administer it in  collaboration\nwith  other trustees who are non-hereditary; but it is\tonly\nthe  secular  aspect-and  not matters  of  religion-that  is\ntouched. [883 D; 888 B-G]\n[Questions whether some of the institutions were private  or\nwere  religious denominations within Art. 26, left open\t for\ndetermination by the appropriate forum.] [889 D]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  1249  to
\n1251, 1271, 1358, 1350, 1381, 1382, 1521, 1522, 1544,  1612,
\n1668, 1669, 1879, 1880, 1912, 1973 and 1974 of 1970.
\nAppeals from the judgment and order dated December 31,\t1969
\nof the Andhra Pradesh High Court in Writ Petitions Nos. 2871
\nof 1968 etc. etc.
\nM.Natesan and A. Subba Rao, for the appellants (in  C.As.
\nNos. 1249 to 1251, 1360, 1382, 1521 and 1522 of 1970).
\nA.Subba\t Rao,  for the appellants (in  C.As.  Nos.  1381,
\n1544, 1879, 1880, 1912, 1973 and 1974 of 1970).
\nShyamala  Pappu, Balaparameshwari Rao and Vineet Kumar,\t for
\nthe appellant (in C.A. No. 1271 of 1970).\n<\/p>\n
M.Natesan  and A. V. V. Nair, for the appellant (in  C.A.
\nNo. 1358 of 1970).\n<\/p>\n
K.   Jayaram, for the appellant (in C.A. No. 1663 of 1970).
\nM.   Natesan and K. Jayaram, for the appellant (in C.A. No.
\n1669 of 1970).\n<\/p>\n
A.   V.\t Rangam,  for  the appellant (in C.A.  No.  1612  of
\n1970). A. K. Sen., Venugopala Reddy and Parameswara Rao, for
\nthe  respondents  Nos. 1 to, 4 (in C.A. No.  1522  of  1970)
\nrespondents Nos. 1 and 2 (in C.A. No. 1669 of 1970) and the
\nrespondents in other appeals.\n<\/p>\n
 P. Basi Reddy and G. Narayana Rao, for respondent No. 6 (in
\nC.A. No. 1669 of 1970).\n<\/p>\n
K.   Rajendra Chowdhary, for the intervener.\n<\/p>\n
880<\/span><\/p>\n
The Judgment of the Court was delivered by
\nGrover,\t J. These appeals by certificate are from  a  common
\njudgment  of the Andhra Pradesh High Court and\tinvolve\t the
\nquestion  of the constitutionality of certain provisions  of
\nthe   Andhra   Pradesh\tCharitable   and   Hindu   Religions
\nInstitutions  and  Endowments Act, 1966 (Act  17  of  1966),
\nhereinafter called the Act’.\n<\/p>\n
A  number  of petitions under Art. 226 of  the\tConstitution
\nwere   filed  before  the  High\t Court\ton  behalf  of\t the
\ninstitutions  or  endowments some of which were\t public\t and
\nsome   private\tin  character.\t A  few\t institutions\twere
\nsocieties  registered under the Societies  Registration\t Act
\nwhile  others claimed to be religious endowments  or  public
\nbodies\t like\tmunicipalities\twhich  were   managing\t the
\ninstitutions.  We might, for the sake of convenience,  state
\nthe  facts  in\tCivil  Appeal No.  1360\t of  1970.   In\t the
\naffidavit of Nalam Ramalingaiah it is stated that he is\t the
\nhereditary  trustee  of the Nalam Choultry and\tVyasya\tSeva
\nSadanam which are private trusts.  They were founded by\t his
\nancestor  in  the year 1879 and 1920 respectively.   He\t had
\nbeen  the  managing  trustee from 1943.\t  The  Choultry\t was
\nendowed\t with immoveable property comprising an area of\t 453
\nacres  of land which by careful management was now  fetching
\nan  income  of Rs. 40,000\/-.  Besides feeding the  poor\t and
\naffording  free lodging facilities to pilgrims\tscholarships
\nwere being given to deserving students.\t The Sevasadanam was
\nendowed\t with  huge  properties\t which\twere  fetching\t Rs.
\n18,000\/-  as income.  The objects of this charity were,\t (1)
\nto impart education and training in handicraft to women; (2)
\nto  feed  poor\tgirls, (3) provide  free  shelter  to  women
\nstudents  and (4) run women’s Sanskrit School.\tAt  no\ttime
\nthere  had  been any complaint about  mismanagement  of\t the
\naforesaid  trust.   A number of other  countries  were\talso
\nmentioned which were being managed by the hereditary trustee
\nor  trustees.  Some of them were providing food and  shelter
\nto  students  and  travellers  of  all\tcastes\tand   creeds
\nincluding Muslims and Christians.  Among the objects of some
\nof  the Choultries was included the performing of  pujas  in
\ntemples.  These Choultries were founded in the last  century
\nand ever since their inception the members of the family  of
\nthe founder or founders had been managing them.\t At no\ttime
\nthere  had  been  any  complaint of  any  kind\tagainst\t the
\nmanagement.   On  the contrary the hereditary  trustees\t had
\nimproved   the\tendowment  properties  and   added   several
\ncharitable activities to the existing objects.
\nThe  validity  of  the\tmain  provisions  of  the  Act\t was
\nchallenged  on the ground that the office of the  hereditary
\ntrusteeship was property within the meaning of Art. 19(1)(f)
\nand that these
\n\t\t\t    881<\/span>
\nprovisions  were ultra vires and void as violative  of\tthat
\nArticle\t as  also  of  Art.  14,  25,  26  and\t31  of\t the
\nConstitution.\tOn  behalf of the respondents  the  position
\ntaken  up  was that all the, institutions in  question\twere
\npublic\tand none of them was private in character that\tthey
\nwere  religious and charitable institutions  and  endowments
\nwithin\tthe  meaning  of the Act.  It was  denied  that\t the
\noffice of hereditary trustee was property within the meaning
\nof.   Art. 19 (1) (f) or that there was infringement of\t any
\nof   the  fundamental  rights  mentioned  in   the   various
\npetitions.   It was maintained that the hereditary  trustees
\netc.  had  only a bare right to manage the  affairs  of\t the
\ninstitution  and  the  secular matters which  could  not  be
\nregarded  as  property within the meaning of  the  aforesaid
\nArticle.\n<\/p>\n
The High Court formulated five questions for decision but it
\nis  unnecessary\t to mention or go into all of  them  as\t the
\nmatters\t in  controversy before us relate to  two  of  these
\nquestions.   These are, (1) whether on the facts and in\t the
\ncircumstances the office of hereditary trusteeship is or  is
\nnot  property within the meaning of Art. 19(1) (f) and\tArt.
\n31 and (2) whether all or any of the material provisions  of
\nthe  Act are hit by Arts. 14, 19 (1) (f), 25, 26 or 31.\t The
\nHigh  Court  was of the view that the office  of  hereditary
\ntrustee was property within the meaning of Art. 19 (1)\t(f).
\nIt  was,  however, held that the  impugned  provisions\tonly
\nimposed reasonable restrictions on the exercise of the right
\nof the trustees, in the interest of general public and\tgood
\nadministration\tof the public institutions.  It was  further
\nfound that none of the impugned provisions were violative of
\nArts.  14,  19(1)(f),  25, 26 and 31  of  the  Constitution.
\nAccording  to the High Court the material provisions of\t the
\nAct  were  only\t intended to  regulate\tand  ensure  proper,
\nefficient  and better administration and management  of\t the
\ninstitution.  All the writ petitions were dismissed.
\nThe  learned  counsel  for the appellants  has\tinvited\t our
\nattention  to  the  various  sections of  the  Act  but\t has
\nconfined his challenge mainly to the provisions contained in
\ns.  15 read with ss. 17, 27, 97 and 36 of the Act.   We\t may
\nadvert to the main provisions and the general scheme of\t the
\nAct.  According to the preamble the Act has been enacted  to
\nconsolidate and amend the law relating to the administration
\nand governance of charitable and Hindu religious  charitable
\ninstitutions and endowments in the State of Andhra, Pradesh.
\nIt  applies  to\t all  public  charitable  institutions\t and
\nendowments  other than wakes governed by the  provisions  of
\nthe  Wake  Act\t1954.  According to the\t explanation  to  s.
\n1(3)(a)\t the expression “charitable institutions and  endow-
\nments”\t shall\tinclude\t every\tcharitable  institution\t  or
\nendowment the administration of which is, for the time being
\nvested in any department of Government or civil court,\tZila
\nParishad or other
\nL6949up.CI\/71
\n882<\/span>
\nlocal  authority  or  any  company,  society,  Organisation,
\ninstitution  or other person.  The Act also applies  to\t all
\nHindu\tpublic\t religious  institutions   and\t endowments.
\n“Charitable  endowment” has been defined by s. 2(3) to\tmean
\nall  property given or endowed for any\tcharitable  purpose.
\n“Charitable  institution”  has been defined by S. 2  (4)  to
\nmean   any  establishment,  undertaking,,  organisation\t  or
\nassociation  formed for a charitable purpose and includes  a
\nspecific  endowment.  Various sub-clauses of s. 2  define  ”
\ncharitable  purpose”, “Commissioner”,  “Executive  Officer”,
\n“Hereditary Office-holder”, “Hereditary Trustee”, “Religious
\ncharity”.  “religious endowment”, “specific endowment”\tetc.
\nThe definition of “hereditary trustee” contained  in  sub-
\nclause 15 and a “trustee” in sub-clause 28 may be reproduced
\n:\n<\/p>\n
\t      ” Hereditary trustee’ means the trustee of  a
\n\t      charitable   or\treligious   institution\t  or
\n\t      endowment\t the  succession  of  whose   office
\n\t      devolves\taccording to the rule of  succession
\n\t      laid down by the founder or according to usage
\n\t      or  custom  applicable to the  institution  or
\n\t      endowment\t  or   according  to  the   law\t  of
\n\t      succession for the time being in force, as the
\n\t      case may be”.\n<\/p><\/blockquote>\n
\t      “‘Trustee’  means any person whether known  as
\n\t      mathadhipati,  mohant, dharmakarta,  mutwalli,
\n\t      muntazim, or by any other name, in whom either
\n\t      alone or in association with any other person,
\n\t      the   administration  and\t management   of   a
\n\t      charitable   or\treligious   institution\t  or
\n\t      endowment are vested; and includes a Board  of
\n\t      Trustees.”\n<\/p><\/blockquote>\n
Chapter II deals with the appointment of Commissioner, Joint
\nCommissioners etc. and their powers and functions.   Section
\n6  provides  for  preparation and  publication\tof  list  of
\ncharitable and religious institutions and endowments on\t the
\nbasis of income.  By Section 7 the Commissioner is to be  a
\ncorporation  sole having a perpetual succession and  common
\nseal.\tSection 8 provides that subject to other  provisions
\nof  the Act the administration of all charitable and  Hindu
\nreligious  institutions\t and endowments shall be  under\t the
\ngeneral superintendence and control of the Commissioner and
\nsuch superintendence and control shall include the power to
\npass  any order which might be deemed necessary\t to ensure
\nthat  such  institutions and endowments are  properly  admi-
\nnistered  and  their  income is duly  appropriated  for\t the
\npurpose\t for  which they are founded or exist.\t Section  12
\nempowers the Commissioner to enter and inspect\tinstitutions
\nand endowments.\t Chapter III relates to administration\tand
\nmanagement  of charitable and Hindu  religious\tinstitutions
\nand  endowments.   Section 14 declares that  all  properties
\nbelonging  to  or  given  or  endowed  to  a  charitable  or
\nreligious institution or endowment shall vest in
\n 883<\/span>
\nthe charitable or religious institution or endowment as\t the
\ncase may be.  It is unnecessary to set out s. 15 in extensor
\nIt  provides  for the constitution of a Board  of  Trustees,
\nwhose number has been specified, in respect of charitable or
\nreligious   institution\t  or  endowments  of   the   various
\ncategories   mentioned\tin  the\t section.   The\t  power\t  to
\nconstitute  The Board has been conferred on the\t Government,
\nCommissioner,\tDeputy\t Commissioner\tor   the   Assistant
\nCommissioner, as the case may be.  It is discretionary where
\nthere\tis  a  hereditary  trustee  but\t a  Board  must\t  be
\nconstituted in every other case.  In making the\t appointment
\nof  trustees it has been enjoined that due regard should  be
\ngiven to the religious denomination or other section thereof
\nto  which the institution belongs or the endowment  is\tmade
\nand  wishes of the founder.  AR properties belonging to\t the
\ninstitution  or\t endowment shall stand transferred  to\tsuch
\nBoard of trustees or trustee, as the case may be  Section 16
\ngives  the  disqualifications for  trusteeship.\t Section  17
\ndeals  with  the appointment of a Chairman of the  Board  of
\ntrustees.   It\thas been provided, inter  alia,\t that  where
\nthere  is  only\t one  hereditary trustee  he  shall  be\t the
\nChairman.  Where there are more than one the Government etc.
\nmay  nominate  by rotation one of them to be  the  Chairman.
\nSection 22 gives the duties of the trustee.  He is bound  to
\nproduce books, accounts, returns………. relating to die
\nadministration\t of   the  institution\tor   endowment\t for
\ninspection  by\tthe  Commissioner  and\tother  functionaries
\nwhenever  required  to do so.  Section 27 provides  for\t the
\nappointment  of the Executive Officer by the Government\t and
\nthe Commissioner respectively.\tIt also lays down the duties
\nof the Executive Officer.  It is declared that the Executive
\nOfficer\t shall be the employee of the Government  who  shall
\ndetermine  the conditions of his service.  Section  31\tlays
\ndown  how  the\tvacancies  amongst  the\t office-holders\t  or
\nservants of charitable or religious institution or endowment
\nhave to be filled up by the trustees.  Section 32 deals with
\nthe punishment of office-holders and servants.\tThe  general
\ncontrol\t vests\tin  the trustee who  can  take\tdisciplinary
\naction\tin accordance with the prescribed procedure for\t the
\nvarious\t matters  mentioned  in sub-s. (1). In\tcase  of  an
\ninstitution  or\t endowment whose annual income\texceeds\t two
\nlakhs the power to impose any penalty has been conferred  on
\nthe  Executive\tOfficer.   Section 35  gives  power  to\t the
\nExecutive  Officer not to implement orders or resolution  of
\nthe trustee or Board of Trustees in certain cases.   Section
\n36 gives overriding effect to the provisions of Chapter\t III
\nover  the  existing corresponding  provisions.\t Chapter  IV
\ndeals\twith  registration  of\tcharitable   and   religious
\ninstitutions  and  endowments;\tChapter\t V  with  muths\t and
\nendowments  attached  thereto;\tChapter\t VII  with   budget,
\naccounts,  and audit; Chapter VIII with finance;  Chapter  X
\nwith  alienation  of immoveable property and  resumption  of
\nInam lands; Chapter XII with inquiries and Chapter XIII with
\nappeals, revisions and
\n884<\/span>
\nreview etc.  Section 95 empowers the Government to  dissolve
\nthe Board of Trustees in certain cases and S. 97 enables  it
\nto ;appoint a specific authority where the Board (A trustees
\nhas  ceased to function or has been dissolved.\tSection\t 102
\nis in the following terms :\n<\/p>\n
\t      “Nothing in this Act shall-\n<\/p><\/blockquote>\n
\t      (a)save as otherwise expressly provided  in
\n\t      this Act or the rules made thereunder,  affect
\n\t      any honour, emoluments or perquisite to  which
\n\t      any person is entitled by custom or  otherwise
\n\t      in any charitable or religious institution  or
\n\t      endowment, or its established usage in  regard
\n\t      to any other matter, or\n<\/p><\/blockquote>\n
\t      (b)authorise  any\t interference  with   the
\n\t      religious\t or spiritual functions of the\thead
\n\t      of  a  math including those  relating  to\t the
\n\t      imparting\t of  religious\tinstruction  or\t the
\n\t      rendering of spiritual service.”\n<\/p><\/blockquote>\n
Under  s. 110, ss. 92 and 93 of the Code of Civil  Procedure
\n1908 can no longer be applicable to charitable\tinstitutions
\nand Hindu religious institutions and endowments to which the
\nAct applies.\n<\/p>\n
 The main stress, on behalf of the appellants, has been laid
\non the effect of the provisions of the Act and in particular
\ns.  15 read with the other sections mentioned before on\t the
\noffice\tof  the hereditary trustee.  It has  been  contended
\nthat  a hereditary trustee has to manage the institution  or
\nthe  endowment\tin  accordance with the\t directions  of\t the
\nfounder.  It was his duty and responsibility,to appoint\t the
\nstaff and take disciplinary action whenever necessary and to
\nregulate the expenditure and carry out generally the objects
\nof   the  charitable  institution  or  endowment.   By\t the
\nappointment  of a Board of trustees the\t hereditary  trustee
\ncan   no  longer  manage  and  exercise\t control  over\t the
\ninstitution  alone or in association with  other  hereditary
\ntrustees.  He has to share the management and responsibility
\nwith  other members of the Board who may be drawn  from\t the
\nsection\t or faction which may be politically  motivated\t and
\nmay be hostile to him.\tThe appointment of the Board, it  is
\npointed out, rests with the Government, the Commissioner  or
\nthe  Deputy  Commissioner, as the case may be  and  although
\nhereditary  trustee or trustees have to be included  in\t the
\nBoard,\tthe  entire administrative power is  vested  in\t the
\nExecutive  Officer.  This Officer is a permanent  Government
\nservant\t and the Board or the trustee cannot  either  remove
\nhim or take any disciplinary action against him which  means
\nthat the Board or the trustee cannot exercise any  effective
\ncontrol\t over  him.  The Executive Officer  can\t in  certain
\neventualities even refuse to implement orders of the  Board.
\nThe hereditary trustee has
\n 885<\/span>
\nthus been left only with what may be called the “husk of the
\ntitle”\tand  his right to hold property has  been  seriously
\ninterfered with.\n<\/p>\n
The  first and the main question is whether the office of  a
\nhereditary trustee is “property” within the, meaning of Art.
\n19  (1)\t (f).\tFor the reasons,  which\t will  be  presently
\nstated, we are unable to agree with the High Court that\t the
\noffice\tof  hereditary\ttrustee is  “property”\twithin\tthat
\nArticle.\n<\/p>\n
The  view that the office of hereditary trustee\t was  itself
\n“property”  within  Art. 19 (1) (f ) even if  no  emoluments
\nwere attached to it found favour with many High Courts.\t  We
\nneed refer only to the leading judgment of a Division  Bench
\nof  the Madras High Court in Kidangazhi\t Manakkal  Narayanan
\nNambudripad  & Others v. The State of Madras & Anr. (1)\t The
\nline  of reasoning which prevailed, was that the  office  of
\nhereditary  trusteeship descended like partible property  on
\nthe heirs of a trustee and even females were entitled to the
\noffice\tif they happened to succeed as heirs.  The  rule  in
\nthe Tagore(2) case has been applied to the devolution of the
\noffice\tof hereditary trustee as if it was  property;  [vide
\nGanesh\tChunder Dhur v. Lal Behary Dhur(3) and Bhaba  Tarini
\nDebi  v.  Asha Lata Debi (4 )-both decisions  of  the  Privy
\nCouncil].  Support was also sought from the observations, in
\nAngurbala  Mullick v. Debabrata Mullick<\/a>(5) relating  to\t the
\noffice of a shebait which was held to be property.   Another
\nreason\tgiven was that “property” in Art. 19(1) (f)  was  of
\nwide  import  and  was of sufficient amplitude\tto  take  in
\nhereditary trusteeship.\n<\/p>\n
The High Court in the judgment under appeal delved into\t the
\nhistory\t and the background in which hereditary\t office\t had
\nbeen  equated  to  property in\tHindu  Law.   Starting\tfrom
\nKrishnabhat  Hiragagne v. Kapabhat Mahalabhat et al(6)\tmost
\nof  the later decisions of the Privy Council and  the,\tHigh
\nCourts were discussed.\tWe need refer only to  Gnanasembanda
\nPandara\t Sannadhi  v.  Velu  Pandaram  (7)  in\twhich  their
\nLordships  pointed out that the rule in Tagore case(2)\tthat
\nall  estates of inheritance created by gift or will so,\t far
\nas   they  were\t inconsistent  with  the  general   law\t  of
\ninheritance  were  void\t was applicable\t “to  an  hereditary
\noffice\tand  endowment\tas  well  as  the  other   immovable
\nproperty”.\n<\/p>\n
In  cases in which the office of hereditary trusteeship\t has
\nbeen  held to be property within the meaning of\t Art.  19(1)\n<\/p>\n
(f)  the true character and incidents of that office do\t not
\nappear to have been
\n(1) I.L.R. [1955] Mad. 356.(2) [1872] 93.L.R. 377.
\n(3) [1936] 71 M.L.J. 740.     (4) I.L.R.[1943] 2Cal.137.
\n(5) [1951] S.C.R. 1125.\t (6) (1869) 6 Bom. H.C.R. 137.
\n(7)  27 I.A. 69.\n<\/p>\n
886<\/span><\/p>\n
fully  kept in view.  It was common ground before  the\tHigh
\nCourt  and  has\t not  been  disputed  before  us  that\t the
\nhereditary  trustees of the institutions with which  we\t are
\nconcerned  have\t only  claimed a bare right  to\t manage\t and
\nadminister  the\t secular estate of the\tinstitution  or\t the
\nendowment and in no case any hereditary trustee has  claimed
\nproprietary or beneficiary interest either in the corpus  or
\nin the usufruct of the estate.\tThe position of a hereditary
\ntrustee does not appear to be in any way different from that
\nof  a  Dharamkartha  or a mere manager or  custodian  of  an
\ninstitution or endowment.  There is one exception only.\t The
\nhereditary trustee succeeds to the office as of right and in
\naccordance with the rules governing succession.\t But in\t all
\nother  respects his duties and obligations are the  same  as
\nthat  of  Dharamkartha.\t No one has ever  suggested  that  a
\nhereditary  trustee  can  be  equated  to  a  Shebait  of  a
\nreligious institution or a Mathadhipati or the Mahant.\t The
\ningredients  of\t both  office and property,  of\t duties\t and
\npersonal  interest are blended together in the rights  of  a
\nMahant\tas also a Shebait and a Mathadhipati.  The  position
\nof  Dharamakartha,  on\tthe other hand, is  not\t that  of  a
\nShebait of a religious institution or of the head of a math.
\nThese  functionaries  have a much higher right\twith  larger
\npower  of  disposal  and  administration  and  they  have  a
\npersonal  interest of beneficial character;  [See  Srinivasa
\nChariar\t v. Evalappa Mudaliar(1)].  There would thus  be  no
\njustification  for  holding- that since the  office  of\t the
\naforesaid  functionaries has been consistently held by\tthis
\nCourt  to be property the office of a hereditary trustee  is
\nalso property within Art. 19 (1) (f).\n<\/p>\n
In Tilkayat Shri Govindlalji Maharai v. The State of  Rajas-
\nthan  &\t Others (2) the distinction between  the  office  of
\nmahant\tand  that of the Tilkayat of  Nathdwara\t temple\t was
\nclearly\t enunciated.  It was pointed out that the mahant  or
\nShebiat was entitled to be maintained out of the property of
\nthe math or the temple.\t The Tilkayat never used any  income
\nfrom  the property of the temple for his personal  needs  or
\nprivate\t purposes nor did he claim any proprietary  interest
\ntherein.  What he claimed was merely the right to manage the
\nproperty, to create leases in respect of it in a  reasonable
\nmanner and the right to alienate it for the purposes of\t the
\ntemple.\t  These\t rights\t were exercised\t by  him  under\t the
\nabsolute-and  direct supervision of the Durbar\tof  Udaipur.
\nIt  was\t laid down by this Court that the  aforesaid  rights
\ncould\tnot  be\t equated with the  totality  of\t the  powers
\ngenerally  possessed by the mahant or the Shebait.   In\t our
\njudgment the hereditary trustee cannot in any way claim\t any
\nhigher rights of managing the properties of the\t institution
\nor the endowment than the Tilkayat.\n<\/p>\n
(1) 49 I.A. 237 251.\n<\/p>\n
(2) [1964] 1 S.C.R. 561.\n<\/p>\n
 887<\/span><\/p>\n
His  rights  fall far short of those of the Mahant  and\t the
\nShebait.   It  may be that in the case of the  Tilkayat\t his
\nrights\twere  governed by the fireman issued by\t the  Durbar
\nwhich  had  the force of law but the ratio of  the  decision
\nessentially is that a bare right to manage an institution or
\nan endowment cannot be treated as property within Art. 19(1)
\nand Art. 31.  In Raja Birakishore v. The State of  Orissa<\/a>(1)
\nthe constitutionality of Shri Jagannath Temple Act 1954 (Act
\n2  of 1955) was challenged. The attack was based  mainly  on
\nthe ground that the Act took away the perquisites of Raja of
\nPuri which had been found to belong to him in the record  of
\nrights. The Raja had two fold connection with the temple. In
\nthe first place he was the Adyasevak i.e. the chief  servant
\nof the temple and in that capacity he had certain rights and
\nprivileges.  He\t was  also the sole  superintendent  of\t the
\ntemple\tand  was incharge of the management of\tthe  secular
\naffairs of the temple. After reviewing the provisions of Act
\n2  of  1955  this Court observed that it  provided  for\t the
\nmanagement of the secular affairs of the temple and did\t not
\ninterfere  with\t the religious affairs thereof.\t The  rights
\nwhich\tthe  Raja  possessed  had  been\t exercised  by\t the
\npredecessor  also but because he had been deprived  only  of
\nthe right of management which carried no beneficial interest
\nin the property the attack based on the provisions of  Arts.
\n19  (1) (f ) and 31 (2) could not be sustained. One  of\t the
\nfeatures common to that case and the present one is that the
\nmanagement had been transferred from the sole control of the
\nRaja  to the control of a committee. This was regarded as  a
\npurely\tsecular\t function which did not carry  with  it\t any
\nright to property and could not be hit by Art. 19 (1) (f).
\nIt  is\ttrue that in the latest decision of  this  Court  in
\nSambudamurthi Mudaliar v. State of Madras & Anr.<\/a>(2)   it was
\ntaken to be well established that the office of a hereditary
\ntrustee\t is  in\t the nature of “property”  and\tthis  is  so
\nwhether the trustee has beneficial interest of some sort  or
\nnot. This observation, we apprehend, was not necessary for a
\ndecision  of that case. There the question was\twhether\t the
\nappellant was a hereditary trustee within the meaning of  s.
\n6(9)  of the Madras Act 1951 and there was no discussion  or
\ndetermination  of the point that the office of a  hereditary
\ntrustee\t was property within Art. 19 (1) (f ) or  any  other
\nArticle. Nor do we consider that the various  pronouncements
\nof  the\t Privy Council that the rule in the  Tagore(3)\tcase
\napplies to succession of hereditary trustees can afford much
\nassistance  in deciding whether an office holder who  has  a
\nbare  right  of management can claim to have  any  right  or
\ninterest-in  the  nature of property within the\t meaning  of
\nArt.  19(1)(f).\t Following the principles laid down  in\t the
\nTilkavat   (4)\tAnd Raja Bira-\n<\/p>\n
(1)  [1964] 7 S.C.R. 32.\n<\/p>\n
(2)  [1970] 2 S.C.R. 424.\n<\/p>\n
(3)  [1872] 9 B.L.R. 377.\n<\/p>\n
(4) [1964] 1 S.C.R. 561.\n<\/p>\n
\t\t\t    888<\/span><\/p>\n
kishore\t cases we are unable. to endorse the view  that\t the
\noffice’\t of hereditary trusteeship is property\twithin\tArt.
\n19(1) (f) or, any other Article of the Constitution.
\nWe  may\t add  that even if it was held that  the  rights  in
\nquestion  constituted  “property” their\t regulation  by\t the
\nrelevant   provisions  of  the\tAct  would  undoubtedly\t  be
\nprotected  by  Art.  19\t (5).\tWe  have  no  hesitation  in
\nconcurring  with  the  decision\t of  the  High\tCourt\tthat
\nrestrictions  which have been imposed by the provisions of
\nthe Act on the hereditary trustees are reasonable and are in
\nthe  interest of the general public.  The power\t to  appoint
\nnon-hereditary trustees or Executive Officers where there is
\nalready\t a  hereditary trustee or  trustees  notwithstanding
\nthere  is  no  mismanagement, is only  for  the\t purpose  of
\nensuring better and efficient administration and  management
\nof  the institution or endowment.   Non-hereditary  trustees
\nhave been associated with the hereditary trustee who has not
\nbeen removed from his office.  As a matter of fact  complete
\nsafeguards  have been provided for ensuring that he  retains
\nhis office.  He or one of the hereditary trustees has to  be
\nthe Chairman of the Board.  He has various powers under\t the
\nprovisions of the Act already noticed.\tAll that can be said
\nis that instead of managing the institution alone he has  to
\nadminister  it in collaboration with other trustees who\t are
\nnon-hereditary.\t  In  matters  of religion  such  as’  puja,
\ndittam,\t rituals etc. there can be no interference.  It\t has
\nbeen  provided in categorical terms that the same,  must  be
\ncontinued to be performed according to Agamasastras or usage
\nor  custom  prevalent in the institution.  It  is  only\t the
\nsecular\t aspect\t that has been touched and there can  be  no
\nmanner of doubt that the same has been done in the  interest
\nof   better  and  efficient  administration.   It  must\t  be
\nremembered  that  the  legislation relating  to\t public\t and
\ncharitable  institutions or endowments has taken place as  a
\nresult of careful deliberation by high powered bodies.
\nIn  the report of the Hindu Religious  Endowment  Commission
\npresided  over\tby  Dr.\t C.  P.\t Ramaswami  lyer  which\t was
\nappointed  in  March  1960  it has  been  pointed  out\tthat
\nlegislation  relating to endowments became necessary in\t the
\nStates as a result of the almost invariable mismanagement of
\nthe  endowment\tproperties  of\ttemples\t by  the   trustees,
\nmisappropriation of the funds of the endowment for, purposes
\nunconnected  with  the\toriginal aims and  objects  of\tsuch
\nendowments,  utilisation  of funds of the endowment  by\t the
\ntrustees  or managers for their personal purposes etc.\t All
\nthis fully supports the decision of the High Court that\t the
\nrestrictions  which  have  been\t placed\t on  the  hereditary
\ntrustees  as  also on others in whom the management  of\t the
\ninstitution  in H question vests are reasonable and  in\t the
\npublic interest.  Thus
\n(1)  [1994] 7 S.C.R.32.\n<\/p>\n
 889<\/span><\/p>\n
the  appellants cannot succeed on the principal point  which
\nhas been argued before us.\n<\/p>\n
A  faint attempt was made to sustain the attack under  Arts.
\n14  and\t 26(d) of the Constitution but\tfinally\t hardly\t any
\narguments were addressed worth noticing on these points.  It
\nis unnecessary to deal with individual appeals some of which
\nwere  filed  by\t societies registered  under  the  Societies
\nRegistration  Act i.e. Civil Appeal No. 1249 of 1970.\tC.A.
\nNo.  1271 of 1970 by the Municipal  Council,  Visakhapatnam,
\nrelated\t to  the Turners Choultry which,  according  to\t the
\nMunicipal Council, was its private property.  So far as\t the
\nvalidity  of the impugned provisions is concerned  the\tsame
\nmust be sustained in these cases on the same reasoning\tas
\nin  the case relating to the hereditary trustee.   The\tHigh
\nCourt has rightly left open the question whether the Tumer’s
\nchoultry  is a private or a public  charitable\tinstitution.
\nThis the Municipal Council is entitled to agitate before the
\nDeputy Commissioner under s. 77 of the Act.  Before the High
\nCourt  some of the writ petitioners had claimed\t that  their
\ninstitutions were religious denominations within Art. 26 and
\nwere therefore entitled to the protection guaranteed by that
\nArticle.   The High Court has, quite rightly, observed\tthat
\nthese matters should be agitated in a proper forum and\tthey
\nhave  been  left  open\tfor determination  if  add  when  so
\ndesired.   This\t indisputably  was  the\t correct  course  to
\nfollow.\n<\/p>\n
The  appeals fail and are dismissed with costs.\t One set  of
\nhearing fee.\n<\/p>\n
V.P.S.\t\t       Appeals dismissed.\n890<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kakinada Annadana Samajam Etc vs Commissioner Of Hindu Religious & … on 2 December, 1970 Equivalent citations: 1971 AIR 891, 1971 SCR (2) 878 Author: A Grover Bench: Shah, J.C., Mitter, G.K., Hegde, K.S., Grover, A.N., Ray, A.N. PETITIONER: KAKINADA ANNADANA SAMAJAM ETC. Vs. RESPONDENT: COMMISSIONER OF HINDU RELIGIOUS & CHARITABLEENDOWMENTS, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-230280","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKakinada Annadana Samajam Etc vs Commissioner Of Hindu Religious & ... on 2 December, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kakinada-annadana-samajam-etc-vs-commissioner-of-hindu-religious-on-2-december-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kakinada Annadana Samajam Etc vs Commissioner Of Hindu Religious & ... on 2 December, 1970 - 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