{"id":51823,"date":"1978-04-27T00:00:00","date_gmt":"1978-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nagu-reddiar-and-ors-etc-vs-babu-reddiar-and-ors-etc-and-vice-on-27-april-1978"},"modified":"2019-01-09T04:56:30","modified_gmt":"2019-01-08T23:26:30","slug":"nagu-reddiar-and-ors-etc-vs-babu-reddiar-and-ors-etc-and-vice-on-27-april-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nagu-reddiar-and-ors-etc-vs-babu-reddiar-and-ors-etc-and-vice-on-27-april-1978","title":{"rendered":"Nagu Reddiar And Ors. Etc vs Babu Reddiar And Ors. Etc.And Vice … on 27 April, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nagu Reddiar And Ors. Etc vs Babu Reddiar And Ors. Etc.And Vice … on 27 April, 1978<\/div>\n
Equivalent citations: 1978 AIR 1174, \t\t 1978 SCR (3) 770<\/div>\n
Author: P Kailasam<\/div>\n
Bench: Kailasam, P.S.<\/div>\n
           PETITIONER:\nNAGU REDDIAR AND ORS.  ETC.\n\n\tVs.\n\nRESPONDENT:\nBABU REDDIAR AND ORS.  ETC.AND VICE VERSA\n\nDATE OF JUDGMENT27\/04\/1978\n\nBENCH:\nKAILASAM, P.S.\nBENCH:\nKAILASAM, P.S.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n 1978 AIR 1174\t\t  1978 SCR  (3) 770\n 1978 SCC  (2) 591\n\n\nACT:\nSettlement  of\ttrust on tombs under the Hindu\tLaw  whether\nvalid  in  law-Meaning\tof \"Poruthataravu\"-Onus\t is  on\t the\nperson who claims regular worship of the samadhi a religious\npractice in the community, to prove.\n\n\n\nHEADNOTE:\nBy  a deed Ex.\tA I dated 10th September 1885, five  members\nof the family of one Nagi Reddi dedicated certain properties\nbelonging  to their family described in Schedule A and B  to\nthe plaint to two charities one called Annadhana-Chatram and\nthe other called Sachindananda Matam situated in the village\nVairichettipalayam, After the death of Ramalingachi  Reddiar\nhis.  adopted  son Nagu Reddiar appellant  in  C.A.  2456\/68\nassumed\t management of the trust properties,  in  accordance\nwith  the succession indicated in Ex.  A2, in 1942.  A\tsuit\nO.S. 152155 under Section 92 of the Civil Procedure Code was\nfiled  by the plaintiffs respondents herein in the Court  of\nSub-Judge  Trichirapalli. for removing the appellant  No.  I\nfrom the trusteeship of the suit charities and for framing a\nscheme\tfor the said charities.\t The Trial Court found\tthat\nthe  two  charities  in\t question  were\t public\t Trusts\t and\ncomprised all the alienated properties except item 7 of\t the\nPlaint\t'A'  Schedule  of the  trust  properties;  that\t 'B'\nSchedule properties were bequeathed for performance of\tPuja\nin Samadhi and for feeding the 'agathis' and `paradesis'  in\nthe  Matam and that the samadhi could not be separated\tfrom\nthe  Matam and therefore the dedication of the 'B'  Schedule\nproperties in forum of the matam and samadhikoil is  invalid\nin  'law.   The Court ordered the removal of  the  defendant\nfrom  the  office  of the trusteeship and  directed  him  to\nrender\taccounts  and ordered the framing of  a\t scheme\t for\nplaint 'A' Schedule properties except item 7 which was found\nto be not a trust property.\nAggrieved by the said decision both the plaintiff respondent\nand defendant appellant preferred appeals to the High Court.\nA.S.  114\/68 is an appeal preferred by the  first  defendant\nappellant against the decree removing him from, trusteeship,\ndirecting the framing of a scheme and declaring\t alienations\nmade by him to be not binding on the Trust.  A.S. 194\/58  is\nan  appeal preferred by the plaintiff against that  part  of\nthe decree of the judgment dismissing the suit in respect to\nSachidananda Matam and 'B' Schedule properties and declaring\nitem 7 of the plaint 'A' Schedule as property not  belonging\nto the Chatnam Trust.  Both the appeals were disposed of  by\nthe  High Court by a common judgment dismissing A.S.  114\/58\nof  the defendant appellant subject to the  modification  of\nthe  decree  of the lower Court that he would be  liable  to\nrender accounts in respect of the trust properties only\t for\nfive  years  prior to the date of the suit and\tallowing  in\npart  A.S. 194\/58 of the plaintiff respondent  holding\tthat\nitem  7 of the plaint 'A' Schedule properties was also\tpart\nof the Trust properties.  It also found that alienations  7,\n8  and\t15  of 'B' Schedule properties\twere  not  valid  or\nbinding\t on  the Trust.\t Differing from the Trial  Court  it\nheld   that   the  Matam  and  the  Samadhikoil\t  were\t not\ninextricably   mixed   up  and\tthat   the   endowment\t for\nSachidananda  Matam was a valid endowment.  The\t High  Court\nallocated  half the properties mentioned in 'B' Schedule  to\nthe Sachidananda Matam and feeding charity and directed\t the\nother  half of the 'B' Schedule properties should go to\t the\ndefendant  No.\tI  because it related to  the  Puja  in\t the\nSamadhi, the endowment for which purpose not being valid.\nAllowing the appeals by certificate, in part the Court\nHELD  :\t 1.  The  samadhi was a tomb  of  ancestors  of\t the\nsettlors  of the Trust and as such the settlement in  favour\nof the tomb is not valid in law. [776 D]\n771\n2.   The word \"Poruthatharavu\" in the words \"Dharumathirkaga\nEzhuthivaitha Poruthatharavu\" does not mean a 'charge'.\t The\nwords mean a document evidencing the transaction  'Atharavu'\nmeans  'support'  and 'Poruthatharavu means  a\tdocument  in\nsupport.   The\tdocument  also explicitly  states  that\t the\nproperties  are\t given\tabsolutely  for\t the  charities.   A\nreading of the documents makes it clear that the  properties\nwere  absolutely endowed in favour of the charities and\t the\nsettlors  specifically relinquished all their rights in\t the\nendowed properties. [776 F, G. H]\n3.   The  recital makes it clear that the endowment  was  in\nfavour\tof  not only Sachidananda Swami Matam but  also\t the\nSamadhikoil, but the properties as described in the schedule\nwere  intended\tto be vested in the Matam with\ta  direction\nthat  income from specified properties were to be spent\t for\nthe purpose mentioned in the schedule itself.  The intention\nwas  that  while  all the properties were  endowed  for\t the\npurpose\t of  charities mentioned, the vesting was to  be  as\ndirected in the schedule with the obligation that the income\nfrom  the  properties as mentioned should  be  utilised\t for\nupkeep of the Nandavaram attached to the Annadanam  Choultry\nand  for  the purpose of Puja in the samadhi also  from\t the\nincome\t of  the  properties  that  were  allotted  to\t the\nSachindananda Matam. [777B, D-E]\nThe properties described in the schedule referred to as\t the\nproperties  allotted to Sachidananda Swami Matam  vested  in\nthe  Matam with a charge that part of the income  should  be\nspent on the Puja to be performed in the samadhi [777 E].\nIn this view (i) the conclusion arrived at by the High Court\nthat  properties were endowed for the Matam and the  samadhi\nand  that  as the purposes of charities\t were  distinct\t and\nseparate, they could be separated cannot be accepted.  (ii).\nThe  allotment of half the 'B' Schedule proper-ties for\t the\ncharities concerned with the Matam is not correct and  (iii)\nThe direction that the other half of 'B' Schedule properties\nshould\tgo to the first defendant (appellant No. I  in\tC.A.\n2456\/68)  cannot be sustained in law for on the findings  of\nthe  High Court the properties would have to revert back  to\nthe settlors and their descendants. [777 F-G]\n4.   For  the  settlement to be valid and for the  trust  to\nclaim exemption from the rule against perpetuity, it must be\nfor  a\treligious  and charitable purpose  The\tEnglish\t law\nrelating  to  settlement on tombs does not  apply  to  Hindu\nreligious  endowments.\tWhat are purely\t religious  purposes\nand  what  religious  purpose will  be\tcharitable  must  be\nentirely decided according to Hindu law,\" and Hindu notions.\n[777G-H, 778A, C]\n5.   The  determination of what conduces to religious  merit\nin  Hindu law is primarily a matter of\tshastric  injunction\nand  therefore\tany purpose claimed to be a  valid  one\t for\nperpetual dedication on the ground of religious merit though\nlacking\t in public benefit must be shown to have a  shastric\nbasis  as  far\tas Hindu  are  concerned.   Other  religious\npractices  and\tbeliefs\t have also  grown  up  and  obtained\nrecognition  from certain classes as  constituting  purposes\nconducive to religious merit.  But if such beliefs are to be\naccepted  by Courts as being sufficient for valid  perpetual\ndedication  of\tproperty therefore without  the\t element  of\nactual\tor  personal public benefit, it must be\t shown\tthat\nthey  have  obtained  wide recognition\tand  constitute\t the\nreligious  practice  of\t a substantial and  large  Class  of\npersons. [778C-E]\nThe  building of a samadhi or a tomb over the remains  of  a\nperson\tand  the  making of provision  for  the\t purpose  of\n'Gurupooja' and other ceremonies in connection with the same\ncannot\tbe  regarded  as  charitable  or  religious  purpose\naccording to Hindu law. [778 E-F]\nSaraswathi  Ammal  and Anr. v. Rajagapal Ammal,<\/a>\t [1954]\t SCR\n277; Kunha mutty v. Thondikodan Ahmed Mudaliar and two Ors.,\nI.L.R. 58 Mad. 204 A. Drainasundaram Pillai v. N. Subramania\nPillai, I.L.R. 1945 Mad. 854 Veluswami Gounder v. Dandapani,\n[1946] 1 M.L.J. 304 referred to.\n772\n6.   The rule that a provision for the purpose of puja\tover\nthe tomb of the remains of a person is invalid is subject to\ncertain\t exceptions.   Cases  of Hindu\tsaints\thaving\tbeen\nentombed deified and worshipped stand on a different footing\nfrom  the  case\t of an ordinary private\t individual  who  is\nentombed and worshipped therein.  Samadhi over one who comes\nto be regarded as of the illuminate and the tombs of  heroes\nmay  evolve  in course of time as a shrine of  Hindu  public\nreligious worship [778 G, 779 A]\nSaraswathi  Ammal  and Anr. v. Rajagopal Ammal,<\/a>\t [1954]\t SCR\n277, Sri Ramanasramam by its Secretary G. Sambasiva Rao\t and\nOrs. v. The Commissioner for Hindu Religious and  Charitable\nEndowments, [1960] 2 M.L.J. 121; Board of Commissioners\t for\nHindu  Religious Endowments, Madras v. Pidugu Narsinham\t and\nOrs.,\t[1939]\t 1  M.L.J.  134,   Ratnavelu   Mudaliar\t  v.\nCommissioner  of H.R. & C.E. [1953] 2 M.L.J. 574;  Ramaswami\nv.  The Board of Commissioners, Madras, [1958] 2 M.L.J.\t 511\nreferred to.\nThe  raising of a tomb over the remains of an  ancestor,  an\nordinary  person is not recognised as religious\t in  nature.\nThe  burden is on the person setting up a case of  religious\npractice in the community to prove it.\tThis prohibition may\nnot apply when an ancestor is cremated and a memorial raised\nfor   performing   sharaddha   ceremonies   and\t  conducting\nperiodical  worship  for this practice may  not\t offend\t the\nHindu\tsentiment  which  does\tnot   ordinarily   recognise\nentombing the remains of the dead.  A place of worship\twill\nnot cease to be religious because of its being in the memory\nof a person.  In the instant case, it was never pleaded that\nany  religious\tpractice existed amongst  the  community  of\nbuilding  samadhis  over the remains of\t the  ancestors\t and\nperforming pujas.\n\t\t\t [779 E, F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  2456-2457
\nof 1968.\n<\/p>\n
Appeals by Special Leave from the Judgment and Decree  dated
\n2-2-1962  of the Madras High Court in A. S. Appeal Nos.\t 114
\nand 198 of 1958.\n<\/p>\n
P.   R.\t Mridul, K. Jayaram, K. Ram Kumar for the  Appellant
\nin C.A. 2456\/68 and Respondent in C.A. 2457\/68.
\nT.   S.\t Krishna Murthy Iyer and Miss Lilly Thomas  for\t the
\nAppellant in C.A. 2457\/68 and Respondents C.A. 2456\/68.
\nThe Judgment of the Court was delivered by
\nKAILASAM,  J.-These two appeals are by certificates  granted
\nby  the\t High Court of Madras against a common\tjudgment  in
\nA.S. No. 114 and A.S. No. 194 of 1958.\n<\/p>\n
These appeals arise out of a suit filed by the plaintiffs in
\nthe  Court of the Subordinate Judge, Tiruchirapalli in\tO.S.
\nNo.  152  of  1955 under section 92 of\tthe  Code  of  Civil
\nProcedure   for\t removing  one\tNagu  Reddiar,\t the   first
\ndefendant,  from the trusteeship of the suit  charities\t and
\nfor  framing  a scheme for the said  charities.\t  The  trial
\ncourt  found that the two charities in question were  public
\ntrusts\tand  comprised all the alienated  properties  except
\nitem  7 of plaint-A Schedule of the trust  properties.\t The
\nTrial Court found that B-Schedule properties were bequeathed
\nfor  performance of Puja in the Samadhi and for feeding\t the
\nAgathies  and Paradesies in the Matam and that\tthe  Samadhi
\ncould  not  be separated from the Matam\t and  therefore\t the
\ndedication  of\tthe B Schedule properties in favour  of\t the
\nMatam and Samadhikoil is invalid in law.  The Court  ordered
\nthe removal of the defendant from the
\n773<\/span>
\noffice\tof  the\t trusteeship  and  directed  him  to  render
\naccounts  and ordered the framing of a scheme for  Plaint  A
\nSchedule properties except item 7 which was found to be\t not
\na  trust  property.   Aggrieved by  the\t judgment  both\t the
\nplaintiffs and the defendants preferred appeals to the\tHigh
\nCourt of Madras, the appeal by the defendants being A.S. No.
\n114 of 1958 and by the plaintiffs A.S. No. 194 of 1958.\t The
\nHigh Court disposed of both the appeals by a common judgment
\ndismissing  A.S. No. 114 subject to the modification of\t the
\ndecree of the lower court that the first defendant would  be
\nliable to render accounts in respect of the trust properties
\nonly  for five years prior to the date of the suit  and\t not
\nfor  the entire period of his management as ordered  by\t the
\nsub-Judge.   The High Court allowed the appeal in  A.S.\t No.
\n194  of\t 1958 in part holding that item 7 of  the  plaint  A
\nSchedule  properties was also part of the trust\t properties.
\nIt  also found that alienations of items 4., 7, 8 and 15  of
\nB-Schedule  properties\twere not valid or  binding  on-\t the
\ntrust,\tDiffering  from the trial court, it held  that\tthe,
\nMatam and the Samadhikoil were not inextricably mixed up and
\nthat  the  endowment  for Sachidhananda Matam  was  a  valid
\nendowment.   The  High Court allocated half  the  properties
\nmentioned  in the B Schedule to the Sachidananda  Matam\t and
\nfeeding\t charity and directed that the other half of  the  B
\nSchedule properties should go to the first defendant because
\nit  related  to the Puja in the Samadhi, the  endowment\t for
\nwhich purpose not being valid.\tAggrieved by the judgment of
\nthe High Court the parties have preferred appeals  against
\nthe  common judgment in A.S. Nos. 114 and 194 of 1958.\t For
\nthe  purpose of ,convenient reference, we will refer to\t the
\nparties as plaintiffs and defendants according to their rank
\nin the trial court.\n<\/p>\n
The  facts of the case are briefly as follows.\tBy. a  deed,
\nEx.   A-1, dated 10th September, 1885, five members  of\t the
\nfamily\tof  one\t Nagi  Reddi  dedicated\t certain  properties
\nbelonging to their family described in Schedules A and B  to
\nthe  plaint  to\t two  charities\t one  called  the  Annadhana
\n‘Chatram and the other called Sachidananda Matam situated in
\nthe   village  of  Vairichettipalayam.\t Besides   the\t two
\ncharities  properties  were endowed for the  upkeep  of\t one
\nKarpaka\t Vinayakar temple constructed in the village by\t the
\nancestors  of  the  founders and for  certain  Kattalais  in
\nSabhanayagar  temple in Chidambaram, Subramanyaswami  temple
\nin Palani and Arunachaleswaraswami temple in Tiruvannamalai.
\nOn  the\t same  day the founders of the\ttrust  under  Ex-A-2
\nnominated  one of them, Ramalingachi Reddiar, as  a  trustee
\nfor  the charities for life.  After his life-time  his\tson,
\ngrandson and their descendants were to succeed Under Ex.  A-
\n1 separate sets of properties were dedicated for each of the
\ncharities  particulars of which will be referred to  in\t due
\ncourse.\t  Ramalingachi\tReddiar was managing  the  charities
\ntill be died in 1942.  He had no natural issue and therefore
\nadopted\t the first defendant in 1918 as his son.  The  first
\ndefendant  assumed  management of the  trust  properties  in
\naccordance with the line of succession indicated in Ex.\t  A-\n<\/p>\n
2.   In\t the  plaint it was alleged that  after,  the  first
\ndefendant took charge of the properties in 1942, be had\t not
\ncarried out the directions of the trust, alienated the trust
\nproperties by sale and exchange and had not maintained any
\n774<\/span>
\naccounts.   On\tthe ground of misfeasance,  malfeasance\t and
\nmisappropriation  of trust properties the plaintiffs  prayed
\nfor  the removal of the first defendant from the  office  of
\nthe trusteeship and asked for accounts and for framing of  a
\nscheme.\t  The  main  contesting\t defendant  was\t the   first
\ndefendant, the second defendant being the wife of the  first
\ndefendant’s  brother-in-law.  The second defendant  and\t the
\nother\tdefendants  are\t either\t alienees  or\tpersons\t  in
\npossession of the trust properties.\n<\/p>\n
In these two appeals before us the concurrent finding of the
\ncourts\tbelow that the Annadhara Chatram is a  public  trust
\nand  that it is valid is not disputed.\tThe finding  of\t the
\nHigh  Court  that  the\ttrust  properties  were\t  improperly
\nalienated and that they are not valid is also not questioned
\nbefore us.  The findings of the courts below that the  first
\ndefendant was guilty of breach of trust in relation to\tthe;
\nproperties  and\t directing his removal from  the  office  of
\ntrusteeship  for  a period of five years and  the  direction
\ncalling\t upon  him to render accounts for a period  of\tfive
\nyears before the filing of the suit are not challenged.\t  In
\nboth  the appeals before us the only point that\t was  raised
\nwas regarding the B Schedule properties.  The contention  on
\nbehalf\tof the plaintiffs is that the endowment is  a  valid
\none  as it was mainly in favour of the Matam and feeding  of
\nthe  poor who visited the Matam and that the performance  of
\nthe  Puja  in the Samadhi was not connected  with  the\tmain
\nendowment  as the properties vested absolutely in favour  of
\nthe  Matam.   On behalf of the defendants it  was  submitted
\nthat the endowment is not valid in law as its purpose  war.,
\nfor  maintenance of a tomb (Samadhi) of an ancestor  of\t the
\ndefendant which is invalid in law.\n<\/p>\n
The  trial  court held that the Samadhikoil referred  to  in
\nExs.   A-1  and A-2 means the tomb or tombs built  over\t the
\nplace  where the mortal remains of certain ancestors of\t the
\nexecutants of Exs.  A-1 and A-2 were interned and that\tfrom
\nthe   description   that  the\tSamadhikoil   adjoining\t  or
\nappurtenant  to the Matam and the fact that  the  properties
\nwere  bequeathed for performance of Puja at the\t Samadhikoil
\nand feeding the Agathies and Paradesies, the bequest is\t one
\nin  connection with the performance of Puja at the  Samadhi.
\nIt  also found that the Samadhi and the Matam premises\twere
\nadjoining  each other and so closely intertwined  that\tthey
\ncannot\tbe  separated  and therefore. the  bequest  for\t the
\nperformance of Puja at the Samadhikoil or the feeding of the
\npoor in the Matam cannot be separated and therefore  bequest
\nin favour of the Matam and Samadhikoil should be declared as
\ninvalid.  The High Court while agreeing with the  conclusion
\nof  the trial court that the Samadhi is really a tomb of  an
\nancestor  of  the  defendants’\tfamily\tdisagreed  with\t the
\nfinding\t of the trial court that the Matam and\tthe  Samadhi
\nare  intertwined  or  so  inextricably\tmixed  up  that\t the
\nendowment  under Ex.  A-1 of B-Schedule properties  must  be
\nheld  to  be an invalid document as it benefits\t a  Samadhi.
\nThe  High ,Court came to the conclusion that the charity  in
\nfavour\tof  the\t Matam for feeding of the poor\tis  a  valid
\nendowment and was a distinct charitable object and therefore
\nvalid endowment.  While, confirming the endowment in  favour
\nof the Sachidananda Matam, it found the endow-\n<\/p>\n
775<\/span><\/p>\n
ment as regards the Samadhi or the tomb as invalid.   Having
\nregard\tto the nature of the services rendered by the  Matam
\nand the Samadhi the High Court allocated half the properties
\nmentioned  in  the  B Schedule\tto  Sachidananda  Matam\t and
\nfeeding\t charities  but\t directed  the\tother  half  of\t the
\nproperties  in the B Schedule to be delivered to  the  first
\ndefendant.\n<\/p>\n
The  question that falls for determination is the nature  of
\nthe endowment as regards the B Schedule properties and as to
\nbow  far it can be held to be valid: As rightly pointed\t out
\nby  the trial court the determination of this question\twill
\nsolely\tdepend upon the construction of the  two  documents,
\nExs.  A-1 and A-2 particularly Ex.  A-1, the trust deed.
\nThe trust deed was executed on 10th September, 1885 by\tfive
\npersons in respect of the under-mentioned charities :\n<\/p>\n
\t      Karpaka Vinayakar temple constructed by  their
\n\t      ancestors,    Annadana   Choultry\t  and\t the
\n\t      Nandavanam  (flower  garden) attached  to\t it,
\n\t      Sachidananda Matam and the Samathikoil  (tomb)
\n\t      attached\t to   it,  Sabanayagar\t temple\t  in
\n\t      Chidambaram, Subramaniaswami temple in  Palani
\n\t      and     Arunachaleswaraswami     temple\t  in
\n\t      Thiruvannamalai.\n<\/p><\/blockquote>\n
The  recital in the document provides that the settlors\t had
\nallotted  84.8\tacres described in the\tSchedule  absolutely
\nunder  the  document for being utilised\t for  the  charities
\nmentioned.   The settlors declared that they would  have  no
\nrights\twhatsoever in respect of the  aforesaid\t properties.
\nThe  recitals  are  followed by the  schedules.\t  The  first
\nSchedule  recites that the properties  mentioned  thereunder
\nare allotted to the Karpaka Vinayakar temple.  After  giving
\ndescription  of\t the  various  items  of  properties  it  is
\ndirected  that\tthe  income  from  the\tproperties  will  be
\nutilised  for conducting Pujas twice a day and Abishekam  on
\nspecial\t occasions by employing Brahmins for  the  Vinayakar
\ndeity.\t A  separate schedule is given\tregarding  the\tpro-
\nperties\t which are allotted to the Annadanam choultry.\t The
\nschedule starts by saying that the properties described\t are
\nallotted  to  the  Annadanam choultry.\tAt the\tend  of\t the
\nSchedule, it is directed that the income from the properties
\nbe spent for feeding the Brahmins that come to the  choultry
\nand for expenses of the nandavanam attached to the choultry.
\nThe  next  Schedule-  is  relevant  for\t our  purpose.\t The
\nSchedule in the question is captioned as follows :-
\nMatam”\t Description   of   the\t  properties   allotted\t  to
\nSachidananda
\nIt  may be noted that the description does not\tinclude\t the
\nSamadhi\t but at the end of the Schedule it is provided\tthat
\nthe income from the properties mentioned in the Schedule  be
\nspent  for  feeding  the Agathies  and\tParadesies  and\t for
\nconducting  Puja in the Samadhi attached to the Matam.\t The
\nother Schedules describe the properties that are allotted to
\nthe  various  temples, Sabanayagar  temple  at\tChidambaram,
\nArunachaleswaraswami\ttemple\t at   Thiruvannamalai\t and
\nSubramaniaswami temple at Palani.\n<\/p>\n
776<\/span><\/p>\n
On behalf of the defendants Mr. Mridul, the learned counsel,
\nsubmitted  that the endowment under the B Schedule  was\t for
\nthe  purpose  of  feeding the Agathies\tand  Paradesies\t who
\nvisited\t the  Samadhi and the Matam was for the\t purpose  of
\naccommodating  such visitors to the Samadhi and as such\t the
\nprincipal  object of the endowment was for Samadhi and\tthat
\nit  is\tinvalid in law.\t In any event, the  learned  counsel
\nsubmitted that the finding of the lower court that both\t the
\ncharities were so inextricably intertwined that they  cannot
\nbe  separated  which would entail the  invalidation  of\t the
\nentire\tendowment  was\tcorrect.  On  the  other  hand,\t Mr.
\nKrishnamurthy Iyer, the learned counsel for the\t plaintiffs,
\nsubmitted  that\t the  Samadhi was in fact a  kovil  and\t the
\nentire\tendowment  was valid as it was for  the\t purpose  of
\nfeeding\t the poor who came to the temple.  In any  event  he
\nsubmitted that the vesting of the properties under  Schedule
\nB  was only in favour of the Matam and that  only  direction
\nwas  to\t spend some moneys for performing that Puja  in\t the
\nSamadhi.  In the event of the direction for the Puja of\t the
\nSamadhi\t being\theld unsustainable in law that part  of\t the
\nendowment alone is liable to be declared invalid.
\nWe  find no difficulty in rejecting the extreme\t contentions
\nof  both  the parties and agreeing with the finding  of\t the
\ncourts below that the Samadhi was a tomb of ancestors of the
\nsettlors  of the trust and as such the settlement in  favour
\nof  the\t tomb is not valid in law.  The\t question  therefore
\nthat  remains  for consideration is as to what part  of\t the
\nendowment  under  B  Schedule could be found  to  be  valid.
\nStrong\treliance was placed by both the learned\t counsel  on
\nthe  Tamil words that are used in the settlement deed.\t Mr.
\nMridul,\t the learned counsel for the  defendants,  submitted
\nthat the document if properly construed would show that only
\na  charge was created on the properties for  performing\t the
\nvarious charities, and the properties continued to vest with
\nthe   settlors.\t  In  any  event,  he  submitted  that\t the
\nproperties described in Schedule B were jointly endowed\t for
\nthe  Matam as well as for the Samadhi and were\tinextricably
\nintertwined and as such invalid.  Particular stress was laid
\nby  the\t learned  counsel  on  the  words   “Dharumathirkaga
\nEzhuthiyaitha  Poruthatharavu” which means “a  document\t for
\ncharity in writing evidencing the transaction.\tThe  learned
\ncounsel would construe the words “Poruthatharavu” as meaning
\na  charity.   We  are unable to agree.\t The  words  mean  a
\ndocument  evidencing  the  transaction.\t  ‘Atharavu’   means
\nsupport’ and ‘Poruthatharavu would mean document in support.
\nThe,  plea  of the learned counsel is unsupportable  as\t the
\ndocument  explicitly  states that the properties  are  given
\nabsolutely for the charities.\n<\/p>\n
This  unequivocal statement is followed by the recital\tthat
\nthe settlors will have no right whatsoever in the properties
\nendowed.  Again to place the matter beyond all doubt, it  is
\nspecifically recited that for the purpose of conducting\t the
\ncharity\t Ramalingachi Reddiar, his son, grandson  and  their
\ndescendants  will  be  Dharmakartas.  On a  reading  of\t the
\ndocument  we  have.  no\t doubt\tthat  the  properties\twere
\nabsolutely  endowed  in\t favour of  the\t charities  and\t the
\nsettlors  specifically relinquished all their rights in\t the
\nendowed. properties.  This leaves us with the  consideration
\nof the question whether the properties
\n777<\/span>
\nwere endowed in favour of both the Matam and the Samadhi  or
\nthe Matam alone.  The schedule commences as follows
\n“The description of the lands allotted to the  Sachidananda-
\nswami Matam.”\n<\/p>\n
This   description  standing  alone  would  mean  that\t the
\nproperties  were  to  vest in  the  Sachidanandaswami  Matam
\nalone.\t But  the  recital in the body\tof  the\t trust\tdeed
\nincludes  the Samadhikovil attached to ‘he Matam as  one  of
\nthe  beneficiaries which would indicate that  the  endowment
\nwas in favour of the Samadhi also.  While agreeing with\t the
\nlearned\t counsel  that the above recital would\tsupport\t the
\nplea  that the endowment was in favour of the Samadhi  also,
\nwe are inclined to hold that the properties as described  in
\nthe Schedule were intended to be vested in the Matam with  a
\ndirection that incomes from the specified properties were to
\nbe spent for the purposes mentioned in the Schedule  itself.
\nWe  find  that in the Schedule under  which  properties\t era
\nallotted to the Annadana choultry, while the Schedule begins
\nby stating that the properties are allotted to the  Annadana
\nchoultry, at the end of the Schedule it is directed that the
\nincome from the properties be spent for feeding the poor  in
\nthe  choultry and for maintaining Nandavanam.\tReading\t the
\nentire\tdocument as a whole, we feel that the intention\t was
\nthat  while all the properties were endowed for the  purpose
\nof charities mentioned, the vesting was to be as directed in
\nthe  Schedule with the obligation that the income  from\t the
\nproperties so mentioned should be utilised for the upkeep of
\nNandavanam  attached to the Annadanam choultry, and for\t the
\npurpose\t of Puja in the Samadhi also from the Income of\t the
\nproperties that were allotted to the Sachidananda Matam.  On
\na careful reading of the document, we are satisfied that the
\nproperties  described  in the Schedule referred\t to  as\t the
\nproperties  allotted to Sachidananda Swami Matam  vested  in
\nthe Matam with a charge that a part of the income should  be
\nspent on the Puja to be performed in the Samadhi.
\nIn this view we are unable to accept the conclusion  arrived
\nat  by the High Court that the properties were\tendowed\t for
\nthe  Matam and the Samadhi and that as the purposes  of\t the
\ncharities   were  distinct  and\t separate  they\t  could\t  be
\nseparated.   We\t are  equally  unable  to  agree  with\t the
\nallotment  of  half  the  B  Schedule  properties  for\t the
\ncharities concerned with the Matam.  The direction that\t the
\nother  half of B Schedule properties should go to the  first
\ndefendant  cannot  be  sustained in law,  for  even  on\t the
\nfinding\t of  the High Court, the properties  would  have  to
\nrevert back to the settlors and their descendants.
\nWe  are of the view that only a charge was created  for\t the
\nexpenses  for  conducting  the Puja in the  Samadhi  on\t the
\nproperties that vested with the Matam.\tThe question  arises
\nas  to how far such a direction in the settlement  could  be
\nheld to be valid in law.  It is not in dispute that for\t the
\nsettlement to be valid and for the trust to claim  exemption
\nfrom the rule against perpetuity, it must be for a religious
\nand charitable purpose recognised as such by Hindu law.\t The
\nEnglish\t law relating to settlement on tombs does not  apply
\nto Hindu
\n15-315SCI\/78
\n778<\/span>
\nreligious endowments.  The Courts in India have adopted\t the
\ntechnical  meaning  of\tcharitable  trusts  and\t  charitable
\npurposes  which the courts in England have placed  upon\t the
\nterm  ‘charity’.   But,\t in  addition,\tunder  the  head  of
\nadvancement of religion, there are other charitable  objects
\nin  Hindu  law\twhich will not be  charitable  according  to
\nEnglish\t law  for  that law forbids bequests  for  what\t are
\ntermed\t superstitious\tuses.\tUnder  the  Mussalman\tWakf
\nValiding  Act,\t1913,  Act  VI\tof  1913,  a  wakf  for\t the
\nmaintenance and support, wholly or partially, of his  family
\nor  descendants\t is valid provided the ultimate\t benefit  is
\nexpressly  or  impliedly reserved for the poor\tor  for\t any
\nother\tpurpose\t recognized  by\t the  Mussalman\t law  as   a
\nreligious,  pious  or  charitable  purpose  of\ta  permanent
\ncharacter.\n<\/p>\n
What  are  purely  religious  purposes\tand  what  religious
\npurpose\t  will\tbe  charitable\tmust  be  entirely   decided
\naccording  to  Hindu law and Hindu notions.   In  Saraswathi
\nAmmal and Another v. Rajagopal Ammal<\/a>(1) it was held that the
\ndetermination  of what conduces to religious merit in  Hindu
\nlaw  is\t primarily  a matter  of  Shastraic  injunction\t and
\ntherefore  any\tpurpose\t claimed  to  be  a  valid  one\t for
\nperpetual dedication on the ground of religious merit though
\nlacking in public benefit, must be shown to have a Shastraic
\nbasis  so  far as Hindus are concerned.\t While\tstating\t so,
\nthis  Court  recognised that other religious  practices\t and
\nbeliefs\t may  have grown up and\t obtained  recognition\tfrom
\ncertain\t classes  as  constituting  purposes  conducive\t  to
\nreligious merit.  But if such beliefs are to be accepted  by
\ncourts as being sufficient for valid perpetual dedication of
\nproperty therefore without the element of actual or presumed
\npublic\tbenefit,  it must at least be shown that  they\thave
\nobtained  wide\trecognition  and  constitute  the  religious
\npractice of a substantial and large class of persons.  After
\nreferring to the Madras decisions in Kunhamutty v.  Thondik-
\nkodar  Ahmad  Musaliar and two Others(1)  A.  Draivlasundram
\nPillai\tv. N. Subramania Pillai(3) and Veluswami Gounder  v.
\nDandapani,(4)  this Court observed that it was held  in\t the
\nabove  decisions  that the building of a samadhi or  a\ttomb
\nover the remains of a person and the making of provision for
\nthe purpose of Gurupooja and other ceremonies in  connection
\nwith  the  same\t cannot\t be  recognised\t as  charitable\t  or
\nreligious purpose according to Hindu law.
\nThe  rule that a provision for the purpose of Puja over\t the
\ntomb  of  the remains of a person is invalid is\t subject  to
\ncertain\t exceptions.   As  pointed  out\t by  this  Court  in
\nSaraswathi Ammal’s case (supra) there have been instances of
\nHindu saints having been defied and worshipped but very\t few
\nif  at\tall  have  been entombed.  Such\t cases\tstand  on  a
\ndifferent  footing  from  the case of  an  ordinary  private
\nindividual  who is entombed and worshipped  thereat.   After
\nreferring  to  the, decision in Saraswathi  Ammals  case,  a
\nBench  of the Madras High Court in Sri Ramanasramam  by\t its
\nSecretary G. Sambasiva Rao
\n(1)  1954 S.C.R. 277.\n<\/p>\n
(2)  I.L.R. 58 Mad. 204.\n<\/p>\n
(3)  I.L.R. 1945 Mad. 854.\n<\/p>\n
(4)  [1946]1 M.L.J. 354.\n<\/p>\n
779<\/span><\/p>\n
and  Ors.  v.  The  Commissioner  for  Hindu  Religious\t and
\nCharitable  Endowments, Madras,(1) observed that as  samadhi
\nover  one who comes to be regarded as of the  illuminati  or
\neven the tombs of heroes may evolve in course, of time as  a
\nshrine of Hindu public religious worship, as was held in the
\nBoard  of  Commissioners  for  Hindu  Religious\t Endowments,
\nMadras\t v.  Pidugu  Narasimham\t and  Others,(1)   Ratnavelu
\nMudaliar  v. Commissioner, for H. R. & C. E., (3) and  Rama-
\n,swami\tv. The Board of Commissioner, Madras.(4) This  Court
\nreferring  to  the decision of Board  of  Commissioners\t for
\nHindu Religious Endowments, Madras v. Pidugu Narasimham\t and
\nOthers\t(supra) observed that the Judges of the\t High  Court
\nwere  inclined to hold that the worship was religious.\t But
\nthis  was a case of a grant from a sovereign  authority\t and
\nwas not an endowment for worship of a tomb.  In (1953) 2  M.
\nL.  J.\t574 a Bench of the Madras High Court held  that\t the
\nsamadhi\t or tomb of one Apparswami is a place  of  religious
\nworship\t taking\t into account that the institution  was\t for
\nover  a\t century regarded as a place of\t religious  worship.
\nViswanatha Sastri J. in T. R. K. Ramaswami Serval and Anr v.
\nThe  Board of Commissioners. for the H. R. E.,\tMadras,\t (4)
\nthrough\t its  President,  expressed his\t view  that  it\t was
\nsufficient  if the worshippers considered themselves  likely
\nto be the recipients of the bounty or blessings of a  Divine
\nPresence,  which  they\tbelieved  to  exist  at\t the  place.
\nSamadhis of saints are recognised as religious\tinstitutions
\nin  the South.\tIt is well-known that the Samadhi  of  saint
\n‘Pattinathar’  is  considered  as  a  place  of\t worship  in
\nTiruvottiyar  near  Madras.  According\tto  tradition  great
\nsaints have attained Yoga Samadhi in the well-known  pilgrim
\ncentres; Saint Tirumoolar attained’ Samadhi in\tChidambaram,
\nSaint  Konganavar at Tirupathi, Saint Valmiki  at  Srirangam
\nand Bhgamuni at Palani.\n<\/p>\n
The  raising of a tomb over the remains of an  ancestor,  an
\nordinary  person is not recognised as religious\t in  nature.
\nThe  burden is on the person setting up a case of  religious
\npractice  in the community to prove. it.   This\t prohibition
\nmay  not apply when an ancestor is cremated and\t a  memorial
\nraised\tfor  performing Sharadha ceremonies  and  conducting
\nperiodical  worship  for this practice may  not\t offend\t the
\nHindu\tsentiment  which  does\tnot   ordinarily   recognise
\nentombing the remains of the dead.  A place of worship\twill
\nnot cease to be religious because of its being in the memory
\nof a person.\n<\/p>\n
It may be stated that the case before us relates to the tomb
\nof  an ancestor of the settlors.  It was never pleaded\tthat
\nany  religious\tpractice existed amongst the  community,  of
\nbuilding  samadhis  over the remains of\t the  ancestors\t and
\nperforming  pujas.  The plea of the defendant in Para  8  of
\nthe  written statement is that the dominant purpose  of\t the
\ndedication of B Schedule properties was Samadhi
\n(1)  1960 (2) M.L.J. 121.\n<\/p>\n
(2)  1939 (1) M.L.J. 134.\n<\/p>\n
(3)  1953 (2) M.L.J. 574.\n<\/p>\n
(4)  1950 (2) M.L.J. 511.\n<\/p>\n
780<\/span><\/p>\n
Kainkaryam i.e. worship of the ancestors in their entombment
\nand as such invalid in law.\n<\/p>\n
It  only  remains  for\tus  to\tconsider  what\t appropriate
\ndirections  should  be given in the case.  In  view  of\t our
\nfinding\t that  the vesting of B Schedule properties  was  in
\nfavour\tof the Matam alone with a charge on  the  properties
\nthat the expenses for Puja at the Samadhi should be met\t out
\nof the income of the property, the vesting will not fail but
\nthe  direction to meet expenses for the Puja at the  Samadhi
\nis, unsustainable in law.\n<\/p>\n
The High Court directed framing of a scheme for the adminis-
\ntration of the two trusts.  The High Court also agreed\twith
\nthe trial Judge that the Board of Trustees should consist of
\nthree  persons, two of whom should be respectable  residents
\nof  Vairichattipalayam and the third should be, a member  of
\nthe  family of the first defendant.  We agree that a  scheme
\nshould\tbe  framed with a Board of  Trustees  consisting  of
\nthree members, one belonging to the family of the donors and
\ntwo  other  respectable residents of the  village.   As\t the
\nprohibition against the first defendant for  being a trustee
\nfor five years has expired his claim to be appointed as\t one
\nof the trustees from the members belonging to the family  of
\nthe  settlors  may be considered by the\t Subordinate  Judge.
\nThe  three trustees appointed by the Subordinate Judge\twill
\nadminister  the\t scheme that may be framed  subject  to\t the
\ndirections that may be issued by the Subordinate Judge\tfrom
\ntime to time.\n<\/p>\n
It  is\tthe common case of the parties that due\t to  changed
\ncircumstances very few people visit the village on their way
\nto various places of pilgrimage and therefore there are\t not
\nmany  visitors to be fed in the choultry.  The\tincome\tfrom
\nthe  properties\t that is allotted to the  Karpaka  Vinayakar
\ntemple\tunder  Ex. A-1 will be used in conformity  with\t the
\ndirections  in the document.  Regarding the  property  which
\nhad been allotted to the Annadana choultry the direction  is
\nthat  from  the income of the property,\t the  Brahmins\tthat
\nvisit  the choultry should be fed and the Nandavanam  should
\nbe  maintained.\t  The direction will be adhered\t to  but  if
\nthere  are not enough Brahmins as envisaged in the  document
\nthe  income will be utilised for feeding the poor  boys\t and
\ngirls of the schools of the village even though they may not
\nbelong\tto the Brahmin community.  Regarding the  properties
\nthat are allotted to the Sachidanandaswami Matam, it is seen
\nthat  there  are  not enough pilgrims  passing\tthrough\t the
\nvillage due to improved transport facilities.  The-direction
\nto  incur  expenses  for the Puja in  the  Samadhikovil\t has
\nfailed.\t  The income from the properties after\tfeeding\t the
\nAgathies  and paradesies that visit the Matam will  be\tuti-
\nlised for feeding the poor boys and girls of the schools  of
\nthe  village.  It will be open to the Subordinate  Judge  to
\nutilise\t the surplus income from the properties allotted  to
\nAnandana  choultry and Sachidanandaswami Matam\tfor  feeding
\nthe  poor school-going- boys and girls in the  village.\t  We
\nare satisfied that the settlement is predominantly for a
\n781<\/span>
\ncharitable purpose and as the direction regarding feeding of
\nthe Brahmins in the Annadanam choultry and for Agathies\t and
\nParadesies  in\tthe  Matam cannot be  duly  carried  out  as
\nintended  by the settlors, applying the Cypres\tdoctrine  we
\ndirect\tas indicated above that the, funds may\tbe  utilised
\nfor  a\tpurposes which are as nearly as\t possible  with\t the
\nintention of the donors.\n<\/p>\n
There  will be no order as to cost& S.R. Appeals allowed  in
\npart.\n<\/p>\n
S.R.\t\t      Appeals allowed in part.\n782<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nagu Reddiar And Ors. Etc vs Babu Reddiar And Ors. Etc.And Vice … on 27 April, 1978 Equivalent citations: 1978 AIR 1174, 1978 SCR (3) 770 Author: P Kailasam Bench: Kailasam, P.S. PETITIONER: NAGU REDDIAR AND ORS. ETC. Vs. RESPONDENT: BABU REDDIAR AND ORS. ETC.AND VICE VERSA DATE OF JUDGMENT27\/04\/1978 BENCH: […]<\/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-51823","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNagu Reddiar And Ors. Etc vs Babu Reddiar And Ors. 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