W. N. ALLAL SUNDARAM versus THE COMMISSIONER H.R. & C.E. ADMN. DEPARTMENT & ORS. on 22 November 2019

1. This appeal arises from a judgment dated 27 October 2006 of alearned Single Judge of the High Court of Judicature at Madras. TheGoriginal plaintiff is in appeal, aggrieved by the judgment of the High Courtreversing the judgment and decree of the First Assistant Judge of theCity Civil Court at Madras.

2. The appellant instituted OS no 5916 of 1990 before the CityCivil Court at Madras seeking two reliefs:

H

(i) The setting aside of an order passed by the Commissioner,Hindu Religious and Charitable Endowments[1] AdministrationDepartment on 21 March 1990; and

(ii) A declaration that the Bagyammal Trust is not a ‘specificendowment’ falling under the purview of the Tamil Nadu HinduReligious and Charitable Endowments Act 1959[2].

3. The case of the appellant is that the trust in respect of SriSwamiya Dhamodara Perumal Temple is not a public trust. The DeputyCommissioner, HR and CE Administration Department issued a noticestating that the Bagyammal Trust is a public trust. The appellant claimedthat the plaint schedule property had been settled in favour of Bagyammal[3]by her predecessors under a Deed of Settlement in pursuance of whichshe was in possession and enjoyment of the property between 1928 and1959. Bagyammal is alleged to have executed a Deed of Settlement infavour of Raju Chettiar. On his death in 1954, it was alleged that his wifeJagathambal succeeded to the property as his sole heir. Jagathambal isalleged to have settled the property in favour of her son-in-law W SNatarajan Chettiar. He is stated to have taken over possession of theproperty and to have been in control until his death in 1968. The appellant,as his son, claims to have succeeded to the property.

4. The case of the appellant is that the trust which was created byBagyammal is a private family trust which would not attract the provisionsof the Act of 1959. A proceeding[4] was instituted under Section 63(a)before the Deputy Commissioner, HR and CE Administration Departmentseeking a declaration to that effect. On 3 October 1986, the DeputyCommissioner dismissed the proceeding. On 21 March 1990, an appealagainst the order of the Deputy Commissioner was dismissed by thefirst respondent. This led to the institution of a suit by the appellant underSection 70(1). On 27 October 1995, the Trial Judge decreed the suit.

5. In appeal, the learned Single Judge of the High Court reversedthe judgment of the Trial Court on 27 October 2006. A Letters PatentAppeal was dismissed on the ground that it was not maintainable underSection 100(A) of the Code of Civil Procedure 1908.

1 “HR and CE”

2 “Act of 1959”

3 The High Court uses the word ‘Pakkiyammal’. However, the Deed of Settlementdated 4 June 1926 marked as Exhibit-A1 uses the expression ‘Bagyammal’. For thesake of convenience, this Court in the present judgment is using the term ‘Bagyammal’.

4 OA 12 of 1984

A

B

C

D

E

F

G

H

A6. A Special Leave Petition was instituted before this Court underArticle 136 of the Constitution in order to challenge the judgment of thelearned Single Judge. Leave was granted on 4 May 2017.

7. Chapter V of which Section 63 is a part, contains provisionsrelating to enquiries. Section 63 is in the following terms:

B

“63. [5][Joint Commissioner or Deputy Commissioner] to decidecertain disputes and matters Subject to the rights of suit or appeal hereinafter provided,6[the Joint Commissioner or the Deputy Commissioner, asthe case may be], shall have power to inquire into and decideCthe following disputes and matters:—

(a) whether an institution is religious institution; (b) whether a trustee holds or held office as a hereditary trustee;

(c) whether any property or money is a religious endowment; (d)Dwhether any property or money is a specific endowment; (e) whether any person is entitled, by custom or otherwise, to anyhonour, emolument or perquisite in any religious institution; andwhat the established usage of a religious institution is in regard toany other matter; E

(f) whether any institution or endowment is wholly or partly of areligious or secular character; and whether any property or moneyhas been given wholly or partly for religious or secular uses; and (g) where any property or money has been given for the supportof an institution which is partly of a religious and partly of a secularFcharacter, or the performance of any service or charity connectedwith such an institution or the performance of a charity which ispartly of a religious and partly of a secular character or whereany property or money given is appropriated partly to religiousand partly to secular uses, as to what portion of such property orGmoney shall be allocated to religious uses.” (Emphasis supplied)

8. Section 63 provides that the Joint Commissioner or the DeputyCommissioner shall have power to inquire into and decide disputes ofthe nature specified in clauses (a) to (g). Among them, in clause (d) is 5 Substituted by Tamil Nadu Act 38 of 1995

6 Substituted by Tamil Nadu Act 38 of 1995

H

whether any property is a specific endowment. Section 69 provides foran appeal to the Commissioner against the order of the Joint or DeputyCommissioner. Section 70 provides for the institution of a suit by a partyaggrieved by an order passed by the Commissioner in appeal, and relatinginter alia to any of the matters specified in Section 63.

9. In the present case, the controversy turns on whether the originalDeed of Settlement dated 4 June 1926 was in the nature of a ‘specificendowment’ within the meaning of Section 63(d). The term ‘specificendowment’ is defined by Section 6(19) in the following terms:

“(19) “specific endowment” means any property or moneyendowed for the performance of any specific service or charityin a math or temple, or for the performance of any other religiouscharity, but does not include an inam of the nature described inExplanation (1) to clause (17).

Explanation (1). — Two or more endowments of the naturespecified in this clause, the administration of which is vested in acommon trustee, or which are managed under a common schemesettled or deemed to have been settled under this Act, shall beconstrued as a single specific endowment for the purposes of thisAct.

Explanation (2). — Where a specific endowment attached to amath or temple is situated partly within the State and partly outsidethe State, control shall be exercised in accordance with theprovisions of this Act over the part of the specific endowmentsituated within the State.”

The expressions ‘religious charity’ and ‘religious endowment’ aredefined in clauses (16) and (17) of Section 6 in the following terms:

“(16) “religious charity” means a public charity associated with aHindu festival or observance of a religious character, whether itbe connected with a math or temple or not;

(17) ”religious endowment” or “endowment” means all propertybelonging to or given or endowed for the support of maths ortemples, or given or endowed for the performance of any serviceor charity of a public nature connected therewith or of any otherreligious charity; and includes the institution concerned and alsothe premises thereof, but does not include gifts of property made A

B

C

D

E

F

G

H

Aas personal gifts to the archaka, service-holder or other employeeof a religious institution; Explanation (1).— Any inam granted to an archaka, service- holderor other employee of a religious institution for the performance ofany service or charity in or connected with a religious institutionshall not be deemed to be a personal gift to the archaka, service-Bholder or employee, but shall be deemed to be a religiousendowment.

Explanation (2).— All property which belonged to, or was givenor endowed for the support of a religious institution, or which wasgiven or endowed for the performance of any service or charityCof a public nature connected therewith or of any other religiouscharity shall be deemed to be a “religious endowment” orendowment” within the meaning of this definition, notwithstandingthat, before or after the date of the commencement of this Act,the religious institution has ceased to exist or ceased to be used asa place of religious worship or instruction or the service or charityDhas ceased to be performed:

Provided that this Explanation shall not be deemed to apply inrespect of any property which vested in any person before the30th September 1951, by the operation of the law of limitation.”

10. The dispute in the present case involves an interpretation ofEthe Deed of Settlement dated 4 June 1926. The document was markedas Exhibit-A1. It was executed in favour of Bagyammal by the trusteesof the Sree Agastheeswara Swamiya Devasthanam Temple. In 1921,the Trustees conveyed a plot of land in favour of Mangadu EllappaChettiar for the setting up of a choultry[7] to facilitate the activities of theFDevasthanam. The choultry was found to be inadequate to meet therequirements of the devotees who came to attend religious festivals.Hence, considering the need to develop the temple and for theconvenience of the devotees, it was found that the construction of anotherchoultry had become necessary. The Trustees agreed to hand overpossession of the property to Bagyammal. Insofar as material, the DeedGof Settlement provides thus:

7 Choultry has been defined as: “A hall, shed, or supported roof, used as a resting-placefor travellers, and for public business.” C. Fennell (Ed.), The Stanford Dictionary ofAnglicised Words and Phrases. Cambridge: Cambridge University Press (1892).Choultry has also been defined as “ A public lodging place, a shelter for travellers“.Wilson’s Glossary of Judicial and Revenue Terms, London W.H. Allen, 2[nd] Edition,Hp. 108.

“Witnesseth that a ground plot was given in possession to MangaduEllappa Chettiyar residing at House No. 4, Moottaikaran Street,Muthialpet, Chennai Pattinam in the year 1921, and a big choultryhaving the constructed and relating to the Sacred activitiesof the Devasthanam being done properly and since the saidchoultry does not contain sufficient space to receive bigcrowd attending the festivals during the months of Aadi,and considering the development of the temple and sincewe thought that construction of another choultry hadbecome necessary and on our request made to K. KandasamyChettiar at the village of Thiruvottiyr. He, with the help of hisdaughter along with Bagyammal [sic] w/o Late. ThirupathiNarayana Samy Chettiar had agreed to construct thechoultry, and therefore according to the boundaries mentioned inthe schedule below, all the four of us have unanimously and inwriting have agreed to handover possession of the saidproperty to the said Ammal and there is no right or interesteither for us or our generation in future on the said propertyof land being taken in possession by above said Bagyammaland she can construct the free choultry by formingSilasasanam and she shall maintain the same till her lifetime and afterwards make provision permanently for theheirs and agents to be appointed and shall maintained thesame, the above said shall be utilized at all times for theuse of the public. It should not be let out for rent. No rightshall be claimed by her on this choultry. The boundaries forthe said choultry shall be ascertained by the heirs and agentsappointed by Bagyammal. Even if tax arises for the said choultryit shall be dealt with by the parties of Bagyammal only. In theabove choultry… Hindu Pilgrims shall be allowed to stay forthree days for performance of marriage and other auspiciousfunction and one day, two days and three days forDevasthanam purposes for Bagyammal and her parties andat their own desire, may be utilized the place for auspiciousfunctions. No place should be given for persons to misuse orcommit unclean at acts. The heirs or agents shall not execute anymortgage, sale etc relating to the said choultry and the groundplot.”

(Emphasis supplied)

AB

C

D

E

F

G

H

A11. The issue before the High Court was whether the abovesettlement constituted a specific endowment within the meaning of Section6(19) of the Act of 1959. The High Court held that the recitals in Exhibit-A1 indicated that Bagyammal was entrusted with the suit property onlyto construct an additional choultry to accommodate the devotees of SreeAgastheeswara Swamiyar Devasthanam Temple. The Deed ofBSettlement indicated that the public would be entitled to use the choultry.Bagyammal was restrained from creating any encumbrance on theproperty. In the view of the High Court:

“Here also under Ex. A.1 Pakkiyammal was given only a rightto construct an additional choultry in the suit property andCthere was endowment created by dedicating the same tothe use of the public particularly to those devotees whothrong the temple during Thai and Adi festivals. Since theChoultry, which is in existence could not accommodate them thetrustee who wrote Ex. A.1 had felt that an additional choultry isDabsolutely necessary to accommodate the devotees who visit thetemple during the months of Thai and Adi. Pakkiyammal wasgiven a right of maintenance of the above said choultry and shewas not given any right to neither use the choultry for more thanthree days or to get any income from out of the above said choultry.It has further been specifically stated in Ex. B.1 that only out ofEher own income Pakkiyammal has to maintain the above saidchoultry. So, the above said dedication of choultry to thepublic under Ex. A.1 is only an endowment which will attractthe provision contemplated under Section 63(a) of the HR& CE Act.”(Emphasis supplied)

FThe High Court held that the endowment was for a specific purpose:

FThe High Court held that the endowment was for a specific purpose:

“Under Ex. A.1 there is a specific endowment to the effect thatthe choultry to be constructed by the Pakkiyammal is to beendowed for the purpose of public use.”

G12. Shri S Nagamuthu, learned Senior Counsel assailed thejudgment of the High Court and submitted that there was no specificendowment by the Deed of Settlement of 4 June 1926 within the meaningof that Section 6(19). In assessing the correctness of the submission, itis necessary to analyse the definition of the expression ‘specificendowment’ in Section 6(19). A specific endowment is defined to mean:H

(i) Any property or money endowed for the performanceAof any specific service in a math or temple; or

(ii) Any property or money endowed for the performanceof any charity in a math or temple; or

(iii) Any property or money endowed for the performanceof any other religious charity.

B

13. The expression ‘religious charity’ is defined to mean a publiccharity associated with Hindu festivals or observances of a religiouscharacter, whether or not it is connected to a temple or math. Explainingthe expression ‘religious charity’, Justice J C Shah, speaking for a threejudge Bench of this Court in Commissioner, Madras Hindu Religiousand Charitable Endowments v Narayana Ayyangar[8]held:

C

“4…Clause (13) of Section 6 defines “religious charity” as meaning“a public charity associated with a Hindu festival or observanceof a religious character, whether it be connected with a math ortemple or not”. The definition prescribes two conditions which goto constitute a religious charity: there must be a public charity andthat charity must be associated with a Hindu festival or observanceof a religious character. If these be fulfilled, a public charity willbe a religious charity, even if it is not connected with a math ortemple.”

D

E

14. In a recent three judge Bench decision of this Court in M JThulasiraman v Hindu Religious & Charitable Endowment Admn[9],this Court while dealing with interpretation of a stone inscription todetermine whether the nature of the institution called ‘Bakers Choultry’amounted to specific endowment under the Tamil Nadu Hindu Religiousand Charitable Endowments Act 1959, held thus:

F

“14. In the present case, the rock inscription in the “BakersChoultry”, which governs the functioning of the choultry, providesfor the feeding of Brahmins. This is clearly a charity which benefitsthe “public”, in line with the holding of the aforementionedConstitution Bench decision of this Court.

G

...

8 (1965) 3 SCR 168

9 (2019) 8 SCC 689

A

B

C

D

E

F

G

H

16. As such, the public charity described in the rock inscription,being associated with a religious festival, constitutes a religiouscharity as defined under the Act.

17. As already mentioned above, under Section 6(19) of theAct, the definition of “specific endowment” includes anymoney that has been endowed for the performance of areligious charity. Following our holding that the rockinscription provides for a religious charity, it is sufficient toshow that money has been endowed for the performance ofthe same for it to constitute a specific endowment underthe Act.

18. While the word “endow”, and the connected word“endowment”, have actually not been defined under the Act, fromtheir usage in the Act and judgments on the subject, it is clear thatthey relate to the idea of giving, bequeathing or dedicatingsomething, whether property or otherwise, for some purpose. Inthe context of the Act, the purpose is with respect to religion orcharity. [See P. Ramanatha Aiyar: The Law Lexicon, 2nd Edn.,p. 634, 635; Pratapsinghji N. Desai v. CharityCommr. [Pratapsinghji N. Desai v. Charity Commr., 1987 SuppSCC 714] , para 8]. In the present case, the rock inscriptionclearly provides for the utilisation of money from the“Bakers Choultry” for the purposes of performing thecharitable activity of feeding Brahmins during the specifiedreligious festivals. As such, it is clear that the rockinscription creates a “specific endowment” as specifiedunder Section 6(19) of the Act, which falls within the ambitof the Act.

...

23. In the facts of the present appeal, the contents of the rockinscription are sufficient for us to hold that there has been a validdivestment and to reject the contention of the counsel for theappellants. The rock inscription clearly indicates that the choultryis to be managed by the community of bakers, who will use thebalance funds for the benefit of others. Further, the inscriptionalso states that the managers do not have any power ofalienation with respect to the choultry. In the present appeal therefore, as in M.R. Goda Rao Sahib [M.R. Goda RaoSahib v. State of Madras, AIR 1966 SC 653] , there has been aclear divestment of the right to receive a certain part of the income,with the inscription also stipulating a bar on the right of themanager to transfer the choultry.”(Emphasis supplied)

15. In the present case, it emerges from the Deed of Settlementdated 4 June 1926 that the trustees initially settled a plot of land for theconstruction of a choultry in 1921. The choultry which was in connectionwith the activities of the Devasthanam was found to be inadequate tomeet the requirements of the devotees during religious festivals.Consequently, on 4 June 1926, a Deed of Settlement was executed underwhich Bagyammal was entrusted with the construction of an additionalchoultry. The choultry was to be specifically utilised for the purpose ofextending facilities to pilgrims who visited the Devasthanam. There wasa restraint on the creation of an encumbrance either on the choultry oron the land. The choultry was to be utilised at all times for the use of thegeneral public. No right could be claimed by Bagyammal on the choultry.The choultry was to be maintained by Bagyammal, her descendants orher nominees. In view of the clear terms emerging from the deed, thedefinition of the expression ‘specific endowment’ in Section 6(19) isattracted. The purpose of the Act of 1959 is to consolidate the lawrelating to the administration and governance of Hindu religious andcharitable institutions and endowments in the State of Tamil Nadu. Theproperty was endowed specifically for the performance of a religiouscharity in the temple and was covered within the scope of definition of‘specific endowment’ in Section 6(19).

16. The learned Trial Judge was evidently in error in coming tothe conclusion that there was an absence of a ‘specific endowment’within the meaning of Section 6(19). The High Court was entirely correctin reversing the judgment of the Trial Court. Consequently, there is nomerit in the appeal.

17. The appeal is accordingly dismissed. There shall be no orderas to costs.

Kalpana K. Tripathy

Appeal dismissed.

A

B

C

D

E

F

G

H