‘Possession is Good Against All But the True Owner’

Saji Koduvath, Advocate, Kottayam.

Introduction

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner acquires an absolute title.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.

Sec. 6 of the Specific Relief Act reads as under:

  • 6. Suit by person dispossessed of immovable property.
  • (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
  • (2) No suit under this section shall be brought
    • (a) after the expiry of six months from the date of dispossession; or
    • (b) against the Government.
  • (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
  • (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

  • “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
  • 1907 AC 73 reaffirmed the principle by stating quite clearly:
    • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
  • Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title? Admittedly neither side could establish title. The plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry, thus narrows to this:
    • did the Society have any title in itself,
    • was it acting under authority express or implied of the true owner or
    • was it just pleading a title in a third party ?
  • To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State?
  • Since in every such case between trespassers the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle, J. put it in Burling v. Read [(1848)11 Q.B. 904]
    • ‘parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning’.
  • This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in Perry V. Clissold (1907 AC 73). The law does not, therefore, countenance the doctrine of ‘findings keepings’.

Possession is a Good Title or Right Against any one who cannot Show a Better

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

  • “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:­
    • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
    • x x x x x In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to  restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
    • Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
  • 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
  • 11. It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

  • “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

Injunction is a Possessory Remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

Courts grant injunction without seeking declaration when title is clear, simple and straight-forward; and when no serious denial or cloud on title (not any apparent defect):   Anathula Sudhakar v. Buchi Reddi: AIR 2008 SC 2033.

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2019-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.

Kesar Bai v. Genda Lal – HC and SC Approached in different Perspectives

Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:

  • the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
  • the plaintiffs could not have been permitted to take both the pleas at the same time;
  • but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

  • “The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Should the Defendant-Rightful-Owner Approach the Court Again For Recovery?

No.

Before Kesar Bai v. Genda Lal, our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) to the following effect:

  • The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
  • In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession
  • the plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
  • The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be “to file a substantive suit to get back the possession is noticed only to be rejected outright”.
  • In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
  • In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
    • “In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.”
  • Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
    • Note: It is not specifically stated in this decision, Prahladji Chenaji v. Maniben Jagmalbhai, that one can resume possession using force.

Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors

In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134,  the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out

  • the duration of encroachment, short or long, was not the determinative matter
  • what was relevant for the decision was more the nature of the property and
  • whether the claim of the occupant was bona fide.

It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –

  • occupied openly for an appreciable length of time and
  • could be taken, prima facie, to have a bonafide claim to the property.

Even the Rightful Owner is NOT entitled to Eject a Trespasser, by Force

It goes without saying that the the rightful owner is not legally entitled to eject the interloper or trespasser by force, otherwise than by due process of law; especially when the trespasser is in settled possession.

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property.  It was held as under:

  • “The ultimate position, therefore, reduces itself to this:
  • Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
  • Yes.
  • In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in Aiysumma Vs. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

  • “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
  • A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
  • If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. 
  • The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
  • In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

  • “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, 2022 SCC OnLine SC 564)

Temporary Mandatory Injunction – To preserve or restore the status quo ante

Two Landmark Decisions

  • (1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867
  • (2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697

(1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down that interlocutory mandatory injunctions are granted to:

  • (i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
  • (ii) to compel the undoing of those acts that have been illegally done, or
  • (iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697, is the decision in the matter of elections in a Co-operative Society where the Apex Court moved forward and stated that Interim Mandatory Injunction can be granted if the court is satisfied that refusal of injunction would tantamount to dismissal of the main petition itself and there would be nothing left to be allowed when the final pronouncement  comes.

See Blog (Click): Mandatory Injunction – Law and Principles

‘Possession Follows Title’ and ‘Title Follows Possession’

The legal principles, ‘Possession Follows Title’ and ‘Title Follows Possession’, are Rules of Evidence. They are applied in cases where there are no sufficient and independent evidence to prove possession or title, as the case may be.

Under S. 110 Evidence Act, ownership is presumed on the proof of possession. It ‘follows from well settled principle of law that normally, unless contrary is established, title always follows possession'(Chuharmal v.  Commissioner of Income Tax, M P, AIR  1988 SC 1384; 1988 3 SCC 588).

S. 114 Evidence Act, expressly permits the court to ‘presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case’. Therefore, by virtue of Sec. 114,

  • (i) possession can be presumed on the basis of title (possession follows title), and
  • (ii) title/ownership can be presumed on the basis of possession (title follows possession).

S. 110 Evidence Act & the Principle, ‘Title Follows Possession’

Section 110 of the Evidence Act, 1872, reads as under:

  • “110. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

This section deals with the burden of proof as to ownership – when a question arises as to whether a person in possession of anything is the owner of such thing. There, the burden of proving that he is not the owner is on the person who avers that he is not the owner.

In State of A.P. v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319, the Apex Court held that the object of Section 110 is based on public policy. The object is to prevent persons from committing a breach of peace by taking the law into their own hands however good their title may be over the land in question. This object underlies provisions such as Section 6 of the Specific Relief Act 1963, Section 145 of the Code of Criminal Procedure 1973 and Sections 154 and 158 of the Indian Penal Code 1860.

Sec. 114 Evidence Act– Title Follows Possession & Possession Follows Title

In M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1, the Apex Court quoted the following from State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 where Justice B.S. Chauhan explained as under:

  • ‘21…..The said presumption is read under Section 114 of the Evidence Act and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim – possession follows title – is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another.
  • Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him.
  • A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/ encroachment, etc.
  • Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version.
  • Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession.
  • Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.’ ”

In Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, Apex Court held as under:

  • “But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession.”

In Arumaraj Devadhas v. K. Sundaram Nadar, 2009-17 SCC 467, also it was held that the principle possession follows title applies in vacant land. This principle is applied in ‘open space‘ in Praprai N Kothari Vs. John Braganza, AIR 1999 SC 1666 and in Rajendar Singh Vs. Santa Singh, AIR 1973 SC 2537. In Naval Shankar Ishwarlal Dave v. State of Gujarat, AIR 1994 SC 1496,  the Apex Court observed that it was ‘settled law that in respect of open land, title follows possession’.

See Blog: When ‘Possession Follows Title’; When ‘Title Follows Possession’?

Possession Follows Title and Adverse Possession

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144 that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

When the principles in Sec. 110 and 114 CANNOT be invoked

As we find in M.  Siddiq  v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, Section 110 or the principle ‘title follows possession‘ applies when the facts disclose no title in either of the disputants in which case, possession alone decides (presumption cannot be invoked when the facts are known). But, with respect to the principle ‘possession follows title‘, as we find in Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, if only title is proved by one party, then only the principle ‘possession follows title’ comes in.

It is equally important that both these principles on presumption, ‘possession follows title’ and ‘title follows possession’, cannot be invoked in cases where:

  • (i) the defendants do not claim title/possession to the suit property (Devasia @ Kutty v. Jose, 2014-4 KLJ 41; 2014-3 KLT(SN) 50).
  • (ii) the facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1), or
  • there is evidence of independent possession/title (Bhavnagar Municipality Vs. Union of India, AIR 1990 SC 717).

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Book No. 2: A Handbook on Constitutional Issues

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Shebaits & Mahants and Law of Trustees

Saji Koduvath, Advocate, Kottayam.

Introduction

Shebait (शेबैत ) is the person entrusted to administer a temple. The responsibilities undertaken by Shebaits, in different parts of India, are similar. But, those persons are identified by different names.

  • Shebait (Shebaite) is the name used in Bengal & North India.
  • It is Dharmakarthas in Tamil and Telungu area.
  • And, Uralens/Ooralans in Kerala.[1] 

Because of the fiduciary position, their liability equates that of trustees.[2] With regard to status of Shebaits, Indian Law differ from that of trustees in English Law, on details.[3]

Under true English concepts, a trustee is the legal owner of the trust property; and the beneficial ownership thereof vests in the beneficiary (the cestuique trust).  Though Shebaits have certain limited proprietary rights, as shown below, they are essentially managers or persons in charge of administration of the temple and its property; and, the property do not vest in them as the legal-owners as in English Law.

Status of Shebaits and Mahanths – Concept and History of Origin, Unique

Mahant is the head and superior of the spiritual fraternity attached to a Mutt. The concept of Shebaiti and Mahanthship is deep-rooted in past Indian history, and has its own unique history of origin and development. When compared to ‘trustees’ in Law of Trusts, the status and position of Shebaits and Mahanths may appear anomalous.[4]

  • Because,
    1. Viewing through the Anglo-Saxon jurisprudence, Shebaits and Mahanths are not trustees; mainly because the property dedicated to a temple vest in the idol (as a juristic person), and that to a Mutt in Mutt itself.
    2. Despite the fact that property will not vest in the Shebaits/ Mahanths, they have certain proprietary rights (though in one sense they are mere managers or administrators).
    3. In the conception of Shebaiti and Mahanthship, both the elements of office and property are mixed up; and duties and personal interest are blended together.[5]
    4. Shebait is the human ministrant and the authorised representative of the idol[6].

In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[7] it was observed by our Apex Court that the legal character of a Shebait cannot be defined with precision and exactitude in the English standards, though the concept of Shebaiti and Mahanthship is precise, and bounded by definite contours..

The legal status of a Mahant and Shebait is similar in certain characteristics and different in certain others.

Appointment of Shebait

The debutter property is dedicated by its prior owner for carrying into effect the pious purpose he envisioned.  It is accomplished through the actions of a human agent; that is the shebait. Ordinarily, a deed of dedication will not recite the duties of the shebait in detail. Public trust property being invariably vest in the Idol,  an express stipulation in the deed of foundation that the property of the idol will vest in the shebait will stand otiose; and it will not change the character.[8]

Shebait and Mahants are not Trustees in Strict Legal Sense; only Managers

The person in charge of administration of a temple and its properties, as per the above ratio, may be termed as a ‘manager’[9]  alone. But, in State Wakf Board Vs. Subramanyam[10] Madras High Court had observed as under:

  • “The word ‘Manager’ in relation to a religious or charitable endowment is not a term of art. The said word denotes the person who is in charge of the administration of the endowment or manages the property or supervises the performance of the charity and the word is one of very wide and general import.”

The property of a temple belongs to, or vests in, the Idol.[11] Shebaites are only managers in charge of administration of the temple and its property; and they cannot be recognised, in the strict legal sense, as trustees under strict English principles for the main reason that the property does not vest in them.[12]In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[13] it was observed by our Apex Court that a Shebait is the human ministrant and custodian of the idol so also its earthly spokesman and its authorised representative entitled to deal with all its temporal affairs and to manage its property.

In Vidya Varuthi Thirtha Vs. Balusami Ayyar(1922)[14] the Privy Council held that a ‘trust’ in the sense in which the expression is used in English Law, was unknown in the Hindu system, pure and simple. Justice Ameer Ali held:

  • “It is also to be remembered that a ‘trust’ in the sense in which the expression is used in English Law, is unknown in the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind….Religious institutions, known under different names, and regarded as possessing the same ‘juristic’ capacity, and gifts are made to them eo nomine …When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol of the institution. In no case was the property conveyed to or vested in him, nor is he a ‘trustee’ in the English sense of the term, although in view of the obligations and duties vesting on him, he is answerable as a trustee in the general sense, for maladministration… it would follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a “trustee” to whom property has been “conveyed in trust’ and who by virtue thereof has the capacity vested in him which is possessed by a “trustee’ in English law.”
  • …Neither under the Hindu law nor in the Mahomedan system is any property ‘conveyed’ to a shebait or a mutavalli in the case of a dedication. Nor is any property vested in him, whatever property he holds for the idol or the institution he holds as manager with certain beneficial interest regulated by custom and usage.”

Dr. BK Mukherjea, J. On The Hindu Law of Religious and Charitable Trust explains as under:

  • “In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of the cestui que trust. In a Hindu religions endowment, the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person, and the Shebait or Mahant is a mere manager.”[15]

It is also a distinctive characteristic of Hindu Law. Privy Council, in Vidya  Varuthi  Thirtha  Swamigal  Vs.  Baluswami  Ayyar(1922)[16] it was held:

  • “It is to be remembered that a ‘trust’ in the sense in which the expression is used in English Law is unknown in the Hindu system, pure and simple. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, the agent is only the manager and custodian of the idol or the institution. In no case is the property conveyed to or vested in him; nor is he a ‘trustee’ in the English sense of the term although in view of the obligations and duties resting on him, is answerable as a trustee in the general sense for maladministration.”

Madras High Court, in Sree Siddhi Budhi  Vinayakagar  Sree  Sundar-eswarar  Vs. SV Marimuthu[17] it was held that the trusteeship of a Hindu temple was an honorary office, with a mere right of management of the institution and its property.

Position of Shebait or Mahanth is Analogous to that of a Trustee

Though Shebaites are only managers in charge of administration of the temple and its property and they cannot be recognised, in the strict legal sense, as trustees under strict English principles, for the property does not vest in them, as regards the administration of the debutter, the position of a shebait is analogous to that of a trustee.

In Profulla Chorone Requitte Vs. Satya Choron Requitte (1979)[18] it was observed by the Supreme Court that as under:

  • “20. … As regards the administration of the debutter, his position is analogous to that of a trustee; yet, he is not precisely in the position of a trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and not in the shebait. Although the debutter never vests in the shebait, yet, peculiarly enough, almost in every case, the shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder.”

This passage is quoted with approval in M.  Siddiq Vs. Mahant Suresh Das (2019)[19] and Marthanda Varma Vs. State of Kerala (2020).[20]

Vesting Property with Idol, in an Ideal Sense; Management with Shebait

The possession and management of the dedicated property of a temple, which is vested with the idol, being in actual possession and management of the human-being, Shebait, he is entitled to deal with all the temporal affairs of the idol. Therefore, the vesting of property with the Idol, as legal owner thereof, is qualified to be:

  • (a) in an ideal sense (Jogadinadra  Nath  Vs.  Hemanta  Kumari Debi),
  • (b) secondary/general character (Bhupathi  Nath Vs. Ramlal Maitra) or
  • (c) in a figurative sense (Yogendranath  Vs. IT Commr).

Dr. BK Mukherjea on The Hindu Law of Religious and Charitable Trusts, reads as under:

  • “(1) According to these sages the deity or idol is the owner of the dedicated property but in a secondary sense. The ownership in its primary sense connotes the capacity to enjoy and deal with the property at one’s pleasure. A deity cannot hold or enjoy property like a man; hence the deity is not the owner in its primary sense;
  • (2) ownership is, however, attributed to the deity in a secondary or ideal sense; this is a fiction but not a mere figure of speech, it is a legal fact; otherwise the deity could not be described as owner even in the secondary sense;
  • (3) the fictitious ownership which is imputed to the deity is determined by the expressed intentions of the founder; the debutter property cannot be applied or used for any purpose other than that indicated by the founder. The deity as owner, therefore, represents nothing else but the intentions of the founder…..
  • Neither God nor any supernatural being could be a person in law. So far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person and the correct view is that in that capacity alone the dedicated property vests in it.”

The Supreme Court, in Deoki  Nandan  Vs. Murlidhar (1957), after considering various decisions and Sanskrit texts, observed as under:

  • “Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha), and the true purpose of a gift of properties to the Idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.”

It is expressed in another way by the Apex Court in Yogendranath  Vs. IT Commissioner as under:

  • “The juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated. … It is also not correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of dedicated property. … Thus according to texts, the Gods have no beneficial enjoyment of properties, and they can be described as their owners in a figurative sense (though the assets are called ‘properties of the Gods’ or ‘Devaswam’)”.

Our Apex Court followed the proposition that the property vests in idol in an ideal sense only, in the following decisions.

  • Bishwanath Vs. Thakur Radha Ballabhji (1967)
  • Yogendra Nath Naskar Vs. Commissioner of Income Tax (1969)
  • Profulla  Chorone  Requitte Vs. Satya  Choron  Requitte (1979)
  • Ram Jankijee Deities Vs. State of Bihar (1999)
  • M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) (2019).

It is held by the Supreme Court in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) as under:

  • “322. Courts recognise a Hindu idol as the material embodiment of a testator’s pious purpose. Juristic personality can also be conferred on a Swayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role.”

Read Blog: Hindu Temples & Law of Trusts

Management Entrusted to Shebaites,  Ex Necessitas

In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979) it was observed by our Apex Court that the property dedicated to an idolvests in it in an ideal sense only;the possession and management has to be (ex necessitas) entrusted to some human agent. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

It is trite law that dedicated property of a temple will be vested with the idol as the legal owner thereof, though such vesting is qualified to be in an ‘ideal or secondary sense’ (Bhupathi Nath v. Ramlal Maitra: ILR 37 Cal. 128) and the possession and management thereof will be with some human being identified as Shebait or Manager, though in the strict legal sense, they cannot be accepted as trustees.

In Wali Mohammed v. Rahmat Bee, (1999- 3 SCC 145), to the question whether the Mutawalli of a Wakf would be a trustee, our Apex Court observed as under:

  • “35. It will be seen that the main part of Sec. 10 (Limitation Act) states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.
  • 36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Sec. 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult.
  • 37. The legislature therefore intervened and amended Sec. 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: “The (Civil Justice) Committee’s recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Sec. 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assignee for valuable consideration, endowments of this nature are not protected. The Committee’s recommendation is that Sec. 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.” (Quoted in: Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482).

In Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482, the Apex Court held that the Mutawalli is not a trustee in its true sense. The Supreme Court formulated a crucial question and answered it as under:

  • “127. Thus, the Mutawalli is treated as a trustee. But would the amendment made to Sec. 10 of the Limitation Act, 1963 make a Mutawalli a trustee generally?
  • Our answer is an emphatic No. This is for the reason that the change in Sec. 10 of the Limitation Act was effected to overcome the judgment of the Privy Council, when it held that a Mutawalli would not be a trustee and when in view of the requirement in Sec. 10 that the suit must be one against a person in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words “For the purpose of this section  and proceeds to declare that “any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”
  • Therefore, apart from it being an Explanation, it also on its very terms, limits the deeming fiction to the purpose sought to be attained in Sec. 10 of the Limitation Act.”

Shebaitship: Office and Property Blended-Regulated by Custom & usage

It has been held in Vidya Varuthi Thirtha v. Balusami Ayyar, (1928)[21], Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)[22], M. Siddiq  Vs. Mahant Suresh Das(2019)[23] Marthanda Varma Vs. State of Kerala (2020)[24] etc. that the office and property are both blended in the conception of shebaitship.

In Manohar Mukherji Vs. Bhupendranath Mukherji (1932)[25] it was enquired by the Calcutta High Court whether shebaitship in Hindu law was property or an office to which the founder of an endowment was competent to appoint or nominate persons in any order of succession. Surveying the precedent, Justice Mukerji held:

  • “…I can find no authority for the proposition that the limited ownership which a shebait, in ordinary cases, exercises over debuttor property is not property in the eye of Hindu law… having regard to the rights which ordinarily attach to the office of a shebait, the office and the property of the endowment go together and that when it is a question between two persons one claiming and the other disputing a right to be the shebait, the question is a question of property.”[26]

In Profulla Chorone Requitte Vs. Satya Choron  Requitte (1979)[27]it was observed as under:

  • “21. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office; but even so, it will not be quite correct to describe shebaitship as a mere office. ‘Office and property are both blended in the conception of shebaitship’.”[28]

It is noticed by Patna High Court in Baijaynanda Giri Vs. State of Bihar[29] that the combination of office and proprietary right in a mahant or a shebait was an anomaly. It was observed as under:

  • “These authorities emphasise that the position or a mahant or shebait is a combination of office and proprietary right and though the position is anomalous, it is an anomaly which has been recognised and accepted in Hindu law from a very early date.”[30]

Right to appropriate a part of the usufruct of the entrusted property, depending upon usage and custom, is peculiar to the office of shebaitship. Thus it is an honorary office with special rights of management of institution and its property.[31]

In Kunjamani Dassi Vs. Nikunja Bihari Das (1915)[32] it was observed that both the elements of office and property, of duties and personal interest, are mixed up and blended together in the conception of shebaitship; and that one of the elements cannot be detached from the other. In Sm. Angur Bala Mullick Vs. Debabrata Mullick (1951)[33] the Supreme Court followed these observations.[34]

In Angurbala Mullick Vs. Debabrata Mullick[35]the Supreme Court (Mujherjea, J.)  referring to the extract from the Privy Council decision in Vidya Varuthi Thirtha Vs. Balusami Ayyar[36] observed further that though the shebait is a manager and not a trustee, shebaitship is not a ‘mere office’; as under:

  • “11. The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami [48 I.A. 302] that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestuique trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not he correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji [I.L.R. 60 Cal. 452] and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary [63 I.A. 448] and again in Bhabatarini v. Ashalata [70 I.A. 57]. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date.
  • “According to Hindu law,” observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee [16 I.A. 137] “when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution.” Unless, therefore, the founder has disposed of the shebaitship in any particular manner – and this right of disposition is inherent in the founder – or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder.”[37]

Shebait has Rights of a Limited Owner – Regulated by Custom & usage

Shebaites have, to some extent, the rights of a limited owner. In Profulla  Chorone  Requitte  Vs.  Satya  Choron  Requitte (1979)[38] it is held as under:

  • “20. Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of shebaitship. Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as shebait in Northern India. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. …
  • 21. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office; but even so, it will not be quite correct to describe shebaitship as a mere office. “Office and property are both blended in the conception of shebaitship”. Apart from the obligations and duties resting on him in connection with the endowment, the shebait has a personal interest in the endowed property. He has, to some extent, the rights of a limited owner.”

Our Apex Court relied on the afore-stated observations, in Marthanda Varma Vs. State of Kerala.[39]In Marthanda Varma the Apex Court also quoted with approval the following passage of Dr. B K Mukherjea J. in ‘Hindu Law of Religious and Charitable Trusts’:

  • “5.5. Shebaitship is not a mere office, it is property as well.- But though a Shebait is a manager and not a trustee in the technical sense, it would not be correct to describe shebaitship as a mere office. The Shebait has not only duties to discharge in connection with the endowment, he has also a personal interest in it. As the Judicial Committee pointed out in the above case, in almost all Debutter endowments, the Shebait has a share in the usufruct of the Debutter property, which depends either on the terms of the grant or upon custom or usage. Even when no emoluments are attached to the office of a Shebait, he enjoys some sort of right or interest in the endowed property which has partially at least the characteristics of a proprietary right. You shall see later on [Chapter 6 (Administration of Debutter: Rights, Duties and Powers of a Shebait)] that although the Shebait’s power to alienate the Debutter property is very much limited and can be exercised only when there is a justifying legal necessity or benefit to the deity, yet he can create derivative tenures in respect of the endowed property, which even if not supported by legal necessity cannot be impeached so long as he is alive and remains in office. The Shebait therefore has to some extent the rights of a limited owner. It has now been decided by a Full Bench of the Calcutta High Court (supra) after an elaborate review of all authorities that shebaitship is property, with regard to the disposition of which the rule in Tagore vs. Tagore, 9 BLR. 377 is applicable, and this decision has been approved of by the Privy Council in Ganesh Chandra vs. Lal Behari (supra) and again in Bhabatarini vs. Ashalata(supra). In Janki Raman vs. Koshalyanandan, A.I.R. 1961 Pat. 293 the founder of an endowment had provided that the office of shebaitship should be held by three brothers and that it should devolve on their heirs. One of the brothers having relinquished his right in favour of the other two brothers, it was held that the devolution of the office was governed by the general law of succession relating to property, and that a relinquishment by the holder of an office was not binding upon his heirs and could not enure beyond his lifetime.”

The Calcutta High Court(Asutosh Mookerjee, J.) held the following as to the limited ownership vested with the shebaits, in Manohar Mukherjee Vs. Bhupendra Nath Mukherjee (1933)[40]:

  • “15. The deity is the recipient of the gift only in an ideal sense; the dedicated property belongs to the deity in a similar sense; in reality the property dedicated is in the nature of an ownerless thing. In ancient times, except in cases of property dedicated to a brotherhood of sanyasis, all endowments ordinarily were administered by the founder himself and after him his heirs. The idea of appointing a shebait is of more modern growth. When a Hindu creates an endowment its management is primarily in him and his heirs, and unless he appoints a shebait, he himself fills that office and in him rests that limited ownership,-notwithstanding that, on the one hand, he is the donor and, on the other, the recipient on behalf of the deity, the juridical person-which has to be exercised until the property offered to the deity has been suitably disposed of. ……… This idea of limited ownership is the essence of the position of the manager or custodian of a dedicated property, by whatever name he may be called. That this idea is the only basis on which decisions of the highest authority as regards the rights and powers of shebaits may be justified will be seen hereafter when some of these decisions will be referred to.
  •  26. Shebaitship in its true legal conception involves two ideas: The ministrant of the deity and its manager; it is not a bare office but an office together with certain rights attached to it. A shebait’s position towards the debutter property is not similar to that in England of a trustee towards the trust property; it is only that certain duties have to be performed by him which are analogous to those of trustees…….”

Manohar Mukherjee Vs. Bhupendra Nath Mukherjee is also quoted with approval in Marthanda Varma Vs. State of Kerala.[41]

Shebaits/Dharmakartas have Vide Discretion

In Silambani Chidambara Vinayar Devasthanam Vs.  Chidambaram Chettiar (1943)[42] it is observed by the Madras High Court as under:

  • “The property of a temple belongs to the Idol and does not vest in the Dharmakarta although he has a wide discretionin the spending of the funds of the institution. The Dharmakarta of a temple therefore is not a trustee of its property and therefore Section 10 (Limitation Act) as it stood before the amendment of 1929 does not apply to him.”[43]

Right of Suit in the Shebait; and Not in the Idol

The Privy Council, in Jagadinadra  Nath  Vs.  Hemanta  Kumari  Debi,[44] held that the right of suit for protection of property was vested in the Shebait; and not in the Idol. The Privy Council held:

  • “There is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. … . It still remains that the possession and management of the dedicated property belong to the Shebait. Add this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait, not in the idol.”[45]

Succession of Office of Shebait-Regulated by Custom& Usage

According to Hindu Law, when the trust is founded, the trusteeship vests in the founder and his heirs, and if the founder had prescribed a line of succession to the office of the trust but the succession to the office had entirely failed, the right of management reverts to the founder and his heirs.[46]

Our Apex Court held in Sital Das Vs. Sant Ram[47] that the law is well settled that succession to Mahantship of a Mutt or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment.

It is well settled rule of Hindu Law that when there is no provision in the deed of endowment about the succession of office of Shebait, or the succession provided therein comes to an end, the management and control of the property follows the ordinary rule of inheritance, in other words it follows the line of inheritance from the founder and passes to his heirs.[48]

Shebaitship also Property for Devolution

In viw of the special rights and interest of shebaits over the debutter property and usufruct, a shebaitship is also a property for the purposes of devolution as affirmed[49] by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur[50], and Bhabatarini Debi v Ashalata Debi[51] and our Apex Court in Angurbala Mullick Vs. Debabrata Mullick.[52] Justice BK Mukherjea considered whether the appellant, as the widow of the shebait, was entitled to act as the shebait of the idol instead of the minor son of the shebait borne from his first marriage who was the respondent. It was contended that the office of shebaitship would devolve in accordance with the Hindu Women’s Right to Property Act 1937. Justice BK Mukherjea held as under:

  • “But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.”

Whether Similar to Management of Estate of an Infant Heir[53]

The management and administration of property by Shebait or manager is described to be similar to that of a manager of the estate of an infant heir.[54] The property can be said to belong to an idol, and the possession and management of it be entrusted to Shebait or manager.[55]

But, Dr. B K Mukherjea J., ‘On Hindu Law of Religious and Charitable Trusts’ has taken the view that the analogy as to infant heir does not ‘in terms at least apply’ to an idol.[56]

Shebait – Legal Status: Analogous to that of the Manager for an Infant Heir

Hindu Idol is a juristic person. Property dedicated to an Idol vests in it. The possession and management thereof have to be with some human being.Such a person is known as Shebait. He is qualified as ‘authorised representative’ of the Idol,and as ‘manager’ on analogy similar to that of the estate of an infant heir. He is not a ‘full trustee’ as understood in English Law.

In Prosunno Kumari Debya Vs. Golab Chand Baboo,[57] the Privy Council, as early as in 1875, it was observed as under:

  • “The authority of the sebait of an Idol’s estate would appear to be in this respect analogous to that of the manager for an infant heir.”

In Pramatha  Nath  Mullick  Vs.  Pradyumna Kumar Mullick, the Privy Council (1925)[58] laid down as under:

  • “One of the questions emerging at this point is as to nature of such an idol, and the services due thereto. A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a ‘juristic entity’. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; for this doctrine, thus simply stated, is firmly established.”[59]

Management Entrusted with Shebait

Our Apex Court, in Profulla  Chorone  Requitte  Vs.  Satya  Choron  Requitte (1979)[60] it is observed as under:

  • “The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property.”

De Facto Shebait

In M. Siddiq (D) Thr. Lrs.  VS Mahant Suresh Das[61] it has been observed by our Apex Court that ‘in the vast majority of cases, a shebait is appointed in accordance with the terms of a deed of dedication by which property is endowed to an idol and that in the absence of an expressly appointed or identified shebait, the law has ensured the protection of the properties of the idol by the recognition of a de facto shebait. Where a person is in complete and continuous management of the deity’s affairs coupled with long, exclusive and uninterrupted possession of the appurtenant property, such a person may be recognised as a shebait despite the absence of a legal title to the rights of a shebait’.[62]

Shebaitship is Heritable Property

It is well-settled by the authorities that Shebaitship is a property which is heritable. In Shambhu  Charan  Shukla  Vs. Shri  Thakur Ladli  Radha Chandra Madan  Gopalji  Maharaj [63] Sabyasachi  Mukharji, J. it is held as under:

  • “The devolution of the office of Shebait depends on the terms of the deed or the Will or on the endowment or the act by which the deity was installed and property consecrated or given to the deity, where there is no provision in the endowment or in the deed or Will made by the founder as to the succession or where the mode of succession in the deed or the Will or endowment comes to an end, the title to the property or to the management and control of the property as the case may be, follows the ordinary rules of inheritance according to Hindu law.”

Nominating Successor by a Will

When one Shebait has the right to nominate his successor, nomination of successor by will is valid in law.[64]

Transfer to One in the Line of Succession of Shebait

It is observed by our Apex Court in Kali Kinkor  Ganguly Vs. Panna Banerjee[65] that the reason, why transfer in favour of the next Shebait or one in the line of succession[66] or a co-Shebaits is permissible, is that if anyone of the Shebaits intends to get rid of the duties the proper thing for him to do would be to surrender his office in favour of the remaining Shebaits. In such a case no policy of Hindu Law is likely to be affected nor can such transaction be said to be against the presumed intentions of the founder. A transfer of Shebaiti by will is not permitted because nothing which the Shebait has can pass by his will which operates only at his death. A Shebait cannot delegate his duties to another person, but he is not bound to accept his office. If he renounces his duties the renunciation in the form of a transfer in favour of the next heir can be valid in law.

In Bameswar Bamdev Shiva Vs Anath Nath Mukherjee[67] it was pointed out that if only a Shebait transfered his entire rights in favour of the next heir in succession then only such transaction became valid. It should amount to relinquishment resulting in acceleration of the interest of the next heir in succession. But if the transferor retained a portion of his rights as Shebait and transfered the remaining portion, even if such transaction be to the next heir in succession such a transfer could not be upheld.

Shebait’s Right of Nominating His Successor

Dr. B.K. Mukherjea in his Tagore Law Lectures, on The Hindu Law of Religious and Charitable Trusts, observed as to Shebait’s right of nominating his successor as under:

  • “The founder of an endowment can always confer upon a Shebait appointed by him the right of nominating his successor. Without such authority expressly given to him, no Shebait can appoint a successor to succeed to him in his office. The power of nomination can be exercised by the Shebait either during his lifetime or by a will, but he cannot transfer the right of exercising this power to another person.”[68]

Alienation of Shebaitship by Will and Inter-Vivos

In Prosunna  Kumari  Vs.  Golap Chand (1874-75)[69] the Judicial Committee laid down that a Shebait must, out of necessity, be empowered to do whatever might be required for the services of the idol and for benefit and preservation of the property. But, in Kali Kinkor  Ganguly Vs. Panna Banerjee (1974)[70]the Supreme Court took a reverse turn observing that Dr. BK Mukherjea  had pointed out[71] that the Privy Council in Prosunna  Kumari’s case dealt with the rule of necessity and extended only to an alienation of the temporality of the idol and it did not and could not apply to alienation to the spiritual rights and duties.

It was observed by the Calcutta High Court in Nagendra Nath Vs. Rabindra Nath (1926)[72] that in the absence of custom or usage to the contrary or any terms to that effect in the deed of endowment, a religious trust or the right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder.[73]

In Rajeswar Vs. Gopeswar[74] it was stated that such alienations are not regarded with much favour and that shebaitship cannot be transferred by will. As to the question whether shebaitship can be transferred inter vivos, Maclean CJ held that it cannot be transferred except under special circumstances.[75]

Dr. Mukherjea in his Tagore Law Lectures ‘On The Hindu Law of Religious and Charitable Trusts’ observes that the doctrine of alienation of Shebaitship on the ground of necessity or benefit to the deity is of doubtful authority and based upon a misconception of certain pronouncements of the Judicial Committee.

Assignment of Religious Office –  Against Public Policy

In Raja Vurmah Vs. Ravi Vurmah,[76] Rajah paid certain sum to the Urallers (managers) of the religious foundation who transferred all their rights to the Rajah. The Judicial Committee held that the assignment was void in law and could not create any rights in favour of the Rajah. In this case the doctrine of delegatus non potest delegate was pointed out and held that an assignment of religious office for the pecuniary benefit of the holder of the office was held to be against public policy and contrary to the intentions of the founder. Such transfer[77] amounted to delegation of delegated authority and could not have been sanctioned even on the footing of a custom[78] because it would be against public policy.

‘Dr. B K Mukherjea On Hindu Law of Religious and Charitable Trusts’ has pointed out:

  • “Although Shebaiti right is heritable like any other property, it lacks the other incident of proprietary right, viz., capacity of being freely transferred by the person in whom it is vested. The reason is that the personal proprietary interest which the Shebait has got is ancillary to and inseparable from his duties as a ministrant of the deity, and a manager of its temporalities.
  • As the personal interest cannot be detached from the duties the transfer of Shebaitship would mean a delegation of the duties of the transferor which would not only be contrary to the express intentions of the founder but would contravene the policy of law. A transfer of Shebaitship or for the matter of that of any religious office has nowhere been countenanced by Hindu lawyers.”[79]

Exceptions to the Rule – No Alienation of Shebaitship

The Supreme Court in Profulla  Chorone  Requitte  Vs. Satya  Chorone  Requitte (1979)[80] it was observed:

  • “Although Shebaitship is heritable property[81] yet, it cannot be freely transferred by the Shebait. But there are exceptions to this general rule. Some of such exceptions recognised in several decisions, are:
    • alienation in favour of next Shebait, or
    • one in favour of the heir of the transferor, or
    • in his line of succession, or
    • infavour of a co-Shebait,
  • particularly when it is not against the presumed intention of the founder.”[82]

The Privy Council decision in Raja VurmahVs. Ravi Vurmah[83] laid down following exceptions to the rule as to transfer of Shebaitship:

  • (1) Where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of Shebaits and suffers from no disqualification;
  • (2) When the transfer is made in the interest of the deity itself and to meet some pressing necessity; and
  • (3) When a valid custom is proved sanctioning alienation of Shebaiti right within a limited circle of purchasers.

The Bombay High Court has pointed out in Raghu Nath Vs. Purnanand[84] that if any one of the Shebaits intends to get rid of his duties, the proper things for him to do would be to surrender his office in favour of the remining Shebaits. In the case of such a transfer in favour of co-shebait, no policy of Hindu Law is likely to be affected, much less the presumed intentions of the founder.

The Appointment of Archakas by Shebaits is Essentially a Secular  Function

Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing the Archaka.[85]

Pujaris  and Right of Shebaits

Adverting to Gauri Shankar Vs. Ambika Dutt[86] and Sree Sree Kalimata Thakurani of Kalighat Vs. Jibandhan Mukherjee,[87]it is pointed out in M. Siddiq Vs. Mahant Suresh Das[88] that a pujari who conducts worship at a temple is not merely, by offering worship to the idol, elevated to the status of a shebait. A pujari is a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits.

The Legal Status of Mahant

The legal status of Mahant is still confusing and not settled.[89] In the conception of Mahantship, both the elements of office and property, duties and personal interest are blended together and neither can be detached from the other. Accepting this conception it is laid down by our courts that a Mahant’s duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity also. The purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents.[90]

Property Vestin Mahant; But, Not True Trustee

A math is an institutional sanctum presided over by a superior, Mahant, who combines in himself the dual office, or two capacities, of being the religious or spiritual head of the particular cult of religious fraternity and of the manager of the secular properties of the institution of the math.[91] He is spiritual head of the Mutt and administrator of its properties. Both are closely intermingled.[92]The whole assets are vested in him as the owner thereof in trust[93] for the institution itself.  But, he is neither a corporation nor a life tenant in respect of Mutt property.[94]

In Srimath Deivasikamani Nataraja Vs. Valliammai Achi (1918)[95] it was held by the Madras High Court that the contra observations in Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha Swami were ‘no longer of binding force’. A Mahant is also not a trustee in the sense in which the term is understood in English law. In view of the obligations and duties, Mahant is answerable as a trustee in the general sense for proper administration.[96]

In Commissioner, Hindu Religious Endowments Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)[97] the Supreme Court analysed the conception of Mahantship and declared that both the elements of office and property, duties and personal interest are blended together in his status and neither can be detached from the other. The Apex Court heldfurther as under:

  • “He is certainly not a trustee in the strict sense. He may be as the Privy Council says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be correct to describe Mahantship as a mere office. It will not be correct to say that a Mathadhipati holds the Math property as a life-tenant[98] or that his position is similar to that of a Hindu widow in respect to her husband’s estate or of an English Bishop holding a benefice.”

Our Apex Court, in Sudhindra Thirtha Swamiar Vs. Commissioner for Hindu Religious and Charitable Endowments, Mysore(1963)[99] added as under:

  • “Mahant is not a mere manager or custodian nor is he a trustee in the strict sense holding the office of Mahant by custom and usage of the institution. He has besides large powers of management and disposal, certain proprietary rights over the property of the Math.”

In Shri Krishna Singh Vs. Mathura Ahir (1980)[100] our Apex Court held that the property belongs to a Mutt is in fact attached to the office of Mahant, and passed by inheritance to no one who does not fill the office. The Head of a Mutt, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the ‘burden of maintaining the institution’. He is bound to spend a large part of income derived from the offerings of his followers on charitable or religious objects. The words ‘the burden of maintaining the institution’ must be understood to include the maintenance of Mutt, the support of its Head and his disciples and the performance of religious and other charities in connection with it, in accordance with usage.

After considering the previous decisions on this subject the Allahabad High Court observed in Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[101] that it is sufficiently clear that a Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the Math.

Mahant has Large Powers; But, Answerable as a Trustee

In Vidya Varuthi Thirtha v. Balusami Ayyar, (1928)[102] the Judicial Committee observed as under:

  • “These men (spiritual teachers under whom were founded Hindu colleges and monasteries under the names of Mutt) had and have ample discretion in the application of the funds of the institutions, but always subject to certain obligations and duties equally governed by custom and usage…called by whatever name, he is only the manager and custodian of the idol or the institution.”[103]

A Mahant has large powers[104] with respect to the administration[105]of the Mutt. He is the head of the institution. He represents the entire Mutt.[106] He has ample discretion in the application of the funds of the institution. Nevertheless, he is subject to certain fiduciary obligations and duties.He has to manage the property of the Mutt for the objects for which it exists.[107] A Mahanth is, in view of the obligations and duties resting on him, answerable, as a trustee in the general sense, for the proper administration of the institution. Apart from the directives in the deed of foundation he is also governed by custom and usage.[108]

Mulla, ‘Hindu Law’[109]lays down as under:

  • “The property of a Math is held by Mahant as spiritual head of the institution, but the property may by the usage and custom of the institution vest in trustees other than the spiritual head. In any case, the property is held solely in trust for the purposes of the institution; surplus income must be added to the endowment and not applied for the personal enjoyment of the head of the Math. A Mahant is not a trustee in the English legal sense of the term. His functions and duties are regulated by custom. His very wide discretion as to application of the income is subject to the obligation to manage the property so as to serve effectively the objects for which the Math exists. In the conception of Mahantship as in Shebaitship, both the elements of an office and property are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowment attached to an institution is manifested in his large powers and disposal and his right to create derivative tenures in respect of endowed properties and these and other rights of a similar character of proprietary right which, though anomalous to some extent, is still a genuine legal right. A Mahant, as a superior of a Math has in addition to his duties, a personal interest of a beneficial character which is much larger than that of a Shebait in a debutter property.”[110]

Sale by Mahanth Otherwise Than for Legal Necessity

A Mahant is only the custodian of property and not the owner thereof. He has no right to pass, title or interest in favour of the vendee by execution of a sale-deed unless it is shown that there was legal necessity of the same. The purchaser of such property has the duty to discharge the burden of proof that the sale-deed executed by Mahant in his favour was for legal necessity of such institution and, hence, the sale-deed will be a void document if the duty is not discharged.  Therefore, cancellation of such a document is not necessary as it is clearly without title and authority.[111]

Removal of Mahants

See Chapter: Breach of trust and Removal of Trustees

Mahant: Beneficial or Personal Interest in the Properties

In Sm. Angur Bala Vs. Debabrata[112] our Apex Court held that the right of a Mahant was not that of a bare trustee but that the right of the Mahant carried with it the element of beneficial or personal interest in the properties.[113]

Mahant: Office and Property Blended Together

The property belonging to a math is attached to the office of the Mahant and passes by inheritance. The succession to mahantship of a math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment.[114] In Angurbala Vs. Debabrata (1951),[115] Mukherjea, J. pointed out that the exact legal position of a Shebait might not be capable of precise definition, but its implications were fairly well established. But, it was settled that the relation of a Shebait in regard to debutter property was not that of a trustee to trust property under the English law.[116] As in the case of a Shebait, Mahantship also involves both elements of office and property blended together.[117] It is noticed in Baijaynanda Giri Vs. State of Bihar[118] that this combination was an anomaly. It was observed as under:

  • “These authorities emphasise that the position or a mahant or shebait is a combination of office and proprietary right and though the position is anomalous, it is an anomaly which has been recognised and accepted in Hindu law from a very early date.”[119]

The head of a Mutt (Mahant) is not a trustee in the sense in which that term is generally understood. But, Mahant has an estate for life in its endowments.  His position can be equated with that of Shebait to a large extent. It is explained by our Apex Court in Krishna Singh Vs.  Mathura Ahir (1980)[120] thus:

  • “The property belonging to a Math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The word ‘the burden of maintaining the institution’ must be understood to include the maintenance of the math, the support of its head and his disciples and the performance of the religious and other charities in connection with it, in accordance with usage. From these principles, it will be sufficiently clear that a Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math.”[121]

Our Apex Court in Sarangadeva  Periya  Matam  Vs.  Ramaswami  Goundar (1966)[122] held that the Mutt was the owner of the endowed property; and that, like an Idol, the Mutt is a juristic person  having the power of acquiring, owning and possessing property and having the capacity of suing and being sued. It was also held by the Apex Court that a Matadipathi was the manager and custodian of the institution; and that his office  carried the right to manage and possess the endowed property on behalf of Mutt and the right to sue for protection of the property. 

A Constitution Bench of the Supreme Court in Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,[123] speaking through Chief Justice BK Mukherjea, relying on an earlier decision of the Spreme Court, Angurbala Mullick Vs. Debabrata Mullick (1951),[124] elaborately considered the legal status and position of Mathadhipati.[125]  The following can be brought up from this decision:

  • It is not correct that Mathadhipati holds the Math property as a life tenant or that his position is similar to that of a Hindu widow in respect to her husband’s estate.
  • The status of a Mathadhipati is not similar to an English Bishop holding a benefice also.
  • Mathadhipati is not a trustee in the strict sense.
  • He may be, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such (as observed by the Privy Council in Vidya Varuthi Vs. Balusami[126]). 
  • Though Mathadhipati may be a manager, he is not a mere manager.
  • It would not be right to describe Mahantship as a mere office.
  • A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom.
  • Personal interest of a Mathadhipati is much larger than that of a Shebait in the debutter property.
  • Though the proprietary element in the Shebaiti right, that is Shebaitship itself is property, is in some respects an anomaly, it has to be accepted as admitted into Hindu law from an early date.[127]
  • Shebaiti right could, with equal propriety, be applied to the office of a Mahant.
  • Thus, in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest, are blended together and neither can be detached from the other.
  • The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties;
  • These and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right.
  • It is true that the Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut off, the ordinary rules of succession do not apply.

Mahant: Not Accountable

In Sammantha Pandara Vs. Sellappa Chetti (1878-81)[128] the Madras High Court discussed origin of ‘Matts’ and observed as under:

  • “It is in a certain sense trust property; it is devoted to the maintenance of the establishment, but the superior has large dominion over it, and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution. Acting for the whole institution he may contract debts for purposes connected with his mattam, and debts so contracted might be recovered from the mattam property and would devolve as a liability on his successor to the extent of the assets received by him.”

De Facto Mahant is Entitled to Maintain a Suit

A person in actual possession of a Mutt is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Mutt.[129]

Decree passed against Mahant binding on the Mutt and Succeding Mahant

In the absence of proof of collusion or fraud, a decree passed against the Mahant of a Math is binding on the succeeding Mahant and the institution as well.[130]

Validity of Transfer ofMutt for Pecuniary Consideration

While considering validity of transfer of a Mutt for pecuniary consideration (that is, gift/transfer subject to condition that the defendants should maintain first plaintiff), it was held in D Krishna Murthy Vs. C Ramana[131] that the transfer was illegal.

Mahant: Succession

When a mutt is endowed, it vests, for administration, in the Mahant. Succession of Mahant will be according to the custom, or usages that evolve in the particular mutt, except where a rule of succession is laid down by the founder himself who created the endowment.[132]The general rule is that mahantship descends from Guru to Chela, i.e., the existing mahant alone appoints his successor, and the mahants having a common origin acknowledge one of the members as a Head.[133]If the grantor has laid down any particular rule of succession to the office of a Mahant, that is to be given effect to. The onus lies on the person who asserts the custom as to succession.[134]

In Ram Parkash Das Vs. Anand Das (1916)[135] the Judicial Committee observed that the custom in the matter of succession of a Mahant is nothing but usage[136] of each institution with respect to the manner of appointing a Mahant or nominating a successor and the performance of other functions and duties relating to the Math. The Privy Council in Rama Muthuramalingam Vs. Periyanayakam[137] pointed out that the Court should try to ascertain the special laws and usages, if any, of the particular institution whose affairs had become the subject of litigation.

With respect to the succession of a Mahant it was further statedin Ram Parkash Das Vs. Anand Dasas under:

  • “Upon the death or abdication he (Mahant) is succeeded by one of the bairagi chelas. These bairagi chelas are, as stated, celibates; or if they have ever been married they must prior to their initiation as bairagi chelas, have renounced their wives and families and have conformed to the practice of the muth. This practice is ascetic; it involves a separation from all worldly wealth and ties, and a self dedication to the services and rites of the asthal …..this property is held by the mahant as its owner, and the succession to him in such property follows with the succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the muth or institution itself, and it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning mahant, this trust does exist, and that it must be respected.”[138]

In Murti Shivji Maharaj Birajman Asthal Mohalla Vs. Mathura Das Chela Naval Das Bairagi (2018)[139] Allahabad High Court observed that the a Guru of a Matt gathers around him three classes of persons namely: Chelas, Sisyas and disciples. The disciples will be the general public who are attached to the tenet to which the Matt may belong. The sishyas are part of the establishment and are admitted as sisyas by the guru. A Chela is the nominee of the guru for succession to the gaddi.[140]In very many institutions it is the practice.[141]Therefore, normally, there can be only one Chela in a Math.[142]       

Mahant is not a life-tenant

A Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the Math. In Vidyapurana Vs. Vidyanidhi[143] the Madras High Court stated that the head of the Math was a corporation sole having an estate for life in the endowments and that head of the Math is like a Bishop. The decision was doubted and there was a reference to the Full Bench of the Madras High Court in Kailasam Pillai Vs. Nataraja.[144] The Full Bench held that it could not be predicated of the head of the Math that he held the properties as a life tenant or a trustee but that the question was to be determined in each case upon usage and custom.

The Privy Council in Ram Prakash Vs. Ananda Das[145], observed as under:

  • “The Mahant is the head of the institution. He sits upon the gaddi, he initiates candidates into the mysteries of the cult, he superintends the worship of the idol and the accustomed spiritual rights; he manages the properties of the institution, he administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself.”

In Vidyavaruthi Vs. Baluswamy[146] the Privy Council clarified that the real position of the Mahant is neither a corporation sole nor a life tenant. He is also not a trustee in the English sense. It had been observed that ‘called by whatever name, he is the manager or custodian of the institution and the property which he holds is not vested in him: it is vested in the institution and is held by him as manager on behalf of the same.’ In view of the obligations and duties resting on him Mahant is answerable as a trustee in the general sense for proper administration.

The Supreme Court in Commr., HR and CE Vs. LT Swamiar (Shirur Mutt Case)[147] observed as under:

  • “He is certainly not a trustee in the strict sense. He may be as the Privy Council says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be correct to describe Mahantship as a mere office. It will not be correct to say that a Mathadhipati holds the Math property as a life-tenant or that his position is similar to that of a Hindu widow in respect to her husband’s estate or of an English Bishop holding a benefice.”
  • “Mahant is not a mere manager or custodian nor is he a trustee in the strict sense holding the office of Mahant by custom and usage of the institution. He has besides large powers of management and disposal, certain proprietary rights over the property of the Math.”

In Shri Krishna Singh Vs. Mathura Ahir[148] the Supreme Court observed as under.

  • “The property belonging to a Math is in fact attached to the office of the Mahant, and passed by inheritance to no one who does not fill the office. The head of a Math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The words ‘the burden of maintaining the institution’ must be understood to include the maintenance of the Math, the support of its head and his disciples and the performance of religious and other charities in connection with it in accordance with usage.”

Shebaitship and Mahantship Heritable Property?

Shebaits and Mahants have proprietary interest in the properties of the trust. Such a right to receive beneficial interest creates proprietary interest in them.[149]But, in most other cases, the trustees are ‘bare trustees’ to administer the trust property and to perform their duties without any proprietary interest.[150]

In Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha Swami(1904)[151]it was laid down that the management of religious foundations known as debuther, devastanams or temples is vested in one or more persons, variously known in this Presidency as Dharmakartas, Panchayets, Uralans, &c., but referred to as trustees, managers or superintendents; and that their office was either hereditary or for life and, as a general rule, they have beneficial interest in the endowments or their income.

In Sm. Angur Bala Mullick Vs. Debabrata Mullick (1951)[152] the Supreme Court laid down as under:

  • “Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property of duties and personal interest, are mixed up and blended together, and one of the elements cannot be detached from the other. It is the presence of his personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary right and attaches to it the legal incidents of property. “[153]

In ProfullaChorone  Requitte  Vs.  Satya  Choron  Requitte (1979),[154] it is held that Shebaitship is property and that it devolves like any other species of heritable property. It is further held in this decision:

  • “It follows that, where the founder does not dispose of the Shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist.”[155]

Female Shebait

The mode of administration of an endowment or a trust is destined by the founder. Therefore, primarily, answer to the question whether a female is entitled to be a shebait is depended upon the intention of the founder.

VK Varadachari in ‘Law of Hindu Religious and Charitable Endowments’ states as under:

  • “Shebaitship is property within the meaning of Hindu Women’s Right to Property Act (Act xviii of 1937), and succession to it will follow the line for the ordinary or secular property. It is the general law of succession that governs Shebaitship (Angur Bala v. Deba Bratha, AIR 1951 SC 293:1951 SCR 1125 ). Hence a female is entitled to succeed to the office of a shebait (Angur Bala v. Deba Bratha, AIR 1951 SC 293:1951 SCR 112), ‘both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. “The duties are primary and the rights and emoluments are appurtenant to the duties. Hence when a female succeeds to a priestly office, where she cannot discharge her duties personally, it is competent for her to get the duties performed by a deputy. It is not opposed to any rule of Hindu Law or Public Policy (Raja Kali Kuer v. Ram Rattan Pandey) AIR 1955 SC 493 :1955 (2) SCR 186 ). “[156]

Mukherjea on Hindu Law of Religious and Charitable trust, Tagore Law Lectures lays down this subject as under:

  • “Devolution of Shebaitship, disability of successor by reason of caste, sex, age or other disqualification: — in Southern India, Sudras are managers of several public temples and it seems that there is no restriction regarding the appointment of a female. The question whether a person is incompetent to succeed to shebaitship by reason of sex, age or any other disqualification has come up for consideration before our Courts on more occasions than one. So long as shebaitship was regarded as an office pure and simple, divergent opinions seem to have been expressed by the Courts on these points. Now that shebaitship has been definitely held to be property, much of there discussions would have no more than academic value at present; and barring exceptional cases arising out of special customs or usages, we may take it that the,right of management of an idol follows the same line of succession as any other private property.

Woman’s right to succeed to shebaitship. As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship. The Supreme Court of India has held that shebaitship is ‘property’ within the meaning of the Hindu Women’s Right to Property act. Consequently, in a case to which the Act applies, the widow and the son of the last shebait would succeed jointly to the shebaiti rights held by the latter. It has been held further that even if the expression ‘property’ in the Hindu Women’s Right to Property Act is to be interpreted as meaning property in its common or accepted sense and is not to be extended to any special type of property which ‘shebaitship’ admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent that it has been modified by the Hindu women’s Right to Property Act would also be attracted to devolution of shebaiti right (Angurbala v. Debabrata, AIR 1951 SC 293 ).”[157]

In Seth Soorajmull Jalan Trust Vs. Tolaram Jalan,[158] the Calcutta High Court observed that ‘he embargo to female succession is done away with’. The High Court relied on the following decisions:

  • Monohar Mukherji v. Bhupendranath Mukherji, 1932 AIR(Cal) 791,
  • Ganpat Dhaku Telivs Tulsiram Ukha Dhangar,  ILR 36 Bom 88,
  • Khub Lal Singh v. Ajodhya Misser, 22 CLJ 345,
  • Ramanathan Chetty Vs. Muragappa Chetty ILR 29 Mad 288,
  • Angur Bala v. Deba Bratha, AIR 1951 SC 293,
  • Thakurani Shree Shree Durga Mata Vs. Sibani Dutta, 2014 2 Cal LJ 112.

Samadhies

Many saints who have lived in this world showed spiritual path to the people and endowments for worship were created over the mortal remains of such saints, it is known as Samadhi. Samadhies are places of public worship. Statutory recognition has been given to the saints in some States like Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments at 1987.[159]

Legal Necessity and Sale of Temple Property

See Chapter: alienation of trust property

Alienation of Trust Property

See Chapter: Alienation of Public Trust Property

Read Blogs:Common Law of TRUSTS in India

[1]      Page 201- Dr. BK Mukherjea, Tagore Law Lecturers; Vidyapurna  Tirtha Swami Vs.  Vidyanidhi  Tirtha Swami (1904): 27 ILR Mad 435.

[2]      See AIR 1952 Mad 613.

[3]      See: Chhatra  Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196.

[4]Baijaynanda Giri Vs. State of BiharAIR 1954 Pat 266; Quoted in: Mahanth Motilal Goswami Vs. State of Bihar: AIR 1993 Pat 171(SB Sinha,J).

[5]Sm. Angur Bala Mullick Vs. Debabrata Mullick:AIR 1951 SC 293.

[6]Profulla Chorone Requitte  Vs.  Satya Choron Requitte: AIR 1979 SC 1682.

[7]      AIR 1979 SC 1682; See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[8]M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[9]Arulmigu  Kolavizhi Amman Temple Vs. R Shamughamthat: 2008-3-Mad LJ 732

[10] AIR 1977 Mad 79

[11]    Profulla  Chorone  Requitte Vs. Satya  Chorone  Requitte: AIR 1979 SC 1682:  Also See: Jagadinadra  Nath Vs.  Hemanta  Kumari Debi: (1904) 31 Ind App 203 (PC); Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228; M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[12]    Sri Ganapathi Dev Temple Trust VS Balakrishna Bhat: 2019 0 Supreme(SC) 1025; Bishwanath  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044; Ram Jankijee Deities Vs. State of Bihar: AIR 1999 SC 2131; Dipti Narayan Srimani Vs. Controller Of Estate Duty:  AIR 1988 SC  1511; Badri Nath VS Punna: AIR 1979 SC 1314: Mahant Ram Krishna Das Vs S. P. Sahi, The Special Officer: AIR 1959  SC 942; Angurbala Mullick v. Debabrata Mullick: AIR1951 SC 293; Arulmigu  Kolavizhi  Amman Temple Vs. R Shamugham: 2008-3 Mad LJ 732; Kalankadevi Sansthan VS Maharashtra Revenue Tribunal: AIR1970  SC 439;  State Wakf Board Vs. Subramanyam : AIR 1977 Mad 79

[13]    AIR 1979 SC 1682; See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[14]    AIR 1922 PC 123.Relied on in M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[15]    At page 204. Quoted in: M.  Siddiq (D) Thr.  Lrs.  VS Mahant Suresh Das:2020-1 SCC 1.

[16]    AIR 1922 PC 123

[17]    AIR 1963 Mad 369.

[18]    AIR 1979 SC 1682

[19] 2020-1 SCC 1

[20] 2020-7 JT 200: 2020-4 Ker LT 490.

[21]   AIR 1922 PC 123; (1928) LR 48 IndAp 302: 1928-41 Mad LJ 346:

[22]   AIR 1954 SC 282

[23]   2020-1 SCC 1.

[24]   JT 2020 7 200 

[25]   ILR 60 Cal 452: AIR 1932 Cal 791.

[26]   Quoted in: M.  Siddiq Vs. Mahant Suresh Das:2020-1 SCC 1.

[27]   AIR 1979 SC 1682

[28]   Quoted in: Marthanda Varma Vs. State of Kerala: 2020-7 JT 200: 2020-4 Ker LT 490

[29]   AIR 1954 Pat 266

[30]   Quoted in: Mahanth Motilal Goswami VS State of Bihar, AIR 1993 Pat 171(SB Sinha,J.)

[31]    Sree Siddhi Budhi  Vinayakagar  Sundareswarar Vs. S V Marimuthu: AIR 1963 Mad 369.

[32] 1915-20 CWN 314

Referred to in:  Bhabatarini Debi Vs Ashalata Debi: AIR 1943  PC 89

[33] AIR 1951 SC 293

[34]    See also: Badri Nath Vs. Punna: AIR 1979 SC 1314; Sree Sree Kalimata Thakurani Vs. Jibandhan Mukherjee: AIR 1962 SC 1329

[35]AIR1951 SC 293

[36]AIR 1922 PC 123

[37] Quoted in: In Seth Soorajmull Jalan Trust Vs. Tolaram Jalan, 2015 AIR (CC) 3225, 2015-4 Cal LT  1;  Pran Krishna Das Vs. Controller of Estate Duty: AIR 1968  Cal 496; M.  Siddiq (D) Thr.  Lrs.  VS Mahant Suresh Das:2020-1 SCC 1.

[38]    AIR 1979 SC 1682

[39] 2020-7 JT 200: 2020-4 Ker LT 490,

[40]ILR 1933-60-Cal 452

[41] 2020-7 JT 200: 2020-4 Ker LT 490,

[42]    AIR 1943 Mad 691.

[43]    Quoted in: Balram  Chunnilal Vs. Durgalal  Shivnarain: AIR1968 MP 81

[44]    (1904) 31 Ind App 203 (PC)

[45]    Quoted in: Bishwanath  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044.

[46]Vadivelu Mudaliar Vs. CN  Kuppuswami Mudaliar: ILR1971-3 Mad142.

[47]AIR 1954 SC 606; Mahanth Motilal Goswami VS State Of Bihar: AIR 1993 Pat 171

[48]    Bhagauti Prasad Khetan  Vs. Laxminathji  Maharaj: AIR 1985 All 228.

[49] See: M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[50] (1935-36) 63 IA 448

[51] (1942-43) 70 IA 57

[52]AIR1951 SC 293

[53]    See Chapter: RIGHTS AND DUTIES OF TRUSTEES

[54]    See: PramathaNathMullick Vs. Pradumna Kumar Mullick, (AIR 1925 PC 139); Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; YogendraNathNaskar Vs. Commr. of Income Tax Calcutta: AIR 1969 SC 1089.

[55]    YogendraNathNaskar Vs. Commr. of Income Tax Calcutta: AIR 1969 SC 1089; ProsunnoKumariDebya Vs. Golab Chand Baboo, (1874-75) 2 Ind App 145 (PC)

[56]    Fifth Edition: Pages: 257, 265 & 271; See also: ChamelibaiVallabhadasVs. Ramchandrajee, AIR 1965 MP 167.

See Chapter: Suit against Deity: Appointment of Next Friend.

[57]    (1875)  LR 2 Ind. App. 145

[58]    AIR 1925 PC 139

[59]    Quoted in: Ram Jankijee Deities Vs. State of Bihar: AIR 1999 SC 2131.          

[60]    AIR 1979 SC 1682

[61]2020-1 SCC 1.

[62]M. Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1.

[63]    (1985) 2 SCC 524.

[64]    S Rathinam Alias KuppamuthuVs. L S Mariappan AIR 2007 SC 2134; Shyam Sunder Vs. Moni Mohan AIR 1976 SC 977; See also: Nandlal Vs. Kesharlal AIR 1975 Raj. 226; Relied on Rajeshwar Vs. Gopeshwar, (1908) 35 Cal. 226. But a different view was taken by the same High Court in SovabatiDassiVs. KashiNath AIR 1972 Cal. 95. Also see: MancharamVs. Pranshankar (1882) 6 Bom. 298.

[65]    AIR 1974 SC 1932

[66]Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490; Mancharam v. Pranshankar, 6 Bom. 298; Rajeswar v. Gopeswar, 35 Cal. 226

[67]Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490

[68]    Quoted in S Rathinam Alias Kuppamuthu Vs. L S Mariappan: AIR 2007 SC 2134

[69] (1874-75) 2 Ind App 145 (PC); Relied on in:  Kheter  Chunder  Ghosh  Vs. Hari Das (1890) ILR 17 Cal 557

[70] AIR 1974 SC 1932

[71] Nagendra  Nath: AIR 1926 Cal 490 and Rajeswar Vs. Gopeswar: 35 Cal. 226: 7 CLJ 315

[72] AIR 1926 Cal. 490; Quoted in:  Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490

[73] Mahamaya Debi vs. Haridas: AIR 1915 Cal. 161; Monohar Mukherji vs. Bhupendra Nath: AIR 1932 Cal. 791; Bameswar Bamdev Shiva Vs Anath Nath Mukherjee AIR 1951 Cal 490

[74]35 Cal. 226 : 7 CLJ 315

[75] Referrred to in: Bameswar Bamdev Shiva Vs. Anath Nath Mukherjee: AIR 1951 Cal 490.

[76]    (1877) ILR 1 Mad 235: (1876-77) 4- Ind App 76 (PC).

[77]    In Kali Kinko  rGanguly Vs. Panna Banerjee (AIR 1974 SC 1932) it is observed that this doctrine has been applied on transactions by way of lease or mortgage also.

[78]    See also: Kali Kinkor  Ganguly  Vs. Panna Banerjee: AIR 1974 SC 1932; Sunderambal Vs. Yogavanagurukkal: AIR 1915 Mad 561.

[79]    Quoted in: Kali Kinkor  Ganguly Vs. Panna Banerjee: AIR 1974 SC 1932

[80]    AIR 1979 SC 1682 at 1687

[81]    Also: Angurbala  Vs. Debabrata: AIR 1951 SC 293; Kali Kinkor  Ganguly Vs. Panna Banerjee: AIR 1974 SC 1932. Partition of shebaiti right is possible: Mahamaya Vs. Haridas, AIR 1915 Cal 161 ; Kheter  Chunder  Ghosh Vs. Hari Das (1890) ILR 17 Cal 557

[82]    Quoted in Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228; See: Nirad Mohini v. Shiba Das (1909) ILR 36 Cal 975; Mancharan Vs. Pranshankar: (1883) ILR 6 Bom 298.

[83]    (1877) ILR 1 Mad 235: (1876-77) 4- Ind App 76(PC). Referred to in: D Krishna Murthy Vs. C Ramana: 1993-2 ALT 414; Kali KinkorGanguly Vs. Panna Banerjee: AIR 1974 SC 1932; K. Manathunainatha  Desikar Vs. Sundaralingam AIR 1971  Mad  1. Same principle is laid down in: Tagore Vs. Tagore (1872) L.R. IndAp 47. Also see: S Rathinam Alias KuppamuthuVs. L S Mariappan: AIR 2007 SC 2134.

[84](1923) ILR 47 Bom 529

[85]    Seshammal Vs. State of TN: AIR 1972  SC 1586; AS Narayana   Deekshitulu v. State of AP: AIR 1996  SC 1765; KS Varghese Vs St.  Peter’s & Paul’s Syrian Church: 2017-15 SCC 333.

[86] AIR 1954 Pat 196

[87] AIR 1962 SC 1329

[88]2020-1 SCC 1.

[89]    Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[90]    Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[91]    Krishna Singh v. Mathura Ahir: AIR 1980 SC 707

[92]    Ram Prakash Vs. Ananda Das (1916)AIR 1916 PC 256: ILR (1916) 43 Cal 707; Murti Shivji Maharaj Birajman Vs. Mathura Das: 2018-8 ADJ 843; 2018 130 All LR 591;

[93]    Baijaynanda Giri Vs. State of Bihar:AIR 1954 Pat 266; Ram Parkash Das Vs. Anand Das: AIR 1916 PC 256.

[94]    Vidya Varuthi Vs. Baluswami Ayyar: AIR 1922 PC 123; Baijaynanda Giri Vs. State of Bihar: AIR 1954  Pat 266; Lakshmi Narayan Vs. State: AIR 1978 Pat. 303; Murti Shivji Maharaj Birajman Vs. Mathura Das: 2018-8 ADJ 843; 2018 130 All LR 591; Jatindra Nath Singha Vs. Assam Board of Revenue: 1983-1 GauLR 87.

[95]    52 IndCas 914

[96]    Pramod Nautiyal Vs. State of Uttarakhand: 2016 1 UD 419; Sudhindra Thirtha Swamiar Vs.The Commr. r HR and CE, Mysore:  AIR 1963 SC 966; Murti Shivji Maharaj Birajman Vs. Mathura Das: 2018-8 ADJ 843; 2018 130 All LR 591; CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624;

[97]    AIR 1954 SC 282

[98]    Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018); 2018 8 ADJ 843; 2018 130 All LR 591; Commr. HR Endnts Vs Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt: AIR 1954 SC 282

[99]    AIR 1963 SC 966

[100]  AIR 1980 SC 707

[101]2018-8 ADJ 843; 2018-130 All LR 591

[102]AIR 1922 PC 123; (1928) LR 48 IndAp 302: 1928-41 Mad LJ 346:

[103] Quoted in: Sri La Sri Somasundara Gnana Vs. Sri Krishnandaswami: ILR 1968-2 Mad 231: 1966-2 Mad LJ 551; Ramamohan Das  Vs. Basudeb Dass: AIR  1950 Ori 28

[104] Sudhindra Thirtha Swamiar Vs. Commr For HR And CE: AIR 1963 SC 966; Commr. HR Endnts Vs Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt: AIR 1954 SC 282; Lakshamana Yatendrulu Vs. State of A. P: AIR 1996  SC 1414.

[105] Basudeo Roy Vs. Jugal Kishwar Das: AIR 1918 PC 37; Ram Prakash Das v. Anand Das [1916] 43 Cal. 707: 33 I.C. 583: 43 I. A. 73 (P.C.).

[106]Satya Charan Sarkar v. Mohanta Rudrananda Giri, AIR 1953 Cal 716; P.  Natesa Achar VS Parasamaya Kolerinatha Madam: 1999 2 MLJ 585;  Swami Harbansa Chari Ji v. State: AIR 1981 MP 82

[107]Kesho Das v. Amar Dasji: AIR 1935 Pat 111.

[108]  Sri Vidya Varuthi Thirth Swamigal Vs. Baluswami Ayyar: AIR 1922 PC 123; Baijaynanda Giri VS State Of Bihar:  AIR 1954 Pat 266

[109]13th Edn.para. 414

[110] Quoted in: Mahadeo Nath Vs. Meena Devi: AIR 1976  All 64

[111]Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi: 2018 8 ADJ 843; 2018 130 AllLR 591

[112] AIR 1951 SC 293

[113]Baijaynanda  Giri Vs. State of Bihar: AIR 1954  Pat 266.

[114]Krishna Singh Vs. Mathura Ahir AIR 1980 SC 707.

[115]AIR1951 SC 293

[116] See: Mahant Ram Krishna Das VS S. P. Sahi, The Special Officer in charge of Hindu Religious Trust: AIR 1959 SC 942.

[117]Commr. HR Endnts Vs Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt: AIR 1954 SC 282

[118]AIR 1954 Pat 266

[119] Quoted in: Mahanth Motilal Goswami VS State of Bihar, AIR 1993 Pat 171(SB Sinha,J.)

[120]  AIR 1980 SC 707

[121]  Quoted in: Yelandau  Arasikere  Deshikendra  Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[122]  AIR 1966 SC 1603

[123]AIR 1954 SC 282

[124]AIR1951 SC 293

[125] See: M SiddiqVs. Mahant Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[126]48 IA 302

[127]Monahar Vs. Bhupendra: 60 Cal 452; Ganesh Vs. Lal Behary: 63 IA 448; Bhabatarini Vs. Ashalata: 70 IA 57; Angurbala vs. Debabrata 1951 SC  .

[128]  ILR 2 Mad 175

[129]  Parshvanath Jain Temple Vs. L.Rs of Prem  Dass: 2009-3-RCR (CIVIL) 133. Mahadeo  Prosad Vs. Karia: L.R.62 I.A.47: 39 CWN 433(PC) ;  Ram Chandra Vs. Nawrangi, L.R.60 I.A.124: 37 C.W.N.541. See also: Vikramadas Vs. Daulat Ram, 1956 S.C.R.826; JawaharLalVs. Sri Thakur Radha  Gopaljee  Maharaj: AIR1945 All 169.

[130]Kuber Singh v. Phunnan Rai, AIR 1935 All 255

Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018 8 ADJ 843; 2018 130 AllLR.

[131]  1993-2  ALT  414

[132]  Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707; Genda Puri v. Chatar Puri: (1886) 13 Ind App 100 (PC); Sital Das v. Sant Ram: AIR 1954 SC 606; Mahalinga Thambiran Vs. La Sri Kasivasi Arulnandi Thambiran: AIR 1974 SC 199

[133]Krishna Singh Vs. Mathura Ahir AIR 1980 SC 707.

[134]Mahant Bhagwan Bhagat Vs. G.N. Bhagat: (1972) 1 SCC 486; Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[134] 2018 8 ADJ 843; 2018 130 All LR 591

[135] AIR 1916 PC 256

[136]Mahant Bhagwan Bhagat Vs. G.N. Bhagat: (1972) 1 SCC 486

[137]1 IA 209; Referred to in: Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[137] 2018 8 ADJ 843; 2018 130 All LR 591.

[138]Quoted in: Baijaynanda Giri Vs. State of Bihar: AIR 1954 Pat 266

[139]  2018 8 ADJ 843; 2018 130 All LR 591

[140]Srinivasa Das v. Surajanarayan Dass, AIR 1967 SC 256

[141] Bihar State Board of Religious Trust VS Mahanth Ramgun Dasjee Chela: 2013  AIR Pat 106; The Bihar State Board of Religious Trust, (Patna) Vs. Mahanth Sri Biseshwar Das, AIR 1971 SC 2057

[142]Prithi Nath v. Birkha Nath, AIR 1956 SC 192

[143]  ILR 27 Mad 435

[144]  ILR 33 Mad 205

[145]  ILR (1916) 43 Cal 707.

[146]  AIR 1922 PC 123.

[147]AIR 1954 SC 282

[148](1981) 3 SCC 689

[149]  Bai  Zabu  Khima vs. Amardas  Balakdas A. I. R. 1967 Guj. 214; Ram Nath Das Vs. Ram Nagina  Choubey; AIR 1962 Pat. 481; Sm. Angurbai  Mullick  Vs.Debabrate  Mullick: AIR 1951 SC 293; Banku B. Das Vs. Kashi N. Das: AIR 1963 Cal. 88; Tulsidas  Kalichand Vs. Commr. of Income Tax: AIR 1961 SC 1023.

[150]  Bai  Zabu  Khima Vs. Amardas  Balakdas: AIR 1967 Guj. 214; Ram Nath Das Vs. Ram Nagina  Choubey; AIR 1962 Pat. 481; Sm. Angurbai  Mullick  Vs.  Debabrate  Mullick: AIR 1951 SC 293; Banku B. Das Vs. Kashi N. Das: AIR 1963 Cal. 88; Tulsidas  Kalichand Vs. Commr. of Income Tax: AIR 1961 SC 1023.

[151]  27 ILR Mad 435

[152] AIR 1951 SC 293

[153] Quoted in: Pran Krishna Das Vs. Controller of Estate Duty: AIR 1968  Cal 496.

[154]  AIR 1979 SC 1682

[155]  Quoted in Bhagauti Prasad Khetan  Vs.Laxminathji  Maharaj: AIR 1985 All 228.

[156]Sankar Nath Mullick Vs Lakshmi Sona Oatta: 2004 2 CalLJ 393; 2004 2 CalLT 535; 2005 1 CalLT 1; 2005 109 CalWN 600

[157]Sankar Nath Mullick Vs Lakshmi Sona Oatta: 2004 2 CalLJ 393; 2004 2 CalLT 535; 2005 1 CalLT 1; 2005 109 CalWN 600.

[158] 2015 AIR (CC) 3225, 2015-4 Cal LT  1

[159]  Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Law of Mutts, Dharmasalas and Other Hindu Endowments

Saji Koduvath, Advocate, Kottayam.

Introduction.

Apart from Temples, Mutts and Dharmasalas are the predominant charitable establishments in India. Hindu Law accepts Schools, tanks, alms-houses etc. also as legally recognisable entities.

A Mutt, spelled as ‘Math’ or ‘Muttum’, is known in northern India as Asthals.[1]  They are monastic institutions.[2] In ordinary language it suggests, an ‘abode’ or ‘residence’ of ascetics[3] (Sanyasies). Mutts are established primarily for the use and benefit of ascetics.  Mutts also serve as centres of learning on the religious and other literature.[4] They usually make arrangements for giving food and shelter to wayfarers and ascetics attached to them. Generally the ascetics belong to a particular order.  They are the disciples of the spiritual teacher,[5] the Head or Superior of the Mutt.[6] He is called ‘Mahanth’, ‘Mohunt’ or ‘Madadhipati’.

Endowments in favour of the temples were the earliest forms of religious trusts. Maths came very much later.[7] An institution comes within the definition of ‘Mutt’ if it satisfies three conditions:[8] (i) that the institution be for the promotion of the Hindu Religion; (ii) that it be presided over by a person whose duty is to engage himself in-spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and (iii) that the office of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage. Building of the institution is also called Mutt. 

Temple Manifests Practical Aspect; Matt, Theoretical Part.

A Math is totally different from a temple in its concept. In the beginning when sanyasis took the responsibility of teaching the people moral and religious preachings, they must have either taken shelter in temples or got built separate huts or temples away from them. This was the start of Math. Thus a Math became a place for preparing sandhus, sanyasis to preach the religion and spiritualism. This temple and Math in India are supplementary to each other. A temple is practical aspect while a Math is theoretical part. The presiding element in a Math is a as ascetic or religious teacher, with his disciples and co-disciples, he forms a spiritual family. In the case of temple, the grantee is the idol. In the case of Math, the beneficiary is fraternity of religious men headed by superior of Mahant while in the Math the idol is the center part of the institution.[9]

Sankarachariya Established Mutts for the First Time

Dr. BK Mukherjea on The Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures, denotes that Hindu Mutts were established for the first time by Adi Shankaracharya.[10]Madras High Court in Giyana Sambandha Pandara Sannadhi Vs. Kandasami Tambiran (1887)[11]while discussing the history of origin of Mutts, it was observed as under:

  • “But when the Buddhists assailed the Brahminical religion and when Sankarachariyar, the founder of the Advaita or non-dualistic school of philosophy, ultimately prevailed against them, he established some Mutts in order to maintain and strengthen the doctrine and the system of religions philosophy he taught, Sanniyasis being placed at the head of those institutions. After Sankarachariyar, the founders of the Vaishnava, Madhva and other schools of religious philosophy in this Presidency established Mutts for a similar purpose. In former times these institutions exercised considerable influence over the laymen in their neighbourhood; they became centres of classical and religious learning and materially aided in promoting religious knowledge and in encouraging religious and other charities.”

Mutt is a is also a ‘Juristic Person’

The Courts in India as well as the Privy Council have uniformly accepted the Hindu Idol and Matt[12] as juristic persons. Our Apex Court, in Sarangadeva  Periya  Matam  Vs.  Ramaswami  Goundar,[13]  held that the Mutt was the owner of the endowed property; and that, like an Idol, the Mutt was a juristic person having the power of acquiring, owning and possessing property and having the capacity of suing or being sued.It is held by our Apex Court in Krishna Singh Vs. Muttura Ahir[14] that a Mutt is, under the Hindu Law, a juristic person[15] in the same manner as a temple where an Idol is installed.[16] In Shri Krishna Singh Vs. Mathura Ahir[17] our Apex Court observed as under:

  • “A math is an institutional sanctum presided over by a Superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math.”

According to Hindu jurisprudence, a Mutt is a ‘juristic entity’[18] and capable of holding and acquiring property. The ownership of property vests in the institution. From the very nature of Mutt, it can act and assert its rights only through a human agency, Mahant also known as Shebait are Dharmakarta or sometimes,Trustee.[19]

A mutt is, under the Hindu Law, a juristic person in the same manner as a temple where an idol is installed. Relying Dr. BK Mukherjea J., it was further observed in Thayarammal Vs. Kanakammal that when property was dedicated for a particular purpose, the property itself upon which the public purpose was impressed, was raised to the category of a juristic person so that the property which was dedicated would vest in the person so created.[20]

While dealing with partial dedication of property for creation of a Dharmasala, it is held in Kuldip Chand Vs. AG to Govt. of HP[21] thus:

  • “When the complete control is retained by the owner – be it be appointment of a Chowkidar, appropriation of rents, maintenance thereof from his personal funds – dedication cannot be said to be complete.”

Dedication of Property to a Mutt

Dedication of property to a Mutt is similar to that of a temple. If a Mutt is established as a subordinate one to a parent Mutt, the latter exercises some sort of control over the subordinate one. The distinction between dedication to a temple and a mutt is that in the former it is to a particular deity, while in the latter, it is to a superior or a Mahant.

Temple is Not a Necessary Part of a Mutt

A place of worship or a Temple is not a necessary part of a Mutt, though it is often found in such institution and although primarily intended for the use of inmates, the public may also be admitted to such places of religious worship.[22]

Public and Private Matts

Just as in the case of the Debutter endowment, there are both private and public endowments.  A Mutt can be dedicated for the use of ascetics generally or for the ascetics of a particular sect or cult, in which case it would be a public institution. The question whether a particular Mutt forms a public religious endowment or is a private institution must be judged in the light of the evidence in each case. The same characteristics relevant to a temple apply to distinguish a private and a public mutt. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances.[23] Nevertheless, it is probable to have a private Mutt where endowment is not intended to confer benefit upon the public generally or even upon the members of a particular religious sect or order.

Dr. BK Mukherjea says that there can be a private Mutt depending upon the construction of grant, customs and usage of the institution etc. However, where the body is created for the benefit of public generally, Matt is dedicated for the use of ascetics generally, such Matt would be regarded as public institution. Mutts have generally Sadavrats or arrangement for feeding and giving shelter to wayfarers and ascetics attached to them. Knowledge as to origin of the mutt, its antiquity, the nature of the gifts, the way how these have been treated by its head, the long established usage and custom of the institution throw valuable light on the question whether a Mutt is a public religious endowment or a private institution.[24]

Maths and Mahants Governed by Custom and Practice

By the Privy Council decisions in Rama Muthuramalingam Vs. Periyanayakam[25] and Greedharee Das case,[26] it had been settled that the Mahants and their Maths were governed only by the custom and practice of their Maths. This custom is not common to all Mutts with respect to the manner of appointing a Mahant, nominating a successor and the performance of other functions and duties.[27] The Privy Council in Rama Muthuramalingam Vs. Periyanayakam[28] pointed out that the Court should try to ascertain the special laws and usages, if any, of the particular institution whose affairs have become the subject of litigation.

The Supreme Court in Mahant Bhagwan Bhagat Vs. GN Bhagat[29]  has stated the factors for determining succession. Once a Math is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution. In a Math it is the custom or practice of a particular institution which determines as to how a successor is to be appointed. The onus lies on the Mahant to substantiate the custom as to succession claimed by him. In various institutions the custom is that in order to entitle a Chela to succeed, he must be appointed or nominated by the reigning Mahant during his lifetime or shortly before his death and this may be done either by a written declaration or some sort of testamentary document. In other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the lifetime of the last Mahant or when the funeral ceremonies of the latter are performed. When the Mahant has the right to appoint his successor, he may exercise the right by an act inter vivos or by Will. In many cases when a successor is appointed by Mahant, he is installed in office with certain ceremonies. This cannot be deemed to be essential.[30]

The Allahabad High Court observed in Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[31]that three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant. The first is that if the grantor has laid down any particular rule of succession, that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is to be followed: and in the third place, the party who lays claim to the office of a Mahant on the strength of any such usage must establish it affirmatively by proper legal evidence.

Chelas, Sisyas and Disciples

A Guru of a Math gathers around him three classes of persons namely – Chelas, Sisyas and disciples. The disciples will be the general public who are attached to the sect or the tenet to which the Math may belong. They are only in the position of worshipers in a temple. But the sishyas are part of the establishment and are admitted as sisyas by the guru for the purpose of carrying on the work of the Math. They may be even large in number. A Chela is not an ordinaly sisya. He is the nominee of the guru for succession to the gaddi.[32] Therefore, there can be only one Chela in a Math. In some reported cases a claim was made that the claimant is a senior Chela and was entitled to be nominated. The Allahabad High Court has pointed out in Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi (2018)[33]that such claims are fallacious as according to the Supreme Court a Chela is one who is a nominated sisya to the headship.

Dharamchatra

Dedication to a Dharamchatra, in the strict legal sense, is neither a gift as understood in the Transfer of Property Act nor it is a trust. A gift requires an acceptance by the donee. The Indian Trusts Act, as clear by its Preamble and contents, is applicable only to private trusts and not to public trusts. Referring Dr. BK Mukherjea J., on Hindu Law of Religious and Charitable Trusts,[34] our Apex Court pointed out in Thayarammal  Vs. Kanakammal[35] that the dedication by a Hindu for religious or charitable purposes is neither a gift nor a trust in the strict legal sense.

Schools, Tanks, Choultries, Alms Houses, etc.

While dealing with a question whether a Dharmachatram, a Chowltry of South India where properties were dedicated for use by the public travellers and pilgrims could take shelter and be provided with refreshments, would constitute a Trust, it has been held by our Apex Court in Thayarammal Vs. Kanakammal,[36] that there was distinction between a ‘trust’ in strict legal sense and a ‘religious or charitable endowment’ as understood in customary Hindu Law. The Apex Court observed that Hindus in India consider the establishment of temples, mutts and other forms of religious institutions or excavation and consecration of tanks, wells and other reservoirs of water, planting of shady trees for the benefit of travellers, establishment of Choultries, sarais or alms houses and Dharamsala for the benefit of mendicants and wayfarers and pilgrims as pious deeds which would bring heavenly bliss and happiness to a Hindu. It was also held in this decision that the dedication of property for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust.

School: Juristic Personality

It was held in DAV College Hoshiarpur Vs. Sarvada  Nand Anglo Sanskrit Higher Secondary School[37] that the educational institution or school involved in that case was to be regarded as one possessing a juristic personality and capable of holding property, under the Hindu Law, as the object of the educational institution or the school was recognised as a charitable or religious matter.

Vesting of Tank

It was held by our Apex Court in Kamaraju  Venkata Krishna RaoVs. Sub Collector, Ongole[38] that under Hindu Law a tank can be an object of charity and when a dedication was made in favour of a tank, the same was considered as a charitable institution. Without deciding whether that institution can also be considered as a juristic person, it was held that the same had to be registered in its name (ie., in the name of the tank) in the Inam register though it had continue to be managed by its Manager.

[1]      Bihar State Brd. of Religious Trust v. Mahant Sri Biseshwar Das, AIR 1971 SC 2057

[2]      Ram Parkash Das Vs. Anand Das: AIR 1916 PC 256;

The Bihar State Brd. Religious Trust Vs. Mahanth Sri Biseshwar Das: AIR 1971 SC 2057;

H.H. Shri Swamiji of Shri Amar Mutt Vs. Commr, HR and C Endnts. Dept: AIR 1980 SC 1.

[3]      Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707

[4]      Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707

[5]      H.H. Shri Swamiji of Shri Amar Mutt Vs.Commr, HR and C Endnts. Dept: AIR 1980 SC 1.

[6]      Swami Vasudevanand Saraswati Vs Jagat Guru Shankarcharya: 2017 Supp ADJ 1;

H.H. Shri Swamiji of Shri Amar Mutt Vs.Commr, HR and C Endnts. Dept: AIR 1980 SC 1.

[7]      Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[8]      Srinivas Das v. Surjanarayan: AIR 1967 SC 256.

[9]   Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[10]    Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707

[11]    ILR 10 Mad 375

Followed in:  Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha: (1904) ILR 27 Mad 435

Kailasam Pillai Vs. Nataraja Thambiran and others: (1910) ILR 33 Mad 265.

[12]    Kaliappan Servai Karan Vs. Vardarajulu: (1909) 3 Ind. Cas. 737 : 19 Mad LJ 651

H H Shri Swamiji of Shri Amar Mutt Vs.Commr Hindu Religious: AIR 1980 SC 1

Thayarammal Vs. Kanakammal: AIR 2005 SC 1588

[13]    AIR 1966 SC 1603.

[14]    AIR 1972 All 273

[15]    Babaji Rao Gambhirsing Vs. Laxmandas Guru Raghunathdas: (1904) ILR 28 Bom 215

Mahant Indresh Charan Das Vs. State of Uttar Pradesh: 1971- 81 ITR 435

[16]    Referred to in Thayarammal  Vs.  Kanakammal: AIR 2005 SC 1588.

See: Babaji Rao Gambhirsing Vs. Laxmandas Guru Raghunathdas: (1904) ILR 28 Bom 215;

Yelandau  Arasikere  Deshikendra  Sammthana  Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323

[17]    Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707;

CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624

[18]    H.H. Shri Swamiji of Shri Amar Mutt Vs.Commr, HR and C Endnts. Dept: AIR 1980 SC 1.

[19]    Babajirao v. Laxmandas (1904) :  ILR 28 Bom 215;

Shri Krishna Singh v. Mathura Ahir: AIR 1980 SC 707

[20]    See also: H. H. Shri Swamiji  VSCommr, Hindu Reli. and Chari. Endnts: AIR  1980 SC 1.

[21]    AIR 2003 SC 1685.

[22]    Thamba Vs. Arundel, ILR 6 Mad 287

[23]    The Bihar State Brd. of Religious Trust Vs. Mahanth Sri Biseshwar Das: AIR 1971 SC 2057

[24]    CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624

[25]1 IA 209

[26]11 MIA 405

[27]Ram Prakash Vs. Anand Das:ILR (1916) 43 Cal 707 (PC)

[28]1 IA 209

[29](1972) 1 SCC 486

[30]Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[31]2018-8 ADJ 843; 2018-130 All LR 591

[32]Srinivasa Das v. Surajanarayan Dass, AIR 1967 SC 256.

[33]2018-8 ADJ 843; 2018-130 All LR 591

[34]fifth Edition by AC Sen pages 102 103

[35]AIR 2005 SC 1588

[36]    AIR 2005 SC 1588

[37]    AIR 1972 P&H 245

[38]    AIR 1969 SC 563.

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Public Trusts and Indian Trusts Act – An Overview

Saji Koduvath, Advocate, Kottayam.

Synopsis

  1. Application of Indian Trusts Act
  2. Provisions of Trusts Act Not Apply Proprio Vigore
  3. Universal Rules of Equity and Good Conscience Apply
  4. Principles in Indian Trusts Act Apply to Public Trusts
  5. Reimbursement of Expenses out of Trust Property
  6. Trustees Cannot Renounce – Sec. 46
  7. Trustees Cannot Delegate – Sec. 47
  8. All Trustees Should Join – Sec. 48
  9. Implied Trust in Sec. 82 & 94 of the Trust Act Applied
  10. Directors of a Co and S. 88 & 95 of the Indian Trusts Act
  11. Sec. 88 Encompass Gov. Bodies of Societies and Clubs
  12. Direction of Court for Administration of Public Trust
  13. Sec. 77 and 78 do not Apply to Public Trusts

Public Trusts and The Indian Trusts Act, 1882

The Indian Trusts Act, 1882 basically applies to and meant for private trusts, whereas Sec. 92 of the CPC pertains only to public trusts.  Public and private religious or charitable trusts are expressly excluded from the ambit of the Indian Trusts Act.

The relevant portion of Sec. 1 of the Indian Trusts Act, 1882 reads as follows:

  • “This Act may be called the Indian Trusts Act, 1882, and it shall come into force on the first day of March, 1882. It extends to the whole of India… But nothing herein contained affects the rules of Muhammadan law as to Wakf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors ; and nothing in the second chapter of this Act applies to trusts created before the said day.”

But there are common legal principles[1] which cover matters of both public and private trusts.[2] Our courts apply the general or common law of trusts and the universal rules of equity and good conscience upheld by the English judges in the matter of public trusts. In other words, the principles of the English Law of Trusts which have been incorporated in the Indian Trusts Act will apply to public trusts also.

In State of Uttar Pradesh Vs. Bansi  Dhar[3]  it was held by VR Krishna Iyer J. that merely because common legal principles which cover both private and public trusts find a place in the Trusts Act, they cannot become ‘untouchable’ where affairs of public trusts are involved.[4] It is held as under:

  • “But while these provisions (of Indian Trusts Act)  proprio  vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public, and merely because they find a place in the Trusts Act, they cannot become ‘untouchable’ where Public Trusts are involved. Case must certainly be exercised not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts. The Courts below have drawn inspiration from Section 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely reflects a rule of good conscience and of general application.”[5]

The Supreme Court, in Sheikh Abdul Kayum Vs. Mulla Alibhai,[6] observed:

  • “It is true that Sec. 1 of the Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so these sections may not in terms apply to the trust of that kind. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries.”

Though the Indian Trusts Act do not apply in terms to the public trusts,[7] the common legal principles under various sections, which cover matters of both public and private trusts, especially the Sections that speak as to the Duties and Liabilities of Trustees (Chapter III), Disabilities of Trustees (Chapter V), etc., and Chapter IX pertaining to implied trusts, apply to public trusts also. [8]

Our courts apply the general law of trusts and the universal rules of equity and good conscience upheld by the English judges. In other words, the principles of the English law of Trusts which have been incorporated in the Indian Trusts Act will apply to public Trusts also. Generally, the Courts in India apply the principles and Rules of English Law on the subjects and matters which are not provided for (in an enactment) unless they are inconsistent with the existing Rules and practice. 

Provisions of Trusts Act Not Apply Proprio Vigore

Referring to Sheikh Abdul Kayum Vs.  Mulla Alibhai[9] and State of UP Vs.  Bansi Dhar,[10] it is held in Trustees of HEH The Nizams Pilgrimage Money Trust Hyderabad Vs. CIT, AP[11] that the general principles of trust adumbrated in the provisions of the Trust Act can be applied by invoking the universal rules of equity and good conscience even though provisions of the Trusts Act proprio vigore do not apply to public charitable trusts.

Indian Trusts Act: Scheme

  • Section 3 of the Indian Trusts Act, 1882 defines trust.
  • Sections 4 to 79
  • Sections 4 to 79 of the Indian Trust Act deal with (merely) ‘trusts’. English Courts call this branch of trusts as ‘express trusts’.
  • Sections 80 to 96
  • Sections 80 to 96, in Chapter IX of the Indian Trusts Act, refer to ‘obligations in the nature of trust’. English Law classifies these trusts as ‘constructive or implied trusts’.[12] 

Principles of Trusts Act Applied to Public Trusts

  • Sec. 32: Reimbursement of Expenses out of Trust Property
  • Section 32 of the Indian Trusts Act, 1882 which provides –
    • the trustee is entitled to get reimbursement out of the trust property all expenses properly incurred in relation to the execution of the trust property and for preservation of the trust property is a principle of the English law of Trusts which has been incorporated in the Indian Trusts Act. Therefore such principles in Sec. 32 of the Indian Trusts Act are applied to public trusts also.[13]
  • Sec. 46: Bars a trustee from renouncing the trust
  • Sec. 46 of the Indian Trusts Act bars a trustee from renouncing the trust except under the conditions provided for in this section.
  • S. 46 of the Indian Trusts Act, 1882 reads as under:
    • 46. Trustee cannot renounce after acceptance.—A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.
  • Sec. 47:  Trustees Cannot Delegate
    • The law does not permit a trustee to delegate his functions, unless it is so provided otherwise by the terms of the deed[14] or in cases of necessity or with the consent of the entire beneficiaries if the beneficiaries are identifiable. Trustees can appoint servants or managers. If manager appointed is one among the trustees, he acts as agent of other trustees. [15]
  • S. 47 of the Indian Trusts Act, 1882 reads as under:
    • 47. Trustee cannot delegate.—A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.

Principles in Sec. 46 and 47 of the Indian Trusts Act,  which deal with renunciation and delegation of the powers as well as duties of the trustees, are applied by our Courts to various affairs of fiduciary relationship,[16] and duties[17] attached thereto as they contain the common law principles of the universal rules of equity, justice and good conscience upheld by the English judges[18] unless displaced by an enacted law.

These principles would also apply with equal force to servants and, in fact, to anybody who has entered on another’s property in a fiduciary capacity.[19]It is held by our Apex Court in Marcel Martins Vs. M Printer  that the expression ‘fiduciary capacity’ is wider in its import.

Sec. 46 and 47 of the Indian Trusts Act make it clear: a fiduciary relationship and duties[20] attached thereto should not be allowed to be unilaterally terminated or varied, as it would be against the interests of society in general. These principles would apply with equal force to servants and, in fact, to anybody who has entered on another’s property in a fiduciary capacity [21]  Relying on Central Board of Secondary Education Vs. Adiya Bandopadhyay[22]  it is held by our Apex Court in Marcel Martins Vs. M Printer[23] as under:

  • “It is manifest that while the expression ‘fiduciary capacity’ may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.”

The agent who holds the property for the principal  stands, in a fiduciary capacity and as a trustee; and he  has a duty and responsibility to make over the unauthorised profits or benefits he derived while acting as an agent, and he has to properly account for the same to the principal.[24]

  • Sec. 48: All Trustees Should Join in the execution
  • Section 48 reads:
    • 48. Co-trustees cannot act singly.—”When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.”

As a general rule, the trustees must exercise their duties jointly, unless the instrument of trust otherwise provides. A trustee cannot delegate any of the duties, functions and powers of his office to his co-trustees or to anyone else,  as that would be contrary to his obligation under the Trust. The intent behind these propositions is clear: that, a fiduciary relationship created shall not be allowed to be shattered unilaterally.

Lewin on Trusts, lays down:

  • “In the case of co-trustees of a private trust, the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee and therefore must execute the duties of the office in their joint capacity. Sometimes, one of several trustees is spoken of as the acting trustees, but the Court knows of no such distinction: all who accept the office are in the eyes of the law acting trustees. If anyone refuses or is incapable to join, it is not competent for the others to proceed without him, and, if for any reason they are unable to appoint a new trustee in his place under Section 36(1) of the Act, the administration of the trust must devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both, though such sanction or approval must be strictly proved.” [25]

In Kishore Joo Vs. Guman Behari Joo Deo[26] it has been held that all the trustees would join to file an application to execute the decree obtained on behalf of the idol of a temple.

  • Chapter IX : Sections 80 to 96 : Constructive/Implied Trusts

What are called ‘constructive or implied trusts’ in English Law are included under the head “obligations in the nature of trust”, in the Indian Trusts Act, and are dealt with in Chapter IX, Sections 80 to 96, titled: “Of Certain Obligations in the Nature of Trust”.[27]

As per the definition of trust in Sec. 3 of the Indian Trusts Act the trustees must have ‘accepted’ the ‘obligations’ in the trust. Chapter IX, Sections 80 to 96 implies that certain persons are bound by the obligations in the nature of trust ‘for the benefit of another’.  Such instances of fiduciary obligations are founded either on implied intention, or on construction of law to meet the requirements of equity irrespective of implied intention.[28]

In State of Uttar Pradesh Vs. Bansi  Dhar[29]  it was held that Section 83 of the Trusts Act merely reflects a rule of good conscience and of general application. No doubt, this proposition applies to other provisions in Chapter IX also.

Indian Trusts Act, Sec. 46 and 47:  Fiduciary Relationship

Sec. 46 and 47 of the Indian Trusts Act[30] make it clear – a fiduciary relationship and duties attached thereto should not be allowed to be unilaterally terminated or varied.

Principles in Sec. 46 and 47 of the Indian Trusts Act are applied to various affairs of fiduciary relationship,[31] and duties[32] attached thereto, by our Courts, as they contain the common law principles of the universal rules of equity, justice and good conscience upheld by the English judges. These principles would also apply with equal force to servants and, in fact, to anybody who has entered on another’s property in a fiduciary capacity.[33]It is held by our Apex Court in Marcel Martins Vs. M Printer  that the expression ‘fiduciary capacity’ is wider in its import.

Relying on Central Board of Secondary Education Vs. Adiya Bando-padhyay[34]  it is held by our Apex Court in Marcel Martins Vs. M Printer[35] as under:

  • “It is manifest that while the expression ‘fiduciary capacity’ may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.”

The agent who holds the property for the principal  stands, in a fiduciary capacity and as a trustee; and he  has a duty and responsibility to make over the unauthorised profits or benefits he derived while acting as an agent, and he has to properly account for the same to the principal.[36]

Indian Trusts Act, S. 81 to 94:  Obligations ‘In the Nature of Trusts’

S. 81 to 94 of the Indian Trusts Act deal with obligations ‘in the nature of trusts’. As per the definition of trust in Sec. 3 of the Indian Trusts Act the trustee must have ‘accepted’ the ‘obligations’ in the trust. Sections 80 to 96 of the Indian Trusts Act imply that the persons specified in these sections are bound by the ‘obligations in the nature of trust’ ‘for the benefit of another’.  Such instances of fiduciary obligations are founded either on implied intention, or on construction of law to meet the requirements of equity irrespective of implied intention.[37]

Indian Trusts Act, Sec. 88 & 95: Apply to Directors & GB of Societies and Clubs

Section 88 of the Indian Trusts Act expressly refers to director of a company. Though directors of a company are not express trustees with respect to their liabilities and disabilities, the Indian Trusts Act takes the position of a director of a company to that of trustees[38] in Chapter IX of the Indian Trusts Act (Section 80 onwards). Their office is fiduciary in character. They are bound by the directives in Sec. 88.

Section 88 of the Indian Trusts Act reads:

  • Advantage gained by fiduciary: Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, avails himself of his character, and gains for himself any pecuniary advantage or, where any person so bound enters into dealings under circumstances in which his own interests are, or may be, adverse to those of such other person, and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.

Palmer’s Company Law explained this position as under:

  • “Directors are not only agents, but they are in some sense and to some extent trustees or in the position of trustees, but their position differs considerably from that of ordinary trustees, and the strict rules applicable to such trustees do not apply in all respects to directors. “

In VS Ramaswamy Iyer Vs. Brahmayya and Company Official Liquidators Hanuman Bank Limited[39] referring to Palmer’s Company Law, Charitable Corporation Vs. Sutton,[40] York and North Midland Ry. Vs. Hudson,[41] GE Ry. Vs. Turner,[42] In Re Forest of Dean Co.,[43] Buckley on the Companies Acts, Halsbury’s Laws of England, Gore-Browne, Handbook of Joint Stock Companies, Flitcroft’s case,[44] Ramskill Vs. Edwards,[45] In Re Faure Electric Accumulator Company,[46] Concha Vs. Murrieta,[47] In Re Lands Allotment Company,[48] etc. (which held that though the directors of a company were not trustees in the strict sense, they had always been considered and treated as trustees of money which came to their hands) it is held that the law in India regarding the nature of the liability of directors has not been different.

It is legitimate to comprehend that the words ‘or other person’ in Sec. 88 of the Indian Trusts Act encompass the governing bodies of societies and clubs also. By virtue of Sec. 95 of the Indian Trusts Act it is further clear that the principles and incidents of ‘trust’ are impressed upon the property held by societies and clubs also.

Sec. 95 of the Indian Trusts Act reads as under:

  • 95. Obligor’s duties, liabilities and disabilities: The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it  ….. “

The agent employed to purchase the property on behalf of his principal fraudulently got his name entered in the sale certificate. The agent was holding the property in trust on behalf of and for the principal, and the agent was under duty and responsibility to make good the unauthorised profits be derived in such capacity to the principal.[49]

Indian Trusts Act, Sec. 11 and 13

It is legitimate to comprehend that the principles in Sec. 11 and 13 of the Indian Trusts Act, 1882 as to duty of trustee to execute trust and protect and preserve trust property are applicable to the administrators of a society also.

Sec. 11 and 13 of the Indian Trusts Act reads as under:

  • 11. Trustee to execute trust–The trustee is bound to fulfill the purpose of the trust, and to obey the directions of the author.
  • 13. Trustee to protect title to trust property.—A trustee is bound to maintain and defend all suits, and to take such other steps as may be reasonably requisite for the preservation of the trust property.

Section 34: Direction of Court for Administration

Apart from Section 92 CPC, Section 34 of the Indian Trusts Act provides for seeking permission of the principal civil court of original jurisdiction with respect to management of trust property.

S. 34 of the Indian Trusts Act reads:  

  • 34. Right to apply to Court for opinion in management of trust property.—Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application. The costs of every application under this section shall be in the discretion of the Court to which it is made.”

Similar provisions are contained in various (State) Public Trusts Acts for getting direction of the Court for the administration of the public trust.[50]

By virtue of Section 23 of the Indian Trusts Act, 1882 read with Section 95, the trustees/administrators who commit breach of trust are liable to make good the loss which the trust property or the beneficiaries have thereby sustained.

Section 23 of the Indian Trusts Act, 1882  reads as follows:

  • 23. Where the trustee commits a breach of trust, he is liable to make good the loss which the trust property or the beneficiary has thereby sustained, unless the beneficiary has by fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, concerned in the breach, or subsequently acquiesced therein, with full knowledge of the facts of the case and of his rights as against the trustee.
  • A trustee committing a breach of trust is not liable to pay interest except in the following cases:
  • (a) where he has actually received interest;
  •         (b) where the breach Consists in unreasonable delay in paying trust money to the beneficiary ;
  • (c) where the trustee ought to have received interest, but has not done so;
  • (d) where he may be fairly presumed to have received interest.
  • He is liable, in case (a), to account for the interest actually received, and, in cases (b), (c) and (d) to account for simple interest at the rate of six per cent per annum, unless the Court otherwise directs, … …..”

S. 90 of the Indian Trusts Act directs that constructive trustees who gain advantages must hold the same for the benefit of all persons so interested.

S. 90 of the Indian Trusts Act, 1882   states:

  • 90. Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to payment by such persons of their clue shares of the expenses properly incurred, and to cm indemnity by the same persons against liabilities properly contracted, in gaining such advantage.”

Even if the trust deed does not provide for sale of trust property, the court can grant permission if the court is satisfied that the sale is for the benefit of the trust.[51]

Provisions of Trusts Act Not Apply to Public Trusts: S. 77 and 78

As shown above, by virtue of Sec. 1 of the Trusts Act, 1882 the applicability of the Trusts Act is expressly excluded in the case of public or private religious or charitable endowments.

Therefore, the provisions of the Trusts Act as to ‘Trust how extinguished’ (Sec. 77) and ‘Revocation of trust’ (Sec. 78) do not apply to public or private religious or charitable endowments.

Sec. 77 reads as follows:

  • 77. Trust how extinguished. A trust is extinguished (a) when its purpose is completely fulfilled; or (b) when its purpose becomes unlawful; or (c) when the fulfilled of its purpose becomes impossible by destruction of the trust property or otherwise; or (d) when the trust being revocable, is expressly revoked.

Sec. 78 reads as follows:

  • 78.  Revocation of trust. A trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only:
  • (a) where all the beneficiaries are competent to contract by their consent; (b) where the trust has been declared by a non testamentary instrument or by word of mouth in exercise of a power of revocation expressly reserved to the author of the trust ; or (c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.

In Private Trusts Beneficiaries Can Give Consent on Certain Matters

Though the beneficiary has no proprietary or beneficial interest pertaining to owner, the Indian Trusts Act, 1882, with regard to private trusts, permits the beneficiaries, as a whole, who are competent to contract, to do, act or perform the following matters, as stated in those sections.

  • Sec.11. Modify the purpose of the trust and the directions for management.
  •          23.  Acquiesce a breach of trust of trustee.
  •          46. Allow the trustee to renounce.
  •          47.  Allow the trustee to delegate his office or any of his duties.
  •          56.  Require the trustee to transfer the trust property to them, or to another.
  •          58.  Transfer the interest of beneficiary.
  •          62.  Ratify the sale to the trustee.
  •          71.  Discharge the trustee.
  •          77.  Allow to extinguish trust.

[1] Sk. Abdul KayumVs. Mulla  Alibhai: AIR 1963 SC 309.

[2] State of Uttar Pradesh Vs. Bansi  Dhar: AIR 1974 SC 1084

[3] AIR 1974 SC 1084

[4]      Bai  Dosabai  Vs. Mathurdas  Govinddas: AIR 1980 SC 1334.

[5] See also: HEH The Nizams Pilgrimage Trust Vs. Commr of IT AP:  AIR 2000 SC 1802;

Kishore Joo Vs. GumanBehariJooDeo: AIR  1978 All 1;

Bonnerji Vs. Sitanath: 49 IA 46;

referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11;

Sk. Abdul Kayum Vs. Mulla  Alibhai: AIR 1963 SC 309;

Shivramdas Vs. B V Nerukar: AIR 1937 Bom 374;

Rambabu Vs. Committee of Rameshwar: (1899) 1 Bom LR 667;

Nathiri  Menon Vs. Gopalan Nair: AIR 1916 Mad 692.

[6]      AIR 1963 SC 309

[7]      Thayarmmal (dead) by L.Rs. Vs. Kankammal, (2005) 1 SCC 457;

Sk. Abdul Kayum and ors. Vs. Mulla Alibhai: AIR 1963 SC 309.

[8]      Bai Dosabai Vs. Mathurdas Govinddas: AIR 1980 SC 1334.

[9]      AIR 1963 SC 309.

[10]    AIR 1974 SC 1084.

[11]    AIR 2000 SC 1802.

[12]    Chapter IX is titled: “Of Certain Obligations in the Nature of Trust”. 

See: Rotopacking Materials Industry Vs. Ravinder Kumar Chopra: 2003-6 BCR 6

[13]    Kishore Joo Vs. Guman Behari Joo Deo: AIR  1978 All 1;

Bapalal Godadbhai Kothari Vs. Charity Commissioner Gujarat: 1966  GLR 825

[14]    Shanti Vijay And Co Vs. Princess Fatima Fouzia: AIR1980 SC  17;

Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309; AIR 1952 Cal 350

[15]    Vrandan Bhaichand Shah Vs. Parshottam Motichand Shah: 1927 Bom 75.

[16]    Reserve Bank Of India Vs. Jayantilal N. Mistry: AIR 2016 SC 1

[17]    Bonnerji  Vs.  Sitanath 49 IA 46:

Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[18]    HEH The Nizams Pilgrimage Money Trust Vs. Commr, IT:  AIR 2000 SC 1802;

State of Uttar Pradesh Vs.  Bansi  Dhar:  AIR 1974 SC 1084;

Kishore Joo Vs. Guman  Behari  Joo  Deo: AIR  1978 All 1.

BonnerjiVs. Sitanath: 49 IA 46:

Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11;

Sk. Abdul Kayum  Vs.Mulla  Alibhai: AIR 1963 SC 309.

See also: Shivramdas Vs. B V Nerukar: AIR 1937 Bom 374;

Rambabu  Vs. Committee of Rameshwar: (1899) 1 Bom LR 667;

Nathiri  Menon Vs. Gopalan Nair: AIR 1916 Mad 692.

[19]    Balram  Chunnilal  Vs.Durgalal  Shivnarain: AIR1968 MP 81.

[20]    Bonnerji Vs. Sitanath 49 IA 46:

Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[21]    Balram Chunnilal Vs. Durgalal Shivnarain: AIR1968 MP 81.

[22]    (2011) 8 SCC 497

[23]    AIR  2012 SC 1987

[24]    RV Sankara  Kurup  Vs. Leelavathy  Nambiar: AIR 1994 SC 2694

        See also: Balram  Chunnilal  Vs. Durgalal  Shivnarain: AIR1968 MP 81.

[25]    Referred to in Atmaram Ranchhodbhai Vs. Gulamhusein Gulam: AIR 1973 Guj 113

Man Mohan Das Vs. Janki Prasad, AIR 1945 PC 23

[26]    AIR 1978 All 1

[27]    See: Rotopacking Materials Industry Vs. Ravinder Kumar Chopra: 2003-6 BCR 6

[28]    Narayani Amma Vs Eyo Poulose: AIR 1982 Ker 198.

[29] AIR 1974 SC 1084

[30]    See Chapter: RIGHTS AND DUTIES OF TRUSTEES

[31]    Reserve Bank Of India Vs. Jayantilal N. Mistry: AIR 2016 SC 1

[32]    Bonnerji  Vs.  Sitanath 49 IA 46:

Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[33]    Balram  Chunnilal  Vs.Durgalal  Shivnarain: AIR1968 MP 81.

[34]    (2011) 8 SCC 497

[35]    AIR  2012 SC 1987

[36]    RV Sankara  Kurup  Vs. Leelavathy  Nambiar: AIR 1994 SC 2694

        See also: Balram  Chunnilal  Vs. Durgalal  Shivnarain: AIR1968 MP 81.

[37]    Narayani Amma Vs Eyo Poulose: AIR 1982 Ker 198.

[38]    See: V S Ramaswamy Iyer Vs. Brahmayya: 1966-36 Comp Cases 270, 1966-1 Mad LJ 234

[39]    1966-36 Comp Cases 270, 1966-1 Mad LJ 234

[40]    1742-2 Atk. 400

[41]    1853 16 Beav. 485

[42]    1872 L.R. 8 Ch. App. 149 

[43]    1878 (10) Ch(D) 450   

[44]    1882 (21) Ch(D) 519  

[45]    1885 Ch(D) 100

[46]    1889 L.R. 40 Ch(D) 141   

[47]    1889 L.R. 40 Ch(D) 543     

[48]    1894 L.R. 1 Ch(D) 616       

[49]    PV Sankara Kurup Vs. Leelavathy Nambiar: AIR 1994 SC 2694.

[50]    See MP Public Trust Act, 1951; Bombay Public Trusts Act, 1950

[51]    Snehasagar Charitable Trust Vs. State:  ILR 2010 (2) Ker 738

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Public Trusts and (State) Endowments/Trusts Acts

Saji Koduvath, Advocate, Kottayam.

Synopsis.

  1. Introduction
  2. Important  Enactments During British regime 
  3. Important Enactments After Independence:
  4. Public Trusts and The Indian Trusts Act, 1882
  5. Registration of Public Trusts under Public Trusts Act
  6. Effect of Non-Registration upon Vesting of Property

Introduction.

(i) ‘Trust and trustees’ and (ii) ‘charities and charitable institutions, charitable and religious endowments, and religious institutions’ are included as subjects in ‘Concurrent List’ of Schedule VII of the Constitution of India, whereby both the Centre and the States are competent to legislate and regulate trusts or charities and charitable institutions. Charitable institutions allowed to be founded by our law include trusts, societies, Wakfs etc. The Constitution of India guarantees its citizens the right to form associations or unions, under Article 19(1)(c).

Public Trusts and The Indian Trusts Act, 1882

The Indian Trusts Act, 1882 is enacted primarily to govern private trusts; and ‘public or private charitable or religious endowments’ are expressly excluded from its ambit. 

Sec. 1, under the head ‘Savings’, reads:

  • “But nothing herein contained affects the rules of Mohammedan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day.”

But there are common legal principles which cover matters of both public and private trusts; and merely because they find a place in the Trusts Act, 1882, they cannot become ‘untouchable’ where affairs of public trusts are involved as held by VR Krishna Iyer J. in State of Uttar Pradesh Vs. Bansi  Dhar.[1] 

Our courts apply the general law of trusts and the universal rules of equity and good conscience upheld by the English judges in this matter. In other words, the principles of the English law of Trusts which have been incorporated in the Indian Trusts Act will apply to public trusts also.[2]

Bombay Public Trust Act, 1950

Bombay Public Trust Act, 1950 (BPTA) is the first Public Trusts Act enacted by a State, invoking the principle of ‘parens-patriae’.  It required registration of all public trusts with the authorities appointed under the Act. All other State Public Trust Acts Orissa, Tamil Nadu Public Trusts Acts followed this Act in their legislation. State Acts include the following:

  • Bihar Hindu Religious Trusts Act, 1950
  • Madhya Pradesh Public Trusts Act, 1951
  • Rajasthan Public Trust Act, 1959

Other important State-Acts are the following:

  • Travancore-Cochin Hindu Religious Institutions Act, 1950
  • Uttar Pradesh Charitable Endowments (Extension of Powers) Act, 1950
  • Orissa Hindu Religious Endowments Act, 1951
  • Madras Hindu Religious And Charitable Endowments Act, 1951
  • Madhya Pradesh Public Trusts Act, 1951
  • Charitable Endowments (U.P. Amendment) Act, 1952
  • Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
  • AP Charitable and Hindu Religious Institutions and Endowments Act, 1987
  • Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997

Constitutional Validity of BPTA (Qua Articles 25 and 26)

The Bombay Public Trust Act, 1950 was enacted, as seen from its preamble, ‘to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay’. The constitutional validity (qua Articles 25 and 26) of some provisions of Bombay Public Trust Act, 1950 was considered by our Apex Court in Ratilal Panachand Gandhi Vs. The State of Bombay.[3] Challenges against certain provisions were upheld, and some were overruled.

Article 25 of the Constitution guarantees to all persons the freedom of conscience (and free profession), practice and propagation of religion. Article 26 guarantees to all religious denominations, the freedom to manage its own affairs in matters of religion. However, Article 26(d) requires religious denomination or its representatives to administer its property ‘in accordance with law’. Therefore, the right of administration guaranteed to the religious denominations is subject to such restrictions and regulations enacted by the legislatures.

Article 26 of our Constitution reads as under:

  • 26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
  •        (a) to establish and maintain institutions for religious and charitable purposes;
  •        (b) to manage its own affairs in matters of religion;
  •        (c) to own and acquire movable and immovable property; and
  •        (d) to administer such property in accordance with law.

It is clear from clause (d), read with clauses (a) and (b), of Article 26 that the legislature is empowered to enact laws relating to secular matters related to the field of administration of property, acquired and owned by a religious denomination. Certain secular activities associated with religion may not be amenable to State regulations. But those secular activities which do not relate to an essential part of religion or religious activity will always be amenable to State regulations. What constitutes the ‘essential part’ of religion has to be ascertained from the doctrines of that religion according to its tenets, historical background and change in evolved process etc.[4]

Just before passing the judgment in Ratilal Panachand Gandhi Vs. The State of Bombay (18 March, 1954), by J. Mukherjea, for the Constitution Bench, it has been held in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra  Thirtha  Swamiar of Sri Shirur Mutt (16 March, 1954),[5] the leading decision in this subject, rendered by J. Mukherjea himself, for a 7 Judge Bench, that only a law which took away the right of administration altogether from the religious denomination and vested it in any other secular authority[6] would alone be taken to be violative of the right under Article 26(d).

In Ratilal Panachand Gandhi Vs. The State of Bombay, Section 44 of the BPT Act was held to be unconstitutional. It is observed in this decision as under: 

  • “The language of the two Clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such properly but only in accordance with law.”

The challenge against the constitutional validity of Section 58 of the Act which made it obligatory on every public trust to pay to the Administration Fund a contribution was upheld. Section 35 of the Act was also upheld in Ratilal Panachand Gandhi Vs. The State of Bombay observing as under: 

  • “It is a well-established principle of law that trustees in charge of trust properties should not keep cash money in their hands which are not necessary for immediate expenses; and a list of approved securities upon which trust money could be invested is invariably laid down in every legislation on the subject of trust.”[7] 

In Syedna Mohamed Burhanuddin[8]  while Gujarat High Court examining whether the partial deprivation by devising system of regulation and control of public funds violate Article 26 (d), it was held that Article 26 (d) would be violated only if a denomination was deprived of the administration of the property altogether. And that the impugned section neither violated Article 25 (1) nor clauses (b) and (c) of Article 26. The impugned section was protected by clause (d) of Article 26 and that the matters which the impugned section provided for were purely secular matters and that they related to the field of administration of property, acquired and owned by a religious denomination.

Registration of Trusts under Bombay Public Trust Act, 1950

Section 4 of the Bombay Public Trust Act, 1950 provides that within three months from the date of coming into force of the section, the working trustees of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust. Subsection (5) of Section 4 provides an appeal against the decision made by the Registrar regarding registration of a public trust and it also lays down that the order of the Appellate Authority shall be final.

Section 5 enjoins the Registrar to make inquiry in the prescribed manner for the purposes of ascertaining whether the trust is a public trust; whether any property is the property of the trust; the names and addresses of the trustees and mangers and the mode of succession to the office of the trustee of such trust; the amount of gross average annual income and expenditure etc. Section 6 lays down that on completion of the inquiry provided for under Section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said section.

Section 8 lays down that any working trustee or person having interest in a public trust or any property found to be trust property, feeling aggrieved by any finding of the Registrar under Section 6 may, within six months from the date of the publication of the notice under sub-section (1) of Section 7, institute a suit in a civil court[9] to have such finding set aside or modified.[10]

Section 18(2) allows registration under the said Act if the trustee has an office of administration of the Trust within the local limits of the jurisdiction of the operation of Act, even though the trust property or substantial trust property is not located within the local limits of jurisdiction of the he Bombay Public Trusts Act.

Section 22(C) requires informing the Charity Commissioner the immovable property vesting in the public trust within a period of three months.

Alienation and Sanction of Charity Commissioner under Public Trusts Acts

(State) Public Trusts Acts impose restrictions for sale, mortgage, exchange, lease etc. of immovable properties of public trust.

Section 36 of the Bombay Public Trusts Act reads as under:

  • “Alienation of immovable property of public trust:
  • (1) Notwithstanding anything contained in the instrument of trust –
  • (a) no sale, exchange or gift of any immovable property, and
  • (b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Sanction may be accorded subject to such conditions as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust;
  • (c) if the Charity Commissioner is satisfied that in the interest of any public trust any immovable property thereof should be disposed of, he may, on application, authorise any trustee to dispose of such property subject to such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust.
  • (2) The Charity Commissioner may revoke the sanction given under clause (a) or clause (b) of sub-section (1) on the ground that such sanction was obtained by fraud or misrepresentation made to him or by concealing from the Charity Commissioner, facts material for the purpose of giving sanction; and direct the trustee to take such steps within a period of one hundred and eighty days from the date of revocation (or such further period not exceeding in the aggregate one year as the Charity Commissioner may from time to time determine) as may be specified in the direction for the recovery of the property.
  • (3) No sanction shall be revoked under this section unless the person in whose favour such sanction has been made has been given a reasonable opportunity to show cause why the sanction should not be revoked.
  • (4) If, in the opinion of the Charity Commissioner, the trustee has failed to take effective steps within the period specified in sub-section (2), or it is not possible to recover the property with reasonable effort or expense, the Charity Commissioner may assess any advantage received by the trustee and direct him to pay compensation to the trust equivalent to the advantage so assessed.

Similar provisions are found in other Public Trusts Acts also.[11] Our courts dealt with these provisions several times.[12]  

In Cyrus Rustom Patel Vs. Charity Commissioner, Maharashtra (2017)[13]  our Apex Court pointed out that ‘the power to grant sanction has to be exercised by the Charity Commissioner, taking into consideration three classic requirements of the Trust: ie. ‘the interest, benefit and protection’.  

Non-Registration: No Effect upon Vesting of Property

Non-registration of a public trust under the State Public Trusts Act will not have any effect upon vesting of property in a Trust. If a property is vested in a public trust by means of a duly registered Settlement Deed in terms of Section 17(1)(b) of the Registration Act by the Settler of the Trust, then such a transfer would not be void on the ground that the details of the trust properties were not given to the Charity Commissioner under the Public Trusts Act.[14]

Quoting various provisions of the Rajasthan Public Trust Act, 1959 including Section 29 (which provides that ‘no suit to enforce a right on behalf of a public trust which is required to be registered under the Act but has not been so registered shall be heard or decided in any Court’) it is held by the Rajasthan High Court that none of the provisions of the Act spells about any such compulsory registration of all the trusts.[15]

Formation and Registration of Public Trusts Independent

Formation of trusts and registration of the same under the Public Trusts Acts are two independent actions. A public trust arises by dedication of property and appointment of trustees. Declaration by a registered deed, or transfer rights to trustee, is the usual mode of dedication of immovable property. A document not is essential for the dedication of property to charity. 

In Menakuru  Dasaratharami  Reddi Vs. D Subba  Rao[16] it is held:

  • “The principles of Hindu Law applicable to the consideration of questions of dedication of property to charity are well settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and use of the property which shows the extinction of the private secular character of the property and its complete dedication to charity.”

In Kuldip Chand Vs. Advocate General to Government of HP[17], while dealing with a Dharmasala, it is held:

  • “Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contradistinction to a partial dedication which would only create a charity…… A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object…. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary.”

In State of Madras Vs. SSM Paripelena  Sangam[18] it was held that in order to constitute a valid endowment it is necessary that the donor should divest himself of the property.[19] In Ramalinga  Chetti Vs. Sivachidambara  Chetty[20] it was held that the dedication of property to an idol of a temple is not required by law to be in writing and may be made orally.[21]  In Kapoor Chand Vs. Ganesh Dutt[22] it is held that dedication of private property for religious and charitable purpose may be proved by oral evidence or may be inferred from the conduct of the parties.[23]  It can also be established by cogent and satisfactory evidence of conduct of the parties, and extinction of the private secular character of the property and its complete dedication to charity.[24] 

In those States where Public Trusts Acts are enacted, the affairs of Trusts therein are to be carried on in accordance with those Acts. These Acts cast duty on the trustees of the public trusts to register the Trusts before the Deputy or Assistant Charity Commissioner. Non registration does not entail the dedication void.

Non-Registration: Effect upon Suits

Section 31 of the Bombay Public Trust Act, 1950 reads as under:

  • “(1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court.
  •  (2) The provisions of Sub -section (1) shall apply to a claim of set off or other proceeding to enforce a right on behalf of such public trust.”

In Idol Shri ‘Shriji’ Vs. Chaturbhai,[25] the Madhya Pradesh High Court considered the scope of the Section in the Trusts Act that bars civil suit and it was observed: 

  • “A suit on behalf of an idol for declaration that the suit properties belonged to the idol and as such were not liable to attachment and sale in execution of a decree obtained against the shebait of the idol was a suit ‘to enforce a right on behalf of a public trust within Section 32 of MP Public Trusts Act. 1951, and as the trust was not registered as per provisions of the said Act the suit could not be heard or decided by any court.”

But, the Bombay High Court had, in Gandhi Sewa Shikshan Samiti Vs. Gulam Hussain Welji,[26] taken the view that the bar against an unregistered trust of asking for a decree in enforcement of a right on behalf of the public trust, would have to be read in the context of other Sections of the Act which pertain to filing of suits, such as Sec. 50, 51, 52 and 52A, and the bar was limited in its application to the kinds of suits contemplated in those sections.

In Parshvanath Jain Temple Vs. LRs. of Prem Dass[27] it was held that irregularity, if any, on account of non-registration of the Trust at the time of institution of the suit could be cured with the subsequent registration of the Trust. It was pointed out that the bar under Section 29 of the Rajasthan Act was only against the hearing and final decision of the suit, and not against the institution of the suit itself.

Registered  Societies also to be Registered under BPT Act

All Societies registered under the So. Regn. Act of 1860, which appertain public trusts, are also required to be registered under the Public Trusts Acts. Bombay Public Trusts Act, 1950, defines ‘public trust’ to mean an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.

Registration with IT Authorities

Various Tax laws direct registration with IT authorities also, for exemption from Tax. Section 11 of the Income Tax Act, 1961 provides that the income from property held for charitable or religious purposes, shall not be included in the total income of the assessee. Section 12 gives the benefit of exemption to the income of trusts and institutions. Section 12 also provides for conditions for registration of trusts, societies etc.

[1]      AIR 1974 SC 1084

[2]      The Nizams Pilgrimage Money Trust Vs. Commissioner of IT:  AIR 2000 SC 1802;

Kishore Joo Vs. Guman  Behari  JooDeo: AIR  1978 All 1.

Bonnerji  Vs. Sitanath: 49 IA 46:

referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11;

Sk. Abdul Kayum Vs. Mulla  Alibhai: AIR 1963 SC 309;

See also: Shivramdas Vs. B V Nerukar: AIR 1937 Bom 374;

Rambabu  Vs. Committee of Rameshwar: (1899) 1 Bom LR 667;

Nathiri  Menon Vs. Gopalan Nair: AIR 1916 Mad 692.

[3]      AIR 1954 SC 388.  

[4] Durgah Committee, Ajmer Vs. Syed Hussain Ali: AIR 1961 SC 1402;

Sardar Sarup Singh Vs. State of Punjab: AIR 1959 SC 860;

Indian Young Lawyers Assn. Vs. State of Kerala: 2018 13 Scale 75; 2018 8 SCJ 609.

[5]      AIR 1954 SC 282.

[6] The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra  Thirtha  Swamiar of Sri Shirur Mutt: AIR 1954 SC 282;

Indian Young Lawyers Assn. Vs. State of Kerala: 2018 13 Scale 75; 2018 8 SCJ 609;

KS VargheseVs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333;

VM Malaviya Vs. GY Dewaji: 2018-1 GLR 435

[7]      This decision is referred to in  Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; 2013 (15) SCC 394;

T.N. Godavarman Thirumulpad Vs. Union of India: AIR 2005 SC 4256;

State of Rajasthan Vs. Sajjanlal Panjawat: AIR 1975 SC 706.

[8] Syedna Mohamed Burhanuddin :1992 (1) GLH 331;

VM Malaviya Vs. GY Dewaji: 2018-1 GLR 435

[9]      Seth Chand Ratan Vs. Pandit Durga Prasad: AIR 2003 SC 2736;

Prahlad Kushwaha Vs. Rani Devmati: 2012-3 MPLJ 673;

Swami Indredevanand Vs. State of MP: 1976 MPLJ 722.

[10]    Kada Manikpuri Jijhotia Brahman Trust Vs. Regtar, Public Trusts :LAWS(MPH) 2017 8 178

[11] See: Orissa, Tamil Nadu Public Trusts Acts.

[12] K.  Arjun Das Vs. Commissioner of Endowments, Orissa: 2019 0 Supreme(SC) 1024;

Natesan Agencies VS State: 2019 0 Supreme(SC) 891;

Joint Commissioner, HR and CE Vs. Jayaraman: 2006-1 SCC 257

Idol of Sri Ranganathaswamy VS Gopaldas Dwarakadoss: 2019-3 LW 642; 2019-5 MLJ 769

Executive Officer, Arulmigu Yoganarasimmar Vs. S. Kuppan: 2012-5 LW 171

T Subbaraman Vs. Sri Vedantha Desikar Devasthanam: 2007-5 MLJ 87

Mahanta Srikrushna Chandra Das Vs. Rajkishore Mohanty: AIR 1982  Ori 123.

[13] 2018-14 SCC 761

[14]    Priti Pratap Singh Vs. Rani Prem Kumari: 2018-8 LAWS (DLH) 492

[15] Ramesh Chandra Vs. Milap Chand: 2015-3 CDR 1072: 2015-4 WLC 143,

[16]    AIR 1957 SC 797

[17]    AIR 2003 SC 1685

[18]    AIR 1962 Mad 48

[19]    See also: Idol Murli  Manoharji  Vs. Gopilal  Garg: AIR 1971 Raj 177

[20]    (1918) ILR 42 M 440: 36 MLJ 575

[21]    See also: R Venugopala  Reddiar Vs. Krishnaswamy: AIR 1971 Mad  262

[22]    AIR 1993 SC 1145

[23]    Referred to in Bala Shankar Maha  Shanker  Vs. Charity Comner: AIR 1995 SC 167

[24]    Shri Ram Kishan Mission Vs. Dogar Singh: AIR 1984 All 72.

[25]    AIR 1965 MP 4

[26]    1962-64 Bom LR 206;

Both these decisions referred in: Jagannath Vs. Satya Narainlaws: AIR 1973 Raj 13.

[27]   2009-3-RCR(CIVIL) 133

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Hindu Temples & Law of Trusts

Saji Koduvath, Advocate, Kottayam.

Synopsis.

  1. Introduction
  2. Temple and Idol
  3. Idolas representing spititual purpose is Juristic Person
  4. Mutts a Juristic Person
  5. Whether Shebaitship and Mahantship a Property?
  6. School: Juristic Personality
  7. Vesting of Tank
  8. Vesting of Temple Property in Idol
  9. ‘Ideal, Secondary, General or Figurative Sense’
  10. Worshippers are Beneficiaries: in a Spiritual Sense
  11. Deity, Legal Person ‘Representing Purpose of Dedicator’
  12. Dedication for Spiritual Benefit
  13. Deity and Idol
  14. Shebait – Heritable Property
  15. Can an Idol Sue as an Indigent Person
  16. Shebait – Legal Status
  17. Vesting Dedicated Property – Roman Law &Hindu Law
  18. Valid Dedication
  19. Family Deity is also a Juristic Person
  20. Ownership Vests in Idol – Legal Principles
    • Res nullius
    • Re – Property Vests in Temple.
    • Re – Property Vests in Idol in a ‘figurative sense’
    • Property Vests in Idol Representing ‘Aim of Donor’.
  21. Debutter/Devaswam Property
  22. Devaswom – Legal Character

Introduction

Religious and Charitable Trusts exist in some shape or other, in almost all the civilized societies. Instincts of devoutness and compassion, inherent in human nature, made him found religious and charitable trusts.

Roman law

  • In Roman law, properties dedicated to Gods formed a species of Res Publicae. The only juristic person recognized in early Roman Law was the State.
  • The idea of a corporate body as a new subject to rights and duties distinct from all its members was fully recognized in Rome during the Imperial period.

English Law

  • In English Law there is something technical in the conception of trust which had its origin in dual system of law and dual system of ownership.
  • The notions of trust in its technical sense were devised by the Chancery Courts in England. These principles were imported to a large extent form the Roman Civil Law.[1]

Hindu Law

  • Hindu Law also has its own unique history of development as to the concepts of legal identity of its religious and charitable endowments, and rules fastened thereto. It marks differences from the English principles.
  • The norms and doctrines that exist in the Hindu religion of modern times were not devised in the religion of the Vedas.
  • The law which is administered today in India with respect to the endowed Hindu temples and religious institutions is, to a large extent, the creation of Judges.

Ever since the establishment of British Courts in India, an array of eminent Judges, both English and Indian, brought their legal learning and strong common sense to bear upon this branch of law.  They evolved a sufficiently well-developed body of rules and principles. They based on the few cryptic writings of ancient Hindu sages. This development was, in a sense, necessitated by the demands of the time and the prevalent social and moral ideas. The notions and principles of English Law had also influenced it to a great extent.[2]

Temples were Common Hindu Endowments

It was observed by the Madras High Court, in Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha Swami (1904),[3] that temples were numerous in India and they had the largest endowments, especially in the shape of lands, revenue and jewellery.

Hindu Law on Dedication

A religious trust by way of debutter comes into existence only on dedication of property for worship or service of Idol. For a valid dedication there should be proof of renunciation of the ownership of (dedicated) property, by the owner.[4] In case of a dispute as to dedication, the court decides the same on the basis of its particular facts and circumstances.[5] The ceremonies of Sankalpa and Samarpana are relevant to show the intention of the owner. If there is clear evidence of divesting of ownership with the intention of devoting it to religious or charitable purpose, dedication can be inferred even without specific evidence of ceremonies.[6]

In Deoki  Nandan Vs. Murlidhar[7] it is observed:

  • “It is a settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but, absence of such proof would not be conclusive against it.” 

In Menakuru Dasaratharami Reddi Vs. D Subba Rao[8] it is held:

  • “The principles of Hindu Law applicable to the consideration of questions of dedication of property to charity are well settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and use of the property which shows the extinction of the private secular character of the property and its complete dedication to charity.”

In Kuldip Chand Vs. Advocate General to Government of H P[9] while dealing with a Dharmasala, it is held:

  • “Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contradistinction to a partial dedication which would only create a charity…… A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object…. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary.”

It is pointed out by Dr. BK Mukherjea, J., on the Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures, that ‘it is undoubtedly possible for a founder to dedicate property in the form of a gift; he can also, if he likes, create a trust through the medium of trustees’;[10]and that under Hindu law, if an endowment is made for a religious or charitable institution, without the instrumentality of a trust, and the object of the endowment is one which is recognised as pious, being either religious or charitable under the accepted notions of Hindu law, the institution will be treated as a juristic person capable of holding property.[11]

Mulla, Hindu Law: reads as under:

  • “A Hindu who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it. A trust is not required for that purpose. … “[12]

Dr. BK Mukherjea, J. on Hindu Law of Religious and Charitable Trusts[13] observes that a dedication by a Hindu for religious or charitable purposes is neither a ‘gift’ nor a ‘trust’ in the strict legal sense.

Peculiarities of ‘Hindu Dedications’

In Murti Shivji Maharaj Birajman Asthal Mohalla Vs. Mathura Das Chela Naval Das Bairagi[14] AP High Court listed following peculiarities of ‘Hindu dedications’:

  •        “(1) A dedication to the religious or a charitable trust under Hindu law is not a gift or a transfer of property.
  •        (2) A dedication does not require writing or registration. No formal words or ceremonies are necessary to effect a dedication.
  •        (3) A dedication does not require acceptance on behalf of the idol or charity.
  •        (4) A dedication will not fail even though there is uncertainty in the name of the idol or uncertainty in the quantum of income that has to be applied to the trust.
  •        (5) A dedication will not fail even if a gift is made to an idol which is not in existence at the time of the testator’s death (Mohan Singh v. Hat Singh, 32 All 337), nor a dedication to a temple which is yet to be built to a deity.
  •        (6) A dedication will not fall even if there is destruction or a mutilation of the image of the deity (Raghavachari v. Narayan, AIR 1974 Mad 166). A dedication is not affected by the Rule against Perpetuities and Accumulations.
  •        (7) A dedication is irrevocable even at the instance of the donor (Deoki Nandan Vs. Mulidhar, AIR 1957 SC 133).
  •        (8) The dedication of property is not a sacrament but a secular act. The only difference between a dedication and secular gift is that in former no acceptance is necessary; mere renunciation of ownership by the donor with a particular object being sufficient to create an endowment (Ram Swaroop v. Thakur Ram Chandra, AIR 1953 Nag 35).
  •        (9) Declaration in unequivocal term is sufficient. Where a tablet was fixed declaring that house was set apart for using as staying place for marriage parties of Khattries, it was held as sufficient to constitute the dedication (Jay Dayal v. Diwan, ILR 1938 Lah 704).
  •        (10) The rule against perpetuities embodied Section 14 of the Transfer of Property Act is not applicable to properties dedicated for public religious and charitable purposes.”

Dedication to the Almighty

A Full Bench of Madras High Court, in Narasimha Vs. Venkatalingam,[15] held that a gift to Almighty is not a gift to a living person; and therefore, it is neither a gift nor a conveyance under the Transfer of Property Act.[16]Dedication of property to a deity is actually renunciation of its ownership by a private individual, in favour of the Almighty.

Purpose of Gift to a Religious Endowment

In Hindu Religious Endowments Board Vs. Veeraraghavacharlu (1937)[17] it had been observed:

  • “As explained in the case, that purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust.”[18]

Our Apex Court, in Deoki  Nandan  Vs  Murlidhar,[19] it was held as under:

  • “The true purpose of a gift of properties to the Idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.”[20]

Trust: Hindu Law & English Law

Main characteristics of charitable trusts under Hindu Law that bear stark difference from the English Law are the following:

  • (i)   Under Hindu Law, charitable trusts of private nature are also accepted as valid. Dr. Mukherjea in his Tagore Law Lectures ‘On the Hindu Law of Religious and Charitable Trusts’ depicted this feature as under:
    • “In English Law charitable trusts are synonymous with public trusts and what is called religious trust is only a form of charitable trust. … One fundamental distinction between English and Indian Law lies in the fact that there can be religious trust of a private character under Hindu Law which is not possible in English Law.”[21]
  • (ii) Under Hindu Law, especially in the case of temples and Mutts, property can vest in the deity or in the institution, considered as juristic persons;[22]whereas, in English Law, a trustee is the legal owner of the trust property. Dr. Mukherjea, ‘On Hindu Law of Religious and Charitable Trusts’ spoke:
    • “The idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests.”
  • Our Apex Court in Sarangadeva  Periya  Matam  Vs. Ramaswami  Goundar[23] held that the Mutt was the owner of the endowed property; and that, like an idol, the Mutt is a juristic person  having the power of acquiring, owning and possessing property and having the capacity of suing and being sued.
  • (iii) Under Hindu Law, Shebaites are only persons in charge of administration of the temple and its property; and they are not recognized, in the strict legal sense, as trustees, for the main reason that the property does not vest in them.  They are only Managers. Deeming provision was inserted in Sec. 10 of the (old) Limitation Act to bring-in such managers also under this section.[24]
  • (iv) Under Hindu Law, beneficiaries have only beneficial interest; and, not beneficial ownership. Under English law, legal ownership is vested in Trustees and beneficial ownership, in Beneficiaries.
  • (v) Under Hindu Law, the administrators of religious trusts in India have no title to the trust properties; and the properties are vested in them for administration and management alone.[25]
  • (vi) Under Hindu Law, the beneficiaries have an interest in trust property, as distinct from a right against the trustee, as recognized by the Privy Council in ME Moolla Sons Ltd Vs. Official Assignee, Rangoon.[26]

In Vidya  Varuthi  Thirtha  Swamigal Vs.  Baluswami  Ayyar (1922)[27] the Privy Council held as under:

  • “It is to be remembered that a ‘trust’ in the sense in which the expression is used in English Law is unknown in the Hindu system, pure and simple. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, the agent is only the manager and custodian of the idol or the institution. In no case is the property conveyed to or vested in him; nor is he a ‘trustee’ in the English sense of the term although in view of the obligations and duties resting on him, is answerable as a trustee in the general sense for maladministration. ” 

In Mt. Allah Rakhi Vs.  Shah Mohammed Abdur Rahim[28] it was held by the Privy Council as under:

  • “Mutawalli or Sajjadanashin is merely a manager of the wakf property, the ownership of which vests in God Almighty. Mutawalli or Sajjadanashin is not a trustee as understood in the English system.”

In Hem Chandra Vs. Suradham  Debya[29] it was held by the Privy Council that the beneficial interest, though not technically an equitable estate in India, could be mortgaged by the beneficiary.

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

It is trite law that dedicated property of a temple will be vested with the idol as the legal owner thereof, though such vesting is qualified to be in an ‘ideal or secondary sense’ (Bhupathi Nath v. Ramlal Maitra: ILR 37 Cal. 128) and the possession and management thereof will be with some human being identified as Shebait or Manager, though in the strict legal sense, they cannot be accepted as trustees.

In Wali Mohammed v. Rahmat Bee, (1999- 3 SCC 145), to the question whether the Mutawalli of a Wakf would be a trustee, our Apex Court observed as under:

  • “35. It will be seen that the main part of Sec. 10 (Limitation Act) states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.
  • 36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Sec. 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult.
  • 37. The legislature therefore intervened and amended Sec. 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: “The (Civil Justice) Committee’s recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Sec. 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assignee for valuable consideration, endowments of this nature are not protected. The Committee’s recommendation is that Sec. 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.” (Quoted in: Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482).

In Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482, the Apex Court held that the Mutawalli is not a trustee in its true sense. The Supreme Court formulated a crucial question and answered it as under:

  • “127. Thus, the Mutawalli is treated as a trustee. But would the amendment made to Sec. 10 of the Limitation Act, 1963 make a Mutawalli a trustee generally?
  • Our answer is an emphatic No. This is for the reason that the change in Sec. 10 of the Limitation Act was effected to overcome the judgment of the Privy Council, when it held that a Mutawalli would not be a trustee and when in view of the requirement in Sec. 10 that the suit must be one against a person in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words “For the purpose of this section  and proceeds to declare that “any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”
  • Therefore, apart from it being an Explanation, it also on its very terms, limits the deeming fiction to the purpose sought to be attained in Sec. 10 of the Limitation Act.”

Trust Not Required for Endowing Hindu Religious Institutions

A Hindu can establish a religious or charitable institution even without creating a trust; i.e., one can endow an institution without appointing trustees. Such a dedication will not be recognised under English Law.

Mulla, Hindu Law[30] reads:

  • “A Hindu who wishes to establish a religious or charitable institution may, according to his law, express his purpose and endow it. A trust is not required for that purpose. All that is necessary is that the religious or charitable purposes should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to those purposes….”

Dr. B.K. Mukherjea ‘‘On the Hindu Law of Religious and Charitable Trusts’’, Tagore Law Lectures, page 158, explains as to debutter property as under:

  • “The mere fact that an idol has been established does not by itself create a debutter. A religious trust by way of debutter can come into existence only when property is dedicated for worship or service of the idol. When there is no endowment in favour of an established idol, no trust in the Legal Sense of the term can possibly come into being; it is only the moral duty of the person who founds the deity or his heirs to carry on the worship in such a way as they think proper.”

Debutter/Devaswam Property

Though the dedicated asset of a temple is described as ‘Property of the Gods’ or ‘Devaswom’, according to the texts, the Gods have no beneficial enjoyment of the property and they can be described as their owners only in a figurative[31] sense.

Our Apex Court, in Ram Jankijee Deities Vs. State of Bihar,[32]observed as under: 

  • “In the conception of Debutter, two essential ideas are required to be performed: In the first place, the property which is dedicated to the Deity vests in an ideal sense in the Deity itself as a Juristic Person and in the second place, the personality of the Idol being linked up with natural personality of the Shebait, being the manager or being the Dharamkarta and who is entrusted with the custody of the Idol and who is responsible otherwise for preservation of the property of the Idol.”

Medhathiti commented on the expression ‘Devaswam’ in Manu, Chapter XI, Verse 26 as under:[33]

  • “Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application to Gods.”[34]

Hindu Temples and Principles of Trust

Two conditions are to be satisfied for considering a religious institution as a Hindu Temple: One, it should be a place of public religious worship; and the other is that it should have been dedicated for the benefit of, or is used as of right by the Hindu Community, or any section thereof, as a place of religious worship. Placing these principles, our Apex Court held, in PF Sadavarthy Vs.  Commissioner, HR and CE,[35] as under:

  • “To constitute a temple it is enough if it is a place of public religious worship and if the people believe in its religious efficacy irrespective of the fact whether there is an Idol or a structure or other paraphernalia. It is enough if the devotees or the pilgrims feel that there is some super human power which they should worship and invoke its blessings.”[36]

In Hindu Religious Endowments Board Vs. Veeraraghavacharlu[37] it was observed by the Madras High Court as under:

  • “As explained in the case, that purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust.”[38]

Worshippers are the Beneficiaries of Temples

Temples are established for the spiritual benefit of the Hindu community in general, or for a particular sect or section thereof. The beneficiary thereof is not God or deity; but, it is the worshippers as a whole.  Worshippers of an Idol are its ultimate beneficiaries, in a ‘spiritual sense’ only.[39]

The Supreme Court in the celebrated decision Deoki  NandanVs. Murlidhar,[40] after considering various decisions and Sanskrit texts, upheld the view that a Deity is an owner in ideal sense[41] and the real beneficiaries are the worshippers.[42]

Idol is a is a ‘Juristic Person’

In Prosunno Kumar Debia Vs. Golapchand (1874-75)[43] the Judicial Committee observed that it was only in an ideal sense that property could be said to belong to an idol. It had been expressly laid down in Manohar Ganesh Vs. Lakhmiram (1887)[44] that the consecrated idol in a Hindu temple was a juridical person. In Vidyapurna  Tirtha Swami Vs.  Vidyanidhi  Tirtha Swami (1904)[45] it was observed as under:

  • “It is not strange, therefore, that in a country like this, where the sacredbooks of the people abound in personified descriptions of the Deity, His powers and attributes, the belief of donors should be similar and even stronger, as will be seen from Doorga Prasad v. Shiva Prasad, 7 CLR 278, where Mac Donnel and Tottenham JJ. observed: ‘According to Hindu notions when an idol has once been so to speak consecrated by the appropriate ceremony being performed and mantra pronounced, the deity of which the idol is the visible symbol resides in it.’
  • It is to give due effect to such a sentiment, widespread and deep rooted as it has always been, with reference to something not capable of holding property as a natural person, that the laws of most countries have sanctioned the creation of a fictitious person in the matter, as is implied in the felicitous observation made in the work already cited: ‘Perhaps the oldest of all juristic persons is the God, hero or the saint.’ (Pollock and Maitlands: History of English Law, p. 481).”

Pollock and Maitlands: ‘History of the English Law’ had been quoted in this decision (Vidyapurna  Tirtha Swami).  It reads:

  •  “His worshippers who gave him lands and goods regarded him, if in one sense as a supernatural person, yet in another and a very real sense, as a natural person; he was no creature of human thought, he lived and could hold property”.

Following are the important decisions of the Supreme Court that explained the principles as to ‘juristic personality’ of Idols.

  • Bishwanath Vs. Thakur Radha Ballabhji (1967)[46]
  • Yogendra Nath Naskar Vs. Commissioner of Income Tax (1969)[47]
  • Official Trustee of WB Vs. CIT, WB, Calcutta (1974)[48]
  • Profulla  Chorone  Requitte Vs. Satya  Choron  Requitte (1979)[49]
  • Ram Jankijee Deities Vs. State of Bihar (1999)[50]
  • Parbandhak Committee Vs. Som Nath Dass (2000)[51]
  • Sri Ganapathi Dev Temple Vs. Balakrishna Bhat Shir. Gurdwara (2019)
  • M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) (2019).[52]

Property Vests in Deity or Institution; Not in Trustees

As shown above, one of the main differences with respect to charitable trusts, between English Law and Hindu Law (temples, Mutts, schools, tank etc.) is that under Hindu Law, property vests in the Idol or Deity[53] or in the institution; whereas under English Law trust-property vests in trustees.

Our Apex Court in Sarangadeva  Periya  Matam  Vs.  Ramaswami  Goundar[54] held that the Mutt was the owner of the endowed property; and that, like an Idol, the Mutt is a juristic person  having the power of acquiring, owning and possessing property and having the capacity of suing and being sued.

Vesting Property with Idol, in an Ideal Sense; Management remains with Shebait

The possession and management of the dedicated property of a temple, which is vested with the idol, has to be in actual possession of some human-being. It is Shebait (शेबैत ). The responsibilities undertaken by Shebaits, in different parts of India, are similar. But, those persons are identified by different names.

  • Shebait (Shebaite) is the name used in Bengal & North India.
  • It is Dharmakarthas in Tamil and Telungu area.
  • And, Uralens/Ooralans in Kerala.

The Shebait being entitled to deal with all the temporal affairs of the idol and to manage its property,[55] the vesting of property with the Idol, as legal owner thereof, is qualified to be:

  • (a) in an ideal sense (Jogadinadra  Nath  Vs.  Hemanta  Kumari Debi),[56]
  • (b) secondary/general character (Bhupathi  Nath Vs. Ramlal Maitra)[57] or
  • (c) in a figurative sense (Yogendranath  Vs. IT Commr)[58].

Because of the fiduciary position, their liability equates that of trustees. With regard to status of Shebaits, Indian Law differ from that of trustees in English Law, on details.

Under true English concept of trust, a trustee is the legal owner of the trust property; and the beneficial ownership thereof vests in the beneficiary or the cestuique trust.  Though Shebaits have certain limited proprietary rights, as shown below, they are only managers or persons in charge of administration of the temple and its property; and, the property do not vest in them as the legal-owners as in English Law.

Dr. BK Mukherjea on The Hindu Law of Religious and Charitable Trusts,[59] reads as under:

  • “(1) According to these sages the deity or idol is the owner of the dedicated property but in a secondary sense. The ownership in its primary sense connotes the capacity to enjoy and deal with the property at one’s pleasure. A deity cannot hold or enjoy property like a man; hence the deity is not the owner in its primary sense; (2) ownership is, however, attributed to the deity in a secondary or ideal sense; this is a fiction but not a mere figure of speech, it is a legal fact; otherwise the deity could not be described as owner even in the secondary sense; (3) the fictitious ownership which is imputed to the deity is determined by the expressed intentions of the founder; the debutter property cannot be applied or used for any purpose other than that indicated by the founder. The deity as owner, therefore, represents nothing else but the intentions of the founder….. Neither God nor any supernatural being could be a person in law. So far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person and the correct view is that in that capacity alone the dedicated property vests in it.”[60]

The Supreme Court, in Deoki  Nandan  Vs. Murlidhar (1957),[61] after considering various decisions and Sanskrit texts, observed as under:

  • “Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha),[62] and the true purpose of a gift of properties to the Idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.”[63]

It is expressed in another way by the Apex Court in Yogendranath  Vs. IT Commissioner[64] as under:

  • “The juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated. … It is also not correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of dedicated property. … Thus according to texts, the Gods have no beneficial enjoyment of properties, and they can be described as their owners in a figurative sense (though the assets are called ‘properties of the Gods’ or ‘Devaswam’)”.

Our Apex Court followed the proposition that the property vests in idol in an ideal sense only, in the following decisions.

  • Bishwanath Vs. Thakur Radha Ballabhji (1967)[65]
  • Yogendra Nath Naskar Vs. Commissioner of Income Tax (1969)[66]
  • Profulla  Chorone  Requitte Vs. Satya  Choron  Requitte (1979)[67]
  • Ram Jankijee Deities Vs. State of Bihar (1999)[68]
  • M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) (2019).[69]

Juristic personality of Idol Explained

It is held by the Supreme Court in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case) [70] as under:

  • “322. Courts recognise a Hindu idol as the material embodiment of a testator’s pious purpose. Juristic personality can also be conferred on a Swayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role.”

Status of Shebaits and Mahanths – Concept and History of Origin, Unique

Mahant is the head and superior of the spiritual fraternity attached to a Mutt. The concept of Shebaiti and Mahanthship is deep-rooted in past Indian history, and has its own unique history of origin and development. When compared to ‘trustees’ in Law of Trusts, the status and position of Shebaits and Mahanths may appear anomalous.

  • Because,
    1. Viewing through the Anglo-Saxon jurisprudence, they are not trustees.
    2. Despite the fact that property will not vest in them and they are mere managers or administrators, in one view of the matters, they have certain proprietary rights.
    3. In the conception of Shebaiti and Mahanthship, both the elements of office and property are mixed up; and duties and personal interest are blended together.
    4. The legal character of a Shebait cannot be defined with precision and exactitude in the English standards, though the concept of Shebaiti and Mahanthshipit is precise, and bounded by definite contours.

In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979) it was observed by our Apex Court that the legal character of a Shebait cannot be defined with precision and exactitude.

See Blog: Shebaits & Mahants and Law of Trustees

Management Entrusted to Shebaites,  Ex Necessitas

In Profulla Chorone Requitte Vs. Satya Chorone Requitte (1979)[71] it was observed by our Apex Court that the property dedicated to an idolvests in it in an ideal sense only;the possession and management has to be (ex necessitas) entrusted to some human agent. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property.

Property Vests in Idol ‘as representing the aim or purpose of donor’

Ownership property dedicated to temple/Idol vests in Idol/Deity itself. Legally accepted theory as to vesting is that such vesting is ‘as representing the aim or purpose of donor’ or the purpose of the trust.

Legal Personality: ‘Entity of the Idol’ Linked with‘Pious Purpose’: Dedicated property of a temple is generally said to be vested with Idol, as legal owner thereof; and not with any human being. But, neither God nor any supernatural being could be a person in law.[72] It is held to be an exploded theory that the idol or image itself develops into a legal person as soon as it is consecrated.[73]

In this situation, to give a logical proposition as to the ‘juristic personality’ of idol, the ‘entity of the idol’ has to be linked or merged with the ‘pious purpose’ of the donor; especially since such ‘purpose’ itself is recognised in law as a legal person, as pointed out as early as in Manohar Ganesh Tambekar Vs. Lakhmiram (1888).[74]

Other Potential Theories as to Property Dedicated to Temples

Other potential theories discussed in legal parlance are the following:

  • 1. Dedicated property becomes Res nullius – belongs to nobody.
  • 2. Ownership vests in Temple.
  • 3. Ownership vests in Idol/Deity as representing God/Creator.
  • 4. Ownership vests in the Hindu Community at large or the section thereof.

1.Res nullius

This proposition is liable to be discarded for its inherent illegitimacy. It is noteworthy that Dr. BK Mukherjea, J. did not support the doctrine of ‘res nullius’; Dr. Mukherjea opined that ownership ‘must vest in somebody.’[75]

2. Re – Property Vests in Temple.

The Deity/Idol being invariably present in a Temple and it forms central part (or ‘nucleus’[76]) of the foundation and it stands as the material symbol and embodiment of the pious purpose which the dedicator had in view[77], the law prefers recognition of the Deity as the legal person;[78] and disfavours recognition of Temple (or Endowment/Devaswam) as a legal person.[79]

3. Re – Property Vests in Idol in a ‘figurative sense’and  as Representing God/ Supreme-Being/ Creator.

Idol is regarded as the image or embodiment of Deity, which ultimately represents the Supreme Being. Idol or Image may be broken or lost; it can be replaced or substituted.  But Deity remains as same. In spiritual and legal concepts the ‘Deity’ is a representative. (‘Idol’ and ‘deity’ are seen used as synonyms when legal principles are formulated.)

Actually, when a devotee worships at the temple, he offers his prayers, or glorifies the Eternal Spirit attributed, to the Idol (and not the visible material of Idol, as it is).  This is the reason for regarding the Idol as Deity (one of the Gods). This principle could not be discarded while a theory as to true vesting of property is evolved.

It was observed by Privy Council in Bhupathi  Nath Vs. Ramlal  Maitra[80] that the concept that the Deity could be a ‘person’ was not accepted under Hindu- philosophy for the following:

  •  “It is a contradiction in terms to talk of the Creator accepting anything, in the legal sense of the word, from a creature, and that it is inconceivable that laws which were made for, if not by, men should be applicable to a Deity.”

4. Ownership vests in the Hindu Community at large

The ownership of the property vests, ideally speaking, in the idol or the deity; and in a practical sense in the Hindu community at large or the section, as the case may be, for whose worship the institution has been founded.[81]

Dr. BK Mukherjea on The Hindu Law of Religious and Charitable Trusts

It is explained by Dr. BK Mukherjea, J. that the Idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law.  Dr. Mukherjea, J  explained:

  • “Neither God nor any supernatural being could be a person in law. So far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person and the correct view is that in that capacity alone the dedicated property vests in it.”

Dr. BK Mukherjea evaluated the decisions of the Privy Council as well as the Courts of India and points out as under:

  • “With regard to Debutter, the position seems to be somewhat different. What is personified here is not the entire property which is dedicated to the deity but the deity itself which is the central part of the foundation and stands as the material symbol and embodiment of the pious purpose which the dedicator has in view.
  • “The dedication to deity”, said Sir Lawrence Jenkins in Bhupati v. Ramlal Maitra, (1910) 10 Cal LJ 355 at p. 369 “is nothing but a compendious expression of the pious purpose for which the dedication is designed”.
  • It is not only a compendious expression but a material embodiment of the pious purposeand though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite consistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it”[82]

Dr. BK Mukherjea J., reads further as under:[83]

  • “Principle as to personality of institutions.- Apart from natural persons and corporations, which are recognised by English Law, the position under Hindu Law is that if an endowment is made for a religious or charitable institution, without the instrumentality of a trust, and the object of the endowment is one which is recognised as pious, being either religious or charitable under the accepted notions of Hindu Law, the institution will be treated as a juristic person capable of holding property….
  • The position as to Idols is of a special nature. In the Hindu Debutter, it seems, the position is slightly different, and not the whole endowment, but the Idol which as an embodiment of a pious or benevolent idea, constitutes the centre of the foundation and is looked upon as the juristic being in which the Debutter property vests. After all, juristic personality is a mere creation of law and has its origins in a desire for doing justice by providing, as it were, centres for jural relations. As Salmond says: ‘It may be of as many kinds as the law considers proper,’ and the choice of the corpus into which the law shall breathe the breath of fictious personality is a matter of form than of substance.”[84]

Expansion of Concept as to Vesting Property in ‘Pious Purpose’

Prosunno Kumari Debya Vs. Golab Chand Baboo: 1875

Onward march of jurisprudential ideas as to vesting of property dedicated to an Idol, begins from the decision of the Privy Council in 1875, in Prosunno Kumari Debya Vs. Golab Chand Baboo.[85]It was held in this decision that the property vest in the deity only in an ‘ideal sense’.  The ever growing ideas in this subject are bloated out from this pile.

  • “It is only in an ideal sense that property can be said to belong to an Idol; and the possession and management of it must in the nature of things be entrusted to some person as shebait, or manager. It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the  Idol, and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. If this were not so, the estate of the Idol might be destroyed or wasted, and its worship discontinued, for want of the necessary funds to preserve and maintain them.”

Manohar  Ganesh  Tambekar  Vs.  Lakhmiram: 1888

Bombay High Court, in 1887, in Manohar Ganesh Tambekar Vs.Lakhmiram,[86] set out the underlying principles for conferring legal personality on an Idol and the doctrine as to the pious purpose of the testator as the legal entity capable of holding property. Justice West observed as under:

  • “The Hindu Law, like the Roman law and those derived from it recognizes not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also juridical persons or subjects called foundations. The religious institutions like Mutts and other establishments obviously answer to the description of foundations in Roman Law. The idea is the same, namely, when property is dedicated for a particular purpose, the property itself upon which the purpose is impressed, is raised to the category of a juristic person so that the property which is dedicated would vest in the person so created.”[87]

Vidyapurna  Tirtha Swami Vs. Vidyanidhi  Tirtha   Swami: 1904

Madras High Court in Vidyapurna  Tirtha Swami Vs. Vidyanidhi  Tirtha Swami[88] observed in the year 1904 as under:

  • “For all practical purposes however it is immaterial whether the presiding Idol or the community of worshippers is regarded as the corporation or juristic person in which the properties are vested, though from a juristic point of view there may be a difference of opinion as to which theory is more scientific. In the words of a recent writer on Jurisprudence (Salmond‘s ‘Jurisprudence’ (1902), 346) ‘the choice of the corpus into which the law shall breathe the breath of a fictious personality is a matter of form rather than of substance, of lucid and compendious expression, rather than of legal principle’ …”[89]

Bhupathi  Nath  Vs. Ramlal  Maitra:  1909-1910

Privy Council in Bhupathi  Nath  Vs. Ramlal  Maitra[90] held that, in law, neither God nor any supernatural being could be a person; but, the Deity ‘as representing Supreme Being’ or ‘as representing the pious purpose of the dedicator’ could be accepted as a legal person. It was pointed out that the concept that the Deity could be a ‘person’ was not accepted under Hindu-philosophy, observing as under:

  •  “It is a contradiction in terms to talk of the Creator accepting anything, in the legal sense of the word, from a creature, and that it is inconceivable that laws which were made for, if not by, men should be applicable to a Deity”

Deoki  Nandan  Vs. Murlidhar: 1957

The Supreme Court in the celebrated decision Deoki  NandanVs. Murlidhar,[91] after considering various decisions and Sanskrit texts upheld the view that a Deity is an owner in ideal sense and the real beneficiaries are the worshippers.[92] It was observed that the true purpose of a gift of properties to the Idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In Deoki  Nandan  Vs  Murlidharit was held as under:

“The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.”

Yogendra  Nath  Vs. IT Commissioner: 1969

The Supreme Court held in Yogendra  Nath Vs. IT Commissioner,[93]  that the Idol as representing and embodying the spiritual purpose of the donor was the juristic person recognized by law; and ‘that in this juristic person the dedicated property vests’.[94] It was further observed in this decision that ‘neither God nor any supernatural being could be a person in law. Then held:

  • “But, so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person.”

The Supreme Court in Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, AIR 1969 SC 1089, observed as under:

  • “6. …It should however be remembered that the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the Pran Pratishta ceremony. It is not also correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of the dedicated property.
  • …The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests. As observed by Mr. Justice B.K. Mukherjea:
    • “With regard to the debutter… It is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite consistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it. … The legal position is comparable in many respects to the development in Roman Law.”
  • (It is quoted in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case), 2019)

The Supreme Court, after referring to various texts, explained that that the juristic person in the Idol was not the material image, and it was an exploded theory that the image itself developed into a legal person as soon as it was consecrated. According to the texts, Gods had no beneficial enjoyment of the properties, and they could be described as their owners only in a figurative sense[95] (Gannartha), though the assets were called ‘property of the Gods’ or ‘Devaswam’. It was pointed out that the true purpose of a gift of properties to the Idol was not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desired to worship.

Ram Jankijee Deities Vs. State of Bihar: 1999

Our Apex Court, in Ram Jankijee Deities Vs. State of Bihar,[96] while considering the legal status of two separate deities, Ram Jankijee and Thakur Raja, it was held that they were separate Juristic Persons. So, in the same precincts, as a matter of law, it is possible to exist two separate juristic persons. The Apex Court also observed as under: 

  • “God is omnipotent and omniscient and its presence is felt not by reason of a particular form or image but by reason of the presence of the omnipotent: It is formless, it is shapeless and it is for the benefit of the worshippers that there is manifestation in images of the Supreme Being.”

It is observed further:

  •  “A simple piece of wood or stone may become the image or idol and divinity is attributed to the same. As noticed above, it is formless, shapeless but it is the human concept of a particular divine existence which gives it the shape, the size and the colour.”

Read Blogs:Common Law of TRUSTS in India

[1] CR Shivananda Vs. HC Gurusiddappa: 2011 0 ILR(Kar) 4624

[2] CR Shivananda Vs. HC Gurusiddappa: 2011 0 ILR(Kar) 4624

[3]      27 ILR Mad 435

[4]      AIR 1953 Nag. 351;  AIR 1959 All. 473. 

[5]      (1972 All 273). See 1963 SC 1638.

[6]      ILR 16 Lah.85.

[7]      AIR 1957 SC 133

[8]      AIR 1957 SC 797.

[9]      AIR 2003 SC 1685.

[10]    Quoted in: Iswar Madan Mohun Vs. Priyamoni Dasi: 1971 Cal LJ  314, 1971-1 Cal LT 254; Rivers Steam Navigation Co Ltd Vs. State: 1966-71 Cal WN 854.

[11] page 36. Quoted in M. Siddiq (D) Thr.Lrs.  VS Mahant Suresh Das: 2020-1 SCC 1.

[12]    Quoted in : Shri Ram Kishan Mission Vs. Dogar Singh: AIR 1984 All 72; Also referred: Lalta Prasad Vs. Brahmanand: AIR 1953 All 449 (DB).

[13]    pages 102 & 103.

[14] 2018-8 ADJ 843; 2018-130 AllLR 591

[15] ILR 50 Mad 687

[16] Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591.

[17]    AIR 1937 Mad 750; Referred to Bhupati  Vs.  Ramlal Maitra (1910): ILR 37 Cal 128,

[18]    Quoted in: Shriomani  Gurudwara  Prabandhak Committee, Amritsar Vs.  Shri  Som  Nath  Dass:  AIR 2000 SC 1421. See also: Radhakanta Deb Vs. Commr. of Hindu Religious Endowments: AIR1981 SC 798.

[19]    Deoki  Nandan  Vs. Murlidhar: AIR 1957 SC 133.

[20]    See also: Yogendra  Nath Vs. IT Commr: AIR1969 SC 1089

[21]    Quoted in Mahant Ram Saroop  Dasji Vs. S P Sahi  Spl Officer: AIR  1959 SC  951.

[22]    See Chapter: VESTING OF PROPERTY IN HINDU ENDOWMENTS.

[23]    AIR 1966 SC 1603

[24]    See: Sri Silambani Vs. Chidambaram Chettiar: AIR 1943 Mad 691.

[25]    Thiagesar Dharma Vanikam Vs. CIT:AIR 1964 Mad 483

[26]    38 Bom LR 1011 (PC)

[27]    AIR 1922 PC 123

[28]    AIR 1934 PC 77

[29]    AIR 1940 PC 134

[30]    Page 600, 21stEdn

[31]    Deoki  Nandan Vs. Murlidhar, AIR 1957 SC 133;

Yogendra  Nath  Naskar  Vs. Commr. of Income Tax Calcutta: AIR 1969 SC 1089.

[32]    AIR 1999 SC 2131.

[33]    See Page 38 of ‘Dr. BK Mukherjea, J. on Hindu Law of Religious and Charitable Trusts’

[34]    Quoted in: Yogendra  Nath  Naskar  Vs. Commr. of IT Calcutta: AIR 1969 SC 1089. 

[35]    AIR 1963 SC 510

[36]    It  is quoted in Ram Jankijee Deities Vs. State of Bihar: AIR 1999 SC 2131

[37]    AIR 1937 Mad 750: Referred to ILR 37 Cal 128

[38]    Quoted in: Shriomani  Gurudwara  Prabandhak Committee, Amritsar Vs.  Shri  Som  Nath  Dass: AIR 2000 SC 1421.

See also: Radhakanta Deb Vs. Commr. of Hindu Religious Endnts. Orissa: AIR1981 SC 798.

[39]    Vidyapurna  Tirtha Swami Vs.  Vidyanidhi  Tirtha Swami (1904): 27 ILR Mad 435

Bishwanth  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044;

        Deoki  Nandan Vs. Murlidhar, AIR 1957 SC 133.

[40]    AIR 1957 SC 133

[41]    Deoki  Nandan Vs. Murlidhar, AIR 1957 SC 133

Bishwanth  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044;

Yogendra Nath Naskar Vs. Commr. of Income Tax:AIR1969 SC 1089;

Profulla  Chorone  Requitte Vs. Satya  Choron  Requitte: AIR 1979 SC 1682

Ram Jankijee Deities Vs. State of Bihar: AIR 1999 SC 2131

M Siddiq Vs. Mahant Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[42]    Idol Baldauji  of  Dabri  Pittha  Vs.  Medh Rajput Association: AIR 1959 MP 330

Hindu Religious Endnt. Board Vs. Parasram  Veeraghava  Chrlu, AIR 1937 Mad 750

[43]    (1874-75) L.R.,2 Ind App 145 (PC).

[44]    ILR 12 B. 274

[45]    27 ILR Mad 435

[46]    1967 AIR SC 1044

[47]    AIR1969 SC 1089

[48]    AIR 1974 SC1355

[49]    AIR 1979 SC 1682;

See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[50]    AIR 1999 SC 2131 

[51]    AIR 2000 SC 1421

[52]    2020-1 SCC 1.

[53]    Smt. Mahani  Dasi Vs. Pareshnath Thakur: AIR  1954Ori 198;

Sankaranarayanan  Iyer Vs. Sri Poovananathaswami Temple: AIR1949 Mad 721.

[54]    AIR 1966 SC 1603

[55]   Profulla  Chorone  Requitte Vs. Satya  Choron  Requitte: AIR 1979 SC 1682

[56]    Jogadinadra  Nath  Vs.  Hemanta  Kumari Debi (1904) 31 Ind App 203

Silambani  Chidambara  Vinayar   Vs. Chidambaram Chettiar: AIR 1943 Mad 691;

Balram  Chunnilal  Vs. Durgalal  Shivnarain: AIR1968 MP 81.

Also: Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[57]    Bhupathi  Nath  Vs.  Ramlal  Maitra: ILR 37 Cal. 128.

[58]    Yogendranath  Vs. IT Commr: AIR 1969 SC 1089.

[59]    Page 46

[60]    See also: Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[61]    AIR 1957 SC 133

[62]    Commr. of Income Tax, Calcutta Vs. Iogendra  Nath: AIR 1965 Cal. 570 :

Decision reversed in: Yogendra  Nath  Naskar  Vs. Commr. of IT: AIR 1969 SC 1089.

[63]    See also: Hindi Religious Endowment in Board of Commrs. for the Hindu Religious Endowments Madras Vs. Parasram  Veeraghavachrlu, AIR 1937 Mad 750

[64]    AIR 1969 SC 1089

[65]    1967 AIR SC 1044

[66]    AIR1969 SC 1089

[67]    AIR 1979 SC 1682;

See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[68]    AIR 1999 SC 2131 

[69]    2020-1 SCC 1.

[70]See also: M. Siddiq Vs. Mohanth: 2020-1 SCC 1.

[71]    AIR 1979 SC 1682;

See also:  Bhagauti Prasad Khetan Vs. Laxminathji  Maharaj: AIR 1985 All 228

[72]    M.  Siddiq VS Mahant Suresh Das: 2020-1 SCC 1.

[73]    Yogendranath  Vs. IT Commr: AIR 1969 SC 1089

[74]    ILR 12 Bombay 247

[75]    See: Dr. BK Mukherjea, J. on Hindu Law of Religious and Charitable Trusts, page 35

[76]    Shriomani  Gurudwara  Prabandhak  Vs.   Shri  Som  Nath  Dass: AIR 2000 SC 1421.

[77]    Hindu Law of Religious and Charitable Trusts by Dr. BK Mukherjea, J.;

Yogendra  Nath  Naskar  Vs. Commr. of Income Tax: AIR 1969 SC 1089.

[78]    TaritBhusan Vs. Sri Iswar Sridhar Salagram  Shila Thakur: AIR 1942 Cal 99;

Menakuru  Dasaratharami  Reddi Vs. D Subba  Rao, AIR 1957 SC 797;

DeokiNandan Vs. Murlidhar, AIR 1957 SC 133;

Bishwanath Vs. Thakur RadhaBallabhji: AIR 1967 SC 1044;

Sarangadeva  Periya  Matam Vs. Ramaswami  Goundar Dead: AIR 1966 SC1603;

Yogendra  Nath  Naskar Vs. Commr. of Income Tax, Calcutta: AIR 1969 SC 1089;

Shrikalankade Visansthan Vs. Maharashtra Revenue Tribunal Nagpur: AIR1970 SC 439;

Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, 1981 SC 798;

Bala Shankar Maha  Shanker  Bhattjee Vs. Charity Commr: AIR 1995 SC167;

Shriomani  Gurudwara  Prabandhak Comtee Vs.   Shri  Som  Nath  Dass: AIR 2000 SC 1421;

Union Bank of India Vs. Khader International Construction: AIR  2001 SC 2277

[79]    See also: AIR 1967 J&K 52;

Manohar Ganesh Vs. Lakshmiram, (1887) ILR 12 Bom 247.

[80]    ILR 37 Cal. 128: at page 141;

See also: Yogendranath  Vs. IT Commr: AIR 1969 SC 1089

[81]    Silambani  Chidambara  Vinayar  Vs. Chidambaram Chettiar AIR 1943 Mad 691;

Balram  Chunnilal  Vs. Durgalal  Shivnarain AIR1968 MP 81.

[82]    Quoted in: Yogendranath  Vs. IT Commr: AIR 1969 SC 1089

[83]    Page 36

[84]    Quoted in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case): .2020-1 SCC 1.

[85]    (1875)  LR 2 Ind. App. 145

[86]    ILR (1888) 12 Bom 247

[87]    M.  Siddiq Vs. Mahant Suresh Das(Ayodhya Case): 2020-1 SCC 1.

Thayarammal Vs. Kanakammal: AIR 2005 SC 1588

[88]    ILR (1904) 27 Mad 435

[89]    Quoted in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[90]    (1909-1910) ILR 37 Cal. 128.

[91]    AIR 1957 SC 133

[92]    See also: Hindu Religious Endowment in Board of Commrs. for the Hindu Religious Endowments Madras Vs. Parasram  Veeraghava  Chrlu, AIR 1937 Mad 750

[93]    AIR1969 SC 1089

[94]    Followed in M Siddiq Vs. Mahant Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[95]    Also see: Commr. of Income Tax, Calcutta Vs. Jogendra  Nath, AIR 1965 Cal. 570: Reversed in: Yogendra  Nath  Naskar  Vs. Commr. of IT: AIR 1969 SC 1089.

[96]    AIR 1999 SC 2131.

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Can a Trust be Dissolved? Extinction, Discharge, Revocation, Variation etc. of Public Trusts

Saji Koduvath, Advocate, Kottayam.

Synopsis.

  1.  ‘Once a Trust Always a Trust’; No Dissolution; No Termination
  2. Once a Dedication, No Revocation; No Extinction; No Termination
  3. Temple/Deities Cannot Be Transferred
  4. Transfer of an Institution
  5. Can a Private (Secular) Trust be Put to an End?
  6. Chapter VIII – The Extinction of Trusts  
  7. Can Entire Family Members Put an End to Family Temple?
  8. Cy Pres Doctrine – State & Court: Protectors of All Charities
  9. Sec. 77 and 78 do not Apply to Public Trusts
  10. Variation of Trust

Introduction

The provisions of the Indian Trust Act, 1882 as to ‘Discharge of Trustee’ (Sec. 71), ‘Trust how Extinguished’ (Sec. 77) and ‘Revocation of Trust’ (Sec. 78) do not apply to public or private religious or charitable endowments. Inasmuch as the beneficiaries as a whole alone have to consent to give effect to the acts given in the above list, it is clear that it is feasible only in private trusts; and not in public trusts.

In Private Trusts Beneficiaries Can Give Consent on Certain Variations

Indian Trusts Act, 1882 permits the beneficiaries, as a whole, who are competent to contract, to do, act or perform the following matters, as stated in those sections.

  • Sec.11. Modify the purpose of the trust and the directions for management.
  •          23.  Acquiesce a breach of trust of trustee.
  •          46.  Allow the trustee to renounce.
  •          47.  Allow the trustee to delegate his office or any of his duties.
  •          56.  Require trustee to transfer trust property to them, or to another.
  •          58.  Transfer the interest of beneficiary.
  •          62.  Ratify the sale to the trustee.
  •          71.  Discharge the trustee.
  •          77.  Allow to extinguish trust.
  • 78.  Revoke the trust.

Two important matters are worth noticeable in this regard. First, ‘once a public endowment/trust is made, it is final and irrevocable’ is a fundamental principle of public trusts.[1] Second, by virtue of Sec. 1 of the Trusts Act, the applicability of the Trusts Act is expressly excluded from public or private religious or charitable endowments.

S. 1, Indian Trusts Act, 1882 reads as under:

  • 1. “This Act may be called the Indian Trusts Act, 1882, and it shall come into force on the first day of March, 1882. It extends to the whole of India… But nothing herein contained affects the rules of Muhammadan law as to Wakf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors ; and nothing in the second chapter of this Act applies to trusts created before the said day.”

Can a Private (Secular) Trust be Put to an End or Dissolved?

It is settled that in the case of (secular) private trusts, English principles are followed in India which lay down that if the beneficiaries are sui juris (of one mind), the trust can be put to an end or use the trust fund for any purpose.[2]

In Doorganath Roy Vs. Ram Chander Sen[3]the Privy Council observed that in the case of a family idol, ‘the consensus of the whole family might give the (Debutter) estate another direction’ and turn it into a secular estate; though in case of  the dedication is to a public temple, the family of the founder could not put an end to it. But, in Pramatha Nath Mullick Vs.Pradymna Kumaar Mullick[4], the Juducial Committee clarified that the property cannot be taken away from the idol and diverted to other purposes without the consent of the idol through its earthly agents who, as guardians of the deity, cannot in law consent to anything which may amount to an extinction of the deity itself.[5]

Fundamental Principles Cannot be Changed

A charitable foundation is the creature of the founder. And on this view, the founder provides for the mode of government and administration of trust.[6] The fundamental principles upon which a trust is founded cannot be varied. It applies heavily to public trusts. The courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created.

In Free Church of England Vs. Overtoun[7] House of Lords  (by a majority of 5-2) found that the minority was entitled to the assets of the Free Church. It was observed that when men subscribe money for a particular object, and leave it behind them for the promotion of that object, their successors have no right to change the object endowed.  In this case, the majority adopted new standards of doctrine, and abandoned its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church. In this circumstances, it was found that the majority had violated the conditions on which the property of the Free Church was held. This principle is also found in Milligan Vs. Mitchel[8] and Attorney General Vs. Anderson[9] and Free Church of England Vs. Overtoun. All these decisions were considered by the Madras High Court in Prasanna Venkitesa Rao Vs. Srinivasa Rao (1931).[10]

In Pragji Savji Vaja  Vs. Chhotalal Narsidas Parmar[11] it was held that no deviation from the object of the trust could be allowed; and the properties could not be allowed to be sold to the members of their community for whose benefit the trust is created and the properties were acquired.

Public Trust: ‘Once a Trust Always a Trust’; No Dissolution; No Termination

A public trust is perpetual. It cannot be terminated or dissolved. Rule against perpetuities does not apply to it. It can never be put to an end though its nature may be changed.[12] Once a public endowment is made (by dedication of properties) even the former owners or founders cannot revoke it.[13] Subsequent conduct of the founder or his descendants contrary to such dedication would amount to a breach of trust.[14] Tudor on Charities[15] explained this principle as under:

  • “When a charity has been founded and trusts have been declared, the founder has no power to revoke, vary or add to the trusts. This is so irrespective of whether the trusts have been declared by an individual, or by a body of subscribers, or by the trustees. “[16]

In Halsbury’s Laws of England,[17] while dealing with creation of charitable trusts, it has been observed as under:

  • “Charitable trusts have sometimes been declared subject to express powers of revocation, but there has apparently been no decision on the validity of such a power except as regards the rule against perpetuities.”[18]

Dedication of property for public trust is like a bullet fired.  As long as it is in private realm it retains the character of a private property.[19] Once dedication is complete, it cannot be revoked.[20] Once a public endowment/trust is made, it is final and irrevocable. ‘Once a trust always a trust’[21] is a trite principle of law.[22]

Underhill in ‘Law relating to Trusts and Trustees’ has explained it,with respect to associations, thus:

  • “However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules Appropriate Trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being.”[23]

If the property is one stand dedicated to a Political Party, Association or a Church, and the beneficiaries thereof are unascertainable, the property vests with the entire members (of such Party, Association or Church), from time to time, subject to its objectives, as revealed from the document of foundation or byelaws, if any. Such vesting is permanent, whereby it cannot be put to an end even by a majority decision of the members of a particular time. In case such association or church becomes defunctive and it is impossible to carry forward the affairs of the trust as intended by the founders, and the matter is placed before a court, the court will apply the trust-property to a charitable purpose, ‘as nearly as possible’,[24] resembling the original Trust, invoking ‘cy pres’ doctrine.  

Subsequent Deeds: Scrap of Paper

In Agasthyar Trust Vs. Commr. IT, Madras[25]the Supreme Court approved the observation of the Madras High Court, dealing with the question whether the founder of a trust had power to revoke the same,in Thanthi Trust Vs. ITO,[26] as under:

  • “It is well established that the subsequent acts and conduct of the founder of the trust cannot affect the trust if there has been already a complete dedication, (vide Krishnaswamy Pillai v. Kothandarama Naicken [1914] 27 MLJ 582: Sunder Singh Mallah Singh Sanathan Dharam High School Trust v. Managing Committee, Sunder Singh Mallah Singh Rajput High School [1938] 1 MLJ 359: AIR 1938 PC 73, and Gokuldoss Jamnadoss and Co. v. Lakshminarasimhalu Chetti [1940] 2 MLJ 409: AIR 1940 Mad. 920), If a valid and complete dedication had taken place, there would be no power left in the founder to revoke and no assertion on his part or the subsequent conduct of himself or his descendants contrary to such dedication would have the effect of nullifying it. If the trust had been really and validly created, any deviation by the founder of the trust or the trustees from the declared purposes would amount only to a breach of trust and would not detract from the declaration of trust. Therefore, the subsequent-conduct of the founder in dealing with the funds of the trust long after the creation of the trust may not put an end to the trust itself.”[27]

Our Apex Court, approving the principle stated in the aforesaid passage, it is held that the trustee had no authority or jurisdiction to execute a fresh trust deed or document; and it was of no consequence, and was no more than a scrap of paper. The Trust as originally established by the deed remained unchanged or unaffected by the latter document.

Effect of Offering Trust Property as Bank Security to Raise Funds

Referring to Supreme Court decision in Agasthyar Trust Vs. Commr. IT, Madras[28] and Thanthi Trust Vs. ITO,[29]it was observed in CIT Vs. AS Kupparaju Brothers Charitable Foundation Trust [30] that it was clear that once the authors of the trust transferred the title of the property to the trustees and created a trust, they had no right to meddle with the property even if they had created partition deed, rectification deed and offered the property as security to the bank to raise funds. As pointed out by the Apex Court in the aforesaid judgment, they were of no consequence. All those transactions were void ab initio and in no way-affected the right of the trust and were no more than a scrap of paper.

Trustees Cannot Alter the Trust.

Trustees cannot alter the purposes of the trust.[31]In RP Kapur Vs. Kaushalya Educational Trust[32]it is held by Delhi High Court (Avadh Behari Rohatgi) as under:

  • “The trustees can bring the trust to an end where there is power of dissolution, as in this case. But they cannot alter the purposes of the trust. They are not authorised by the trust instrument to remodel the trust. The trustees have no power to alter, amend or vary the trust purposes, whether on the ground of “expansion” or “addition” or “enlargement” of the objects of the trust. I decline to accept any suggestion that the trustees can alter a man’s intention because they think it beneficial to divert the trust property to charity. It seems to me: that is quite impossible. The reason is that a trust is an obligation, that is to say a tie of equity (viniculum juris), whereby the trustee accepts the confidence reposed in him by the author of the trust to hold or apply the trust property for the purposes of the trust.”

Extinguishment of Trust

Sec. 77 of the Indian Trusts Act reads:

  • 77. Trust how extinguished.—A trust is extinguished—
  •      (a) when its purpose is completely fulfilled; or
  •      (b) when its purpose becomes unlawful; or
  •      (c) when the fulfillment of its purpose becomes impossible by destruction of the trust property or otherwise; or
  •      (d) when the trust, being revocable, is expressly revoked.

Under Section 77, Trusts Act, a trust is extinguished in the four enumerated instances. Very rarely these provisions apply to public trusts. For example, complete destruction of the trust property, or conversion of the status of entire beneficiaries so that they all are not entitled to be the beneficiaries of the trust.

Under section 71, a trustee is discharged from his office by the extinction of the trust. But this discharge does not mean that the trustee is ceased to be a trustee, or relieved from his duty of rendering accounts and delivering the trust property to the beneficiaries.[33]

No trustee can get a discharge unless he renders accounts of his management even when there is no allegation of misfeasance, malfeasance and nonfeasance and also gross negligence. Courts have discretion in regard to the fixing the period of accounting in a suit for accounting against a trustee of a charity. [34]

Property Entrusted by Wife to Husband – Trust and Limitation

In Sheela Vs. Suresh, ILR 2020-4 Ker 486, it is held by the Kerala High Court as under:

  • It is settled law and as laid down in the judgments aforesaid, when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force. When S. 10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation.

Effect of an agreement settling obligations, Trust gets fulfilled in terms of S.77(a)

In Sheela Vs. Suresh, ILR 2020-4 Ker 486, after laying down the aforesaid settled position the Court considered whether the wife can claim property entrusted to husband (other than dowry for which there is a statutory trust as per S.6 of the Dowry Prohibition Act, 1961) where there is an agreement between the parties settling the obligations arising from the trust. The court held as under:

  • “The question involved in the above reference is that, when there is a change in circumstances between the spouses, especially when there is a dissolution of marriage and substantial time had elapsed, whether the trust created between them would be extinguished.”
  • “The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke S. 10 of the Limitation Act and file a suit at her will and pleasure at any point in time. In such an event, the questions to be considered are (i) whether a trust had been created at any point of time, (ii) if a trust has been created and the husband remains in the position of a trustee, whether it gets extinguished on the dissolution of marriage or under any other circumstances.

After quoting Sec. 77 the High Court observed as under:

  • “Therefore, unless any of the eventualities as mentioned U/s. 77 takes place, which of course is a question of fact to be decided on a case to case basis and once a trust is created, it continues to operate, even though there is a dissolution of marriage.
  • However, in an instance where there is an agreement between the parties settling the obligations arising from the trust, it gets fulfilled in terms of S.77(a).”

Revocable Trust

When the author/settler creates or establishes the trust reserving his power to terminate the trust, or change the beneficiaries and trustees, or the terms of the trust, as he likes, such trust at the will and pleasure of the author is called revocable trust (See: Jyotendrasinhji v. SI Tripathi, AIR 1993 SC 1991).

A trust will never be allowed to fail for want of a trustee

On the rule of equity it is held that a trust will never be allowed to fail for want of a trustee.[35] The trusts will fasten upon the conscience of whoever holds the property. Even when court directs the trustee to hand over trust property to donor it does not extinguish the trust; it makes the donor himself a trustee.

It is also well settled principle that the death of a trustee or trustees would not extinguish the trust. The office of the trustee/trustees as well as the trust estate survives to the surviving trustee or trustees. They can carry out the trust and exercise all such powers as were given to the original trustees. Upon the death of the last surviving trustee, the trust property devolves on his legal representative. (Sections 75 and 76 of the Indian Trust Act).[36]

No Discharge If Not Accounted

Indian Trusts Act, 1882, Sec. 71 reads as under:

  • 71. Discharge of trustee.—A trustee may be discharged from his office only as follows:—
  • (a) by the extinction of the trust;
  • (b) by the completion of his duties under the trust;
  • (c) by such means as may be prescribed by the instrument of trust;
  • (d) by appointment under this Act of a new trustee in his place;
  • (e) by consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or
  • (f) by the Court to which a petition for his discharge is presented under this Act.

Indian Trusts Act, 1882, Sec. 19 and 23 reads as under:

  • 19. Accounts and information.—A trustee is bound (a) to keep clear and accurate accounts of the trust property, and (b) at all reasonable times, at the request of the beneficiary to furnish him with full and accurate information as to the amount and state of the trust property.
  • 23. Liability for breach of trust.—Where the trustee commits a breach of trust, he is liable to make good the loss which the trust property or the beneficiary has thereby sustained.

The principles laid down in the above provisions of the Trusts Act apply the public trusts also. They contain the general principles of law.

In Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddi[37] new trustees alleged misfeasance, malfeasance and nonfeasance and also gross negligence against former trustees. On the questions whether the present trustees can demand rendition of account from the ex-trustees in respect of their management without alleging against them any acts of negligence or willful default and, if so, whether there was a bar to the maintainability of a suit for the relief of rendition of accounts in a civil court, it was observed by the Apex Court that  it was ‘common place that no trustee can get a discharge unless he renders accounts of his management’ and that this liability was irrespective of any question of negligence or wilful default. They are, therefore, held liable to render accounts of their management to the present trustees.[38]

Variation of Trust

The Trust or the author of the trust has no authority or jurisdiction to execute a fresh trust deed, after revoking the earlier trust deed.[39]The sole beneficiary, or all the beneficiaries together, can give a different direction to the trust by their common consent in the absence of incompetence on the part of any one or more of the beneficiaries. This rule has been summarized in Underhill’s Law of Trusts and Trustees:[40]

If there is only one beneficiary, or if there are several (whether entitled concurrently or successively) and they are all of one mind and he or they are not under any disability, the specific performance of the trust may be arrested and the trust modified or extinguished by him or them without reference to the wishes of the settler or trustees.[41]

Shifting of a Church

            The property of an Episcopal Church is vested with the ecclesiastical authorities, or in the endowment or trust itself, and that of a congregational church is vested with the congregation.[42]It is difficult to pin-point a tangible-nucleus or a core-element for a church (building). In this respect a church resembles Mosque. Christians also worship the invisible God Almighty. For Christians, as in the case of Muslims, worship is important, rather than the place where they worship. 

For all the above, it can be concluded that the decision lawfully taken by the authoritative body of the church to effect a shifting of the church from one place to another may not be rendered illegal. Doctrines of faith or any legal proposition (including ‘once a trust always trust’ and ‘once a dedication always a dedication’) cannot be validly raised.

Can Entire Family Members Put an End to Family Temple?

See Chapter: Public and private Temples

Cy Pres Doctrine

‘Cy pres’ Doctrine

When it is found by the court that the particular mode of charity, indicated by the donor, cannot be carried on for impossibility or impracticability, the court will execute and accomplish the donor’s intention applying ‘cy pres’ doctrine.  It is applied where from lapse of time or change of circumstances it is no longer possible to apply the property left by the founder or donor in the precise way in which it was directed to be applied (BalkrishnaVishvanath Vs. Vinayak Narayan: AIR 1932 Bom 191; AP Shah Vs. BM Institute of Mental Health: 1986  GLH 262).  It is based on the principle that the court is the protector of all charities (C ChikkaVenkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar14) and that the court will not allow to fail a validly created trust or objects of foundation. 

Invoking ‘cy pres’ doctrine the court will apply the property of the Trust to a charitable purpose ‘as nearly as possible’ (In Re Man Singh and Others, AIR 1974 Del. 228) resembling the original Trust. Besides physical impossibility, becoming the trust valueless, owing to attendant circumstances, also invites application of cy pres doctrine (Hormusji Franji Warden, ILR 32  B. 214).

The trustees are bound to carry out the directions of the author under Sec. 11 of the Trusts Act and the only way in which the directions of the testament may be varied is by applying ‘cy  pres’ doctrine.

Transfer of Institution Itself

See Chapter: Alienation of public Trust Property

Transfer of Trusteeship to Another Body

Trust is a confidential relationship which involves a special duty of loyalty to the purpose or object of the trust.  There is no principle of law or precedent which permits transfer of trust in favour of another body of persons.[43]

In Abdul Kayum Vs. Alibhai[44] the Apex Court expounded the following legal incidents of trusteeship:

  • (i) Trustees cannot transfer their duties, functions & powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries;
  • (ii) A trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself.
  • (iii) A trustee cannot delegate his office or any of his functions except in some specified cases.

Abuse of Trust – Dedication Will Remain Valid

The endowment and its dedication will remain valid even if there is misappropriation or abuse of trust by the trustees subsequent to a valid dedication.[45]

Trust Property Doesn’t Revert Even If Trustee Refuses

It is an established principle of equity jurisprudence that a trust never fails even if there is no trustee. The property does not revert to the settlor or his heirs.[46]

[1]      Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; TC Chacko Vs. Annamma:  AIR 1994 Ker. 107.

[2]      Profulla Chorone Requitte Vs. Satya Chorone Requitte: AIR 1979 SC 1682.

[3](1876) 4 Ind App 52 (PC)

[4](1925) 52 Ind App 245

[5] Profulla Chorone Requitte Vs. Satya Chorone Requitte: AIR 1979  SC 1682.

[6]      St. John’s College Vs. Todington: (1757) 1 Burr. 158; Green Vs. Rutherford: (1750) 1 Ves. Sen. 462; Ananda Chandra Chuckerbutly  Vs.  Braja Lal Singh (1922) I.L.R. 50 C. 292; Settikara Venkatarama  Vs. OP Damodaram  : AIR 1926 Mad 1150: (1926) 51 MLJ 457.   

[7]      (1904) AC 515: 

[8]      40 ER 852

[9]      (1888) 57 LJ Ch 543

[10]    AIR 1931 Mad. 12

[11]    AIR 2014-3 Bom R 211: 2013-6 BCR 72.

[12]    In Re Man Singh and Others, AIR 1974 Del. 228

[13]    Ramkishorelal vs. Kamalnarayan, AIR 1963 SC 890; Agasthyar Trust Vs. Commr IT Madras ; 1998 AIR (SCW)3945 ;(1998) 5 SCC 588). Krishnaswamy Pillai Vs. Kothandarama Naicken: AIR 1915 Mad 380; Dasami Sahu Vs. Param Shameshwar, AIR 1929 All 315.

[14]    Agasthyar Trust Madras Vs. CIT: 1998- 5 SCC 588.         

[15]   6th Edn.  At p. 131

[16] Quoted in: Agasthyar Trust Vs. Commr IT Madras: 1998-5 SCC 588, Sri Gasthyar Trust vs. CIT: [1999] 236 ITR 23:103 Taxman 363

[17]    4th Edn., Vol. 5, para. 624

[18]    See also: Radhika Mohan Nandy Vs. Amrita Lal Nandy, AIR 1947 Cal 301

[19]    See ILR 51 All. 626; AIR 1974 AP 316; AIR 1950 Ass. 154.

[20]    Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma:  AIR 1994 Ker. 107.

[21]    KS Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333.

[22]    Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma:  AIR 1994 Ker. 107.

[23] Quoted in: Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69.

[24]    In Re Man Singh and Others, AIR 1974 Del. 228

[25] 1998 AIR (SCW)3945 ;(1998) 5 SCC 588)

[26] Thanthi Trust Vs. ITO: 91 ITR 261

[27] Quoted also in: CIT Vs. AS Kupparaju Brothers Chari. Fondn. Trust: DTR 2012 69 315

[28] 1998 AIR (SCW)3945 ;(1998) 5 SCC 588)

[29]Thanthi Trust Vs. ITO: 91 ITR 261

[30]DTR 2012 69 315

[31]Agasthyar Trust Madras Vs. Commr IT ; 1998 AIR (SCW) 3945 ; (1998) 5 SCC 588). Commissioner of IT Vs. Ramaswamy Iyer: 1977 CTR  21; 1977-110 ITR 364; Naresh Sengupta Foundation Vs. Commir IT: 1994 207 ITR 340 (Cal); Christopher Karkada Vs. Church Of South India Madras: KCCR 2012 1 503

[32]    1982-21 DLT 46; ILR  1982-1Del 801

[33] S Darshan Lal Vs RES Dalliwall: AIR 1952  All 825

[34]    Attorney General Vs. Exetor Mayor: (1822) 37 ER 918; Anyasayya Vs. Muthamma: AIR 1919 Mad 943; Hariharabrahman Vs. Janakiramiah: AIR 1955 Andhra 18

[35] Sharf-uz-Zaman v. Sir Henry Stanyon, 1923 AIR Oudh 80; Seth Soorajmull Jalan Trust Vs. Tolaram Jalan, 2015 AIR (CC) 3225, 2015-4 Cal LT  1

[36] Seth Soorajmull Jalan Trust Vs. Tolaram Jalan, 2015 AIR (CC) 3225, 2015-4 Cal LT  1

[37]AIR 1967 SC 781

[38] Referred to in: M. M. Jaffar Kermani VS M. M. Hassan Kirmani: AIR 1978  Mad 121; Bhimasena Mahapatra VS Ramesh Chandra Mohapatra: AIR 1978  Ori 159, TG  Viswanathan Chettiar Vs. TA  Shanmugha Chettiar:  AIR 1992  Mad 148.

[39]Christopher Karkada, Bangalore Vs. Church of South India: ILR 2012 Kar 725: 2012-1 KCCR 503

[40]    10th Ed., p. 421

[41]    Quoted in: A D Vehvalwala Vs. M C H Rustomji: 1970 Cal LJ 312;1970-1 Cal LT 292

[42]    Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001.

[43]    Abdul Kayua Vs. Alibhai AIR 1963 SC 309: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR  1982-1 Del-11.

[44]AIR 1963 SC 309

[45]    ILR 1936 Cal. 420.Kuldip Chand Vs. A G Government of H P: AIR 2003 SC 1685; AIR 1954 M. 1110.

[46]    Yelandau Arasikere Deshikendra Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323. See also: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11. See Chapter: RIGHTS AND DUITIES OF TRUSTEES.

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Trust is ‘An Obligation’; Not a Legal Entity

Saji Koduvath, Advocate, Kottayam.

Synopsis.

  1. Introduction
  2. Legal Persons, Arbitrary Creations of the Law
  3. Hindu Conception on Legal Personality of Idol
  4. Law Attributes, Legal Personality
  5. Legally, ‘Trust’ is Not an Institution or Association
  6. ‘Trust’ Used to Identify Endowment/Association
  7. Hindu Idol and Math are Juristic Persons
  8. ‘Trust’: Not a Legal Person
  9. Certain Institutions are Identified as ‘Trusts’
  10. Juristic Personality of Trusts Under NI Act
  11. Trust Cannot be Sued in Its Own Name
  12. How Can a Trust Execute Deeds and Enter Contract?
  13. Trust Cannot be Sued in Its Own Name
  14. Trustee represents beneficiaries   
  15. Juristic personality of Gurudwara
  16. Juristic personality of Wakfs & Mosques
  17. Juristic Personality of Churches

Introduction: What is Trust, in Law?

Sec. 3 of the Indian Trusts Act, 1882 defines trust as under:

  • “Trust: A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:

From the definition it is clear that ‘Trust’, in law, holds the following conceptions:

  • Trust is ‘an obligation’ upon the trustee.
  • It is to administer the endowed property.
  • The administration must be done by the trustee as if he is the owner  of the trust property.
  • It must be done by him accepting the intents desired by the author.
  • And, the same must be for the benefit of the beneficiaries.

It is clear that the word ‘trust’ is used in law as an ‘abstract countable noun’, similar to ‘a concept’, ‘an idea’ or ‘a duty’.

Charitable and Religious Institutions – Legal Concept

Wealthy and mighty men of all social systems considered it their duty to help the weak and poor. Charitable and religious institutions are founded on this principle. With a view to legally recognise these institutions numerous legal theories have been propounded. One among them is attributing legal personality to those institutions and considering them as legal units.[1] The attributed legal personality, by itself, enabled to ascribe interests, rights and duties to those institutions. It made the courts possible to effectively adjudicate upon the assertions and obligations pertained to them. The conferment of legal personality also facilitated to accomplish the objects and purposes envisioned by the founders, in a pragmatic manner.[2]

All religions and its institutions have the aim of civilising man. They enforce man lead a disciplined life. Thus the religions and its institutions promote public welfare.[3] Though various public institutions are generally referred to as entities having its own identity, our law does not favour all. Our Law on this subject does not lay down a precise and explicit edict. It requires authoritative and cogent judicial dicta, exploring and reconciling divergent views as to the legal personality of various institutions (such as schools, hospitals, universities, libraries, ships[4] etc.).

Endowment and Trust

‘Trust’ is essentially a legal concept; whereas, ‘endowment’ is a corporeal reality to which social concepts are adhered to. Endowment is founded by dedication of property for the purposes of religion or charity having both the subject and object certain and capable of ascertainment.[5]

An ‘endowment’ may be public or private.[6] From the usage of the word ‘endow’ and the connected word ‘endowment’  it is clear that they relate to the idea of giving, bequeathing or dedicating property or other possession, for some specified purpose.[7] According to Chamber’s Twentieth Century Dictionary, the word ‘endowment’ means: ‘that which is settled on any person or institution’.[8] Webster’s International Dictionary gives the following meaning to the word ‘endowment’:

  • “(1) The act of bestowing a dower, fund, or permanent provision for support. (2) That which is bestowed or settled on a person or an institution; property, fund, or revenue permanently appropriated to any object; as the endowment of a church, a hospital or a college. (3) That which is given or bestowed upon the person or mind; gift of nature, accomplishment; natural capacity; talents; usually in the plural.”[9]

‘A Trust’ is “An Obligation” and Not a Legal Entity

‘A trust’, according to the definition, being ‘an obligation’, it is clear that ‘a trust’ does not convey the idea that the ‘trust’ is a legal person, an association of persons, or a tangible or corporeal property.

The following are the important decisions on this point.

  • Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal, 2025 INSC 1210 (09-10-2025).
  • Govt. of the Province of Bombay Vs. Pestonji Ardeshir Wadia:  AIR 1949 PC 143;
  • Thiagesar Dharma Vanikam  Vs.  CIT: AIR 1964 Mad 483: 1963- 50 ITR 798  (Mad); 
  • Ramdass Trust Vs. Damodardas 1967 Raj LW 273; [10] .
  • Duli Chand Vs. Mahabir Pershad Trilok  Chand Trust: AIR 1984 Del 144;
  • Thanthi Trust Vs. Wealth Tax Officer: 1989- 45 TAXMAN 121: 1989-178  ITR 28;
  • Chikkamuniyappa Reddy Memorial Trust Vs. State: ILR 1997  Kar 2460;
  • KishorelalAseraVs. Haji Essa Abba: 2003-3 Mad LW 372: 2003-3 CCC367;
  • Sagar Sharma Vs. Addl. CIT: 2011-239 CTR 169: 2011-336  ITR 611;
  • Sambandam Vs. Nataraja Chettiar: 2012-1 Mad LW 530.

As explained above:

  • ‘A trust’ is ‘an obligation’ or a fiduciary duty upon the trustee to administer the trust property for the benefit of the beneficiaries.
  • ‘Trust’ being an obligation or fiduciary duty upon the trustee to administer the trust property for the benefit of the beneficiaries, it is essentially a legal concept.
  • The expression ‘a trust’ in the definition, being followed by the words ‘is an obligation’, it is clear that ‘a trust’ does not convey the idea that it is a tangible matter or a corporeal property.
  • Trust differs from an ‘Endowment’ for,the latter is basically a tangible corporeal reality to which social concepts are adhered to.
  • The trust-property (or the dedicated-property) vests in the ‘legal ownership’ of the trustee.  
  • The term ‘endowment’ stands analogous to ‘trust property’, and not to ‘trust’ as such.

From the above, it is clear that, legally, the ‘trust’:

  • (i)   cannot be a juristic person;
  • (ii) cannot be an association of persons; and
  • (iii) cannot be a tangible endowment or a corporeal property.

In Surya Kant Chunilal Vs. Mahesh Chand, AIR 1972 Del. 72 it is held as under:

  • “Further defendant No. 2 (Trust) is not a registered body or a juristic person. The properties of the Trust vest in the trustees.”

In Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat Ahmadabad[11] it is observed by the Gujarat High Court as under:

  • “The ‘trust property’ is nothing but the subject matter of the trust; that is, a property which is impressed with the obligation giving rise to a trust. When we speak of a trust, we speak merely of the requisite obligation which is annexed to the ownership of a property. This obligation is not a legal entity in any sense; as for example, the trust cannot own any property the property is owned by the trustee who is an entity by himself different from the trust, a trust cannot sue and a trust cannot be sued; it is only a trustee who can sue and who can be sued. It is only a trustee who can hold properties. A ‘trust’ cannot be a landlord since the trust properties vest in the legal ownership of the trustees. It is the trustee alone who can be a landlord. Since the trust is not a legal entity, no question of hardship suffered by the trust or accommodation required by the trust can arise for consideration.”[12

Order 31 rule 1 CPC

Order 31 rule 1 of the Code of Civil Procedure spells out – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.

  • In Government of the Province of Bombay Vs. Pestonji Ardeshir Wadia[13] the Privy Council held as under:
  • “The trust is not the plaintiff, and there is no power under the Code for trustees to sue in the name of their trust, as members of a firm may sue in the name of the firm. The plaintiffs were, and were bound to be, the three trustees, and, as no notice was given specifying their names and addresses, the condition precedent to the filing of the suit was not fulfilled”.

The view taken by the Privy Council was accepted by our Apex Court in Ghanshyam Dass Vs. Dominion of India.[14]Penner JE, the Professor of Law at King’s College, London, in his book, The Law of Trusts, has commented as under:

  • “The trust itself has no legal personality like a company, on behalf of which agents of the company make contracts which bind the company as a legal person itself. Having no legal personality, one cannot sue the trust itself for breach of contract; one sues the trustee for his own breach of contract, even though the breach was of contractual obligation he undertook to benefit the trust.”

Relying the Privy Council and Penner J Ethe Kerala High Court held in KR Rajan Vs. Cherian K. Cherian[15]   as under:

  • “Trust not being a legal person, and the Code of Civil Procedure not providing any enabling provision for the Trust to sue or for being sued in its name, there is no merit in the contention that the Trust is to be arrayed as an eo-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustees who are to be impleaded to represent the trust.”

In M. V. Muthuramalingam Vs. D. Narayanaswamy, 1995-83 CC 77 it is held by the Madras High Court as under:

  • “Unlike a company registered under the Indian Companies Act, the trust is not a juristic person having a separate legal entity. It can act only through its trustees. So, when the petitioner came to issue the impugned cheques and that has resulted in his committing an offence under section 138 Of the Negotiable Instruments Act, he is liable to be proceeded against.”

The Madras High Court has held in Kishorelal Asera Vs. Haji Essa Abba Sait Endowments[16]and in Thiagesar Dharma Vanikam Vs.  CIT[17]that a trust not being a legal person is not entitled to sue in its own name.[18]

The Gujarat High Court has also held in Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat Ahmedabad[19]  that ‘the trust is not a legal entity’.[20]

Following decisions do not present correct law (It is clear from the above)

(i) Pratheesh V v. State of Kerala, 2017-2 Ker HC 977. It is observed as under:

  • “It is the settled position of law that a registered trust is a legal entity and juristic person entitled to hold property by itself.”

(ii) Lal Chandra Jain v. Suparasdas Jain, 2016-11 All DJ 615. It is observed –

  • “It is also not in dispute that a registered Trust is a legal person/juristic person and can be sued or can sue in its own name, through the person responsible to manage it.”

(See Notes under the Head: Is Trust  a ‘Living Person’ under S. 5 of the TP Act) 

Legal Persons, Arbitrary Creations of the Law

Salmond on Jurisprudence[21] reads:

  • “A legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination.”

Salmond reads further:

  • “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognised by our own system, however, are of comparatively few types. Corporations are undoubtedly legal persons, and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporations. If, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are several distinct varieties, of which three may be selected for special mention.
  • 1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus of the legal person are termed its members.
  • 2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself.
  • 3. The third kind of legal person is that in which the corpus is some fund or estate devoted to special uses a charitable fund, for example or a trust estate.”[22]

In Manohar Ganesh Vs. Lakshmiram (1888),[23]the Division Bench of the Bombay High Court set out the rationale for and the process by which legal personality is conferred on a Hindu idol. Justice West observed:

  • “The Hindu law, like the Roman law and those derived from it, recognizes, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also juridical persons or subjects called foundations. A Hindu, who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it, and the ruler will give effect to the bounty … A trust is not required for this purpose: the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English law. In early times a gift placed, as it was expressed, “on the altar of God sufficed to convey to the church the lands thus dedicated.”[24]

Law Attributes Legal Personality

Roscoe Pound,[25] on “Jurisprudence”, reads as under:

  • “In civilised lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antonius Pius the slave was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property. … In French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a ‘somewhat extended juridical capacity’ by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights.”[26]

The Supreme Court in Som Prakash Rekhi Vs.  Union of India[27]held that ‘a legal person is any entity other than human being to which law attributes personality’. It held further as under: 

  • “Let us be clear that the jurisprudence bearing on corporations is not myth but reality. What we mean is that corporate personality is a reality and not an illusion or fictitious construction of the law. It is a legal person. Indeed, a legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality is one of the most noteworthy feats of the legal imagination. Corporations are one species of legal persons invented by the law and invested with a variety of attributes so as to achieve certain purposes sanctioned by the law.”[28]

In SGPC Vs. Som Nath Dass[29] the Supreme Court held:

  • “The very words ‘Juristic Person’ connote recognition of an entity to be in law a person which otherwise it is not. In other words, it is not an individual natural person but an artificially created person which is to be recognized in law as such.”

It held further that Guru Granth Sahib revered in Gurudwara had all the qualities to be recognized as juristic person. Holding otherwise would mean giving too restrictive a meaning to a ‘juristic person’ and that would erase the very jurisprudence which gave birth to it.It is observed (obiter) in this case that ‘it is really the religious faith that leads to the installation of an idol in a temple. Once installed, it is recognised as a Juristic Person. The idol may be revered in homes but its Juristic Personality is only when it is installed in a public temple’. Nevertheless, Dr. BK Mukherjea, J. in his treatise ‘On Hindu Law of Religious & Charitable Trusts’ the principles as to legal personality, rights emanating therefrom, etc. with respect to a family temple, are presented in the same manner[30] as that of a public temple.[31]

Public Trust and Endowment: Different Concepts

Jurisprudentially, trust and endowment are not synonyms.[32]‘Trust’ being an obligation upon the trustee to administer the trust propertyfor the benefit of the beneficiaries, it is essentially an idea or a legal concept. ‘Endowment’ is basically a corporeal reality to which social concepts are adhered to.

 Life is bestowed upon endowment when trustee is appointed. A public ‘endowment’ is created by dedication of property for the purpose of religion or charity having both the subject and object certain and capable of ascertainment.[33] A legal recognition and status is acquired by the endowment by the appointment of a trustee. An endowment, sans trustee, remains static.

But, Dr. BK Mukherjea, J. in his erudite treatise ‘On Hindu Law of Religious & Charitable Trusts’points out that under Hindu law, if an endowment is made for a religious or charitable institution, without the instrumentality of a trust, and the object of the endowment is one which is recognised as pious, being either religious or charitable under the accepted notions of Hindu law, the institution will be treated as a juristic person capable of holding property.[34]

Legally, the term ‘endowment’ stands analogous to ‘trust property’; and not to trust. Sections 5 of the Indian Trusts Acts peaks as to ‘trust of’ movable and immovable (corporeal) properties. Salmond’s Jurisprudence, while describing property, refers to corporeal property as ‘the right of ownership in a material object or that object itself’.[35]The imperative characteristics of ‘trust’ that differ from an ‘endowment’ are the following:

  • (a)  trustee, for administration,
  • (b)  entrustment/transfer of trust property to the trustee,  and
  • (c)  vesting of ‘legal ownership’ in trustee.              

As the managers of religious ‘endowments’ are not ‘trustees’ in its full sense, deeming provision was inserted in Sec. 10 of the (old) Limitation Act to bring-in such managers also under this section.[36]

‘Trust’ is Used as Synonym to Endowment/Association

However, inasmuch as the ‘trust’ has no existence without its trust property, and it is an ‘obligation’ ‘annexed to’ the trust property, the endowment/institution, upon which the obligation of ‘trust’ is pervaded, is personified as a ‘trust’. Certain public institutions established or dedicated with philanthropic view are also generally described as ‘trusts’.

Similarly, when a ‘trust’ is created/managed under the auspices of an association, the term ‘trust’ is generally used to denote the ‘association of persons’, in view of the underlying significant nexus between the members of the association and the ‘trust’.

The term ‘trust’ is also used as a compendious expression taking-in the trustees, the beneficiaries and the subject-matter of the trust.It is observed in Thiagesar Dharma Vanikam Vs.  CIT[37] as under:

  • “The word ‘trust’ is a convenient and a compendious description of the trustees, the beneficiaries and the subject-matter of the trust. ….”[38]

It is interesting to note that the word ‘trust’ is used an ‘entity’ even in Illustration (b) of Sec. 15 of the Trusts Act – and it is the only one place in this Act where the term ‘trust’ is used in this manner. The Illustration (b) of Sec. 15 reads: 

  • “(b) A, trustee of lease-hold property, directs the tenant to pay the rents on account of the trust to a banker, B, ….”

In Public Trusts Acts enacted by various States and in several Tax-Laws, wider import is given to ‘trust’.  Various Town Improvement Acts refer to vesting of land ‘in the trust’. [39] In the inclusive definition of Public Trusts Acts, ‘trust’ embraces a temple, a math, wakf, a dharmada or any other religious or charitable endowment and even a society. For example, Section 2(13) of the Bombay Public Trusts Act reads:

  • ” ‘Public trust’ means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act. 1860.”

The trust cannot sue or be sued in its own name. Trustee being the legal owner of the trust property he has to sue or be sued for and on behalf of the Trust.[40]There is no provision under the CPC for the trustees to sue in the name of their trust, as allowed in the case of firms.[41]Order XXXI, Rule 1 CPC deals with the representation of beneficiaries in suits concerning property vested in the trustee.  It lays down that the trustee shall represent the persons so interested.[42]

It is observed by Madras High Court in Thiagesar Dharma Vanikam Vs.  CIT:[43]

  • “Sometimes, the expression ‘trust’ is used to denote the trustees. For example, when the trustees carry on a business, we generally say that the trust is doing so”.

The Supreme Court quoted with approval, in Commissioner of Income-Tax Vs. Krishna Warriar[44] the following passage of Madras High Court in Thiagesar Dharma Vanikam Vs.  CIT:[45]

  • “When the trustee acts, it is only the trust that acts, as the trustee fully represents the trust. A business carried on, on behalf of a trust rather indicates a business which is not held in trust, than a business of the trust run by the trustees.” 

Juristic Personality of Public Charitable Trusts Under NI Act 

To the question whether a Public Charitable Trust has been recognised as a juristic person for the purpose of Negotiable Instrument Act , it is held in Abraham Memorial Vs C. Suresh Babu[46] that a Public Charitable Trust being capable of contracting, and capable of making and issuing a cheque or Bill (Sec. 26), it is a juristic person for the purpose of the said Act; and that a Trust, either private or public/charitable or otherwise, is a juristic person liable for punishment for the offence punishable under Sec. 138 of the N I Act.

Public Trust Depends on Charity and Donations

Referring Sec. 14 of the Bombay Public Trust Act, 1950, it is observed in Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore v. Vipin Dhanaitkar,  2022-11 SCALE 1,  2022-17 SCR 173, as under:

  • “A Public Trust invariably depends on charity done by individuals by donating immovable property or by making cash donations.”

Eventhough the above observation is made invoking Sec. 14 of the BPT Act, it is clear that it is a common law principle applicable to all Public Trusts.

Legal Obligations of Trustees to Administer and Give Effect to Objects of Trust

It is held further in Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore v. Vipin Dhanaitkar,  2022-11 SCALE 1,  as under:

  • “Though in law, the assets and properties of a Public Trust vest in its Trustees, they hold the Trust property in a fiduciary capacity for the benefit of the beneficiaries of the Trust. They hold the property for giving effect to the objects of the Public Trust. A Trust property cannot be alienated unless it is for the benefit of the Trust and/or its beneficiaries. The Trustees are not expected to deal with the Trust property, as if it is their private property. It is the legal obligation of the Trustees to administer the Trust and to give effect to the objects of the Trust. …. There are statutory constraints on the power of the Trustees to alienate the property of a Public Charitable Trust. …. The Trustees are the custodians of Trust properties. The Trustees have a duty to safeguard the interests of the beneficiaries of the Public Trust. That is how, a provision in Public Trust Law, like Sec.  14 of the Public Trusts Act, is of importance. This provision seeks to protect the Trust property in the hands of the Trustees from unwarranted alienations.”

Is Trust  a ‘Living Person’ under S. 5 of the TP Act 

Can transfer of property be made to or by Trusts/Associations?

Sec. 5 of the TP Act reads as under:

  • 5. “Transfer of property” defined:  In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
  • In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

Existing Laws as to Transfer of Property will Remain in Force

Two points are emphasised in the 2nd paragraph of Sec. 5 –

  • First, all unregistered associations, whether incorporated or not, are ‘living persons’, so that transfer of property can be made.
  • Second, the qualifying second limb – ‘nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals‘ – made it clear:
    • if any law regulates transfer of property to (or by) companies, associations or bodies of individuals, it will remain in force.

“Bodies of individuals” in Sec. 5, TP Act

It may also be pointed out that, “bodies of individuals” in Sec. 5, TP Act is wide in meaning; and it stands independent. It is broad enough to take-in Beneficiaries/ Trustees of a Trust.

Accordingly, the registration and revenue authorities, without objection, register deeds relating to such properties in the names of such institutions, associations etc.

  • Note: Order 31 rule 1 CPC spells out – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.

Can ‘Law for the Time Being in Force’ Include ‘Common Law’

‘Law for the time being in force’ in Sec. 5 TP Act includes “common law”.

It is a reality – the common law of our country accepts as valid the ‘transfer of property’ made to or effected by well-known institutions, organisations, and associations attached to reputed trusts, institutions etc., though they are not juristic-persons in its strict sense. Our courts sumptuously refer to such deeds as documents executed by or in favour of such entities, when they are referred to as exhibits. For example:

  • Settlement deed by Ashramam–Swayam  Prakash  Ashramam Vs. G Anandavally  Amma : AIR  2010 SC 622;
  • Settlement to trust – S N Mathur  Vs. Board of Revenue: 2009-13  SCC 301;
  • Sale deed by unregistered society – Suresh s/o. Bhagwanrao  Puri Vs. State of Maharashtra: 2016-3 AIR Bom R (Cri.) 603;
  • Gift to unregistered Association – Pullamma Vs. Valmiki Anna Satram: 1984-2 ALT 157;
  • Sale deed to an association – K. Kala Vs. Dist Registrar, Madurai: 2016 3 MLJ 50, 
  • Sale deed to an association – State of Punjab Vs. Amolak Ram Kapoor: [1990] 79 STC 315; ILR1991- 2 P&H 218.
  • Sale deed to an association – Asst. Commr. Vs. Shivalingawwa: ILR 2003 Kar 2855;
  • Lease deed by trust to school – TNP Mothoo  Natarajan Vs. PV Ravi: 2015-2 MLJ (Cri.) 656;
  • Lease deed by a firm -2014-3 ALT 46;
  • Settlement deed to private trust –Kolli  Venkata Raja Vs. Govt. of AP: 2014-1 ALT 155;
  • Lease deed to a public trust –Nadigar  Sangham Charitable Trust, rep. by its managing Trustee, R. Sarathkumar Vs. S. Murugan:2013-1 MLJ 433;
  • Sale deed to Board of Trustees – Commissioner of Income Tax Vs. Chemists and Druggists Association Building Trust: 1995-215 ITR(Mad) 741;
  • Mortgage deed by a College – Sonar Bangla Bank Vs. Calcutta Engineering College:  AIR 1960 Cal 450.

Similarly, the registration and revenue authorities, without objection, register deeds relating to such properties in the names of such institutions, associations etc.

It was held by our Apex Court in Kamaraju  Venkata Krishna Rao Vs. Sub Collector,  Ongole, AIR 1969 SC 563, that, under Hindu Law, a tank can be an object of charity and when a dedication was made in favour of a tank, the same was considered as a charitable institution. Without deciding whether that institution can also be considered as a juristic person, it was held that the same had to be registered in its name (ie., in the name of the tank) in the Inam register though it had continue to be managed by its Manager.

It is also noteworthy that Salmond on Jurisprudence reads: “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”

Read Blogs:

Is Trust A Juristic Person to File a Complaint Under the N.I. Act

Read Blog: Sankar Padam Thapa  v. Vijaykumar Dineshchandra Agarwal: Landmark Decision on Trust – A Trust Cannot Be Made as a Party to a Litigation

[1]     Shiromani Gurdwara Vs. Som Nath Dass: AIR 2000 SC 1421, M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[2]     M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1

[3]     ‘Hindu and Mohamedan Endowments’ by P. R. GanapathiIyer, (Quoted in: Papanna Vs. State of Karnataka: AIR1983 Kar 94.

[4]     MV Elisabeth Vs. Harwan Investment and Trading: 1993 Supp (2) SCC 433. M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[5]PratapSinghji v. Charity Commissioner: AIR 1987 SC 2064

[6]DeokiNandan  Vs. Murlidhar:  AIR 1957 SC 133, Quoted in: M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1, Pratap Singhji  Vs. Charity Commissioner: AIR 1987 SC 2064

[7]Idol of Sri Renganatha-swamy Vs. PK Thoppulan Chettiar: 2020 0 Supreme(SC) 177; MJ  Thulasiraman Vs. Comr, HR & CE: AIR 2019 SC 4050.

[8]Vidarbha and Marathwada, Nagpur Vs. Mangala: 1982 0 MhLJ 686

[9]Maria Antonica Rodrigues Vs. DR Baliga: AIR 1967 Bom 465.

[10]   Ramdass Trust Vs. Damodardas 1967 Raj LW 273; Quoted in: Sagar Sharma Vs. Addl. CIT: 2011-239 CTR 169:  2011-52 DTR 89.

[11]   AIR 1968 Guj 184.

[12]   See also: RamabaiGovindVs. RaghunathVasudevo: AIR 1952 Bom 106.

[13]   AIR 1949 PC  143

[14]   AIR 1984 SC 1004

[15]   2019-5 KHC 661; 2019-4 Ker LJ 981; 2019-4 Ker LT 1056

[16]   2003-3 Mad LW 372: 2003-3 CCC367

[17]   AIR 1964 Mad 483; 1963- 50 ITR 798

[18]   Referred to in: Thanthi Trust Vs. Wealth Tax Officer: 1989-78 CTR 54: 1989- 45 TAXMAN 121: 1989-178  ITR 28.

[19]   AIR 1968 Guj 184.

[20]   See also: Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106.

[21]   12th Edn., Page 305.

[22]   Quoted in: Shriomani Gurudwara Vs. Shri Som Nath: AIR 2000 SC 1421.

[23]   (1888) ILR 12 Bom 247

[24]   Quotted in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1

[25]   Roscoe Pound, Jurisprudence, Part IV, 1959 Edition.

[26]   Quoted in: Shiromani Gurdwara  Vs. ShriSom Nath: AIR 2000 SC 1421; M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[27]   AIR 1981 SC 212

[28]   Quoted in: Shriomani Gurudwara Prabandhak Vs. Shri Som Nath  :AIR 2000 SC 1421. See also: Samatha Hyderabad Abrasives Minerals Vs. State of AP: AIR 1997 SC 3297.

[29]   AIR 2000 SC 1421.

[30]   KM Senthivel Pillai Vs. Kulandaivel Pillai: 1970-2 MADLJ 555; P. Jayader Vs. Thiruneelakanta Nadar: ILR 1966-2 Mad 92; Commissioner of Endowments Vs. Sri Radhakanta Deb: 1969-35 Cut LT 992.

[31]   See Chapter: DEDICATION IN PRIVATE TRUSTS AND FAMILY TEMPLE.

[32]   Shanmughan  Vs. Vishnu Bharatheeyan:  AIR  2004 Ker 143.

[33]   Pratap Singhji Vs. Charity Commissioner: AIR 1987 SC 2064. M R GodaRao Sahib Vs. State of Madras: AIR 1966 SC 653. See also: Ram Charan Das Vs. Mst. Girjanandani Devi: AIR 1959 All 473; S. Shanmugam Pillai Vs. K. Shanmugam Pillai: AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.

[34]page 36. Quoted in M.Siddiq Vs.Mahant Suresh Das: 2020-1 SCC 1,

[35]   Quoted in: Maharashtra State Co Op. Bank Ltd. Vs. Asst. PF Commir: AIR 2010 SC 868; Santhoshkumar Vs. Shaji: AIR  2013 Ker 184; Ans Gopal Sheo Narain Vs. PK Banerji: AIR  1949 All 433.

[36]   See: Sri Silambani Vs. Chidambaram Chettiar: AIR 1943 Mad 691.

[37]   AIR 1964 Mad 483; ([1963] 50 ITR 798)

[38]   Quoted in: Thanthi Trust Vs. Wealth Tax Officer: (1989)78 CTR 54: (1989) 45 TAXMAN 121: (1989) 178  ITR 28. See also: Kishorelal Asera  Vs. Haji Essa Sait : 2003-3 Mad LW 372: 2003-3 CCC 367.

[39]   Eg.  Punjab Town Improvement Act, 1922; Nagpur Improvement Act, 1936; Calcutta Improvement Act, 1911; Rajasthan Urban Improvement Act; United Province Town Improvement Act, 1919 etc.

[40]   Kishorelal Asera Vs. Haji Essa Abba Sait Endnts: 2003-3 Mad LW 372: 2003-3 CCC 367

[41]   K. Dhondoji Rao Vs Dominion of India: AIR 1957  Kar 94.

[42]   Kishorelal Asera Vs. Haji Essa Abba Sait Endts.:  2003-3 Mad LW 372: 2003-3 CCC367

[43]   AIR 1964 Mad 483

[44]   AIR 1965 SC 59

[45]   AIR 1964 Mad 483

[46]   2013- 2  Bank   Case  133: 2012-5 CTC 203: CC 2012-175 361. Relied on in Hakkimuddin Taherbhai Shakor Vs. State of Gujarat: 2017 CrLJ 3143.

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

State & Court – Protectors of All Charities

Saji Koduvath, Advocate, Kottayam

Synopsis

  1. Introduction
  2. Crown – Constitutional Protector of all Charities
  3. Court is the Ultimate Protector of all Charities:
  4. It is the Duty of Courts to Protect Trusts
  5. Plaintiffs were Allowed to Protect Property
  6. Duty of Courts to Protect Trusts – Applies to Churches
  7. Jurisdiction of Courts, Analogous to Infant
  8. Fundamental Principles cannot be Varied
  9. Court will apply Cy Pres Doctrine
  10. Conditions for Cy Pres Doctrine
  11. Taking Over Management of Trusts by the State
  12. Service of a Priest & Admin. of Institution, Secular Acts
  13. Legislature can Enact Law and Courts have Jurisdiction
  14. Constitutional Rights and Interference by Court
  15. Rights under Art. 25 and 26 are not absolute
  16. Rights under Art. 30
  17. Relevance of Common Law in Affairs of Churches
  18. Church Tribunal – Authority
  19. Sec. 38 of the Specific Relief Act
  20. Courts Act as Guardian of Charitable Organizations
  21. Court Interference in Religious Decisions:
  22. Church of North India Case
  23. Court Enforces Discipline of Church:
  24. Church is a voluntary body
  25. Court Interference in Faith Matters:
  26. Court Interference in Religious and Communal Affairs:
  27. Private Trust: Settlement of Scheme
  28. Beneficiaries can Invoke Jurisdiction of Courts
  29. A Trust Shall Not Fail For Want of a Trustee

Introduction

Because the affairs of charitable trusts are matters of public concern, under English Law, the Crown, as parens patriae, is the protector of charitable trusts. Indian Law also follows this principle.[1]In our Constitution, the ‘Concurrent List’ of the Schedule VII, contains ‘trust and trustees’ and ‘charities and charitable institutions, charitable and religious endowments and religious institutions’, whereby both the Centre and the States are competent to legislate and regulate trusts or charities and charitable institutions. Under Article 26(d) of the Constitution the legislature can validly regulate the administration of the property of a religious denomination.[2]

Dr. BK Mukherjea on Hindu Law of Religious and Charitable Trusts[3] reads in this regard as under:

  • “In English law, the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. The Attorney General represents the proper person to take proceedings on this behalf and to protect charities. Whenever an action is necessary to enforce the execution of a charitable purpose, to remedy any abuse or misapplication of charitable funds, or to administer a charity, the Attorney General is the proper plaintiff, whether he is acting alone ex officio as the officer of the Crown and, as such, the protection of charities, or ex relations, that is to say, at the request of a private individual called a ‘relator’ who thinks that the charity is being or has been abused. The Attorney General does not come before the court as a plaintiff asserting a private right but as an officer of the Crown informing the Judge, another officer of the Crown, of some breach of trust or neglect of duty on the defendant’s part in the management and administration of charities which requires to be remedied. That is why such actions were called ‘information’ – a name which was dropped only after the Supreme Court of Judicature Act, 1873.”[4]

In Raju Muttu Rama Linga Vs. Perianayagum (1874),[5] it was observed by Privy Council that there could be little doubt that the superintending authority, over temples and religious endowments, was exercised by the old rulers.[6]

Crown – Constitutional Protector of all Charities

Tudor on Charities[7] reads as under:

  • “The Court and the Crown: The Crown as ‘parens-patriae’. The character of ‘parens-patriae’ which formerly imposed upon the Crown the duty of watching over the interests of wards makes it the protector of charity in general. Therefore, as Lord Eldon said, ‘where money is given to charity generally and indefinitely, without trustees or objects selected, the King as parens-patriae is the constitutional trustee’. While the jurisdiction of the court of Chancery over charitable foundations and gifts was in general conterminous with that over trusts of every kind, in one respect it had a jurisdiction peculiar to charitable trusts, in that wherever there was an intention to create a trust in favour of charity, the Court would give effect to the intention, in the first place by validating a defective gift and subsequently by reforming the trusts, if necessary, so that the donor’s paramount intention might be perpetually observed. This was an inherent jurisdiction, not conferred by statute, and now vested in the High Court of Justice and assigned to the Chancery Division”.

Early Enactments Governing Public Trusts – During British Regime[8]

  • Bengal Regulation XIX of 1810
  • Madras Regulation VII of 1817
  • Bombay Regulation XVII of 1827 
  • Religious Endowments Act, which repealed the Bengal and Madras Regulations
  • The Societies Registration Act, 1860
  • Religious Endowments Act, 1863
  • Civil Procedure Code of 1877: under S. 539 a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes. (This section was later amended, and incorporated provision similar to S. 92 of the present Civil Procedure Code, Act V of 1908.)
  • Religious Societies Act, 1880
  • Indian Trusts Act, 1882 (applicable for private trusts)
  • Charitable Endowments Act, 1890
  • Civil Procedure Code, 1908 
  • Registration Act, 1908
  • Official Trustees Act, 1913
  • Charitable and Religious Trusts Act, 1920
  • Sikh Gurudwara Act, 1925
  • Orissa Hindu Religious Endowments Act, 1939
  • Mussalman Wakf Act, 1923
  • Mussalman Wakf Validating Act, 1913
  • Mussalman Wakf Validating Act, 1930
  • United Provinces Charitable Endowments Rules, 1943

Important Enactments Governing Public Trusts, After Independence

  • Income Tax Act, 1961
  • Religious Institutions (Prevention of Misuse) Act, 1988
  • Foreign Contribution (Regulation) Act, 2010
  • Companies Act, 2003
  • Hindu Religious and Charitable Endowments Act, 1951
  • Wakfs
  • Wakf Act, 1995

State Acts

  • Bombay Public Trust Act, 1950 (BPTA) is the first Public Trusts Act enacted by a State, invoking the principle of ‘parens-patriae’.  It required registration of all public trusts with the authorities appointed under the Act. All other State Public Trusts Acts followed this Act in their legislation.
  • Bihar Hindu Religious Trusts Act, 1950
  • Madhya Pradesh Public Trusts Act, 1951
  • Travancore-Cochin Hindu Religious Institutions Act, 1950
  • Orissa Hindu Religious Endowments Act, 1951
  • Rajasthan Public Trust Act, 1959
  • Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
  • Madras Hindu Religious And Charitable Endowments Act, 1951
  • Uttar Pradesh Charitable Endowments (Extension of Powers) Act, 1950
  • Charitable Endowments (U.P. Amendment) Act, 1952
  • AP Charitable and Hindu Religious Institutions and Endowments Act, 1987
  • Karnataka Hindu Religious Institutions and Charitable Endownts Act, 1997
  • State Laws Governing Societies
  • Travancore Cochin Literary Scientific and Charitable So.Regn. Act, 1955
  • Rajasthan Societies Registration Act, 1958
  • Karnataka Societies Registration Act, 1960
  • West Bengal Societies Registration Act, 1961
  • Madhya Pradesh Registration Adhiniyam, 1961
  • Tamil Nadu Societies Registration Act, 1975
  • Manipur Societies Registration Act, 1989
  • Jammu – Kashmir Societies Registration Act, 1998
  • Societies Registration (Uttar Pradesh Amendment) Act, 2000

Court is the Protector of All Charities

It is trite law – in the matters as to custody of a minor, management of its affairs etc., paramount importance or concern is the welfare of the minor. The same principle is applied by our courts in the matters of public trusts also. The court is accepted as the guardian of the public charitable trusts or institutions.[9]

Courts have jurisdiction to enforce trusts.[10] As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[11] Sec. 92 CPC expressly authorizes designated courts to give directions for administration of public trusts. It is also the duty of Courts to protect and safeguard the property of religious and charitable institutions from wrongful claims or misappropriation[12] and from diversion from the objects to which it was dedicated.[13] The Court has necessarily a duty to protect the interest of the Public Trust and the courts should not adopt hyper technical approach, while dealing with the application for granting leave under Section 92 of CP.C.[14] Courts are bound to zealously guard the interest of the Trust, since the question of public interest is also involved.[15]

Where the Shebait of a temple has done something which is obviously adverse to the interest of the institution, it may be that the court would allow a disinterested third party to file a suit, but such a suit must be filed in the interest of the foundation or the deity.[16] The Supreme Court, in Chenchu Ram Reddy Vs. Government of AP,[17] observed that what is true of ‘public property’ is equally true of property belonging to religious or charitable institutions or endowments and that property of such institutions or endowments must be jealously protected by the courts. It is remarked further as under:

  • “It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison d’etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the close stand best attention approach to guard against all pitfalls.”

In Subramannaiya Vs. Abbinava (1940)[18]  it was observed by the Madras High Court as under:

  • “When the trust property is without a legal guardian, owing to any defects in the machinery for the appointment of a trustee or owning to unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actually controlling its affairs in the interest of the trust should not be entitled, in the absence of any one with a better title, to take these actions which are necessary to safeguard the interests of the trust”.[19]

In In-Re, Man Singh[20] it is pointed out by the Delhi High Court that in legal theory the Court is the guardian of charity, as it is of an infant. Sec. 92 CPC, which pertains to public trusts, is enacted adopting the English principles. The deity occupies, in law, with respect to the administration of property, the position of an infant.

Pollock and Maind’s ‘History of English Law’[21], it is laid down:

  • “A church is always under age and is to be treated as an infant and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age.”[22]

Inherent Jurisdiction of Court in the Affairs of Public Trusts

Snell’s Principles of Equity[23] reads as under:

  • “Apart from statute, the court has an inherent jurisdiction to remove a trustee and to appoint a new one in his place. As the interests of the trust are of paramount importance to the court, this jurisdiction will be exercised whenever the welfare of the beneficiaries requires it, even if the trustees have been guilty of no misconduct”.

Apart from the jurisdiction of courts to administer and enforce public trusts,[24]and set right mismanagement, fraud or maladministration whenever the assistance of the Court is sought for,[25]the courts have the power of judicial review and even a duty[26] in the matters of public trusts. Court is the guardian of the public charitable trusts/institutions.[27] Interest of public and public trusts is its paramount consideration.[28]Sec. 92 CPC expressly authorizes designated courts to give directions for administration of trusts. It is held by Privy Council in Ram Dularey Vs. Ram Lal[29]that ‘court has a duty, once it finds that it is a trust for public purposes, to consider what is best in the interest of the public’.[30]

In CK Rajan Vs. State of Kerala[31] it is held by the Kerala High Court that apart from the right of suit under S. 92 of the Code of Civil Procedure, the courts have got ‘inherent jurisdiction’ to protect the interest of a religious or a charitable trust or deity. It was found to be a ‘reserve power’ with the courts.  The courts can invoke this discretionary power, when it is warranted, though not conferred by any statute, since this class of persons cannot, on their own, take proceedings to protect or safeguard their interests and set right the abuses or mismanagement or maladministration. Justice BK Mukherjea on Hindu Law of Religious and Charitable Trusts[32]points out the following, as to the jurisdiction and the remedies granted independent of the statute, as under:

  • “The fact that a temple committee has been appointed does not oust the general jurisdiction of the Court to make any order that it considers necessary for due administration of the trust. The true principle undoubtedly is that the courts would not ordinarily interfere with the statutory powers conferred upon the members of the temple committee so as to deprive them of their legitimate functions. But the general right of a subject to ask for the Court’s assistance to set right abuses or to have other remedies independent of the statute is not thereby taken away. In England, it is settled law that the Court’s jurisdiction to make suitable orders in the case of a charitable trust is not in any way affected by reason of the existence of visitatorial powers.”

Affairs of a trust are essentially matters of public concern.

In Attorney General Vs. St. Cross Hospital (1853)[33] Sir Samuel Romilly observed as under:

  • ‘The only remaining point then on this part of the case is whether the jurisdiction of this Court is taken away by reason of the visitorship of the Bishop of Winchester. If this were the law it would be very unfortunate, for it does not require the history of this case to teach us that the visitorship vested in any one, whether a corporation sole or aggregate or the heir of the founder is a mere nominal office, the duties and functions of which are rarely if ever spontaneously performed. But the law is not so. Where there is a clear and distinct trust, this Court administers and enforces it as much whether there is a visitor as where there is none. This is clear both on principle and on authority’.”

In Manohar Ganesh Vs. Lakhmiram (1888)[34] West and Birdwood, JJ. observed:

  • “Civil Courts have jurisdiction to enforce trusts for charitable and religious purposes, having connection with Hindu and Mohammadan foundations and to prevent fraud and waste in dealing with religious endowments, though incidentally it has to take cognisance of religious or caste questions. The religion of the Hindu population being jurally allowed, the duties and services connected with it must be deemed objects of public concern and at least as to their physical and secular elements enforceable like other obligations.”[35]

The Madras High Court had held in Sitarama Chetty Vs. Subramania Ayyar (1917)[36] that the High Courts and the mofussil Courts were Courts of both law and equity and that they can exercise jurisdiction over religious and charitable institutions in the same way as the Courts Chancery did in England.[37] It is also the duty of Courts to protect and safeguard the property of religious and charitable institutions from wrongful claims or misappropriation.Where the Shebait of a temple has done something which is obviously adverse to the interest of the institution it may be that the court would allow a disinterested third party to file a suit, but such a suit must be filed in the interest of the foundation or the deity, as the case may be.[38]

Plaintiffs were Allowed to Protect Property

It is taken note of in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[39] that as per the Canon Law the church property vests in the hands of the Bishop or the Vicar. But, it is observed that the parish being by law a public juridic person, the plaintiffs, as the elected representatives of the parishioners entrusted with the administration of the church, were competent to initiate civil proceedings with the ultimate aim of protecting the property belonging to the church; and that the plaintiffs were entitled to represent the juridic person before the Civil Court.

Charitable and Religious Trusts Act, 1920

The object of the act is shown to be ‘to provide more effectual control over the administration of Charitable and Religious Trusts’; and it is made to provide facilities for the obtaining of information regarding trusts created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters, and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts’.

Following are the important provisions of the Act.

  • “Sec. 2. Interpretation. — In this Act, unless there is anything repugnant in the subject or context, ‘the Court’ means the Court of the District Judge or any other Court empowered in that behalf by the State Government and includes the High Court in the exercise of its ordinary original civil jurisdiction.
  • Sec. 7. Powers of trustee to apply for directions.—
  • .(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
  • Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
  • (2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction hereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
  • (3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
  • (4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.
  • Sec. 9. Savings.— No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:—
  • .(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure 1908 (5 of 1908), is pending in respect of the trust in question;
  • (b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any Society registered under the Societies Registration Act, 1860 (21 of 1860); or
  • (c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
  • Sec. 12. Barring of appeals.— No appeal shall lie from any order passed or against any opinion, advice or direction given under this Act.”

The purport of the Act can be analysed as under:

  • Court gives opinion, advice or direction to trustees alone.
  • The advice or direction is given only on any question affecting the management or administration of the trust property.
  • It is on the principle – Court is Guardian or Protector of All Public Trusts.
  • It envisages a ‘summary disposal’.
  • Court exercises a discretionary jurisdiction in this matter.
  • Court is not bound to give opinion if the question not susceptible to a summary disposal.
  • The opinion is not given in matters which are seriously disputed or contested.
  • There will not be adjudication on questions of fact or law.
  • Operation of this section is subject to Sections 9 and 12 (given above).

Court is Protector of All Public Trusts – Cannot Refuse Opinion

Referring Sec. 7 of the  Charitable and Religious Trusts Act, 1920, it is observed in Sennimalai Swamy Madam Trust, Palani v. NIL, 1999-3 CTC 390, as under:

  • “10. In view of these decisions, it has to be held that petitioner is competent to file an application before lower court seeking opinion. Unless Court finds that the opinion cannot be given since there are complicated facts or question of law is to be decided, it may not be proper on its part to refuse to give opinion.  After all, Court is guardian or Protector of all public trusts and it cannot refuse to give its opinion, when the same is sought for by a Trustee.” (Avoch Thevar v. Chummar, AIR 1957 Ker 171, In Re Birla Jankalyan Trust, AIR 1971 Cal. 290, In Re Dhanalat, AIR 1975 Cal. 67, referred to)

Courts desist if Complicated Facts or Question of Law

In Avoch Thevar v. Chummar, AIR 1957 Ker 171, it is observed that serious questions of res judicata, estoppel, good faith etc. could not be adjudicated under Sec. 7 of the  Charitable and Religious Trusts Act, 1920. It is said as under:

  • “6. …. “The Court under the section exercises what might be called its consultative jurisdiction, giving guidance to the trustee. The court is not, however, to grant sanction merely because it is applied for. The limitation is that the court will refuse to consider the matter if in its opinion the question is one not capable of summary disposal e.g. if it is one of the detail or difficulty. In any event the court will consider judicially the matters placed before it before disposing of the matter.”

This Kerala decision is followed in Hasan Bin Mubarak v. Chief Judge, City Civil Court, Hyderabad AIR 1999 AP 11, observing as under:

  • “Section 34 of the Act contemplates only a summary disposal on non-controversial issues. The mental condition of a person being an important personal problem, the Court cannot dispose of the same in a summary manner. What the Court below has done was to examine 3rd respondent, who is alleged to be an insane person and give the opinion on the basis of her statement. Though Ex.R-1, certificate, alleged to have been given by a psychiatrist, was marked, the Court made no effort to examine the said doctor. Obviously, this could not have been done because the matter has to be disposed of in a summary manner. Thus, it is evident that the advice that was sought for by the trustee required a determination on contentious facts and the jurisdiction of the Court under section 34 being only in the nature of giving guidelines or directions without entering into the merits, the application ought not to have been entertained by the Court. The trustee might have got a valid and satisfactory opinion had he approached a qualified medical man or the Court in a properly instituted suit.
  • 23. In Avoch Thevar case (supra) following the decision in Armugan Chetty vs. Raja Jagaveera ILR 28 Madras 444, it was clearly held that while providing the trustees a right to apply to the Court for opinion to the Management and the Members, Section 34 embodied at the same time, a limitation governing the questions to be asked viz. that there should not be hypothetical and any questions of details or difficulty or importance, not proper in the opinion of the Court for summary disposal……” (quoted in Ashok Kumar Kapur VS Ashok Khanna, AIR 2007 SC  6; 2007-5 SCC 189).

Avoch Thevar v. Chummar, AIR 1957 Ker 171, is followed in P. D. Jaiswal v. Dwarikadhish Temple Trust, 2006 2 ADJ 680; 2006 3 AllLR 21; 2006 3 AWC 2823 saying as under:

  • “39. The last strand of Mr. Ravi Kant’s arguments was a Kerala Division Bench decision given in the case of Avoch Thevar v. Chummar, A.I.R. 1957 Ker 171, which was delivered for the Court by Hon’ble Mr. Justice Varadaraja lyengar. With the greatest of respect, it is a beautiful learned judgment which should be read by any reader of this judgment and we do not set out the materials collected therein simply because we cannot do it better or in a briefer way. We respectfully referred the reader to paragraph-6, 7, 8 and 9 of the said judgment.
  • 40. Following the said judgment and the authorities quoted there, which are fully persuasive in our respectful opinion, we must opine that a decision under Section 7 of the 1920 Act is not to be given at all by the District Court in matters which are seriously disputed or contested, or which required difficult decisions on questions of fact or law,”

‘Breach of an Obligation’in Sec. 38 of the Specific Relief Act

Under Sec. 38 of the Specific Relief Act the court is expressly authorized to grant injunctions to prevent breach of an obligation existing in favour of the plaintiff or where the defendant is trustee of the property for the plaintiff. Sec. 38 of the Sec. 38 of the Specific Relief Act reads:

  • “38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
  • (2) When any such obligation arises from contract, the Court shall be guided by the Rules and provisions contained in Chapter II.
  • (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely;
  •         (a) where the defendant is trustee of the property for the plaintiff;
  •         (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
  •         (c) where the invasion is such that compensation in money would not afford adequate relief;
  •         (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

The word obligation is defined in Sec. 2 of the Specific Relief Act with a widermeaning.It is so wide that it encompass obligations ‘whether expressly or by implication’.Italsoreads: ” ‘obligation’ includes every duty enforceable by law to include ‘every duty enforceable by law”. The word ‘trust’ is also used in a wider sense[40] in this Act as under:   ” ‘trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act.” It is also noteworthy that ‘trust’ is not alien to the affairs of a society inasmuch as the administrators of  societies can be ‘trustees’ as seen from Sec. 5 and 16 of the Societies Registration Act, 1860, which reads as under.

  • 5. Property of society how vested: The property, movable and immovable belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings civil and criminal, may be described as the property of the governing body of such society for their proper title.
  • 16. Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Courts Act as Guardian of Societies & Can Oversee its Functions

In I. Nelson Vs. Kallayam Pastorate[41]  it is laid down by our Apex Court as under:

  • “Keeping in view the interest of the general public, we see no reason as to why in a case of mismanagement of such charitable organizations, although run by minorities, the Court cannot oversee its functions. The Courts, indisputably, act as guardian of such societies. [See Guruvayoor Devaswom Managing Committee Vs. CK Rajan: AIR 2004 SC 561: (2003) 7 SCC 546.] Even otherwise, rights under Articles 25 and 26 of the Constitution are not absolute and unfettered. The right to manage, it goes without saying, does not carry with it a right to mismanage.”

Court Enforces Discipline of Church:

Church is a voluntary body. The Supreme Court held in Most Rev. PMA Metropolitan Vs.  Moran Mar Marthoma[42] as under:

  • “A church is formed by the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual basis – their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognised. Therefore, all religious bodies are regarded by courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organisations.”

Superintendence of the Temple: Not a Property

In Bira Kishore Deb Vs. State of Orissa (1964).[43] A Constitution Bench of the Supreme Court had held that Section 6 of Sri Jagannath Temple Act, 1954 extinguished the hereditary right of the Raja and entrusted secular management of the Temple of Lord Jagannath at Puri to the Committee. The Chairman remained. It was found that the superintendence of the Temple was not a property. It carried no beneficial interest or enjoyment of the property with it. The right was not acquired by the State. The whole of the right to manage the Temple was extinguished and in its place another body for the purpose of administration of the properties of the Temple was created. Such process cannot be said to constitute the acquisition or extinguishment of office or the vesting of the right in such persons holding that office.

Cy Pres Doctrine

‘Cy   pres’ doctrine conveys the concept of ‘following as nearly as possible the intention of the donor’.[44]It is applied by courts when general intention of charity viewed by the founder cannot be carried into effect, for impossibility or impracticability.It is based on the principle that the court is the protector of all charities.[45]  It is an established principle of equity jurisprudence that a trust never fails even if there is no trustee.[46]

Invoking this doctrine the court will apply the Trust to some other charitable purpose ‘as nearly as possible’[47]Where a clear charitable intention is expressed by the founder of a trust and also the mode, if the mode becomes in-executable, the law will substitute another mode, cy-pres, ie., as near as possible to the mode specified by the donor; so that the charitable intention will not be permitted to fail.[48] It is held in Ironmonger’s Co. Vs. AG[49] and Re Cunningham[50] that this doctrine is applied not only to the affairs of trusts subsequent to their formation, but also to the trusts execution of which is rendered, initially itself, impossible or impracticable.  

This doctrine is applied by the Courts in England to administer a charitable trust of which the particular mode of application has not been defined. Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode.[51]

Besides physical impossibility, becoming the trust valueless, owing to attendant circumstances, also invites application of cy pres doctrine[52]. When a fund is conditionally given to charity, and the condition is not fulfilled, application of cy pres doctrine is not attracted for there is no complete dedication.[53]Cy pres doctrine is not applied in a case where intention of the founder is opposed to public policy[54].

Halsbury’s Laws of England reads:

  • “The cy-pres doctrine. Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy-pres, that is, as near as possible to the mode specified by the donor.
  • An application cy-pres results from the exercise of the court’s ordinary jurisdiction to administer a charitable trust of which the particular mode of application has not been defined by the donor. Where he has in fact prescribed a particular mode of application and that mode is incapable of being performed, but he had a charitable intention which transcended the particular mode of application prescribed, the court, in the exercise of this jurisdiction, can carry out the charitable intention as though the particular direction had not been expressed at all.
  • However, where the particular mode of application prescribed by the donor was the essence of his intention, which may be shown by a condition or by particularity of language, and that mode is incapable of being performed, there is nothing left upon which the court can found its jurisdiction, so that in such circumstances the court has no power to direct any other charitable application in place of that which has failed.
  • Where the particular mode of application does not exhaust a gift, these principles apply to the surplus.
  • There can be no question under English law of a cy pres application of property subject to trusts which are not charitable in law.”[55]

When it is found by the court that the particular mode of charity, indicated by the donor, cannot be carried out for impossibility or impracticability, the court will execute and accomplish the donor’s intention applying ‘cy pres’ doctrine.  The court will not allow to fail a validly created trust, or its objects of foundation. In Ratilal Vs. State of Bombay[56] it is held by our Apex Court as under:

  • “When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part, or where there is a surplus left after exhausting the purposes specified by the settler the Court would not when there is a general charitable intention expressed by the settler, allow the trust to fail but would execute it ‘Cy Pres’, that is to say, in some way as nearly as possible to that which the author of the trust intended. In such cases, it cannot be disputed that the Court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent.”

The beneficiaries can enforce the trust. Once a trust is created the property does not revert to the settlor or his heirs.[57]But, in Vadivelu Mudaliar Vs.Kuppuswamy Mudaliar[58]  it has been held that when all the trustees fail to administer the trust or repudiate trust property dedicated to the trust would re-vest in the donor or his legal representatives; and it is only when the legal representatives are not available or do not take charge of the trust for some reason or the other, it will be that the Court to interfere for the purpose of appointing of trustee or trustees for the administration of trust.

The essential conditions to attract the application of the Cy Presdoctrine are:

  • (i) the donor (rather the testator) must clearly evidence a general intention of charity when the particular charitable disposition cannot be carried into effect, the Court, in order that the general charitable intention may not be disappointed, makes a Cy Presapplication of the fund and applies it to a purpose which coincides as nearly as possible with the object that has failed;
  • (ii) there must be a failure of the particular object of charity as specified by the testator, or there must be a surplus left after satisfying the particular purpose;
  • (iii) the court should choose such objects as are akin to the object that had failed;
  • (iv) the gift or trust must be by Will and not by a deed inter vivos (by case law).[59]

Relevance of Common Law in Affairs of Churches

The Supreme Court held in Most Rev. PMA Metropolitan Vs.  Moran Mar Marthoma[60] as under:

  • “The jurisdiction of courts depends either on statute or on common law. The jurisdiction is always local and in absence of any statutory provision the cognizance of such dispute has to be taken either by a hierarchy of ecclesiastical courts established in the country where the religious institutions are situated or by a statutory law framed by Parliament. Admittedly no law in respect of Christian churches has been framed, therefore, there is no statutory law. Consequently any dispute in respect of religious office in respect of Christians is also cognizable by the civil court. The submission that the Christians stand on a different footing than Hindus and Buddhists, need not be discussed or elaborated. Suffice it to say that religion of Christians, Hindus, Muslims, Sikhs, Buddhists, Jains or Parsees may be different but they are all citizens of one country which provides one and only one forum that is the civil court for adjudication of their rights, civil or of civil nature.”

Church Tribunal – Authority

It is further held in Most Rev. PMA Metropolitan Vs.  Moran Mar Marthoma[61] as under:

  • “In Long Vs.  Bishop of Cape Town where the Bishop held an ecclesiastical court for proceeding against the appellant who was authorised to perform ecclesiastical duties in a parish was held as coram non judice as he had no authority to hold an ecclesiastical court. The court held that where no church was established by law it was in the same situation as any religious body, therefore, if any tribunal was constituted by such body which was not court then its decision would be binding only if it was exercised within the scope of the authority.
  • In Dame Henriette Brown Vs. Les Cure Et Marguilliers De L’oeuvre Et Fabrique De Notre Dame De Motrea[62], the Privy council while following the decision in Long[63] held that where a church was merely a private and voluntary religious Society resting only upon a consensual basis courts of justice were still bound when due complaint was made that a member of the Society was injured in any manner of a mixed spiritual and temporal character to inquire into the laws and rules of the tribunal or authority which inflicted the alleged injury and ascertain whether the act complained of was law and discipline of the church and whether the sentence was justifiably pronounced by a competent authority. The decision in Longhas been followed in this country in AnadravBhikajiphadke Vs. Shankar DajiCharya[64] where certain persons brought a suit that their right of worship in the sanctuary of a temple was being infringed, it was held that the right of exclusive worship of an idol at particular place set up by a caste was civil right.”

Court Interference in Faith and ReligiousMatters: Cognisable by Civil Court

It was contented in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma[65] that various decisions[66] indicate that Explanation 1 to Section 9 embraced questions relating to the religious faith, doctrine and belief and saved only those suits where the right to property or to an office was contested. Sahai, J. observed that any dispute in respect of religious office is cognisable by the civil court. Sahai J. observed as under:

  • “The jurisdiction of courts depends either on statute or on common law. The jurisdiction is always local and in absence of any statutory provision the cognizance of such dispute has to be taken either by a hierarchy of ecclesiastical courts established in the country where the religious institutions are situated or by a statutory law framed by the Parliament. Admittedly no law in respect of Christian Churches has been framed, therefore, there is no statutory law. Consequently any dispute in respect of religious office in respect of Christians is also cognisable by the civil court.”

Private Trust: Settlement of Scheme

Section 92 CPC will not apply to private trusts; and, suits relating to religious[67] private trusts are outside the purview of the Indian Trusts Act, 1882. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.[68] In Thenappa Chettiar Vs.Karuppan Chettiar[69], the Supreme Court held that even in the case of a private trust, a suit can be brought by any person interested in the proper administration of the endowment including that for settlement of a scheme.

Beneficiaries can Invoke Jurisdiction of Courts to Enforce Trust

A Trust Shall Not Fail For Want of a Trustee

It is an established principle of equity jurisprudence that a trust never fails even if there is no trustee.[70] The beneficiaries can enforce the trust. Dr. BK Mukherjea, J. ‘on The Hindu Law of Religious and Charitable Trusts’ reads as under:

  • “The trust itself does not fail. …. The property does not revert to the representatives or the heirs of the settlor testator who has already divested himself of the title and interest in the property by creating a valid and complete trust. ….. That is, the beneficiaries can enforce it, or the object of the trust can be enforced where beneficiaries are not capable of suing”[71]

Under Sec. 59 of the Indian Trusts Act, 1882, where no trustees are appointed or all the trustees die, disclaim or are discharged, or where for any other reason the execution of a Trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the Trust and the Trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee.[72]  It is clear that this principle is adopted by Mukherjea, J. in the case of public trust also.

In Thangachi Nachial Vs.  Ahmed Hussain Malumiar[73] it has been observed by the Madras High Court that the beneficiary’s right to sue embodied in Section 59 of the Indian Trusts Act, 1882 was based on the principle that ‘a Trust shall not fail for want of a trustee’. It has been held in this case that the beneficiary of the trust in respect of a Muhammadan Wakf, may (without having recourse to Order 1 Rule 8 of CPC and without suing in a representative capacity on behalf of the other beneficiaries) sue for declaration that the property were the subject of the trust and for recovery of possession of property wrongfully alienated by the trustee.

Fundamental Principles Cannot be Varied

The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created.[74]This principle in Milligan Vs. Mitchel,[75]Atttorney General Vs. Anderson[76] and Free Church of England Vs. Overtoun[77]was referred to in PrasannaVenkitesa Rao Vs. Srinivasa Rao.[78]

[1]      C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296: Narayan Krishnaji Vs. Anjuman E Islamia:  AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; SubramoniaPillai Chellam Pillai Vs. Subramonia Pillai Chathan Pillai: AIR 1953 TC 198;  M.G. Narayanaswami Naidu Vs. M. Balasundaram Naidu: AIR 1953 Mad 750.

[2] Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt: AIR 1954 SC 282.

[3] Fifth Edition, page 404.

[4] Also see: Joint Commissioner Hindu Religious And Charitable Endowments Vs. Jayaraman: AIR 2006 SC 104

[5]      (1874) 1 Ind App 209 at 233;  See also Dr. B.K. Mukherjea: Hindu Law of Religious and Charitable Trusts (Fifth Edition, pages 404).

[6]      See also Dr. BK Mukherjea: Hindu Law of Religious and Charitable Trusts (Fifth Edition, page 404). M Siddiq Vs.Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[7]      VII Edition, page 294

[8]      See history: Mahant Ram Saroop Dasji Vs. SP Sahi: AIR 1959 SC 951;  Commissioner of Income Tax Vs. Jogendra Nath Naskar: AIR 1965 Cal  570; Kidangazhi Manakkal Narayanan Nambudiripad Vs. State of Madras: AIR 1954 Mad 385; C.K. Rajan Vs. Guruvayoor Devaswom Managing Committee : AIR 1994 Ker 179.

[9]      ChHoshiar Singh Mann Vs. Charan Singh: ILR  2009-19Dlh 265 ; See also:Thenappa Chattier Vs. Kuruppan Chhietier: AIR 1968 SC 915; I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337. 

[10]   C.K. Rajan Vs. Guruvayoor Devaswom Managing Committee: .AIR 1994 Ker 179. [Appeal Judgment: Guruvayoor Devaswom Managing Committee Vs. C.K. Rajan: AIR 2004 SC 561: (2003) 7 SCC 546].  C  Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915 ,     ChHoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265,      I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337,       Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309.

[11]   Haleema Vs. High Court Of Kerala: ILR 2011-1Ker 50: 2011-1 KerLT 134, Awadesh Kumar Vs. Rajendra Prasad Sharma: BLJ 1996-2 423: 1997-1BLJR 126 , C Chikka Venkatappa Vs. D Hanumanthappa: 1970-1 MysLJ 296, Narayan Krishnaji Vs. Anjuman Eislamia: AIR1952 Kar 14: ILR 1952Kar  2, Hamumiya Bachumita Vs. Mehdihusen Gulamhusen: 1978 GLR  661, Lallubhai Girdharlal Parikh Vs. Acharya Vrijbhushanlalji: AIR 1967 Guj 280, The Breach Candy Bath Trust. Vs. Dipesh Mehta : 2015-6 AIR-BOMR 709, [12]   AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC  3162. Referred to in: Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744.

[13]   Subramannaiya Vs. Abbinava: AIR  1940 Mad. 617; Quoted in: M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1;  Sankaranarayanan Vs. Shri Poovananatha: AIR  1949 Mad.721; Parshvanath Jain Temple Vs. LRs of Prem Dass: 2009-3 RCR(Civil) 133

[14]   Nadigar Sangham Trust Vs. S. Murugan Poochi: 2013-1 MLJ 433: 2012-6 CTC 721; Imayam Trust Vs. Balakumar: CTC 2015 3 654: : 2015-2 MadLW 235.

[15]   Rajagopal v. Balachandran: 2002 2 CTC 527; Imayam Trust Vs. Balakumar: CTC 2015 3 654: : 2015-2 MadLW 235.

[16]   Doongarsee Shyamji Vs. Tribhuvan Das: AIR 1947 All 375. Referred to in  Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73.

[17]   (1986) 3 SCC 391.

[18] AIR  1940 Mad. 617

[19] Quoted in Sankaranarayanan Vs. Shri Poovananatha: AIR  1949 Mad.721 and  Parshvanath Jain Temple Vs. LRs of Prem Dass: 2009-3-RCR(CIVIL) 133

[20] AIR 1974 Del. 228; See also: Avoch Thevar Vs. Chummar: AIR 1957 Ker. 171; In Re Birla Jankalyan Trust: AIR 1971 Cal. 290; In Re Dhanalat, AIR 1975 Cal. 67.

[21]    Volume I (Page 463).

[22]    Quoted in YogendraNathNaskar Vs. Commr of IT Calcutta: AIR 1969 SC 1089.

[23]    28th Edition, pages 210 and 211

[24]    CK RajanVs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179. [Appeal Judgment: Guruvayoor Devaswom Managing Committee Vs. CK Rajan: AIR 2004 SC 561: AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC 3162. Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744. Subramannaiya Vs. Abbinava: AIR  1940 Mad. 617. Quoted in: Sankaranarayanan Vs. Shri Poovananatha: AIR  1949 Mad.721, Parshvanath Jain Temple Vs. L.Rs of Prem Dass: 2009-3-RCR(CIVIL) 13),  Fakhuruddin Vs. Mohammad Rafiq: AIR  1916 All 115 (PC);  C  Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; Sridhar Vs. Shri Jagan Nath Temple, AIR 1976 SC 1860; Yogendra Nath Naskar Vs. Commr IT Calcutta: AIR 1969 SC 1089. ChHoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265;  I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337; Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309.

[25]    Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915,

[26]    AG Vs. Pearson: (1817) 3 Mer 353; Referred to in Varghese Vs. St. Peters and St. Pauls: (2017) 15 SCC 333; Fakir Mohamed Abdul Razak Vs. Charity Commissioner Bombay: AIR 1976 Bom 304; Narasimhiah Vs. YH Venkataramanappa: AIR  1976Kar 43; Sobhanadreswara Rice Mill Vs. Brahmachari Bavaji Mutt: AIR  1973 AP 292. Subramania Gurukkal Vs. Abhinava Poornapriya Asrinivasa Rao Sahib: AIR 1940 Mad 617; Mohideen Khan Vs. Ganikhan: AIR  1956 AP 19. See with respect to Educational Institution: KK Saksena  Vs. International Commission on Irrigation and Drainage: 2015-4 SCC 670.

[27]    ChHoshiar Singh Mann Vs. Charan Singh: ILR 2009-19Dlh 265, See also Thenappa Chattier Vs. Kuruppan Chhietier: AIR 1968 SC 915; I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337.  In In-Re, Man Singh: AIR 1974 Del. 228.

[28]    RambakeshwarDevasthan Trust Vs. President PurohitSangh: AIR  2012 SC 139.

[29]    AIR1946 PC 34.

[30]    Referred to in: Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333; Narasimhiah Vs. YH Venkataramanappa: AIR 1976 Kar 43.

[31]    AIR  1994 Ker 179.

[32]    Fifth Edition, pages 411 and 412

[33] (1853) 51 ER 1103

[34]    (1888) ILR 12 Bom 247

[35]    Quoted in CK Rajan Vs. State of Kerala: AIR  1994 Ker 179

[36]    AIR 1917 Mad 551; ILR 39 Mad 700: citing Attorney General Vs. Brodie, (1846) 4 Moo Ind App 190 Maharanee Shibessoree Vs. Mothooranath, (1869-70) 13 Moo Ind App 270.

[37]    Referred to in CK Rajan Vs. State of Kerala: AIR  1994 Ker 179,

[38]    Doongarsee Shyamji Vs. Tribhuvan Das: AIR 1947 All 375. Referred to in Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73.

[39]    2013(4) Ker LT 283.

[40]    Rotopacking Materials Industry Vs. Ravider Kumar Chopra: 2003(6) BCR 6; Smt. Parul Bala Roy Vs. Srinibash Chowmal: AIR 1952 Cal 364; Referred to in: Arun Kumar Mitra Vs. Gorachand Saheb Sekh Abdul: AIR 2005 Cal 178.

[41]    AIR 2007 SC 1337

[42]    AIR 1995 SC 2001.

[43]AIR  1964 SC 1501

[44]    AbidHatim Merchant Vs. Janab Salebhai Saheb Shaifuddin AIR 2000  SC 899: Commissioner of Income Tax Kanpur Vs. Kamla Town Trust: AIR 1996 SC  620;  NS Rajabathar Mudaliar Vs. M.S. Vadivelu Mudaliar, AIR 1970 SC 1839;

[45]    C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar14 .

[46] Yelandau Arasikere Deshikendra Sammthana  Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[47]    Abid Hatim Merchant Vs. Janab Salebhai Saheb Shaifuddin:  AIR 2000  SC 899: Commissioner of Income Tax Kanpur Vs. Kamla Town Trust: AIR 1996 SC  620;  NS Rajabathar Mudaliar Vs. Vadivelu Mudaliar, AIR 1970 SC 1839; In Re Man Singh and Others, AIR 1974 Del. 228

[48] Union of India Vs. Mool Chand Khairati Ram Trust: AIR 2018 SC 5426

[49]    (1844) 10 Cl& F 908.

[50]    (1914) 1 Ch 427.

[51]    Union of India Vs. Mool Chand Khairati Ram Trust: (2018) 8 SCC 321.

[52]    Hormusji Franji Warden, ILR 32  B. 214.

[53] Chamberlane Vs. Brochett: LR 8 Ch. 206; Santana Roy Vs. AG ILR 45 Cal. 1.

[54]    Tudor on Charities,  5thEdn, P. 153.

[55]    Quoted in Union of India Vs. Mool Chand Khairati Ram Trust: (2018) 8 SCC 321.

[56] AIR 1954 SC 388

[57] Yelandau Arasikere  Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323. Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11; Laxmi Ammal Vs. Sun Life Assurance Co., Canada AIR 1934 Mad 264; Kumaraswamy Goundan Vs. Planisamy Goundan: AIR 1938 Mad 668.

[58]    1972 (1) Mad LJ 265.

[59]    Gedela Satchidananda Murthy Vs. Dy.  Commnr Endnts. Deptt A P: AIR 2007 SC 1917

[60]    AIR 1995 SC 2001.

[61]    AIR 1995 SC 2001.

[62]    1874-75 (6) PC 157

[63]    Long  Vs. Bishop of Capetown,  1863 (1) Moore PCC NS 411

[64]    ILR 7 Bombay 323

[65]    AIR 1995 SC 2001

[66]    Sardar Syedna Tahar Saifuddin Saheb Vs. The State of Bombay, 1962 Supp. 2 SCR 496; Uqamsingh & Mishramal Vs. Kesrimal: 1971(2) SCR 836; Thiruvenkata Ramanuja Vs. Prathivathi Bhayankaram:  AIR 1947 PC 53; M. Appadorai Ayyangar Vs. P.B. Annanqarachariar: AIR 1939 Mad. 102; Kattalai Michael Pillai  Vs. J.M. Barthe: AIR 1917 Mad. 431; E.C. Kent Vs. EEL Kent: AIR 1926 Madras 59;  Sri Sinna Ramanuja Jeer Vs. Sri Ranga Ramanuja Jeer:1962 (2) SCR 509.

[67]    See Sec. 1.

[68]    Cheriyathu Vs. Parameswaran Namboodiripad: 1953 Ker LT 125, Also 1953 Ker LT 117; AIR1922 P. C. 253 A I R 1925 P C 139.

[69] AIR 1968 SC 915.

[70]    Yelandau Arasikere Deshikendra Sammthana Vs.Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[71] Quoted in: Yelandau Arasikere Deshikendra Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323. See also: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[72]    Laxmi Ammal Vs. Sun Life Assurance Co., Canada AIR 1934 Mad 264; Kumaraswamy Goundan Vs. Planisamy Goundan: AIR 1938 Mad 668.

[73]    AIR 1957 Mad 194, Relying on Maulvi Muhammad Fahimul Haq  Vs. Jagat Ballay Ghosh AIR 1923 Pat 475.

[74] Pragji Savji Vaja  Vs. Chhotalal Narsidas Parmar: AIR 2014-3 Bom R 211: 2013-6 BCR 72.

[75]    40 ER 852.

[76]    (1888) 57 LJ Ch 543

[77]    (1904) AC 515:

[78]    AIR 1931 Mad. 12

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Suits By or Against Trusts and Trustees

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell.

  • A trust is not a legal person.[1]
  • It cannot sue or be sued in its own name.[2]
  • Court is the ultimate protector of all charities.
  • There is no provision in the CPC to sue or be sued in the name of the trust.
  • Order XXXI, Rule 1 CPC deals with the representation of beneficiaries in suits concerning property vested in the Trustee.
    • That is, the Trustee shall represent the persons interested in the trust and that the affairs of a trust have to be brought before a court of law in the name of its trustees.
  • But, idol in a temple and Mutt being accepted as juridical persons, suits are maintainable in the name of the idol and Mutt. Such entity must also be represented by a proper person.
  • Reliefs enumerated in Section 92 CPC can be sought for by two or more persons having interest in the public trust, after obtaining the leave of the Court.
    • Section 92 CPC is applicable to public trusts; and not to private trusts. 
    • Reliefs set forth in Section 92 CPC can be granted to private trusts, applying the general law of the land, as civil rights.[3] 

Jurisdiction of Courts

RM Sahai, J. observed in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma[4] as under:

  • “The jurisdiction of courts depends either on statute or on common law.”

Sahai J. continued:

  • “The jurisdiction is always local and in absence of any statutory provision the cognizance of such dispute has to be taken either by a hierarchy of ecclesiastical courts established in the country where the religious institutions are situated or by a statutory law framed by the Parliament. Admittedly no law in respect of Christian Churches has been framed, therefore, there is no statutory law. Consequently any dispute in respect of religious office in respect of Christians is also cognisable by the civil court.”

Court is the Ultimate Protector of Charities[5]

Courts have jurisdiction and duty[6] to administer and enforce public trusts.[7]  As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[8] It is the guardian of the public charitable trusts/institutions[9] and its property.[10]   

In legal theory the Court is the guardian of charity, as it is of an infant.[11]  In P.  Elumalai Vs. Pachaiyappa’s Trust Board[12] the Madras High Court while passing an order exercising the ‘Parens Patriae’ jurisdiction over the trust held that as ‘Parens Patriae’, the Courts were empowered to protect the sanctity of public trust in case of breach of trust on account of irregularities committed in trust. In this decision it was held that the Court could not remain a mute spectator when illegality had been committed against a public Trust in front of its own eyes.[13]

In Prasannakumar v. The State of Kerala,(WP No.  6689 of 2013, 16-10-2014, T.R. Ramachandran Nair, P.V. Asha, JJ.) held as under:

  • “60. As far as the property of the Temple is concerned, this Court will be right in exercising the parens patriae jurisdiction. The Division Bench in paragraphs 61 and 63 of the judgment in Mohanan Nair’s case (2013 (3) KLT 132) has considered two aspects, viz. the power of this Court to interfere even if there is inaction on the part of the Board and the importance of protecting the interest of Deity. Herein, what we find from Ext. P7 order is that a complaint was made by the Temple Advisory Committee which was considered by the learned Ombudsman appointed by this Court for Travancore and Cochin Devaswom Boards. The learned Ombudsman had also directed the third respondent to take urgent action for recovery of Devaswom property. In paragraph 62 of the judgment in Mohanan Nair’s case (2013 (3) KLT 132) this Court relied upon the judgment of the Apex Court in Gopalakrishnan v. Cochin Devaswom Board (2007 (4) KLT 965) wherein the duty of the courts to protect and safeguard the interest of the Deity has been highlighted.”

It is held in Mohanan Nair’s case, 2013 (3) KLT 132, as under:

  • “62. The Apex Court, in a recent decision reported in Gopalakrishnan v. Cochin Devaswom Board (ILR 2007 (4) Ker. 181), has emphasised that it is the duty of the Courts to protect and safeguard the interest and properties of the religious and charitable institutions. The Bench presided over by Chief Justice K.G. Balakrishnan (as he then was), in para 10 has held as follows:
  • “10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/Sebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the concerned authorities. Such acts of ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of Boards/Trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.”
  • That was also a similar case wherein the alleged encroachment of Temple property was raised in a complaint filed by a devotee.” (quoted in: Prasannakumar v. The State of Kerala,(WP No.  6689 of 2013, 16-10-2014)

In Mohanan Nair’s case, 2013 (3) KLT 132, it is further held as under:

  • “61. We will now come to the decisions relied upon by both sides. A Full Bench decision of this Court in Achuthan Pillai and others v. State of Kerala and others (1970 KLT 838 – FB) was relied upon by the learned counsel for the Temple Advisory Committee to show that in respect of matters concerning Hindu Religious Institutions and Temples, a contention regarding limitation/delay, etc. alone cannot deny the jurisdiction and hence this Court will be properly justified in considering the matter in detail. That was a case where the Full Bench considered the validity of an order passed by the Government under Section 99 of the Hindu Religious and Charitable Endowments Act, 1951 (Madras). By the said order the Government cancelled the sanction given for transfer of immovable property of a Devaswom. The initial order was passed by the Commissioner for sanction to lease 600 acres of forest land belonging to Emoor Bhagavathy Devaswom. The said order was passed in the year 1960 and the Government cancelled the same by Ext. P5 order dated 23.2.1967. The Full Bench, speaking through K.K. Mathew, J. (as he then was), traced the principles regarding the rights of an authority to protect the institution like Devaswom in order to prevent fraud. The relevant parts of the discussion contained in paragraphs 5 and 6 are extracted below:
  • “5………… The power to cancel a sanction and thereby to make null and void an improvident transfer or alienation of immovable property of a Devaswom, though exercised under the guise of revision, is visitorial in character. It is a matter of common knowledge that even from very early times religious and charitable institutions in India came under the special protection of the ruling authority. The rulers of the country always asserted their right to visit these institutions in order to prevent fraud and redress the abuses in their management. In the celebrated Rameswar Pagoda case, LR. 1 I. A. 299 it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management…………….”

In Prasannakumar v. The State of Kerala,(WP No.  6689 of 2013, 16-10-2014, T.R. Ramachandran Nair, P.V. Asha, JJ.) held further as under:

  • 60. As far as the property of the Temple is concerned, this Court will be right in exercising the parens patriae jurisdiction. The Division Bench in paragraphs 61 and 63 of the judgment in Mohanan Nair’s case (2013 (3) KLT 132) has considered two aspects, viz. the power of this Court to interfere even if there is inaction on the part of the Board and the importance of protecting the interest of Deity. Herein, what we find from Ext. P7 order is that a complaint was made by the Temple Advisory Committee which was considered by the learned Ombudsman appointed by this Court for Travancore and Cochin Devaswom Boards. The learned Ombudsman had also directed the third respondent to take urgent action for recovery of Devaswom property. In paragraph 62 of the judgment in Mohanan Nair’s case (2013 (3) KLT 132) this Court relied upon the judgment of the Apex Court

In Gopalakrishnan v. Cochin Devaswom Board (2007 (4) KLT 965) the duty of the courts to protect and safeguard the interest of the Deity has been highlighted as under:

  • “6. The authorities, therefore, support the conclusion that supervision and control of Hindu Religious and Charitable Institutions is a function of government and that government at all times asserted and exercised the power. Although India is today a secular State, “that would not preclude the secular administration of religious institutions”.
  • (See the observations of B.K. Mukherjee, J. in Commr. HRE v. Swamdur – AIR 1954 SC 282).
  • The fact that government did not exercise the power immediately when it became aware of the circumstances vitiating Ext. P1 order cannot prejudice the interest of the devaswom. If the contention of the petitioner were to prevail, it would mean that because the government was not very vigilant in exercising the power the interest of the devaswom should suffer. S.10 of the Limitation Act, 1963, provides no period of limitation for a suit against a person in whom the trust property has become vested for any specific purpose or against his legal representatives or assigns for the purpose of following in his or their hands such property. The reason behind the section is that an express trust ought not suffer by the misfeasance or non-feasance of a trustee…………. “
  • Their Lordships were of the view that “an express trust ought not suffer by the misfeasance or non-feasance of a trustee.” (quoted in: Mohanan Nair’s case, 2013 (3) KLT 132, and Prasannakumar v. The State of Kerala,(WP No.  6689 of 2013, 16-10-2014, T.R. Ramachandran Nair, P.V. Asha, JJ.)

The Full Bench, in Mohanan Nair’s case, 2013 (3) KLT 132, held that the misfeasance or non-feasance of a trustee and the time lag in the matter and inaction on the part of the Board will not deter the court from passing appropriate orders.

In Achuthan Pillai’s case (1970 KLT 838 – FB) it is held as under:

  • “63. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. This Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, viz. the powers of revision, this Court is having inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Advisory Committee which was formed by the devotees of the Temple about the loss of properties of the Temple itself, the truth of the same can be gone into by this Court in these proceedings.” (quoted in: Prasannakumar v. The State of Kerala,(WP No.  6689 of 2013, 16-10-2014, T.R. Ramachandran Nair, P.V. Asha, JJ.)

In Prasannakumar v. The State of Kerala,(WP No.  6689 of 2013, 16-10-2014), it is further held that the absence of a revision petition under Section 103 of the Act (Kerala Land Reforms Act) against the Order of Land Tribunal will not prevent the High Court, from acting, especially in the light of the inherent jurisdiction available to the High Court and the applicability of the doctrine of parens patriae in the light of the principles rendered by the Full Bench in Achuthan Pillai’s case (1970 KLT 838 – FB) as well as that of the Apex Court in Gopalakrishnan’s case (2007 (4) KLT 965),

See Blog: What is Trust in Indian Law?

Trust Cannot Sue in Its Own Name; Trustee Has to Sue

A trust, not being a legal person, is not entitled to sue in its own name. And, trustee being the legal owner of the trust property he has to sue or be sued for and on behalf of the trust[14] (actually refers to beneficiaries). The Code of Civil Procedure does not provide any enabling provision for the trust to sue or for being sued in its name, as allowed in the case of firms (Order XXX, CPC).[15] Trust need not be arrayed as an eo-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustee who is to be impleaded to represent the trust.[16]  

Section 29 of the Rajasthan Public Trust Act reads as follows:

  • “Bar against suits by unregistered trust– (1) No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any court.
  • (2) The provisions of sub-section (1) shall apply to claim of set off or other proceeding to enforce a right on behalf of such public trust.”

It appears that the words “on behalf of” has some significance. These words support the argument that a Trust cannot file a suit in its name and that it can be filed through trustees alone. But, in Ambalal Dhakad v. Assistant Commissioner, 9 December, 2024 (Raj) took the stand – “the Public Trust is a necessary and proper party for the adjudication of the appeal”.

Representation of Beneficiaries, Under O XXXI  R 1 CPC

Order XXXI, Rule 1 CPC deals with the representation of beneficiaries in suits concerning property vested in Trustees.  It lays down that the beneficiaries shall be represented by trustee.[17]

Suits Must Be By All Trustees

Rule 2 of Order XXXI CPC says that where there are several Trustees, ‘they shall all be made parties to a suit against one or more of them’.[18]  Therefore, when a suit is filed against the ‘trust’, all the trustees must be joined as defendants.

It is important to consider the effect of the provisions of the Indian Trusts Act in this regard.

Section 47 of the Indian Trusts Act, 1882, reads:

  • 47. Trustee cannot delegate.  A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the declaration is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.”

Section 48 states:

  • 48. Co-trustees cannot act singly.  When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.”

Our courts found it legitimate to bring the principles in these provisions to the matters of Public Trusts also. It is held that those principles will not become untouchable for it is incorporated in the Trusts Act.[19]  And, it must be remembered that that the Trusts Act of 1882 embody nothing more or less than the principles which have been applied to all trusts in all countries. [20]

Same will be the position even if the suit is filed by the Managing Trustee. [21] The argument that he was unanimously chosen by the co-trustees will not satisfy the requirement. If any one or more of them are unwilling or, for some reason or the other, if it is not possible to join them as plaintiffs, they must be impleaded as defendants.[22]  But, if the instrument of trust so provides, all co-trustees need not join in filing a suit  to recover possession of the property from the tenant after  determination of the lease. [23]  It may also be possible if the delegation is in the regular course of business or the delegation is necessary; or the beneficiary being competent to contract, consents to the delegation.[24]

Suit by One of its Trustees: Effect

The trustees altogether constitute one body in the eye of law and all must act together. A suit against a trust is not maintainable without impleading all its trustees. However, suits can be filed by any one (or more) of the trustees, when so authorised in that behalf by the rest.[25] But such sanction or approval must be strictly proved.[26]  It is doubtful whether it can be by a resolution, otherwise than executing powers of attorney. Similarly, all co-trustees together should determine the tenancy by issuing notice;[27] and all together should file the suit for eviction.[28]  In J.P. Srivastava and Sons (P) Ltd. Vs. Gwalior Sugar Co. Ltd. (2005)[29] it is held by the Supreme Court as follows:

  • “Therefore, although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all
  • (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees;
  • (2) where there is express sanction or approval of the act by co-trustees;
  • (3) where the delegation of power is necessary;
  • (4) where the beneficiaries competent to contract consent to the delegation;
  • (5) where the delegation to a co-trustee is in the regular course of the business,
  • (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly. “

Our Apex Court, in Kanakarathanammal Vs. Loganatha  Mudaliar (1965),[30]  has observed that where all the trustees were not joined as parties the omission was fatal and that in appropriate cases it was not impermissible for the Court, to permit the impleading of the other Trustees in exercise of its powers under Order I Rule 10 (2) of the CPC, 1908. The Apex Court cautioned that this should be done at the stage of trial and that too, without prejudice to the plea of the parties as to limitation.

But it is held otherwise by Bombay High Court in Namdeo Vs. Shahi Gupta Masjid Chandrapur,[31]  pointing out that the trust represented by one of the co-trustees itself was the ‘landlord’ and that the ‘landlord’ was entitled to file a petition for eviction under the Rent Control Act and also referring the definition of ‘landlord’ mentioned in the Act.

Dr. BK Mukherjea, J. on The Hindu Law of Religious and Charitable Trusts speaks in this regard as under:

  • “When there are more Shebaits than one, they constitute one body in the eyes of law, and all of them must act together. The management may be for practical purposes in the hands of one of the Shebaits who is called the managing Shebait or the Shebaits themselves may exercise their right of management by turns; but in neither case it is competent for one of the Shebaits to do anything in relation to the Debutter estate without the concurrence either express or implied of his co-Shebaits. This is of course, subject to any express direction given by the grantor.”[32]

If the Trust Deed Permits One Trustee can Execute the Duties

In J.P. Srivastava and Sons (P) Ltd. v. Gwalior Sugar Co. Ltd., AIR 2005 SC 83; (2005) 1 SCC 172, our Apex Court held – if the trust deed so permits, one trustee can execute the duties for other trustees also. It is referred to in the following decisions:

  • Charu Kishor Mehta v. Joint Charity Commissioner, 2015-8 SCC 207
  • Tapendro Mullick v. Kumar Mrigendro Mallick, 20193 CHN 640 (Cal)
  • Life Insurance Corporation of India v. Digvijaysingh Gangasingh, 2017-6 AllMR 346; 2018-1 MhLJ 259
  • Namdeo v. Shahi Gupta Masjid Chandrapur, 2014-3 AllMR 592; 2014-4 MhLJ 209
  • Shyamabai v. Madan Mohan Mandir Sanstha, 2014-1 AllMR 810; 2014-2 BomCR 436; 2014-2 MhLJ 547
  • Indian Youth Centres Trust v. Shishir Bajaj, 2012-193 DLT 584
  • Shyamabai v. Madan Mohan Mandir Sanstha, AIR 2010 Bom  88
  • Canbank Mutual Fund v. Nuclear Power Corporation, 2007-145 DLT 1; 2007-98 DRJ 464; ILR 2007-16 Dlh 1303.

Shebait  to Institute Suits; Not Idol

Though Idol or deity is regarded in law as a juristic person, the suit by or against a deity has to be represented necessarily by a natural person.[33]  Shebaits[34] are the proper persons to represent a deity. It had been held by the Calcutta High Court in AG of Bengal Vs.  Balkissen[35] that after the appointment of Shebait the right to sue for possession of the property, with which the idol is endowed, belongs to the Shebait and not to the idol.[36]

The Privy Council, in Jagadinadra  Nath Vs.  Hemanta  Kumari Debi (1904),[37] declared the legal position as under: 

  • “… The possession and management of the dedicated property belong to the Shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the Shebait and not in the ‘idol’…”[38]

Our Apex Court, in Vemareddi  Ramaraghava  Reddi Vs. Kondaru  Seshu  Reddi,[39] Bishwanath Vs. Sri Thakur Radha Ballabhji[40] and M Siddhiq, it was held that the possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait. But where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties.

Inherent Right of Idol to Sue for Recovery of Property

In Siddiq (D) Thr.  Lrs.  Vs. Mahant Suresh Das[41]  our Apex Court pointed out that the idol is not deprived of its inherent and independent right to sue in its own name in certain situations. It reads as under:

  • “Ordinarily, the right to sue on behalf of the idol vests in the Shebait. This does not however mean that the idol is deprived of its inherent and independent right to sue in its own name in certain situations. The property vests in the idol. A right to sue for the recovery of property is an inherent component of the rights that flow from the ownership of property. The Shebait is merely the human actor through which the right to sue is exercised. As the immediate protector of the idols and the exclusive manager of its properties, a suit on behalf of the idol must be brought by the Shebait alone. Where there exists a lawfully appointed Shebait who is able and willing to take all actions necessary to protect the deity’s interests and to ensure its continued protection and providence, the right of the deity to sue cannot be separated from the right of the Shebait to sue on behalf of the deity. In such situations, the idol’s right to sue stands merged with the right of the Shebait to sue on behalf of the idol.”

The Supreme Court quoted Justice BK Mukherjea in “The Hindu Law of Religious and Charitable Trusts”. It says as under:

  • “This decision [in Jagadindra Nath], therefore, establishes three things:
  • (1) That the right of a suit in respect of the deity’s property is in the Shebait;
  • (2) this right is a personal right of the Shebait which entitles him to claim the privilege afforded by the Limitation Act; and
  • (3) the Shebait can sue in his own name and the deity need not figure as a plaintiff in the suit, though the pleadings must show that the Shebait is suing as such.”

Can an Idol Sue as an Indigent Person

Order XXXIII, CPC does not suggest that the word ‘person’ in is exhaustive; and it does not exclude categories of Juristic Persons. Therefore a company or corporation can invoke provisions of Order XXXIII CPC.[42] The same principle applies to suits filed by Idol through its human representative.[43]

Should Idol be a Necessary Party to Suits?

When Trust Admitted, Deity Not a Necessary Party

Trust property being vested in the Shebaits, ordinarily, the right to sue on behalf of the idol vests in the Shebait.[44] Therefore, the Idol is not a necessary party in such suits. Similarly, when the trust is admitted by both sides, in a suit for removal of a trustee on the ground of breach of trust, the Deity is not a necessary party.[45] In Monindra Mohan Vs. Shamnagar Jute Factory[46]  the Calcutta High Court held that the deity was not a necessary party in a suit filed on behalf of the Hindu public for declaration that the land in question was a Debasthan of the idol and that it was a public place of warship.

If it comes necessary to sue against a Shebait, the Idol should, usually, be made a party to the suit.[47] The Patna High Court, in Sri Ram Vs. Chandeswar Prasad,[48] took the view that when the Shebait denied the right of the idol to the dedicated properties, it was desirable that the idol should file a suit through a ‘disinterested’ next friend appointed by the court. As to the right to maintain the suit in respect of endowed property it was held by Calcutta High Court in Tarit  Bhushan  Rai Vs.  Sri Iswar Sridhar Saligram  Shila[49] as under:

  • “(1) the idol itself, as a juristic person, has the right of suit;
  • (2) the Shebait, the human agency through whom the idol must act, has a distinct right, distinct from and in normal cases in supersession of the idol’s right of suit; it is this right of suit which has been said to be vested in the Shebait and not in the idol;
  • (3) the prospective Shebait, as persons interested in the endowment, have a right of suit.”[50]

In  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case)[51]  our Apex Court explained the position and held as under:

  • “A suit by a Shebait on behalf of an idol binds the idol. For this reason, the question of who can sue on behalf of an idol is a question of substantive law. Vesting any stranger with the right to institute proceedings on behalf of the idol and bind it would leave the idol and its properties at the mercy of numerous individuals claiming to be ‘next friend’. Therefore, the interests of the idol are protected by restricting and scrutinising actions brought on behalf of the idol. For this reason, ordinarily, only a lawful Shebait can sue on behalf of the idol. When a lawful Shebait sues on behalf of the deity, the question whether the deity is a party to the proceedings is merely a matter of procedure. As long as the suit is filed in the capacity of a Shebait, it is implicit that such a suit is on behalf of and for the benefit of the idol.”

In The Banaras Bank Ltd. Vs. Bhagwan Das,[52] Allahabad High Court, pointing out that the necessary party was not defined in the Code of Civil Procedure, it was observed that there were two tests by which the question as to necessary party could be determined. Firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question and secondly it should not be possible to pass an effective decree in the absence of such a party. In  Upendra  Nath  Vs. Nilmony[53] it was held that in a suit for framing a scheme[54] as between co- Shebaits a deity was not a necessary party unless its interests were likely to be affected by the scheme proposed.[55]   

In Doongarsee  Shyamji  Vs.  Tribhuvan Das[56] it was pointed out that where the Shebait of a temple had done something which was obviously adverse to the interest of the institution, court would allow a disinterested third party to file a suit, but such a suit should have been filed in the interest of the foundation or the deity.

But, when the right or title over the property is in dispute or when the Shebaits raise claim adverse to Idol,[57] the Deity should be a necessary party. Likewise, the Deity should be a necessary party in a suit for declaration that the Deity and the property are not a public trust, but are private property.[58]

The decree for recovery of possession can be passed in a suit, if only the plaintiff has a present right to be in possession of the properties. If the deity was represented by a duly appointed next friend or the Shebait/trustee was made a party to the suit, if the alienation was found to be bad, the court could direct delivery of possession of the trust property to the trustee after declaring the alienation invalid. [59]   But, in a case where neither the deity nor the trustee is a party, the court cannot pass a decree permitting the worshipper to recover possession; for, if such a decree is passed, only the plaintiff therein could execute the same; in such an event, the property may not inure to the benefit of the temple; and if the property does not go to the hands of the trustee, the trustee may have to file a suit again for the same. This appears to be the logic and reason, as pointed out by the Kerala High Court in Chandrasekhara Menon Vs. Divakaran Namboodiri,[60] behind the principle that a decree for recovery of possession cannot be granted in a suit filed by a worshipper without the deity or the trustee is in the array of parties.

Right to file Suits – Other Than Shebaits

On the basis of Section 63 of the Indian Trusts Act (applicable to private trusts) it is observed by the Bombay High Court in Bomi Munchershaw Mistry Vs. Kesharwani Co-operative Housing Society Ltd.,[61] as to the authority of the beneficiaries to file a suit, as under:

  • “A gradual loosening of the old rigidity is visible in later decisions: Janakirama Iyer Vs. Nilkanth Iyer, AIR 1962 SC 633, lays it down that Section 63 of the Indian Trusts Act is not exhaustive of remedies available to a beneficiary, where the trustee has improperly alienated trust property. … What Janakirama (supra) specifies is that the beneficiary can sue third parties for more effective reliefs than those contemplated by Section 63.”

Sec. 63 of the Indian Trusts Act reads as follows:

  • 63. Following trust property into the hands of third persons.—Where trust property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.
  • Into that into which it has been converted.—Where the trustee has disposed of trust property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust property.
  • Illustrations
  • (a) A, a trustee for B of Rs. 10,000, wrongfully invests the Rs. 10,000 in the purchase of certain land, B is entitled to the land.
  • (b) A, a trustee, wrongfully purchases land in his own name, partly with his own money, partly with money subject to a trust for B. B is entitled to a charge on the land for the amount of the trust money so misemployed.

In Bomi Munchershaw Mistry Vs. Kesharwani Co-operative Housing Society Ltd. after referring various decisions the position in this point is summarised by the Bombay High Court as under:

  •  “(a) A beneficiary can in certain circumstances sue a third party for an injury or threatened injury to trust property.
  •  (b) In certain suits depending on circumstances the beneficiaries need not establish collusion between trustee and third party.
  •  (c) The beneficiary definitely has the capacity to sue a third party when the trustee is unwilling, refuses or has precluded himself from suing.
  • (d) Where the trustees collude, whether overtly or covertly, with the third party a beneficiary can obviously sue.
  •  (e) The beneficiary suing need not ask for displacement of the trustee and his replacement by a new trustee in a suit to recover alienated or adversely affected property in the hands of a third party.
  • (f) A reversioner or the remainder man can sue even if he be a beneficiary at the date of suing.
  • (g) Section 40 of the T.P. Act aids plaintiff as a reversioner to enforce his rights against defendant 1 under section 40 of the T.P. Act.”

Our courts unhesitatingly apply the general principles come out from the Trust Act in the matters of public trusts also.

An idol of a Hindu temple is a juridical person. A Shebait or a trustee tmanages its affairs. Ordinarily no person other than the Shebait or trustee can represent the idol in legal proceedings. Under Indian law, a trustee is regarded as the sole (legal) owner of the trust property;[62] for, the ‘beneficial ownership’ with beneficiaries is not recognised by Indian law.[63]  But any person who is interested in the matters of a trust can bring a suit for preservation and maintenance of the dedicated property.[64] It can be:

  • a prospective Shebait,[65]
  • de-facto  Shebait,
  • de facto manager,[66]
  • worshipper,[67]
  • beneficiary
  • who has made large donations [68] or
  • a contribution.[69]

In Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy[70]  our Apex Court  held as under:

  • “As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that the property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait.[71] But where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or is a prospective Shebait legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend, nominated by the court…”[72]

Dr. BK Mukherjea, J. on The Hindu Law of Religious and Charitable Trusts reads:

  • “The trust itself does not fail. …. The property does not revert to the representatives or the heirs of the settlor testator who has already divested himself of the title and interest in the property by creating a valid and complete trust. ….. That is, the beneficiaries can enforce it, or the object of the trust can be enforced where beneficiaries are not capable of suing”[73]

Right of Defacto Shebait to File Suits

A de facto Shebait is entrusted with the power and the duty to carry out the purpose of the debutter in respect of the idol and its properties.  Justice Viswanatha Sastri of the Madras High Court considered who is a de facto trustee, in Sankar-narayanan Iyer Vs. Sri Poovananatha-swami Temple. He had held as under:

  • “A fugitive or isolated act of a person with regard to the property of a religious endowment would not make him a de facto trustee. One swallow does not make a summer. There must be a continuous course of conduct, the length of the same depending on the facts and circumstances of the case. The possession of the office or the institution which is the object of the trust and the exercise of the rights pertaining to the office, would be important indicia of a de facto trusteeship.”

The rights of a de facto trustee to institute suits on behalf of the deity can be traced to the Privy Council decisions in Mahant Ram Charan Das Vs. Naurangi Lal (1933)[74] and Mahadeo Prasad Singh Vs. Karia Bharti (1933)[75]. Relying on the first decision it was held in the latter decision that a person in actual possession of the math is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the math. [76]  

The Supreme Court in Vikrama Das Mahant Vs. Daulat Ram Asthana (1956)[77] held that a person who has been in de facto possession and management of the Asthan and its properties from 1934 onwards, claiming to be its trustee under the decree of a Court, valid or invalid, had sufficient interest to maintain proceedings for the warding off of a cloud cast by the defendant’s action against the interests of the Asthan. The Court relied on, Mahadeo Prasad Singh vs. Karia Bharti[78] and Ram Charan Das vs. Naurangi Lal.[79]

Recognition of De facto Shebait – Principle:  Paramount Interest of the Debutter

It is held in  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case)[80] that these principles relating to a defacto Mahanth can be applied to a de facto Shebait of an idol and its properties also; and that the paramount interest in the protection of the debutter property underlines the recognition of a de facto Shebait. The Supreme Court relied the following passage from the judgment of Madras High Court in Subramania Gurukkal Vs. Abhinava Poornapriya A Srinivasa Rao Sahib (1940)[81]

  • “It is the duty of the Court to protect trust property from misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title to take those actions which are necessary to safeguard the objects of the trust.”

Shebaits Neglect Duties: Suit for Proper Administration of Trust

If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. A suit can also be filed for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. [82]

In Aurobindo Ashram Trust Vs. S Ramanathan[83] it is held by Madras High Court that there was no breach of trust on the part of trustees of Sri Aurobindo Ashram if one of the inmates published a book containing derogatory remarks about Sri Aurobindo, and no action had been taken by the trustees, since the Ashram has nothing to do with it. But, the court observed that plaintiffs have made out a case to bring the suit within the ambit of Sec. 92 CPC.  The Court held as under:

  • “Nevertheless, having regard to the prayer in the suit viz., steps to be taken to ensure withdrawal of the book, the plaintiffs seek a direction of the court for the administration of the trust. Therefore, having regard to the intention of the plaintiffs in directing a ban on the book which contained derogatory remarks against Sri Aurobindo and having regard to the fact that no action has been taken by the trustees to secure the ban or take any action against the author of the book, in my opinion, the plaintiffs have made out a case to bring the suit within the ambit of Section 92 of the Code of Civil Procedure and therefore, the court below has rightly rejected the application to revoke the leave.”

Right of a Worshipper to file Suit for Recovery: Principles

Right to worship is a civil right.[84] A worshipper of an idol being its beneficiary in a spiritual sense, he is entitled to represent the idol when the Shebait or trustee acts adverse to its interest or fails to take action to safeguard its interest. When the person who is duty-bound to and empowered to protect the idol leaves the idol in a lurch, a person interested in the worship of the idol can certainly be clothed with the authority to protect the interests of the idol. The principle being that, such suits are in effect, suits on behalf of the trust and the worshippers must be deemed to be invoking the right of the trustee. Therefore, the worshippers are entitled to institute a suit even for a mere declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple.[85]

When the Shebait acted adversely to the interest of the idol and fails to take action to safeguard its interest, it is held by our Apex Court in Bishwanath  Vs. Thakur Radha  Ballabhji[86] that there was no justification for denying the right to a worshipper to file suit to seek appropriate reliefs. It is also observed that an idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol could certainly be clothed with an ad hoc power of representation to protect its interest.[87] The Supreme Court observed that it had been held in a number of decisions[88] that worshippers may file a suit praying for possession of a property on behalf of an endowment. 

In Ramchand  Vs. Janki  Ballabhji  Maharaj[89] the Supreme Court held that a person, who has made large donations for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession of the temple and its property against the Pujari or Manager, on behalf of the deity to protect the property from mismanagement or misappropriation.

Own Right of Worshipper to file Suit for Protection and Recovery

It is now a settled law that a worshipper has his own right to institute a suit to protect his right to worship and for that purpose to protect the debuttar property and that he can do so in his personal capacity as worshipper and not as a next friend of the deity.[90]

In  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case)[91] it was pointed out that Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy[92]  was arisen from a suit not instituted on behalf of the deity. But, it was instituted in a personal capacity by the worshipper seeking a declaration that the property in question was debutter property. In this context, in Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy, it had been held:

  • “If a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of a temple are in the position of cestuui que trust or beneficiaries in a spiritual sense. … Since worshippers do not exercise the deity’s power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity…”[93]

The right of worshippers to file suits, for reliefs outside S. 92 CPC, is well accepted.[94] It has been clearly laid down by the Supreme Court in Deoki  Nandan  Vs. Murlidhar[95]  that the worshippers have ‘beneficial interest’.[96]  Where the Shebait functions normally, the deity’s right to sue lies dormant; but as soon as the Shebait is unable to act, or his own act is questioned, certainly a person who has a beneficial interest should be allowed to take steps to prevent the idol’s interest being jeopardised.[97] Where a Shebait or even a de facto Shebait is absent, a person who has beneficial interest will be permitted to come forward.[98]

It is clear, in peculiar circumstances, the Idol can sue or be sued through persons, other than Shebaits. It may be a beneficiary, that is, a worshipper (in case of a public temple) or a member of the family (in case of a private temple). Apart from representing the deity they have the authority to institute a suit in their own name for seeking certain reliefs. It includes suits for protection and recovery of property belonging to the deity. It is observed by Delhi High Court in Vaidyaratnam PS Variers Arya Vaidyasla Vs. KC Vijaikumar[99]  that there is no reason why a suit by one co-trustee should not be maintainable against a trespasser.

The beneficiary of the trust in respect of a Muhammadan Wakf, interested in the maintenance of a mosque or other charitable institution, may, without having recourse to Order 1 Rule 8 of CPC and without suing in a representative capacity, on behalf of the other beneficiaries, sue for recovery of possession of property, wrongfully alienated by the trustee, and for the incidental declaration that theproperties are the subject of the trust and that they cannot be alienated.[100]

Right of Parishioners to Sue against Third Parties

Though the property of a Catholic Church vests in the hands of the Bishop or the Vicar, in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[101]  it is observed by the Kerala High Court that the parish being by law a public juridic person, the elected representatives of the parishioners entrusted with the administration of the church were competent to represent the juridic person; and that they were competent to initiate proceedings before a Civil Court with the ultimate aim of protecting the property belonging to the church. 

Private Trust: Scheme and Removal of Trustee – Civil Court has Jurisdiction

Section 92 CPC will not apply to private trusts, and suits relating to religious[102] private trusts are not governed under the Indian Trusts Act, 1882. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right[103] under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.

In Thenappa  Chettiar  Vs.  Karuppan  Chettiar[104] the Supreme Court held that even in the case of a private trust, a suit could be filed for settlement of a scheme for the purpose of effectively carrying out the object of the trust. If there is a breach of trust or mismanagement on the part of the trustee of a private trust, a suit can be brought in a Civil Court by any person interested for the removal of the trustee and for the proper administration of the endowment.

Compromise of a Suit Relating to Public Trust

Compromise of a suit relating to public trust was prima facie against public policy, yet the court had jurisdiction to sanction it if it was not detrimental to the interest of the trust and was lawful.[105]

Suits in Matters of Private Religious Trusts

Under general law, founder or heirs to institute suits

A family idol can sue or be sued through Shebaits; or a beneficiary, that is, a member of the family. BK Mukherjea (Tagore Law Lectures) on Hindu Law of Religious and Charitable Trusts it is observed:

  • “The suits relating to such private trust are not regulated by any statute as in the case of public trusts; they are governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights. In a private or family debutter, the beneficiaries are a limited and defined class of persons, viz. , the members of the family. If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. The suit could be for the removal of the trustee with a prayer for accounts as ancillary to the removal. It would lie for a declaration that any alienation of the debutter property is not binding on the deity or for recovery of possession of the property thus wrongfully alienated. A suit can also be filed for settlement of a scheme for the purpose of effective carrying out of the trust.”

The learned author has extracted the observations of Asutosh  Mukherji, J. in Manohar  Mukherji V. Raja Peary Mohan Mukherji.[106] He had also quoted the observations in Bimal Krishna Vs. Iswar  Radha   Ballav.[107]

In Mahant Ram Saroop  Dasji  Vs. S P Sahi Special Officer[108] it is held by our Apex Court as under:

  • “In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one.”

Suits Against Public Charitable Trusts Under NI Act 

To the question whether a Public Charitable Trust (organisation) has been recognised as a juristic person for the purpose of Negotiable Instrument Act, it is held in Abraham Memorial Vs C. Suresh Babu[109] that a Public Charitable Trust being capable of contracting, and making and issuing a cheque or Bill (Sec. 26), it is a juristic person for the purpose of the said Act; and that a Trust, either private or public/charitable or otherwise, is a juristic person liable for punishment for the offence punishable under Sec. 138 of the N I Act.

Suit by the Deity: Outside S. 92 CPC

The suit by the deity for declaration and possession challenging the alienation is for the enforcement of a private right. Such a suit falls outside the purview of S. 92 CPC and is not barred.[110]

A representative suit does not abate on the death of the plaintiff

In G. Christhudas v. Anbiah, 2003-3 SCC 502, the Apex Court held that a representative suit does not abate on the death of the plaintiff. It is for two reasons:

  • Firstly the plaintiff does not represent only himself but represents all other persons on whose behalf he is prosecuting the suit, thus all those persons are also parties to the suit albeit constructively, the conduct of the suit being in the hands one person to whom permission has been granted by the court and in case of his death, any other person can continue the suit.
  • And secondly, the persons represented by the plaintiff cannot said to be legal representatives of the deceased plaintiff within meaning of Section 2 (11) of Code of Civil Procedure and hence the provisions of order 22 would not apply to such case. (See: Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024)

On death of a Trustee, Trust Would Not Fail; Vests in Remaining Trustees

In Kapoorchand Rajendra Kumar Jain v. Parasnath Digambar Jain Bada Mandir, 2000-1 MPJR 199, it is held as under:

  • “A trustee exercises the rights of the beneficiary in such a dispute. He represents and personates the beneficiary, while dealing with the world at large. Thus, he acquires a legal personality. If there be more than one trustee, then all of them conjointly form a corporate or legal personality. This principle has been recognized under Order 31 Rule 1 of the Code of Civil Procedure. The Court has ample power to order that a suit on behalf of the beneficiary shall be represented by one or more trustees. Where there be order of the Court or if the requirement of the law, all trustees have to be joined as parties to the suit. The trust would not fail because one of the trustees had died after filing of the suit. The body of trustees is not dissolved. The trust vested in the remaining trustees shall continue. The rights and the duties of the trustees are not abrogated by the death of one of trustees. So in this case, the remaining trustees after the death of two trustees could continue the suit. The right to sue for and on behalf of the beneficiary continued. There was no abatement. This principle was recognized by the Privy Council in the case of Raja Anand Rao v. Ramdas Daduram and others, reported in AIR 1921 P.C. 123, wherein their Lordships stated that a suit, filed under Section 539 of the Code of Civil Procedure Code, 1882, could continue even after the death of person whom the Court granted permission to sue. It could be continued by a member of the public. This case was referred to with approval of the decision in the case of Charan Singh and Anr. v. Darshan Singh and others, reported in AIR 1975 SC 371 (at para 5 page 373). In somewhat similar circumstances, the Supreme Court in the case of Krishna Singh v. Mathura Ahir and others, reported in AIR 1980 SC 707, held that the death of Mahant during the pendency of a suit for ejectment brought by him against a trespasser would no cause the suit, to abate. It is true that the obligations of a Mahant are not that of a trustee but his office is akin to the office of a trustee. Therefore, the principle laid down in that case would apply.”

O 22 Not Apply to Repre. Suits where devolution (Not Substitution) takes place

In Jagadamba Bai & Beharilal Khandelwal v. Biswanath Jhunjhunwala, 1978 Cal HN 1050, it is observed as under:

  • 8. In a case reported in AIR 1975 SC page 371 between Charan Singh v. Darshan Singh, Supreme Court has held that where the suit is filed in a representative capacity death of one of the plaintiffs during the pendency of the appeal, the appeal does not abate. In AIR 1921 PC at page 123 in the case of Raja Anand Rao v. Ramdas Dadu Rao, a distinction was drawn between a suit which was prosecuted by an individual for his own interests and persons suing as representatives of the general public.
  • 9. Order 22 of the Civil Procedure Code provides the rules for recording the death and/or substitution of the parties. Order 22 Rule 1 provides-
    • “The death of a plaintiff or defendant shall not cause a suit to abate if the rights of suit survive”.
  • Order 21 Rule 2 provides that
    • where there are more plaintiffs or defendants than one, and anyone of them dies and where the rights of a suit survive against the surviving defendants alone, the court shall cause an entry to that effect to be, made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.
  • Order 22 Rule 10 provides
    • in other cases of assignments, creation or devolution of interest during the pendency of a suit, the suit may by leave of the court be continued by or against the person to or upon whom such interest has come or devolved.
  • 10. Order 22 does not apply to representative suits. Suits brought in a representative character can be continued under Order 22 Rule 20(10) by the successor in office. Where a trustee dies or retires or is removed and another is elected it is a case of devolution. In this respect the relevant cases are reported in AIR 1928 Cal. page 651 and also in AIR 1926 page 540. The right to apply in such a case is pending law and accrues from day to day and is therefore not barred by the law of limitation. In this respect, reference can be made to cases reported in 57 CWN page 710 and also AIR 1952 Pat. 323 and 30 Cal. page 609. In case reported in 36 CWN at page 816 (Sri Sri Keshab Rai Jeu Thakur & Raja Jyoti Prasad Sinsh Deo) a Division Bench judgment of this High Court presided over by Mitter J. and Bartley J. it was held that Order 22 Rule 10 of the Civil Procedure Code applies to a case of substitution of a person who had sued or held been sued against in a representative capacity. In the case reported in 27 CWN at page 710 which was referred in my order, Chatterjee J. and Pearson J. held that where the heirs are substituted on the ground of devolution of interest such interest would be governed by Order 22 Rule 10. It further held that three months limitation does not apply to a case of devolution pending the suit. It further held that application under Order 22 Rule 10 can be made in the Appellate Court even over the devolution of interest when the case was pending before the Trial Court.”

On death of a Trustee, new Trustee cannot be a Legal Representative

It is pointed out in Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024) the Apex Court had held, in two cases, that on the death of a trustee new trustee (elected or appointed) cannot be said to be a legal representative of the deceased trustee but is a person on whom the interest of the Trust property devolves, under the provisions of Order 22 Rule 10; as it applies to him. The cases referred to by the J&K High Court are the following –

  • Charan Singh v. Darshan Singh,1975 (1) SCC 298;
  • Karuppaswamy v. C. Ramamurthy, 1993(4) SCC 41.

But, in G.F.F. Foulkes v. A.S. Suppan Chettiar, AIR 1951 Mad 296, it was held as under:

  • “When a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate because, the right to represent others of a class is not right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other persons should be joined. The proper procedure , in a case like this, is for the remaining person or persons to apply to the Court for directions and it is for the Court to decide whether it will permit the remaining person or persons to whom the original sanction was given to continue to prosecute or defend the suit or appeal or it will give directions to bring on record additional person or persons.”

In a subsequent suit, Ram Kumar v. Jiwanlal, AIR 1960 Mad 288, the Madras High Court took a liberal view. It was held in this decision that a representative suit does not abate on the death of the representative as he or she can be substituted by another member of the plaintiff on defendant. (See also: Raja Anand Rao v. Ramdas Daduram, AIR 1921 PC 123, State of Rajasthan v. Mst. Parwati Devi, AIR 1966 Raj 210).

Removal of Trustees

See Blog: Breach of Trust and Removal of Trustees

Suit Against Deity: Appointment of Next Friend

See Blog: Is an Idol a Perpetual Minor?

Book No. 4: Common Law of TRUSTS in India

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[1]    Government of the Province of Bombay Vs. Pestonji Ardeshir Wadia:  AIR 1949 PC 143; Duli Chand Vs. Mahabir  Pershad  Trilok Chand Charitable Trust: AIR 1984 Del 144; Ramdass Trust Vs. Damodardas: 1967 Raj LW 273; Thiagesar Dharma Vanikam Vs.  CIT: [1963] 50 ITR 798 (Mad).

[2]    Kishorelal  Asera Vs. Haji Essa Abba Sait Endwts.: 2003-3 Mad LW 372: 2003-3 CCC367

[3]    Cheriyathu  Vs.  Parameswaran  Namboodiripad: 1953 Ker LT 125;  Thenappa  Chettiar  Vs.  Karuppan  Chettiar: AIR 1968 SC 915, Also 1953 Ker LT 117; AIR1922 P. C. 253 AIR 1925 PC 139.                                          

[4]    AIR 1995 SC 2001.

[5]    See Chapter: State & Court – Protectors of All Charities

[6]    AG Vs. Pearson: (1817) 3 Mer 353; Ram Dularey Vs. Ram Lal: AIR 1946 PC 34. Quoted in KS VargheseVs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333. Rajendra Gupta VS Corporation of Chennai, rep. by its Commissioner: 011 4 LW 633,  Rajagopal v. Balachandran: 2002 (2) CTC 527, See also: Narasimhiah Vs. Y H Venkataramanappa: AIR 1976 Kar 43.

[7]    C.K. RajanVs. Guruvayoor Devaswom Managing Committee: .AIR 1994 Ker 179. [Appeal Judgment: Guruvayoor Devaswom Managing Committee Vs. C.K. Rajan: AIR 2004 SC 561: (2003) 7 SCC 546]; Fakhuruddin Vs. Mohammad Rafiq: AIR  1916 All 115 (PC);  C  ChikkaVenkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chettiar Vs. Kuruppan Chettiar AIR 1968 SC 915; Sridhar Vs. Shri Jagan Nath Temple, AIR 1976 SC 1860; Yogendra Nath Naskar Vs. Commissioner Of Income Tax Calcutta: AIR 1969 SC 1089. Ch Hoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265;  I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337; Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309. See also: Mulla’s Hindu Law (11th Ed. Page 489) and Dr. B.K. Mukherjea: Hindu Law of Religious and Charitable Trusts (Fifth Ed, Page 407 and 412).

[8]    C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296: Narayan Krishnaji Vs. Anjuman E Islamia:  AIR 1952 Kar 14; Thenappa Chettiar Vs. Kuruppan Chettiar AIR 1968 SC 915; Subramonia PillaiChellam Pillai Vs. Subramonia Pillai Chathan Pillai: AIR 1953 TC 198;  M.G. Narayanaswami Naidu Vs. M. Balasundaram Naidu: AIR 1953 Mad 750.

[9]    ChHoshiar Singh Mann Vs. Charan Singh Laws(Dlh)-2009-4-105 ILR (Dlh)- 2009-19-265, See also Thenappa Chettiar Vs. Kuruppan Chettiar AIR 1968 SC 915; I Nelson Vs. Kallayam Pastorate  AIR 2007 SC 1337.  

[10] Sujan Mohinder Charitable Trust VS Mohinder Kaur: 2019 0 Supreme(Del) 281, AM Shamsudeen Vs AM Mohamed Salihu: 2004 2 LW 487; 2003 2 MLJ 526.

[11] In-Re, Man Singh AIR 1974 Del. 228

[12] 2017-8 MadLJ 529

[13] Referred to in: Thatha Sampath Kumar Vs. Vupputur Alwar: 2019-3 MadLW 705

[14]   Gopal Krishnaji Ketkar Vs. Mahomed Jaffar Mohamed Hussein: AIR 1954 SC 5; Duli Chand Vs. Mahabir  Pershad  Trilok Chand Charitable Trust: AIR 1984 Del 144. Kishorelal  Asera  Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC367; KR Rajan Vs. Cherian K. Cherian: LAWS(KER) 2019 11 168

[15]   K. Dhondoji  Rao Vs Dominion of India: AIR 1957  Kar 94.

[16]   KR Rajan Vs. Cherian K. Cherian: LAWS(KER) 2019 11 168

[17] Kishorelal  Asera  Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC367

[18]   See: Profulla  Chorone  Requitte   Vs. Satya  Chorone  Requitte: AIR 1979  SC 1682

[19] Sk. Abdul Kayum  Vs. Mulla  Alibhai: AIR 1963 SC 309; Uttar Pradesh Vs. Bansi  Dhar: AIR 1974 SC 1084; Bai  Dosabai  Vs.  Mathurdas  Govinddas: AIR 1980 SC 1334.

[20] Sheikh Abdul Kayum  Vs. Mulla  Alibhai:  AIR 1963 SC 309

[21]   Shanti Vijay Co. v. Princess Fatima Fouzia: AIR 1980 SC 17 , Vaidyaratnam P. S. Variers Arya Vaidyasla Vs. K. C. Vijaikumar: ILR 1990-1 Del 124, Lala Man Mohan Das Vs. Janki Prasad: AIR 1945 PC 23; L. Janakiraina lyer Kayum Vs. P.M. Nilakanta lyer: AIR 1962 SC 633; Sheikh Abdul Vs. Mulla Alibhai: AIR 1963 SC 309; Shanii Vijay Co. Vs. Princess Fatima Fouzia : AIR 1980 SC 17; Dull Chand Vs. Mahabir Pershad Trilok Chand; AIR. 1984 Del. 145

[22] Vaidyaratnam P. S. Variers Arya Vaidyasla Vs. K. C. Vijaikumar: ILR 1990-1 Del 124. Abdul Kayum Vs. Alibhai: AIR 1963 SC 309; Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin: AIR 1973  Guj 113; Duli Chand Vs. Mahabir  Pershad  Trilok Chand Charitable Trust: AIR 1984 Del 144.

[23]   Sk. Abdul Kayum  Vs. Mulla  Alibhai: AIR 1963 SC 309.

[24]   Vaidyaratnam P. S. Variers Arya Vaidyasla Vs. K. C. Vijaikumar: ILR 1990-1 Del 124

[25]   Kishorelal  Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC367

[26]   Shanti Vijay Co. Vs. Princess Fatima: AIR 1980 SC 17. Lewin’s Law of Trusts referred to. Vaidyaratnam P. S. Variers Arya Vaidyasla Vs. K. C. Vijaikumar: ILR 1990-1 Del 124.

[27] Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin: AIR 1973  Guj 113; Duli Chand Vs. Mahabir Pershad Trilok Chand Charitable Trust: AIR 1984 Del 144.

[28]   Kansara Abdulrahman Vs. Trustees of the Maniar Jamat: AIR 1968 Guj. 184; Uma Ray Vs. Smt. Meghamala: AIR 1989  NOC. 166 (Cal); Iswardas Vs. Maharashtra Revenue Tribunal: AIR 1968 SC 1364; Baisnab Das Sen Vs. Bholanath Sen: AIR 1986 Cal 118; M. M. Nagalinga Nadar Vs. Sri. Lakshmi Family Trust: 2001- 3 MLJ 523.

[29]   (2005) 1 SCC 172.

[30]   AIR 1965 SC 271

[31] 2014-4 AIR Bom R 657

[32]   Quoted in Bhagauti Prasad Khetan Vs. LaxminathjiMaharaj: AIR 1985 All 228

[33]   ProfullaChoroneRequitte   Vs. SatyaChoroneRequitte: AIR 1979  SC 1682

[34]   GopalDatt Vs. Babu Ram: AIR 1936 All 653; Kishore Joo Vs. GumanBehariJooDeo: AIR  1978 All -1.

[35] AIR 1925 Cal 140

[36] It is referred to in Kishore Joo Vs. Guman  Behari  Joo  Deo: AIR  1978 All-1

[37] (1904) 31 Ind App 203 (PC)

[38] Quoted in Bishwanath  Vs. Sri Thakur Radha  Ballabhji: AIR 1967 SC 1044; AIR 1983 All 202.

[39] AIR 1967 SC 436. Referred to in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[40]   AIR 1967 SC 1044: (1967) 2 SCR 618

[41]  2020-1 SCC 1.

[42]   See: Union Bank Of India Vs. Khader International Construction: AIR  2001 SC 2277; Gendalal Cotton Mills Ltd. Vs. Basant  Kumaribai: AIR 1961 Bom 1; Syed Ali Vs. Deccan Commercial Bank Ltd.: AIR 1951 Hydr 124

[43]   See: Union Bank Of India Vs. Khader International Construction: AIR  2001 SC 2277; Mathew Vs. Kerala United Corporation Ltd.: AIR 1961 Ker 180; Jogesh Chandra Bera Vs. Sri Iswar  Braja Raj Jew Thakur: AIR 1981 Cal 259; Shree Shankarji  Maharaj Vs. Mt. Godavaribai: AIR 1935 Nag 209; Moorti Shree BehariJi Vs. Prem Das AIR 1972 All 287.

[44]  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[45]   Hangi Mal Vs. PannaLal:  AIR 1957 All 743

[46] AIR 1939 Cal 699

[47]   Haripada  Vs.  Elokeshi: AIR 1940 All 254. 

[48] AIR 1952 Pat. 438

[49] AIR 1942 Cal  99

[50] Quoted in Thakurji  Maharaj Vs. Dankiya: AIR 1986 All 247.

[51]  2020-1 SCC 1.

[52] AIR 1947 All. 18

[53] AIR 1957 Cal 342

[54]   Bimal Krishna Vs. Iswar  Radha  Ealla:  AIR 1937 Cal 338.  Sukumaran Vs. Akamala  Sree Dharma Sastha Idol: AIR 1992  Ker  406. 

[55] See also: Chamelibai  Vallabhdas  Vs. Ramchandrajee, AIR 1965 M.P. 167.

[56] AIR 1947 All 375; refered to in: Behari Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73

[57]   Bimal Krishna Vs. Iswar  Radha  Ealla:  AIR 1937 Cal 338.  See also: Gajanan Maharaj Sansthan Shegaon Vs. Ramrao Kashinath: AIR 1954 Nag. 212; Thakur   Govind  Deoji  Birajman Vs. Susalli: AIR 1967 All. 278; Jogesh Chandra Bera Vs. Sri Iswar Braja Raj Jew Thakur: AIR 1981 Cal. 259. Further see:  Bimal Krishna Vs. Iswar Radha Ealla: AIR 1937 Cal 338;  Monindra Mohan Vs. Shamnagar Jute factory: AIR 1939 Cal 699;  Upendra Nath Vs. Nilmony: AIR 1957 Cal 342.

[58]   Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi: AIR 1960 SC 100. 

[59] A. Subramania Iyer Vs. P. Nagarathna Naicker: 1909-20 MLJ 151

[60] 2019-1 KHC 270; 2019-1 KLJ 783; 2019-1 KLT 534

[61]   1993-2 BomCR 329

[62]   Chhatra  Kumari Vs. Mohan Bikram: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463; Bai  Dosabai Vs. Mathurdas: AIR 1980 SC 1334; Bomi  Munchershaw  Mistry Vs. Kesharwani Co Operative Housing Society Limited: 1993-2 BCR 301; 1993-2 BCR 32; In Hem Chandra Vs. Suradham  Debya: AIR 1940 PC 134; ME Moolla Sons Ltd Vs. Official Assignee, Rangoon: 38 Bom LR 1011 (PC); Thiagesar Dharma Vanikam Vs. CIT [1963] 50 ITR 798, 807 (Mad); Thanthi Trust Vs. Wealth Tax Officer: 1989-78 CTR 54: 1989-45 TAXMAN 121: 1989-178  – ITR 28.

[63]   In both Common law and under the Indian Trusts Act.  See Chapter: JURISTIC PERSONALITY OF TRUSTS

[64]   Thakurji  Maharaj  Vs. Dankiya AIR 1986 All 247; Jangi  Lal Vs. B. Panna  Lal, AIR 1957 All 743; Tarit  Bhushan  Rai Vs. Sri Iswar Sridhar Saligram  Shila, AIR 1942 Cal 99.

[65]   Vemareddi  Ramaraghava  Reddi  Vs. Kondaru  Seshu  Reddi, AIR 1967 SC 436. Tarit  BhushanRai Vs. Sri Iswar Sridhar Saligram  Shila, AIR 1942 Cal  99: Thakurji  Maharaj Vs. Dankiya AIR 1986 All 247.

[66]   Gopal  Datt  Vs. Babu Ram, AIR 1936 All 653.

[67]   Behari  Lal  Vs. Thakur Radha  Ballabhji, AIR 1961 All 73. Referred to in Thakurji  Maharaj Vs. Dankiya AIR 1986 All 247.

[68]   Ramchand  Vs. Janki  Ballabhji  Maharaj, AIR 1970 SC 532; Referred to in Thakurji  Maharaj Vs. Dankiya: AIR 1986 All 247.

[69] Thenappa Chettiar Vs. Kuruppan Chettiar: AIR 1968 SC 915.

[70] AIR 1967 SC 436. Referred to: Pramathanath  Nath Vs. Pradyumna: AIR 1925 PC 139

[71] Also: Bishwanath Vs. Sri Thakur Radha Ballabhji: AIR 1967 SC 1044; M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[72] Quoted in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1. Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228

[73] Quoted in: Yelandau Arasikere Deshikendra Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323. See also: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[74] AIR 1933 PC 75

[75] AIR 1935 PC 44

[76]Referred in  M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1.

[77] AIR 1956  SC 382

[78] AIR 1935 PC 44

[79] AIR 1933 PC 75

[80] 2020-1 SCC 1.

[81] AIR 1940 Mad 617

[82]   Cheriyathu Vs. Parameswaran Namboodiripad: 1953 Ker LT 125; Also Manohar Mukherji Vs. Raja Peary Mohan Mukherji: 24 CalWN 478; Bimal Krishna Vs. Iswar Radha Balla: AIR 1937 Cal 338; Rajasekharan Naicker Vs. Govindankutty 1983 KerLJ 506.

[83]   2013-5 Mad LJ 744.

[84] Nar Hari Vs. Badri Nath Temple: AIR 1952 SC 245; Ugamsingh and Mishrimal Vs. Kesrimal : 1971  SC 2540; District Council of United Basel Mission Church Vs. Salvador Nicholas Mathias:1988-2 SCC 31; Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma AIR 1995 SC 2001, [85] Vemareddi Ramaraghava  Reddi Vs. Kondaru  Seshu  Reddi: AIR 1967 SC 436,Chandrasekhara Menon VS Divakaran Namboodiri, 30 Nov 2018, 2019 1 KHC 270; 2019 1 KLJ 783; 2019 1 KLT 534.

[86]   AIR 1967 SC 1044:

[87]   See Chapter: RIGHTS AND DUTIES OF TRUSTEES

[88] Radhabai Vs. Chimnaji: (1878) ILR 3 Bom 27, Zafaryab Ali Vs. Bakhtawar Singh: (1883) ILR 5 All 497; Chidambaranatha Thambirarn Vs. P. S. Nallasiva Mudaliar: AIR 1918 Mad 464, Dasondhay Vs. Muhammad Abu Nasar: AIR 1917 Mad 112  (FB), Radha Krishnaji Vs. Rameshwar Prasad Singh: AIR 1934 Pat 584; Manmohan Haldar Vs. Dibbendu Prosad Roy: AIR 1949 Cal 199; Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick: AIR 1925 PC 139, KanhaiyaLal Vs. Hamid Ali, 60 Ind App 263: AIR 1933 PC 198 (1).

[89]   AIR 1970 SC 532. See also Kt. N. Ram Thenappa Chettiar Vs. NS Kr. Karuppan Chettiar, AIR 1968 SC 91f5

[90]Sri Ishwar Vs. Gopinath Das: AIR 1960 Cal 741, Samit  Pani  Brahmachary Vs. Mayapur  Chaitanya Math: AIR1999 Cal  132; Thakurji  Maharaj Vs. Dankiya: AIR 1986 All 247

[91] 2020-1 SCC 1.

[92] AIR 1967 SC 436. Referred to: Pramathanath  Nath Vs. Pradyumna: AIR 1925 PC 139

[93] Quoted in M Siddhiq

[94]   Vemareddi Ramaraghava Reddi Vs. KondaruSeshuReddi, AIR 1967 SC 436; Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228 , In this case distinguished (pointing out actual worship of the idol sans right to worship) Sri Thakur Krishna Chandramajiu Vs. Kanhayalal, AIR 1961 All 206. See also Jangi Lal Vs. B. PannaLal, AIR 1957 All 743; Behari Lal Vs. Thakur Radha Ballabhji, AIR 1961 All 73

[95]   AIR 1957 SC 133

[96]   Note: Not the ‘proprietary interest’ or interest pertaining to owner; it is the interest pertaining to beneficiaries.

[97]   Behari Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73 

[98]   Behari Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73 

[99]   ILR 1990-1 Del 124   

[100] AS Krishna Murthy Vs. CN Revanna: AIR 2009 Kar 2692.       Thangachi Nachial  Vs. Ahmed Hussain Malumiar: AIR 1957 Mad 194; Maulvi muhammad Fahimul Haq v. Jagat Ballay: AIR 1923 Pat 475

[101] 2013(4) Ker LT 283

[102] See Sec. 1.

[103] Cheriyathu  Vs. Parameswaran  Namboodiripad: 1953 Ker LT 125, Also see: 1953 Ker LT 117; AIR1922 P C 253 A I R 1925 P C 139.

[104] AIR 1968 SC 915

[105] Chand Bibi v. Esmail, AIR 1949 Cal 21; A D Vehvalwala Vs. M C H Rustomji: 1970 CalLJ  312, 1970-1 Cal LT 292.

[106] 24 CWN 478

[107] AIR 1937 Cal 338. See:  Subramonia  Pillai  Chellam  Pillai Vs. Subramonia  Pillai  Chathan  Pillai: AIR 1952 Ker 198; AIR 1953 TC 198 also.

[108] AIR  1959 SC 951

[109] (2013) 2  Bank   Case  133: 2012 (5) CTC 203. Relied on in Hakkimuddin  Taherbhai  Shakor  (Trustee) Vs. State of Gujarat: 2017  CrLJ 3143.

[110] Bishwanath Vs. Sri Thakur Radha Ballabhji, AIR 1967 SC 1044; Referred to in Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228.

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India