Saji Koduvath, Advocate.
Synopsis
- Introduction
- Dedication: Essential for Endowment
- No Document Necessary
- Dedication-Document, Not Compulsory Registrable
- Dedication: Question of Fact
- Terms of the Document, if any, Important
- ‘Once a Dedication, Always Dedication’
- Terms of Dedication Determine Ultimate Vesting
- ‘Ultimate Vesting’: No Importance in Public Trust
- Fundamental Principles Cannot be Changed
- Partial Dedication Creates ‘Charge’ Alone
- Partial Dedication Creates Only ‘Charity’
- Partially Dedicated – Alienable and Partible
- Dedication – Different Connotations
- ‘Partial Dedication’ – Contradiction in Terms
- Dedication may be ‘Complete’ or ‘Partial’
- ‘Limited Dedication’ – Recognised
- Dedication without Trust
- Description of Property in a Deed – Not Conclusive
- Long User and Dedication
- Gift to a Non-existent Being
- Clear Directions for Management to Trustees Necessary
- Founding Endowment by Subscriptions or Donations
- Entries in Revenue Records and Dedication
- ‘Acceptance’ of Gift & ‘Dedication’ of Endowed Property
- Revenue Records in the Name of Deity not Decisive
- Gift on Trust to a Society
Introduction
In common parlance, the word ‘charity’ denotes the giving to someone in necessitous circumstances and in law, a giving for public good.[1] Message of charily and compassion is found in all religions without any exception.[2] An ‘endowment’ is created when a competent person dedicates or sets apart his specified property[3] for purposes of religion or charity having both the subject and object certain and capable of ascertainment.[4]
In St. Peter’s Orthodox Syrian Church Vs. Abraham Mathews[5] it is observed that if Indian life should be a true guide for the determination of questions arising in court, then we should go back to our ancient treatises to find out the true meaning of charity, which may be either dana or utsarga. It is observed further as under:
- “In the case of dana the donor gives up his ownership over a thing, makes another the owner of it and cannot thereafter use it nor has any control over it. When a man makes an utsarga, he no doubt gives up his ownership but gives up the thing for the benefit of all. Opinion is, however, divided whether as a member of the public he can also use a thing thus dedicated for the public. But in any event, he would no longer have any control over the thing dedicated (Commissioner of Income Tax, New Delhi v. Federation of Indian Chambers of Commerce and Industries, New Delhi, AIR 1981 SC 1408). The word “Charity” in a legal sense includes every gift for the general public use, to be applied consistent with the existing laws for the benefit of an indefinite number of persons and intended to benefit them from a religious, moral, physical or social standpoint. (Pannalal Bansilal Pitti v. State of Andhra Pradesh, AIR 1996 SC 1023).”
In Pratap Singhji Vs. Charity Commissioner[6] our Apex Court held as followes:
- “Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a ‘juristic entity’, vested with the capacity of receiving gifts and holding property. The Hindu law recognises dedications for the establishment of the image of a deity and for maintenance and worship thereof. The property so dedicated to a pious purpose is placed extra-commercium and is entitled to special protection at the hands of the Sovereign whose duty it is to intervene to prevent fraud and waste in dealing with religious endowments. Dedication need not always be in writing and can be inferred from the facts and circumstances appearing. It would be a legitimate inference to draw that the founder of the temple had dedicated it to the public if it is found that he had held out the temple to be a public one: Pujari Lakshmana Goundan V. Subramania Ayyar, AIR 1924 PC 44.”
Law Commission Report
Law Commission of India, Report No. 70, The Transfer of Property Act, 1882, Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by P.B. Gajedragadkar, Chairman, Law Commission of India, on August 15, 1977, reads as under:
- “12.40. Rules of Hindu law. — It may be noted that in regard to religious offices and things dedicated to religious purposes, the rules of Hindu Law1 and Muslim Law2 agreed with that of the ancient Roman law in rigidly classifying public trusts and property and offices as extra commorcium. Such offices were not transferable like other property, and even where a transfer was allowed, that was within certain well defined limitations.
- 1. Narayan v. Chintamani, ILR 5 Born 393 (396, 397) (Westropp, C.J.).
- 2. Shama Charun Roy v. Abdul Kabeer, 3 Calcutta Notes 158.”
Essential Legal Formalities for Dedication
The word ‘endow’[7] expresses the idea of giving, bequeathing or dedicating something for some purpose.[8] An ‘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. There may be dedication of property for ‘easement’. But, in the ‘law of trusts’, dedication involves the extinguishment of the rights of the original owner of the lands.[9] By ‘dedication’, the owner divests all his rights, title and interest in the property which becomes the property of the deity[10] or other endowment.
An ‘endowment’ can be public or private.[11] It is a corporeal reality to which social concepts are adhered to; whereas, a trust is primarily a legal conceptattached to the administration of the endowed property.[12]
Dedication involves complete[13] extinguishment of the rights, or cessation of ownership,[14] of the original owner of the lands.[15] The essential formalities for the creation of a religious or charitable endowment are:[16]
- the property in respect of which the endowment is made must be designated with precision;
- the object or purpose of dedication should be clearly indicated;
- the founder must effectively divest[17] himself of all beneficial interest (right of enjoyment as owner or beneficial ownership[18]) in the endowed properly.
Hindu Religious Formalities and Principles of Dedication
Sankalpa and Utsarga (or Samarpana) are the religious formalities for dedication under Hindu Law.[19] By Sankalpa one formally decides renunciation and indicates the purpose of dedication; and by Utsarga or Samarpana he renounces his ownership. It is obvious that ‘Sankalpa and Samarpana’ are intrinsic, formally or informally, in all true dedications.
In Ram Jankijee Deities Vs. State of Bihar[20] our Apex Court observed as under:
- “The Deva Pratistha Tatwa of Raghunandan and Matsya and Devi Puranas though may not be uniform in its description as to how Pratistha or consecration of image does take place but it is customary that the image is first carried to the Snan Mandap and thereafter the founder utters the Sankalpa Mantra and upon completion thereof the image is given bath with Holy water, Ghee, Dahi, Honey and Rose water and thereafter the oblation to the sacred fire by which the Pran Pratistha takes place and the eternal spirit is infused in that particular idol and the image is then taken to the temple itself and the same is thereafter formally dedicated to the deity. 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.”
Rule Against Perpetuity
Section 18 of the Transfer of Property Act enacts that “the restrictions in Sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind”. The Hindu law has always regarded gifts for religious or charitable purposes as exempt from the rule against perpetuity.[21]
Dedication to the Almighty
The dedication to a deity is actually a renunciation of the ownership of the private individuals in the property. In effect, it is dedication to the Almighty. A Full Bench decision of Madras High Court said in the case of Narasimha Vs. Venkatalingam[22] 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. [23]
Trust Arises on Transfer of Title to Trustees
An endowment is created when a property is set apart or dedicated by its owner divesting all his beneficial interest (ie. pertaining to ownership) therein for the purposes of religion or charity having both the subject and object certain and capable of ascertainment.[24] It is the relinquishment of entire rights of the donor or founder in the property dedicated;[25] and, there should be proof of renunciation by the owner or divestment of his title to the property dedicated. [26]
For creation of a trust, it is essential that such property should be transferred to the trustee. The ingredients of trust stated in the former part of Section 6 (ie. intention, purpose, beneficiary and property), are the legal requirements for endowments also. ‘Transfer of the trust-property to the trustee’ is the differentiating particularity of trust from the endowment.
Sec. 6 of the Indian Trusts Act, 1882 reads as under:
- “6. Creation of trust: Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.”
No Document is Essential for Dedication in Public Trust
The act of delivering property, by its owner, for the use of the public is called ‘dedication’.
With regard to private trusts, under Sec. 5 of the Indian Trusts Act, for creation of trust on immovable property, ‘declaration by a non-testamentary instrument’ is essential; and for creation of trust on movable property, ‘transfer of ownership’ will be sufficient.
Sec. 5 of the Indian Trusts Act, 1882reads as under:
- “5. Trust of immovable property: No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
- Trust of movable property: No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. ….”
A public ‘endowment’ is created by dedication of property by a competent person.[27] The subject and object of such dedication must be certain and capable of ascertainment. Trust arises by appointment of trustees to the endowments.[28] Declaration by a registered deed transferring rights to trustee is the usual mode of creating trust on immovable property. But, a document is not essential for the dedication of property to charity or public trust.[29] It can be established by cogent and satisfactory evidence as to complete dedication and extinction of the private character of the property. Dedication can be inferred from conduct of the parties also.[30]
For a valid dedication, there should be proof of renunciation by the owner or divestment of his title to the property dedicated.[31] A document is not essential for the dedication of property to charity.[32] It can be established by cogent and satisfactory evidence as to complete dedication to charity and extinction of the private secular character of the property. Dedication or divestiture of property can be established by attendant circumstances or conduct of the parties also.[33]
It had been held by the Privy Council in Hemanta Kumari Debi Vs. Gauri Shankar Tewari[34] while dealing with a bathing ghat on the banks of the River Ganges, it was observed that in the absence of a formal and express endowment evidenced by deed or declaration, the character of the dedication can only be determined on the basis of the history of the institution and the conduct of the founder and his heirs.[35]
If Document for Dedication, it Requires Registration
Dedication of the property directly to the deity does not need compliance with the provisions of the Transfer of Property Act, there being no transfer of property to a ‘living person’ within the meaning of Section 5 of that Act. If property is transferred by way of a gift to the trustee of a temple, it being one made to a living person, requirements of S. 123 of the Transfer of Property Act must be complied and the deed must be registered. [36]
The same view had been taken in Narasimhaswami Vs. Venkatalingam[37] and it had been observed that though an idol is considered by a fiction of law as a juristic person clothed for some purposes with rights of persons, yet a juristic person is not a living person for the purpose of the Transfer of Property Act.
Dedication and Section 9, TP Act
Section 9 Transfer of Property Act states that a transfer of property may be made without writing in every case in which writing is not expressly required by law. TP Act does not require execution of a document when a property is dedicated for charity or for the use of the general public. (See: Narsingdas Takhatmal v. Radhakisan Rambakas, (1952) 54 BomLR 492; Peddu Reddiar v. Kothanda Reddi, AIR 1966 Mad 419).
In Ramdas Chimna v. Pralhad Deorao, AIR 1965 Bom 74, it is held as follows:
- “The relinquishment by Bainabai of her interest in the joint family property was merely abandonment of here interest in the joint family property in favour of her two sons. Such a relinquishment or abandonment of interest in the joint family property, even though it consists of immoveable properties and is of the value of Rs.100/- and upwards, can be effected without a written instrument, though if one is executed, it would undoubtedly require registration under Section 17 of the Registration Act, Gauri Bai v. Gaya Bai, AIR 1927 Nag. 44.”
In The Weavers Mills Ltd. v. Balkis Ammal, AIR 1969 Mad 462, it is observed, referring Sec. 9 as under:
- “That section says that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The Transfer of Property Act is not exhaustive of the kind of transfers. We are inclined to agree with the proposition of Ramaswami J., in Sarandaya Pillai v. Sankarlinga Pillai 1959-2 Mad LJ 502 at p. 503 namely, that
- “the test, therefore, in this country to determine whether a transaction (be it a transfer or not) can be made without writing is to see if it is expressly required by law to be in writing. If the transaction is a ‘transfer of property’ and there is no express provision of law requiring it to be in writing. Section 9 will enable it to be made without writing. If on the other hand, the transaction is not a ‘transfer of property’ and there is no express provision of law requiring it to be in writing, the general principle referred to above will enable it to be validly made without writing.”
- The learned Judge, if we may say so with respect, rightly pointed out that Section 9 underlines the general principle that everything is to be taken permissible unless there is a prohibition against it and has been inserted in the statute ex abundanti cautela.”
Hindu Law on Dedication
For a valid dedication there should be proof of renunciation of the ownership of (dedicated) property, by the owner.[38] In case of a dispute as to dedication, the court decides the same on the basis of its particular facts and circumstances.[39] 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.[40]
In Deoki Nandan Vs. Murlidhar[41] 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[42] 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[43] 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’.[44]
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. … “[45]
Dr. BK Mukherjea, J. On Hindu Law of Religious and Charitable Trusts[46] observes that a dedication by a Hindu for religious or charitable purposes is neither a ‘gift’ nor a ‘trust’ in the strict legal sense.
The Privy Council held in Vidya Varuthi Thirtha Vs Balusami Ayyar[47] that a ‘trust’ in the sense in which the expression is used in English Law, is unknown in the Hindu system, pure and simple. Gift is made directly to idols, or images consecrated or installed in temples, or to a temple. Called by whatever name, the person attached to the administration is only the manager and custodian of the idol of the institution. The property is not conveyed to or vested in him. He is not 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.[48]
In the Mahomedan system also, the dedicated property is not conveyed to a the mutavalli. No property vests in him; and whatever property he holds is for the institution. He holds it as manager with certain beneficial interest regulated by custom and usage.
Dedication: Question of Fact
Terms of the Document, if any, Important
Dedication is a question of fact which would have to be decided with reference to the terms of the document, if any. If the founders’ intention is clear from the document of foundation or other direct evidence, oral or documentary, no difficulty arises; and if there is no document or its language is ambiguous, or where the express dedication cannot be proved by positive evidence, it will be a matter for legal inference, legitimately drawn from the proved facts and attending circumstances of each case.[49]
In Baby Vs. Steward Co. Ltd[50] the Kerala High Court observed interpreting the title deed under which the defendant Company, engaged in charity, obtained title, that though the title deed did not contain specific words as to the character of public trust, there was sufficient indication to suggest that a trust was intended to be created.
In Radhakanta Deb Vs. Commissioner of Hindu Religious Endowments, Orissa[51] it is held:
- “Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.”[52]
In S. Shanmugam Pillai Vs. K. Shanmugam Pillai[53] it is observed by the Supreme Court as under:
- “Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. .. “[54]
In Kuldip Chand Vs. Advocate General to Government of HP[55] the Supreme Court has held that in absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. If the family of the donor retained the control over the property, a complete dedication cannot be inferred.
When a dedication to a charity is sought to be established in absence of an instrument or grant, it can be by oral evidence or by drawing inference from the conduct of the parties.[56] The law requires that such dedication be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. In such a case the onus is heavy upon the party who sets-up dedication. It must be proved that the donor intended to divest himself of his ownership in the dedicated property. [57]
‘Once a Dedication, Always Dedication’
Dedication of property is like a rocket fired. As long as it is in private realm it retains the character of a private property. [58] Once dedication is complete, it cannot be revoked. [59] It is a trite law that ‘once a trust always a trust’.[60] In Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath Dass[61] the Supreme Court has described ‘Endowment’ as under:
- “Endowment is when donor parts with his property for it being used for a public purpose and its entrustment is to a person or group of person in trust for carrying out the objective of such entrustment. Once endowment is made, it is final and it is irrevocable. It is the onerous duty of the persons entrusted with such endowment, to carry out the objectives of this entrustment. They may appoint a manager in the absence of any indication in the trust or get it appointed through Court.”
A dedication of property to a deity is irrevocable, and the rules, if any, laid down by the founder at the time of dedication regulating succession to the office of the shebait should be deemed to be irrevocable also unless the power of revocation is reserved by the grantor. The condition relating to the rule of succession of shebaitship forms an integral part of the dedication itself.[62]
Trustees Cannot Remodel the Trust.
In RP Kapur Vs. Kaushalya Educational Trust[63] 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.”
Fundamental Principles Cannot be Changed
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.
It is held in Pragji Savji Vaja Vs. Chhotalal Narsidas Parmar that no deviation from the object of the trust would be allowed; and that the properties would not be allowed to be sold to the members of the community for whose benefit the trust was created and the properties were acquired.[64] This principle in Milligan Vs. Mitchel,[65] Attorney General Vs. Anderson[66] and Free Church of England Vs. Overtoun[67] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[68]
House of Lords held in Free Church of England Vs. Overtoun[69] (by a majority of 5-2) 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. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.
It held further:
- “Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word “trust” or “trustee” is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. The answer to the questions whether the private title over the property was intended to be completely extinguished or whether the title in regard to the property was intended to be completely transferred to the charity can be found not by concentrating on the significance of the use of the word “trustee” or “trust” alone but by gathering the true intent of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept theory of complete dedication. It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole.”
Partial Dedication Creates ‘Charge’ Alone
Complete dedication is essential for establishing a valid endowment, and partial dedication creates charge alone.[70]
In Menakuru Dasaratharami Reddi Vs. D Subba Rao[71] it is held:
- “Dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of Public Religious Charity is created. If the dedication is partial, a Trust in favour of the charity is not created but a charge in favour of the charity is attached to, and follows, the property which retains its original private and secular character.”
- “Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word “trust” or “trustee” is no doubt of some help in determining such intention; but the mere use of such words cannot be treated as decisive of the matter. The answer to the questions whether the private title over the property was intended to be completely extinguished or whether the title in regard to the property was intended to be completely transferred to the charity can be found not by concentrating on the significance of the use of the word “trustee” or “trust” alone but by gathering the true intent of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept theory of complete dedication. It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole.”
Partial Dedication Creates Only ‘Charity’
The Supreme Court held in Kuldip Chand Vs. Advocate General to Government of HP[72] that when such dedication was complete, a public trust was created in contra-distinction to a partial dedication which would only create a charity.
Partially Dedicated or Charged Property – Alienable and Partible
In MR Goda Rao Sahib Vs. State of Madras[73] it is held by our Apex Court that if the property is given out and out to an idol or to a religious or charitable institution and the donor divests himself of all beneficial interest (pertaining to ownership[74]) in the property comprised in the endowment, the dedication is absolute; where the dedication is partial, a charge is created on the property or there is a trust to receive and apply a portion of the income for the religious or charitable purpose. In such a case, the property descends and is alienable and partible in the ordinary way, the only difference being that it passes with the charge upon it.[75]
Dedication – Different Connotations
‘Partial Dedication’ – Contradiction in Terms
Dedication is a word susceptible to different connotations. The extreme view is that dedication is the act under which the owner of the property relinquishes his entire rights for the benefit of whole world[76] or at least to a class thereof;[77] and therefore, no question arises as to ‘partial dedication’ or to dedication for a family; because it would amount to contradiction in terms. If this extreme view is accepted there would not be ‘dedication’ in private/family temple.
Dedication may be ‘Complete’ or ‘Partial’
Another view is that dedication can be ‘partial’ also. Dr. BK Mukherjea, J. ‘On Hindu Law of Religious & Charitable Trusts’ observed as to absolute and partial Debutter thus:
- “Where the dedication, made by a settlor in favour of an idol, covers the entire beneficial interest which he had in the property the Debutter is an absolute or complete Debutter. Where however, some proprietary or pecuniary right or interest in the property is either indisposed of or is reserved for the settlor’s family or relations, a case of partial dedication arises. In a partial dedication the deity does not become the owner of the dedicated property but is in the position of a charge holder in respect of the same.”[78]
Our Courts laid down two different facets for ‘partial dedication’.
- (i) Partial dedication in favour of an existing endowment results in making a ‘charge’ over the property dedicated[79] and it is liable to be alienated and partible.[80]
- (ii) Partial dedication of property for the purpose of creation of an endowment gives rise to creation of a ‘charity’ alone.[81]
‘Limited Dedication’ – Recognised in three different areas
First, to result in making a ‘charge’ over property whereby, in effect, no endowment as such is created.[82]Secondly, in creation of a ‘charity’, as in the case of a Dharmasala.[83]Thirdly, in establishment of a family/private temple, for the benefit of an ascertained group.[84]
Dedication without Trust
A Hindu can establish or endow a religious or charitable institution even without creating a trust. Mulla’s Hindu Law[85] 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….”[86]
Description of Property in a Deed – Not Conclusive
Execution of a deed by itself will not prove dedication.. Though it is a piece of evidence, it is not conclusive for determining the dedication. In Paras Nath Thakur Vs. Mohani Dasi Deceased Ana[87] it is held that when a document is solemnly executed and registered, burden is heavy on the person who plead it to be fictitious. [88]
In M. Appala Ramanujacharyula Vs. M. Venkata-narasimha-charyulu[89] that it was held by AP High Court that the mere execution of a deed of dedication without the donor intending to act upon the terms of the deed, would not create a valid endowment.[90] In other words, to constitute a valid endowment, it must be established that the donor intended to divest himself of his ownership in the property dedicated.
Purchase of property in the name of deity is not per se evidence of dedication though it may be one of the circumstances.
Long User and Dedication
Long user of income from a land for support of an idol renders strong corroborative evidence of debutter and that by itself would not lead to an inference that dedication of the property in favour of the public was complete and absolute. Instances of appropriation of property by a person to his own use for a long period will be a good evidence of his right; but, if instances are only recent or few and far between, it leads to inference as to abuse of trust. 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.[91]
‘Permanent Dedication’ Essential for Wakf
The Wakf Act, 1995. defines wakf as under:
- “(r) “wakf” means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes –
- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
- (ii) “grants”, including mashrut-ul-khidmat** for any purpose recognised by the Muslim law as pious, religious or charitable; and
- (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable,
- and “wakf” means any person making such dedication;”
**Note: ‘Waqf Mashrut-ul Khidmat’ is a public waqf where the wakifs (i.e creator of wakf) has devoted the property for the general benefit of the Muslim community and means a grant stipulated for rendering services.
It has been defined in The Mussalman Wakf Act, 1923, as under:
- “(e) “Wakf” means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time 6 being claimable for himself by the person by whom the wakf was created or by any of his family or descendants.”
In Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty, A. P. , Hyderabad, AIR 1998 SC 2986; 1998 6 SCC 267, it is laid down as under:
- “The mention of the poor is required by Mohammad (not by Abu Yusuf with whom is the Fatwa) not to give validity to the wakf, but to ensure perpetuity; and as human beings are liable to become extinct and as a wakf must be a permanent dedication, Mohammad required that the poor should be expressly named or implied by the use of the word “sadakah”. Abu Yusuf, on the other hand, held that whether the poor were named or not, or whether the word “sadakah” was used or not, the word “wakf” implied perpetuity, and, therefore, unless some other object was named, on failure of the wakif’s posterity, the income would be applied for the poor. There is no question about the validity of the wakf; the mention of the poor does not make the wakf per se more or less valid; it only ensures perpetuity insisted upon in the law (pages 296-297).
- The position in Islamic Law is summed up by Fyzee at page 303 by quoting the words of Ameer Ali:
- From the promulgation of Islam up to the present day there has been an absolute consensus of opinion regarding the validity of wakfs on one’s children, kindred and neighbours. Practical lawyers, experienced judges, high officers of every sect and school under Mussulman sovereigns are all in unison on this point. There are minor differences, viz. Whether a wakf can be created for one’s self, whether the unfailing object should be designated, whether the property should be partitioned or not, whether consignment is necessary or not; but so far as the validity of a wakf constituting one’s family or children the benefaction, in whole or in part, is concerned, there is absolutely no difference. A wakf is a permanent benefaction for the good of God’s creatures: …”
In Aligarh Muslim University (The) VS Syed Mohammad Sayeed Chishty, 2008 2 RLR 59; 2007 3 RLW(Raj) 2394; 2007 3 WLC 298, it is observed as under:
- “(38). Thus, the Act of 1913 brought the law in conformity with the lslamic Jurisprudence on wakf. In the case of Trustees of Sahebzadi Oalia Kulsum Trust vs. Controller of Estate Duty, A.P. (1998) 6 SCC 267), the Honble Supreme Court expressly over ruled the case of Abul Fata Mahomed Ishak (supra).
- (39). Thus, “wakf is an unconditional, irrevocable, perpetual dedication of property, vested in God, the ownership of the founder, called `wakif is extinguished, the usufruct or profits of the property are used for the benefit of mankind, except for purposes forbidden by lslam. The essential of a valid wakf according to the Hanafi Law are threefold:
- (1) The dedicator (wakif) should be a person professing the Musalman faith and of sound mind and not a minor or a lunatic, and
- (2) The dedication should be for a purpose recognized by the Musalman law as religious, pious or charitable. (I Mulla. 621).
- (3) However, according to the Act of 1913, the wakf can be created for the benefit of the wakifs children, kindred or descendants as long as the ultimate purpose is the benefit of the poor or any religious, pious or charitable work in accordance with Muslim law.”
Permanent Dedication Inferred From Long User As Wakf Property
It is held by the Supreme Court in Syed Mohammad Salie Labbai Vs. Mohd Hanifa[92] that once a Kabarstan had been held to be a public graveyard then it vested in the public and constitutes a wakf and it could not be divested by nonuser but would always continue to be so whether it is used or not. The following rules were laid down by our Apex Court in order to determine whether a graveyard was a public or a private one:
- “(1) That even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all;
- (2) that if the grave-yard is a private or a family graveyard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public graveyard;
- (3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and
- (4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard.”
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‘ – makes it clear:
- if any law regulates transfer of property to (or by) companies, associations or bodies of individuals, it will remain in force.
See also: Usha Rani Kundu Vs. Agradut Sangha[94].
It is now settled law that though an idol is considered by a fiction of law as a juristic person clothed for some purposes with rights of persons, it is not a living person for the purpose of the Transfer of Property Act.[95]
“Body of individuals” in Sec. 5, TP Act
It may also be pointed out that, “body of individuals” in Sec. 5, TP Act (transfer to – “living person” includes a company or association or body of individuals) is wide in meaning; and it stands independent. It is broad enough to take-in ‘beneficiaries’ of a Trust.
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”.[96]
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,[97]and associations attached to well reputed trusts,[98] institutions[99] 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[100] 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[101] reads:
- “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”
Religious Trusts & Gift to a ‘Non-existent Being’
The Privy Council in Bhupathi Nath Vs. Ramlal[102] settled the position that the law laid down in Tagore Vs. Tagore[103] (a gift to a non-existent being is invalid) had no application to a religious trust, and held that such a gift to a would-be-installed deity would not be invalidated.
Religious Trusts & ‘Acceptance’ of Gift
Though ‘acceptance’ is an integral part to take effect a gift in case of secular property, it is not material in religious gift or dedication.
Religious Trusts: Clear Directions for Management Not Necessary
If a secular endowment is created with management under trustees, clear directions for management to the trustees are necessary; and it cannot be left to the discretion of a trustee, in which event a valid trust would not be created. If intention for dedication and setting apart of the property are proved, the form of religious gift is immaterial.
But, with respect to religious or charitable institutions, lack of details of entrustment may not invalidate the dedication. In the celebrated decision, Manohar Ganesh Vs. Lakhmiram,[104] it is held:
- “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 or at least protect it so far, at any rate, as is consistent with his own dharma or conception of morality.”
In Arjan Singh Vs. Deputy Mal Jain[105] it is held:
- “Dedication to purposes beneficial to the community are charities. ‘Gifts for charity are supported although no particular mode of carrying out the intention is prescribed’. (Tudor on Charities 5th ed. p. 133). If a trust was intended but there is no provision by the donor of machinery to carry his charitable purpose into effect the court supplies the omission. (Tudor on Charities 6th ed. p. 231).”
Hindu Law & Roman Law – Vesting of Dedicated Property
In Manohar Ganesh Vs. Lakhmiram[106] West and Birdwood, JJ. held:
- “The Hindu Law, like the Roman Law and those derived from it, recognises not only incorporate bodies with rights of property vested in the corporation apart from its individual members but also juridical persons 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 or at least, protect it so far at any rate as is consistent with his own Dharma or conception of morality. A trust is not required for the purpose; the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English Law. In early law a gift placed as it was expressed on the alter of God, sufficed it to convey to the Church the lands thus dedicated. It is consistent with the grants having been made to the juridical person symbolised or personified in the idol.”
Dr. BK Mukherjea, J. enlightens us, in ‘On Hindu Law of Religious and Charitable Trusts’, referring to Manohar Ganesh Vs. Lakhmiram, as under:
- “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. And so it has been held in Krishna Singh Vs. Mathura Ahir[107] that a mutt is under the Hindu Law a juristic person in the same manner as a temple where an idol is installed.”[108]
Hindu Law: Dedication Otherwise than ‘Complete Relinquishment’
While dealing with a Bathing Ghat on the banks of the River Ganges, pointing out peculiarities of Hindu Law, it is observed by the Privy Council in Hemanta Kumari Debi Vs. Gauri Shankar Tewari[109] that complete relinquishment of title was not the only form of dedication under Hindu Law.[110] It observed:
- “Complete relinquishment by the owner of his proprietary right is however by no means the only form of dedication known to the Hindu law and is very different from anything that could ordinarily be inferred from the public user of a highway. From the standpoint of the Hindu law ‘it is not essential to a valid dedication that the legal title should pass from the owner nor is it inconsistent with an effectual dedication that the owner should continue to make any and all uses of the land which do not interfere with the uses for which it is dedicated.’ The Chairman, Hawrah Municipality Vs. Khetra Kristo Mitter (1906) 10 C.W.N. 1044, S.C. 4 C.L.J. 343, (per Mookerjee J., at p. 348).”[111]
If Valid Dedication, No Change of Character, On Regn. as Socieety
- “Any addition to those properties must also have the same character.”
As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC. (Keshava Panicker Vs. Damodara Panicker AIR 1976 Ker 86; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296) .But, if a charitable or religious institution of a public nature (Eg. A temple or a math or Guru Granth Sahib, revered in a Gurudwara) is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.
Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated. Kesava Panicker Vs. Damodara Panicker (AIR 1976 Ker 86) was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:
- “If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”
We can take cue from Achuthan Nair v. Chinnammu Amma, AIR 1966 SC 411, where their Lordships said the following as to the addition of property acquired from the joint-family-nucleus-
- “Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the principle is not applied to acquisition of properties in the name of a junior member of a tarwad (anandravan) under the Marumakkathayyam law. There is no presumption either way and the question has to be decided on the facts of each case. In the case of a property acquired in the name of the karnavan, however, there is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence….”
- Also see: Sonnappa Iyer v. KR Ramuthaiammal, (1994)1 Mad LJ 44, Thambiran Naicker v. Duraiswamy Naicker, 1996-2 MadLJ 207.
Gift on Trust to a Society
If property is gifted to a registered society on condition that the property should be used for public purposes and casted duties on the society to act as trustee, a trust is brought home.[112]
An Association Cannot Claim Rights Over the Property of a Trust
In Church of North India Vs. Lavajibhai Ratanjibhai (AIR 2005 SC 2544) it is held that an association of persons cannot claim rights over the property of a trust, if the property had already been vested in the trust.
Brief facts:
The Church, FCDB, was a registered religious society. This Church and other 6 Churches resolved to dissolve; and consolidate into a single entity, The Church of Northern India (CNI). The ‘CNI Trust Association’ was subsequently formed under the Companies Act and was appointed as the trustee of the CNI. Defendants 1 to 4 (though given consent to unification proceedings, earlier) obstructed the functioning of the CNI and asserted their independent right to hold all the movable and immovable properties of their congregation (Valsad Brethren Church) and took the stand that there was no resolution for ‘dissolution’ as set out in the So. Regn. Act.
During the pendency of the suit, unification was ‘given effect to’ by the Charity Commr. under the BPT Act. The plaintiffs filed the suit to declare ‘that the former FDCB has ceased to exist’ and ‘that the CNI is the legal continuation and successor of the FDCB …’ etc. The Civil Court may have jurisdiction over a matter which is outside the purview of the Act, or over a question arises in relation to a matter unconnected with the administration or possession of the trust property.
The effect of ‘dissolving’ a registered society (FDCB) by taking resolution ‘for unification’ with other associations (Churches) to form a single entity (CNI) was placed for consideration of our Apex Court several times. Besides, this decision (Lavajibhai Ratanjibhai), Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti [(2013) 15 SCC 394] is important among them. The dismissal of the suit was upheld by our Apex Court holding that the civil court had no jurisdiction where bar is imposed in relation to a matter whereover the statutory authorities (under BPT Act) have the requisite jurisdiction and that a society created under a statute must conform to its provisions and the courts would interfere in case of its violation.
- See: also: The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282; Ratilal Panachand Gandhi Vs. State of Bombay AIR 1954 SC 388.
It was observed, inter alia, in this land-mark decision (Church of North India Vs. Lavajibhai Ratanjibhai),rendered by SB Sinha, J:
- “In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees, and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society.” (Para 60)
- “Unless a suit is filed in terms of Section 13 of the Act, the society is not dissolved.” (Para 64)
- “Concededly, the properties of the trust being properties of the religious trust had vested in such trust.” (Para 64)
- “If the properties of the churches did not belong to the society, the appellant herein cannot claim the same as their successor.” (Para 64)
- “Even if it is contended that the administration of the property would mean the properties of the Brethren church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable (by virtue of the provisions of the BPTA).” (Para 64)
It is observed in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti, (2013) 15 SCC 394, a under:
- “The argument that as per Article 254 of the Constitution, the Societies Registration Act overrides the BPTA or that the Societies Registration Act and BPTA are in conflict, does not stand either, since both the statutes are not in conflict with each other. On the contrary, they are in consonance with each other regarding the administration and regulation of public and religious trusts.”
- “The High Court has rightly observed that: ‘… The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”
Founding Endowment by Subscriptions or Donations
Where a person collects subscriptions from various persons and builds a choultry or a temple he has a right to direct in what manner the institution should be managed and what right the trustees should have in the management of that institution. This is recognised by the Hindu Law. There is nothing illegal or improper in a person who builds a temple whether out of his own funds or out of the funds collected by subscriptions[113] or getting donations from people to create a trust and endow it, directing by the deed of endowment, in what manner and by whom it should be managed.[114] If a number of persons provide the original endowment, they may apparently together constitute the founder.[115]
In Attorney-General V/s. Clapham[116] Lord Cranworth, Lord Chancellor observed as under:
- “Where a fund is raised for a charitable purpose like that of founding a chapel and the contributors are so numerous as to preclude the possibility of their all concurring in any instrument declaring the trusts, but such a declaration is made by the persons in whom the property is vested, at or about the time when the sums have been raised, that declaration may reasonably be taken prima facie as a true exposition of the minds of the contributors. The presumption is, that the trusts declared were those which the contributors intended. It would be open to them, if the trusts were not so framed as to effect the object they had in view, to take steps for getting any errors corrected. If no such steps are taken, it must be assumed that the instrument declaring the trusts fairly embodies the intentions of the contributors.”[117]
In Thenappa Chettiar Vs. Karuppan Chettiar[118] it is held:
- “It is not a correct proposition of law to state that every donor contributing at the time of foundation of a trust becomes a founder of the trust. It may be that in a particular case all the contributors of a trust fund become the founders of the trust itself’ but the question when a contributor would become in law a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the parties.”
Entries in Revenue Records and Proof of Dedication
Following propositions are relevant in the matter of dedication of property of an endowment:
- (i) If dedication or its nature (private or public) is convincingly proved, revenue records will not displace such proof.[119]
- (ii) Revenue Records are not documents of title.
- (iii) Revenue Records raise presumption alone; that too, rebuttable.
- (iv) When no other evidence is forthcoming, it is a valuable piece of evidence. Sec. 35 and 114 Evidence Act are attracted.[120]
- (v) Where a statute (eg. Land Revenue Acts of certain States) confers presumption to a Revenue entry, it must be considered.[121]
It is held by our Apex Court in Syed Mohammad Salie Labbai Vs. Mohd Hanifa[122] that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers, that would be a conclusive proof to show the public character of the graveyard. In Shamshuddin Vs. State of U P[123] it is held by the Allahabad High Court with respect to Revenue Entry as to a graveyard, as under:
- “On the aforesaid discussion, the Court finds that a graveyard once dedicated as such will always remain a graveyard even no traces of dead may be found. … The revenue records may not prove such dedication, but that once it is proved that the dedication is complete, the entries of such land in the revenue records, in favour of the owner of the land would not take away or write off effect of such dedication.”
In Narayana Prasad Agarwal Vs. State of MP[124] it is laid down as under:
- “Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable.”
In Poohari Fakir Sadavarthy of BondilipuramVs. Commr., Hindu Religious and Charitable Endowments[125] it was observed:
- “The observations of the Privy Council in Arunachellam’s case that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself.” [126]
In Kuldip Chand Vs. AG Government of HP[127] the Supreme Court held that had a dedication been made, the same was expected to be recorded in the revenue records; and that in terms of Section 35 of the Evidence Act, the entries in the revenues record would be presumed to be correct, although the same was a rebuttable one. It is also held by our Apex Court in Sukhdev Singh Vs. Maharaja Bahadur[128] that ‘when a party to the suit had not been able by clear and conclusive evidence to rebut the presumption arising from the Record of Rights and the record of Permanent Settlement and he had failed to establish his claim’, the entries in Revenue Records could be relied upon.
In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund[129] after quoting Narayana Prasad Agarwal Vs. State of MP[130] it is held:
- “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 Indian Evidence Act.”
Revenue Records in the Name of Deity not Decisive
Even if the ownership of property is set-down in revenue records in the name of Deity, it is not treated as inconsistent with its private ownership.
[1] Fazlal Rabbi Pradhan Vs. State of West Bengal: AIR 1965 SC 1722.
[2] John Vallamatoom Vs. Union of India: 2003 6 SCC 611
[3] Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685; S. Shanmugam Pillai Vs. K. Shanmugam Pillai AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.
[4] Pratap Singhji Vs. Charity Commissioner: AIR 1987 SC 2064.
[5] ILR 2011-4 Ker 760
[6] AIR 1987 SC 2064
[7] Vidarbha and Marathwada, Nagpur Vs. Mangala: 1982 MhLJ 686; Maria Antonica Rodrigues Vs. DR Baliga: AIR 1967 Bom 465.
[8] Idol of Sri Renganathaswamy Vs. PK Thoppulan: (2020) 5 Mad LJ 331(SC); MJ Thulasiraman Vs. Comr, HR & CE: AIR 2019 SC 4050.
[9] Gulam Mohideen Khan Vs. Abdul Majid Khan: AIR 1957 AP 941.
[10] SM Manorama Dasi Vs. Dhirendra Nath Busu: AIR 1931 Cal 329,
[11] DeokiNandan Vs. Murlidhar: AIR 1957 SC 133, Quoted in: M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1, PratapSinghji Vs. Charity Commissioner: AIR 1987 SC 2064
[12]Birdhi Chand Jain Charitable Trust Vs. Kanhaiya Lal Sham Lal: ILR 1973-1 Del 144,
[13] Kidangoor Devaswom v. Krishnan Namboothiri, 2016-1 KerLT 778
[14] Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685, Amolak Nath Vs. Keshav Ji Gaudia Math Trust: 2013-1 ADJ 363; 2012-94 All LR 573
[15] Gulam Mohideen Khan Vs. Abdul Majid Khan: AIR 1957 AP 941.
[16] See: Shri Ram Kishan Mission Vs. Dogar Singh AIR 1984 All 72.
[17] State of Madras Vs. S. S. M. Paripelena Sangam: AIR 1962 Mad 48; See also: Idol Murli Manoharji Vs. Gopilal Garg: AIR 1971 Raj 177.
[18] See: M. R. GodaRao Sahib Vs. State of Madras: AIR 1966 SC 653; Sree Siddhi Budhi Vinayakagar Vs. S V Marimuthu: AIR 1963 Mad 369
[19] Shailendra Narayan Bhanja Deo vs. State of Orrisa: 1956 AIR SC 346.
[20] AIR 1999 SC 2131
[21] Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591
[22] ILR 50 Mad 687
[23] Murti Shivji Maharaj Birajman Asthal Mohalla Vs Mathura Das Chela Naval Das Bairagi 2018-8 ADJ 843; 2018-130 AllLR 591
[24] Pratap Singhji Vs. Charity Commissioner: AIR 1987 SC 2064
[25] Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685
[26] M R GodaRao Sahib Vs. State of Madras: AIR 1966 S C 653; Ram Charan Das Vs. Mst. Girjanandani Devi AIR 1959 All 473; Shri Ram Kishan Mission Vs. Dogar Singh AIR 1984 All 72; S. Shanmugam Pillai Vs. K. Shanmugam Pillai: AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.
[27] Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685; S. Shanmugam Pillai Vs. K. Shanmugam Pillai AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.
[28] Pratap Singhji Vs. Charity Commissioner: AIR 1987 SC 2064; M R Goda Rao Sahib Vs. State of Madras: AIR 1966 SC 653. 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.
[29] Menakuru Dasaratharami Reddi Vs. D Subba Rao: AIR 1957 SC 797; Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685; State of Madras Vs. SSM Paripelena Sangam: AIR 1962 Mad 48; Idol Murli Manoharji Vs. Gopilal Garg: AIR 1971 Raj 177. Ramalinga Chetti Vs. Sivachidambara Chetty (1918) ILR 42 M 440: 36 MLJ 575, R Venugopala Reddiar Vs. Krishnaswamy: AIR 1971 Mad 262. Kapoor Chand Vs. Ganesh Dutt, AIR 1993 SC 1145, Referred to in: Bala Shankar Vs. Charity Comner Gujarat State: AIR 1995 SC 167.
[30] Shri Ram Kishan Mission Vs. Dogar Singh: AIR 1984 All 72.
[31] M R Goda Rao 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.
[32] Vidyawati Vs. Ram Janki: 2019 0 Supreme(All) 517; Tilkayat Sri Govindlalji Maharaj Vs. State of Rajasthan: AIR SC 1638, Tangella Narasimhaswami Vs. Iamidi Venkatalingam:1927-25 LW 806; 1927-53 MLJ 203, Ramalinga Chetti Vs. Sivachidambara Chetty: (1918) ILR 42 M 440: 36 MLJ 575, Tammi Reddi Vs. Gangi Reddi (1921) ILR 45 M 281 : 42 MLJ 570, See also: R Venugopala Reddiar Vs. Krishnaswamy: AIR 1971 Mad 262. Menakuru Masaratharami Reddi Vs. D Subba Rao: AIR 1957 SC 797
[33] Bihar State Board Religious Trust Vs. Mahant Sri Biseshwar Das: AIR 1971 SC 2057, Shri Ram Kishan Mission Vs. Dogar Singh: AIR 1984 All 72. Kapoor Chand Vs. Ganesh Dutt: AIR 1993 SC 1145; Referred to in Bala Shankar Vs. Charity Commissioner Gujarat: AIR 1995 SC 167.
[34] AIR 1941 PC 38
[35] Quoted in:Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685.
[36] Ramanathan Vs. Palaniappa: AIR 1945 Mad 473
[37] AIR 1927 Mad 636, Referred to in: Sainath Mandir Trust Vs. Vijaya: AIR 2011 SC 389; Raja Sir Muthiah Chettiar Vs. Commissioner of IT: CTR 1984 38 76,ITR 1984 148 532.
[38] AIR 1953 Nag. 351; AIR 1959 All. 473.
[39] (1972 All 273).
See 1963 SC 1638.
[40] ILR 16 Lah.85.
[41] AIR 1957 SC 133
[42] AIR 1957 SC 797.
[43] AIR 2003 SC 1685.
[44] 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.
[45] Quoted in : Shri Ram Kishan Mission Vs. Dogar Singh: AIR 1984 All 72; Also referred: Lalta Prasad Vs. Brahmanand: AIR 1953 All 449 (DB).
[46] pages 102 & 103.
[47] AIR 1922 PC 123
[48] See: M. Siddiq Vs. Mahant Suresh Das
[49] Ram Ratan Lal Vs. Kashinath Tewari: AIR AIR 1966 Pat. 235. Dr. BK Mukherjea, J.: Tagore Law Lectures, On the Hindu Law of Religious and Charitable Trusts: Page 188.
[50] ILR 1991-1 Ker 587, 1990-2 KerLJ 272
[51] AIR 1981 SC 798
[52] Quoted in: Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685.
[53] AIR 1972 SC 2069
[54] It is quoted in Sitaram Agarwal Vs. Subarata Chandra: AIR 2008 SC 952; Controller of Estate Duty West Bengal Calcutta Vs. Usha Kumar: AIR 1980 SC 312.
[55] Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685.
[56] Kapoor Chand Vs. Ganesh Dutt, AIR 1993 SC 1145; Referred to in Bala Shankar Vs. Charity Commissioner Gujarat: AIR 1995 SC 167.
[57] See: Kuldip Chand Vs. A G to Government of H P: AIR 2003 SC 1685.
[58] See:MAppalaRamanujacharyulu Vs. M Venkatanarasimha: 1974 AP 316; Siva KantaBaruaVs.RajaniramNath:AIR 1950 Ass. 154: ILR 51 All. 626.
[59] Radhika Mohan Nandy v. Amrita Lal Nandy: AIR1947 Cal 301, 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.Virbala K. Kewalram Vs. Ramchand Lalchand: AIR 1997 Bom 46
[60] See: 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. KS Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333
[61] AIR 2000 SC 1421.
[62] Radhika Mohan Nandy Vs. Amrita Lal Nandy and another: AIR1947 Cal 301, Virbala K. Kewalram Vs. Ramchand Lalchandlaws: AIR 1997 Bom 46, [63] 1982-21 DLT 46; ILR 1982-1Del 801
[64] AIR 2014-3 Bom R 211: 2013-6 BCR 72.
[65] 40 ER 852
[66] (1888) 57 LJ Ch 543
[67] (1904) AC 515.
[68] AIR 1931 Mad. 12
[69] (1904) AC 515.
[70] Idol of Sri Renganathaswamy Vs. PK Thoppulan Chettiar: 2020-2 ALT 79 (SC)
[71] AIR 1957 SC 797.
[72] AIR 2003 SC 1685.
[73] AIR 1966 SC 653.
[74] See: M. R. GodaRao Sahib Vs. State of Madras: AIR 1966 SC 653; Sree Siddhi Budhi Vinayakagar Vs. S V Marimuthu AIR 1963 Mad 369.
[75] Sree Sree Ishwar Sridhar Jew Vs. Sushila Bala Dasi: AIR 1954 SC 69; Sappani Mohamed Mohideen Vs. R V Sethusubramania Pillai: AIR 1974 SC 740.
[76] As in the case of a way.
[77] See: Deoki Nandan Vs. Murlidhar, AIR 1957 SC 133; Marua Dei alias Maku Dei Vs. Muralidhar Nandair, 1999 SC 329; Narayan Bhagwant Gosavi Vs. Gopal V Gosavi, AIR 1960 SC 100; Goswami Mahalaxmi Vs. Ranchhoddas, AIR 1970 SC 2025; Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, 1981 SC 798.
[78] Quoted by VK KrisnaIyer, J in Comner. of IT, WB Vs. Jagannath Jee: AIR1977 SC 1523.
[79] See: S. Shanmugam Pillai Vs. K. Shanmugam Pillai: AIR 1972 SC 2069; See also: Iswari Bhubaueshwari Vs. Brojo Nath Dey: AIR 1937 PC 185; M. R. GodaRao Sahib Vs. State of Madras: AIR 1966 SC; Sappani Mohamed Mohideen Vs. Sethusubramania Pillai: AIR 1974 SC 740; Commissioner of IT WB Calcutta Vs. Jagannath Jee: AIR1977 SC 1523.
[80] Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312
[81] Kuldip Chand Vs. AG to Government of HP: AIR 2003 SC 1685.
[82] S. Shanmugam Pillai Vs. K. Shanmugam Pillai: AIR 1972 SC 2069, Sappani Mohamed Mohideen Vs. Sethusubramania Pillai: AIR 1974 SC 740, Controller of Estate Duty West Bengal Vs. Usha Kumar: AIR 1980 SC 312.
[83] Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685.
[84] DeokiNandanVs.Murlidhar: AIR 1957 SC 133.
[85] Page 600, 21stEdn
[86] Quoted in Shri Ram Kishan Mission Vs. Dogar Singh: AIR 1984 All 72.
[87] AIR 1959 SC 1204:1960(1) SCR 271
[88] ILR 18 Cal. 10; ILR 42 All. 295.
[89] AIR 1974 A.P. 316
[90] Vidyawati Vs Ram Janki: 2019 0 Supreme(All) 517
[91] ILR 1936 Cal. 420; Kuldip Chand Vs.A G Government of H P (AIR 2003 SC 1685); AIR 1954 M. 1110.
[92] AIR 1976 SC 1569,
[93] Under the Companies Act.
[94] (2006) 3 Cal LT 139; 2006 (3) CHN 77.
[95] Narasimhaswami Vs. Venkatalingam: AIR 1927 Mad 636, Referred to in: Sainath Mandir Trust Vs. Vijaya: AIR 2011 SC 389; Raja Sir Muthiah Chettiar Vs. Commissioner of IT: CTR 1984 38 76: ITR 1984 148 532; Ramanathan Vs. Palaniappa: AIR 1945 Mad 473.
[96] See: Kelans Son Kodakkat Kannan Vs. Tharakandi Kadissa: AIR 1971 Ker 61; Shantilal Ambalal Mehta Vs. M.A. Rangaswamy: 1977-79 BLR 633; Union of India Vs. Official Assignee of Bombay: 1971-73 BLR 623; Tan Bug Taim Vs. Collector of Bombay: AIR 1946Bom 216.
[97] Such as well-known political parties, trade-unions, etc.
[98] Such as temple-related trusts, Wakfs, church-related trusts, etc.
[99] Such as libraries, universities, etc. See: Pullamma Vs. Valmiki Anna: 1984-2 ALT 157
[100] AIR 1969 SC 563.
[101] 12thEdn., Page 305.
[102] ILR 37 Cal. 128.
[103] (1872) L.R. IndAp 47
[104] ILR 12 Bom. 247.
[105] ILR 1982- 1 Del 11
[106] (1888) ILR 12 Bom 247
[107] AIR 1972 All 273.
[108] Referred to in Thayarammal Vs. Kanakammal: AIR 2005 SC 1588.
[109] AIR 1941 PC 38. See also: KS Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333
[110] Referred to in Menakuru Dasaratharami Reddi Vs. D Subba Rao: AIR 1957 SC 797.
[111] Quoted in Menakuru Dasaratharami Reddi Vs. D Subba Rao: AIR 1957 SC 797.
[112] Swami Shivshankargiri Chella Swami Vs. Satya Gyan Nikethan: AIR 2017 SC 1221;
YMCA Ernakulam Vs. National Council YMCAs of India: LAWS(Dlh) 2018-7 484.
[113] Re St. Leonard (1884) 10 A.C. 304
[114] Settikara Venkatarama Chettiar Vs. OP Damodaram Chettiar: AIR 1926 Mad 1150.
[115] Ananda Chandra Chuckerbutly Vs. BrajaLal Singh: (1922) ILR 50 C. 292; Re St. Leonard: (1884) 10 AC 304; Settikara Venkatarama Chettiar Vs. OP Damodaram Chettiar: AIR 1926 Mad 1150.
[116] (1855) 43 E.R. 638
[117] Quoted in: Settikara Venkatarama Chettiar Vs. OP Damodaram: AIR 1926 Mad 1150.
[118] AIR 1968 SC 915
[119] Arunachallam Chetti Vs. Venkata Chalapathi Guruswamigal: AIR 1919 PC 62; Panchayat Deh Vs. Punjab Wakf Board Ambala: AIR 1969 P&H 344; B. Satyanarayan Vs. K. Venkatapayya: AIR 1953 SC 105. 1964 KLT 1034; relied on in 2014 (3) KLT 497, 2013 (3) KLT 1017.
[120] Periaswami Vs. SunderesaAyyar: AIR 1965 SC 516; Sankarnarayana Pillayan Vs. Hindu Religious Endnts. Boards: AIR 1948 PC 25 B. Satyanarayan Vs. K. Venkatapayya: AIR 1953 SC 105; Nanduri Yogananda Chari Vs. Agasthe Swaraswamivaruair: AIR 1960 SC 622; Narayanan Nambiar Vs. Raman Chettiar1969 KLT 449.
[121] Sulochna Vs. Jasbir Singh: PunLR 2016-183 747.
[122] AIR 1976 SC 1569,
[123] 2012 -91 All LR 717; All LJ 2013 6 435; AWC 2012- 6 5846; RCR(Cri) 2014- 7 2450,
[124] 2007 AIR (SCW) 4165
[125] AIR 1963 SC 510.
[126] Quoted in Jammi Raja Rao Vs. Anjaneya Swami Temple AIR 1992 SC 1110.
[127] AIR 2003 SC 1685.
[128] AIR 1951 SC 288.
[129] AIR 2008 SC 901
[130] 2007 AIR (SCW) 4165
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