Goforthelaw.com | Legal Education and Awareness | Articles | Moot Court help | Directories | Law Web Journal

From the earliest times Hindus have been dedicating property for religious and charitable purposes. This has been mainly under two heads: Ishta and Pushta. The former indicates the Vedic sacrifices and rites and gifts associated with such sacrifices. The latter stands for all other religious and charitable acts and purposes unconnected with the vedic sacrifices. The Ishta –Pushta have been considered as means for going to heaven. Various types of gifts were emphasised , but merely by making gifts or performing sacrifices, a charitable or religious endowment doesn’t come into existence. It will come into existence only when some property or fund is dedicated for a religious or charitable purpose or object.

It is to be noted that definition of the phrase "charitable purpose" is inclusive and it covers a wider field than the field covered by the words "religious purpose". Further, in some cases, even a religious activity by a particular sect would be a charitable activity; for some, supply of fodder to animals and cattle is a religious object, while to others it may be a charitable purpose, according to Hindu religious activity. Similarly, Khairat under the Mohamedan law would be considered to be a religious activity. The said activities may be for a charitable purpose to some. Hence, in many cases, both the purposes may be overlapping. The purposes may have both the elements, charity as well as religious.

While dealing with what is "religious" or "charitable purpose" it is observed by the Supreme Court in the case of Ramchandra Shukla v. Shree Mahadeoji[1], that there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion. While discussing this aspect, the Supreme Court has further observed as under (at page 464):

"Hindu piety found expression in gifts to idols to religious institutions and for all purposes considered meritorious in the Hindu social and religious system. Therefore, although courts in India have for a long time adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term 'charity' in the Statute of Elizabeth, and, therefore, all purposes which according to English law are charitable will be charitable under Hindu law, the Hindu concept of charity is so comprehensive that there are other purposes in addition which are recognised as charitable purposes. Hence, what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to Hindu notions and Hindu law.

As observed by Mukherjea in Hindu Law and Religious and Charitable Trusts, Second edn., page 11, there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion, for, gifts both for religious and charitable purposes are impelled by the desire to acquire religious merit. According to Pandit Prannath Saraswati, these fell under two heads, Istha and Purta. The former meant sacrifices, and sacrificial gifts and the latter meant charities. Among the Istha acts are Vedic sacrifices, gifts to the priests at the time of such sacrifices, preservations of vedas, religious austerity, rectitude, vaisvadev sacrifices and hospitality. Among the Purta acts are construction and maintenance of temples, tanks, wells, planting of groves, gifts of food, dharamshalas, places for drinking water, relief of the sick, and promotion of education and learning. (of. Pandit Prannath Saraswati's Hindu Law of Endowments, 1897, pages 26-27). Istha and Purta are in fact regarded as the common duties of the twice born class (cf. Pandit Saraswati, page 27).''

Dedication of property is essential for the creation of an endowment. A dedication consists of the following two elements

The ceremonies of dedication begin with the sankalpa, i.e. the intention to dedicate, manifested by performing certain ceremonies, which include the recitation of time, date and year of dedication, and of the object the founder has in his mind. The utsarga completes the gift. It implies the renunciation of the ownership by the giver in the thing given. According to Kamlakara, gift can be made by the usual libation of water, but if there is no particular recipient, such as when a Math is to be used by ascetics in general and not by the head of any particular sect or class, the offering of water is thrown into a pot. According to Kalka purana, all Maths are required to be dedicated to Shankara.

For the consecration of a temple and installation of a deity the Smiritikars have prescribed elaborate rituals. In the case of temples and idols, the Sankalpa may be of two types; if the founder has any particular object, for the accomplishment of that object, and the other is for love of GOD. The distinction between dedication to deity and temple and to other objects is that, in the former case, the deity is the recipient of the gift, while in the latter, there may not be any specific person who is the recipient of the gift. Thus in the case of dedication to a temple, the ceremonies of sankalpa and utsarga mean that the ownership in the properties and funds is divested from the founder and is invested in the deity.

It was observed by our Supreme Court in the case of Deoki Nandan v Murlidhar[2],

“The ceremonies relating to dedication are sankalpa, utsarga and prathista. Sankalpa means determination, and is really formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it”.

It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. Utsarga has be performed only for charitable endowments, like construction of tanks, rearing of groves of garden and the like, and for religious foundations: prathistha takes the place of utsarga in dedication of temples. Where prathista, i.e., formal installation of the deity, is proved, the dedication is complete and valid, notwithstanding that utsarga has not been performed.

A dedication for an endowment may be absolute or partial. It is an absolute dedication when the donor divests himself of all beneficial interest in the property dedicated to the endowment. The dedication is partial when only a charge for an endowment is created on the property[3]

The second essential of valid endowment is that property dedicated must be specific. The words of gift used by the testator must be unambiguous and that the subject matter of the gift must be well defined and certain. Any uncertainty about the subject matter of the dedication will be fatal to the creation of endowment. Thus, where the testator gave direction in the will that the money should be spent for a certain charity, but did not specify the amount, it was held that no valid endowment came into existence[4].

What are purely religious purposes and what charitable purposes will be charitable, must be entirely decided according to Hindu Law and Hindu notions. In the case of Manorama v Kalicharan[5], testator directed his executors, inter alia, to set apart a sum not exceeding Rs.25,000 for distribution “among his poor relation, dependents and servants”. As to who would be entitled to the benefit was left to the discretion of the executor. The court held the bequest to be valid.

The fourth requirement for the validity of an endowment is that the settler must be of sound mind and a major and he should not suffer from any legal disqualification. Under the dayabhaga school, the father as well as a coparcener has the absolute power over all properties, self acquired or inherited. So, a father or a coparcener under the Dayabhaga School have full power of creating endowments. Karta or any other Mitakshara coparcener has no power of making gift or otherwise alienating the joint family property. Save with the consent of other coparceners.

In the ordinary parlence, Math means an abode or residence of ascetics. In it’s legal connotation, it is a monastic institution presided over by it’s head, known as Mahant, a superior ascetic, and established for the use and benefit of ascetics generally or of ascetics belonging to a particular order, ordinarily, the disciples of mahant. The basic purpose of a math is to encourage and faster spiritual learning and knowledge, by maintenance of a competent line of teachers who impart religious instruction to disciples and follers of the Math and to sthrengthen the doctrines of the sect or school to which Math subscribes. There can be sudra maths also. Although, the mahant is the head of the math, but the the property dedicated to a math doesn’t vest in him, but it vests in the math itself as a juristic person.

The mahant is neither is trustee nor a corporate sole. He is just the manager of the math, with wider powers than those possessed by a manager, trustee or dharmakarta of a temple. He has a dual capacity as he is the manager of the properties, and the spiritual head of the math. In Ram Prakash v Anand Das[6], the Privy Councilobserved “The Mahant is the head of the institution. He sits upon Gaddi, he initiates candidates into the mysteries of the cult; he suprintends the worship of the idol and the accustomed spiritual rites; he manages the properties of theinstitution; he administers its affairs.”

Unless the founder has directed otherwise, the management and possession of properties of a Math belong to the Mahant. It was observed by the Privy Council in the case of Arunachalam v Venkatachelapati[7]

“There may be varieties of circumstances and tenure, and in respect of these, if the usage and custom are clear, they constitute the law of the math”.

The Mahant holds the properties of the Math for certain specific purposes as laid down by the founder or by usage. In this regard the duties of the Mahant are upkeep of the Math and the performance of the religious rites, ceremonies and the festivals of the religious order to which the Math belongs.

The mahant of an Akhara or Math represents the Math and has both the right to institute a suit on its behalf as also the duty to defend one brought against it. If the Math is not represented by a Mahant, the decree passed against it is not binding as decided by the Supreme Court in the case of Guranditta v Amar Das[8]. It is obvious that it is the Mahant who represents the Math in all its dealing with the outside world. This mean that the Mahant has power to do everthing that may be necessary in the interest and for the benefit of the Math. A judgment against Mahant will bind his successors. This is also true of a compromise, no saction of the court is necessary[9]. When the Mahant himself is guilty of mismanagement or misaapropriation then a suit can be filed by any person interested in the endowment.

The Mahant has power to borrow money for purposes connected with the Math. It is a well established proposition of law that a Mahant has power to bind the endowed property by his debts taken for justifying necessity. If the creditor has made bona-fide and proper inquiries as to the existence of a necessity, he is protected and can obtain a decree which can be executed against the Math properties.

Mahant’s power of alienating the property are the same as those of shebait. He can alienate the properties for legal necessity or for the benefit of the Math Properties.

Mahant has wider powers over to the income of the endowed properties than the shebait. His powers are almost unfettered. He must dicharge all obligation connected with the Math as laid down by the deed or by the usage and custom. In the absence of a charge of lack of good faith, his discretion is unfettered. However he can be charged with the maladministration of properties.

There is no direct authority holding that mahantship is property though there is some for shebaitship. In view of this, a fortiori mahantship may also be considered as property.

The general rule of the devolution of property or the office of Mahant is that it will devolve in accordance with the rules of devolution laid down by the founder of the endowment. Such rules will be given efffect to, if they do not violate the provision of any law. But it may happen that the founder has not laid down any rules. It may also happen that the Math is very old and nothing is known about its founder. In such a case, in respect of shebaitship, ordinary rules of devolution apply. But this is not so in the case of mahantship. In the case of a Math it is a custom usage or practice of the Math, concerned which determines how succession to the office take place. As early as 1867, it was laid down by the Privy Council in the case of Greedharee Dass v. Nundo Kishore[10], (1867) 11 M I A 405,

“The only law as to these Mahants and their offices, functions and duties is to be found in custom and practice”.

In the matter of succession to the office of Mahant the custom prevalent in various institutions is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mahant during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document[11]. Even where a Mahant has the power to appoint his successor, it is customary in various Mutts that such appointment should be confirmed or recognised by the members of the religious fraternity to which the late Mahant belonged. When a Mahant resigns during his life time and installs his successor, on the gaddi the fraternity is made aware of the proposed vacancy in the office and is given an opportunity of confirming or refusing to confirm the nominee.

In default of Chela, the office goes to the gurubhai of the last holder. Ordinarily the eldest Chela succeeds, but even a junior Chela may be succeed if he is found more capable and if he was selected by the last Mahant as his successor. In some cases it is required by the custom that mahant’s nominees should be confirmed or recoznized by the members of the religious fraternity[12]. In a Panchayati Math, the succession to Mahantship is done by election as per custom. In Hakimi Math, the power of appointing the successor is vested in the family of the founder.

The personal proprty of a Mahant, where he is permitted to have personal property, does not devolve on his natural heirs, but on his spiritual heirs. When a Mahant inherits personal properties, these are not the properties of the Math and properties purchased of these are also his personal properties.

The office of Mahant as well as properties of the Math are not subject to partition. Similarly the Mahant has no power to transfer the office or the right of management. Even in those cases where one Math is subordinate to another, Mahant of the subordinate Math cannot by deed or otherwise, transfer his rights of Mahant of the superior Math. Mahant cannot also delegate his powers and functions.

An endowment for a temple or an idol does not come into existence by establishment of the deity or by consecration of the idol. The debutter comes into existence when some property is dedicated to it. It is a fundamental rule of Hindu Law that whatever idol may be installed in a temple, or whatever deity or GOD a Hindu may worship, the idol represents the Supreme GOD and none else. This implies that the dedication of property is not to image that is installed in a temple, but to the Almighty. In Hindu law when dedication is made to an idol, the property vests in the idol itself as a juristic person.

The nature of the property, therefore, is debuttar, that is, belonging to the deities. It would be proper at this stage to notice the distinction between the properties dedicated to temples and that to Maths. When the dedication is to a temple, the property is held by the idols, but the possession and its management must, in the nature of things be entrusted to some person as shebait or manager who is a human ministrant of the deity to conduct worship, A math like an idol in Hindu Law is a juridical person capable of acquiring, holding and vindicating legal rights, but the position of the Mahant, however, is that the property of a Math is held by him as the spiritual head of the institution. In the conception

of Mahanthship, as in shebaitship, both the elements of office and property are blended together and neither can be detached from the other, but a Mahanth, in addition to his duties, has a personal interest of a beneficial character which is much larger than that of a shebait in a debuttar property.

A Hindu Idol is, according to long established authority, founded upon the religious custom of Hindus and the recognition thereof by courts of law, a juristic entityIt has a juridical status with the power of suing and being sued.

An interesting question came before the Supreme Court in the case of Jogendra Nath v I T Commissioner[14], that could the income of the deity be liable to income tax assessment. It was answered by the Supreme Court in affirmative. The court said we have to make a distinction between the spiritual and legal aspect of idol.

It is competent for Hindu to create a public or a private debutter. In the case of Deoki v Murlidhar[15], the Supreme Court observed:

“The distinction between public and private trust is that whereas in the former the beneficiaries are specific individual, in the latter case they constitute a body which is incapable of ascertainment. Apart from the restrictions laid down for ensuring good order and decency of worship, to regulate the time of public visits and to prevent overcrowing., the right of wordship in the public temples is a free right”.

The distinction between public and private endowment has assumed added importance as the State statutes regulate the public debutter and the private debutters are not within their purview. In State of Bihar v Mahant Shri Biseshwar[16], it was held by the Supreme Cour that:

“……. unless the Asthal (Math) itself is a public endowment, properties appurtaining thereto would not be properties of public endowment. Installation of an idol permanently on a pedestal and the fact that the temple is constructedon grounds separate from residential quarters of Mahant are not conclusive proof that temple is a public temple. “

If the public is allowed freely to enter the temple and has been worshipping there for a long period of time, it may be a good evidence to indicate that temple is a public temple, but it is not conclusive. Similarly the feeding of Sadhus and giving hospitality to wayfarers is not by itself indicative of the public character of the temple.

The dedication of the property should be real and not a colourable device to tie up the property for the benefit of the founder and his decendents. If the dedication is complete and the founder has completely divested himself from the dedicated properties, the debutter is real, otherwise it is partial. In determining whether a debutter is real or nominal, the manner in which the properties are held and enjoyed is the most important. The burden is very heay on the person who alleges that a document solemnly executed is fictitious.

The person in whom the management of the debutter is vested is known by various names: the terms Shebait is commonly used in Bengal; he is called the Dharmakarta in Tamilnadu and Andhra Pradesh; and Panchayatdar in Tanjore and Malabar. In English the term manager is used for him, but as it fails to depict his real position and powers. It is only in a very broad sense that he is like a manager. As regards the endowed properties, he is more like trustee, as regard his functions and duties towards the temple in spiritual sense, he is a holder of an office of dignity.

In the case of Kalanka Devi Sansthan v M R T Nagpur[17], the Supreme Court reiterated the well established proposition that the properties in the case of idol or Sansthan, do not vest in the shebait but in the idol. It is their possession and management which vest in the shebait. There is a considerable diffeence between the position and functions of the dharmakarta, whose duties are secular, and poojaries, archakas, mahants and shebait of North India. The former is a mere manager whose liabilities are that of a trustee but he hold an office.

In the words of Mayne: “The shebait is one who serves and sustains the deity whose image isntalled in the shrine. The duties and privileges of a shebait are primarily those of a one who fills a sacred office”. It seems that shebaitship is not only a office but also a proprty. In the case of Vidyavarath v Balusami[18], the privy council held that almost in all debutter endowments, shebait has a share in the usufructof the debutter proprty. Personal presents made to shebait are his personal property.

The powers and duties of Shebait are both spiritual and temporal. In respect of spiritual duties, he must perform seva and puja of the idol. The custody of the idol belongs to him. Ordinarily, shebait cannot remove deity. But in case removal of deity is necessary, the will of the deity should be given effect to; the will can be expressed through its shebait. Shebait is entitled to the possession and custody of the endowed properties. But he cannot assert an adverse title against the title, as it is through him that the idol acts. He is entitled to management of the debutter. If there are more than one debutter than all must act in unison. If they are not able to act in unison then one cannot file a suit of injunction against the other, the only remedy is to get the scheme laid down by the court.

The power of alienation is a power which shebait can exercise only in exceptional circumstances. He may borrow money by simple loans or on some security he may if necessary, sell some of the properties. Even if the deed of endowment expressly prohibits the shebait from alienating property, shebait has the power to alienate and the alienation will not be invalid[19]. This is also the position of Mahant in respect of the endowed properties. The burden of proof would be on alinee as decided in the case of Hanuman Prasad[20].The peculiarity of shebait’s and mahant’s alienation like that of Hindu female holder of limited estate is that an alienation without legal necessity is binding on the alienator during his life time.

A suit by the worshipper as next friend of deity for a declaration that the alienation made by the Shebait is null and void or to restrain him by a permanent injunction from alienating the debutter property is maintainable.

In the case of Mahajan Mahto v Gopi Nath Jee[21] the question was whether a Pujari can file a suit on behalf of the deity challenging an improper alienation made by the Shebait? Agreeing with the well established proposition that in reality the possession and management of the debutter property vests in the shebait, and this carries with it the right to bring whatever suits are necessary for the protection of the property, and every right of suit is vested in the deity, the court said that when the Shebait himself is a culprint (and thus will not bring the suit) the Pujari, or for that matter any devotee, can also file a suit to protect the interest of deity and challenge an improper alienation made by the shebait. When a Shebait enters into a contract for sale of debutter property for legal necessity, the contract is specifucally enforceable.

Ordinarily, after the foundation of the endowment, whether private or public, the shebaitship vests in the founder and his heirs. The founder can also appoint shebait by his will, but in two cases the founder’s right to act or appoint shebait is lost: namely-

The founder has power to appoint any person to manage the endowment on his behalf; such a person is under his supervision and control, and he can remove him at any time. But if the founder hands over all his rights to another and divests himself of all rights (virtually amounting to vesting of shebaitship in another person), the founder loses all powers and has no say in the matter.

As a general rule the devolution of the office of shebait is in accodance with the will or deed of the endowment. If in the deed the founder has not provided for any scheme of devolution of office, the devolution will be in accordance with any custom or usage applicable to the endowment. If there is no such usage or custom, then ordinary rules of succession will apply, i.e. the office and management will devolve on the heirs of the founder, but the founder cannot lay down a line of succession inconsistent with the general law. In the case of Ram Kali v Ram Ratan[22], it was held by the Supreme Court that even though a female is personally disqualified from officiating as pujari in the temple, she can get the seva puja performed by another person.

In the case of Tagore v Tagore[23]it was laid down the rule that all estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritence are void. It has been seen that founder of the endowment has a right to dispose of the dharmakartaship or shebaitship in any manner.

The office of shebait falls vacant on the death of the shebait; the office may also fall vacant by resignation or by relinquishment. When a shebait resigns or relinquishes his office, the office will go to the person next in order. It seems that supervening disability of the shebait will not divest him of the office, unless there is a custom or usage to this effect. The office also falls vacant on the removal of a shebait, if a shebait is guilty of misconduct or abuse of his position, he can be removed by the court. The court possess this power over both private and public endowments. The court also has the power to frame a scheme for the management of the endowed properties. However a shebait cannot be removed merely for some mistake on his part or on account of laxity of management. He may be removed for treating endowed properties as his own, or for immorality or gross moral turpitude.

Though under Hindu law an idol is a juristic person capable of holding property, and the properties endowed for the temple vest in it, it can have no beneficial interest in the endowment, and the true beneficiaries are the worshippers, as the real purpose of a gift of properties to an idol is not to confer any benefit on God, but the acquisition of spiritual benefit by providing opportunities and facilities for those who desire to worship.

So, under the Hindu Law some persons have the right to have share in the offering made to the deity, including of course the Shebait, it is by virtues of some customs. These fall in two categories:

One such instance came before the Supreme Court in Badri Nath v Panna, in which certain families of Thakurs were entitles to take a share in the offerings made in or around the temple of Shri Vaishno Devi Ji in lieu of certain secular services rendered by them. These included food to sadhus, who visited the temple, maintenance of cleanliness of the Gupha (cave) of the temple, medical services to pilgrims, etc. These Thakurs were known as baridars. They held no office, but only because they performed certain secular duties and were entitles to a share in the offering. The right to share in the offering was held to be property. It was heritable and the provisions of the Hindu Succession Act, 1956 applied.

No person can file a suit against a shebait as a next friend of the deity unless he has been so appointed by the court. But where is suit is filed on behalf of the deity, the mention of the name of the temple as plaintiff is a mere misdescription and the real plantiff is the idol. In one case, Kacha Kanti Seva Samiti v Kacha Kanti Devi[24]it was claimed by the plaintiff that deity in question was gifted to their forefathers buy the King, hence it was their private deity and that they were shebaits of the same. To prove the same, it was shown by the ancient documents that there was appointment of forefather as Deshmukhya. Person from locality testified that since long plaintiff were performing the puja and offering other services to the deity and were receiving the offerings made to the GODDESS by the devotes; the defendants were unable to show that the job of shebaitship was performed by any other individual. As such, plaintiff due to long possession and services rendered was entitled to be declared as de facto shebaits. But as all movable properties and construction in temple had been made out of public donation, hence, public including the defendants would have free access to such a temple.

Jus Ranganath Mishra, ‘Mayne’s Hindu Law & Usage’ 15^th edn Bharat Law House, New Delhi 2003.

R. Prakash, ‘V. K. Varadachari’s Hindu Religious and Charitable Endowments’ 4^th end Eastern Book Company, Lucknow 2005.

Paras Diwan, ‘Modern Hindu Law’ 17^th edn Allahabad Law Agency, Allahabad 2006.

Dr S. K. Singh, ‘R. K. Agarwal: Hindu Law’, 21^st edn, Central Law Agency, Allahabad 2003.

[1]AIR 1970 SC 458.

[2]AIR 1957 SC 133.

[3]Dasrastha v Subbarao, AIR 1957 SC 797.

[4]Jamnabai v Khimji,14 Bom 1.

[5]31 Cal166.

[6](1916) 43 I A 73.

[7](1919) 461 I A 204.

[8]1965 SC 1966.

[9]Biram Prakash v Narendra Das, 1961 All 266.

[10](1867) 11 M I A 405,

[11]Amar v Prakash, AIR 1979 SC 845.

[12]Satnam v Baba, 1938 PC 216.

[13]AIR 1922 PC 123.

[14]AIR 1969 SC 1089.

[15]AIR 1957 SC 133.

[16]AIR 1971 SC 2057.

[17]AIR 1970 SC 439.

[18](1921) 48 I A 302.

[19]Ramachandraji v Lalji Singh, 1959 Pat. 305.

[20]1856 6 M I A 393.

[21]AIR 1986 All 247

[22]AIR 1956 SC 493

[23](1872) I A Supp 47

[24]AIR 2004 SC 608.

A. P. LEGAL SERVICES PVT. LTD.Legal Empowerment through Professional Excellence

A. P. LEGAL SERVICES PVT. LTD.
Legal Empowerment through Professional Excellence