K. S. SOUNDARARAJAN AND ORS.versusCOMMISSIONER OF H.R. & C.E.AND ORS.

                        [2015) 10 S.C.R.176


A              K. S. SOUNDARARAJAN AND ORS.
                                 v.
           COMMISSIONER OF H.R. & C.E.AND ORS.
                   (Civil Appeal No.2401 of 2003)
B
                       NOVEMBER 24, 2015
             [M. Y. EQBALAND C. NAGAPPAN, JJ.] ·
         Trust and Charities:
c         Tamil Nadu Hindu Religious and Charitable
    Endowment Act, 1959 - s. 64 - Power of Commissioner to
    settle a Scheme under- In respect of charities mentioned in
    a Will - On facts, Will by testator wherein apart from
    bequeathing certain properties he had put KN-brother's son
0
    in possession of certain items to perform charities mentioned
    in the Will out of the income of the properties, however, KN
    alienated portion of the land-Application uls. 64 for setting
    a scheme in respect of the charities in the Will by community
E   of testator before Deputy Commissioner - Application
    rejected holding that Trust is a private trust - However, ·
    Commissioner held that its a public trust and charities to be
    performed are religious charities - Said order of
    Commissioner upheld by the courts below- Division Bench
F   of High Court modified the order to the extent that scheme
    framed to be confined to specific endowments attached to
    the temple - On appeal, held: Specific endowment is a
    religious institution - For the purpose o( s. 64 as per
    explanation the institution means a temple or a specific
G   endowment attached to a temple - Expression 'attached' in
    the explanation to s. 64(1) has to be construed having regard
    to the history of the legislation and the scheme and objects
    of the Act- High Court rightly held that it is to be understood
    in the sense of providing for the performance of any service
H   or charity in or connected with temple - Charities of offering
                                176
 K. S. SOUNDARARAJAN v. COMMISSIONER OF H.R. & 177
                     C.E.

  Neivedyam to Swami during Punguni Uthiaram festival and A
  the feeding by way of Pundhi Bojanam on the occasion of
  God Kalla/agar passing through Vaigai river to Vandiyur on
· Chitra Pournami day are religious charities and constitute a
  service to the Deity in the temple - Thus, High Court was
  right in concluding that the framing of a scheme in respect of B
  these matters is within the ambit of powers vested uls. 64 of
  the Act.

       Mahant Ram Saroop Dasji vs. S.P. Sahi and
       Ors.1959 Supp. (2) SCR 583; Commissioner,                C
       Madras Hindu Religious and Charitable
       Endowments vs. Narayana Ayyangar and Ors.
       1965 (3) SCR 168 - referred to.
                    Case Law Reference                          o
 1959 Supp. (2) SCR 583             referred to. Para 7
 1965 (3) SCR 168                   referred to. Para 8
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.             E
 2401of2003

      From the Judgment and Order dated 13.12.2000 of the
 High Court of Judicature at Madras in Letters Patent Appeal
 No. 183of1994]
                                                                F
      R. Venkataramani, R. Nedumaran, Neelam Singh,
 Yashraj Bundela for the Appellant.

      E. C. Agrawala, Rajesh Kumar, P. N. Ramalingam, R.
 Ayyam Perumal (for LRs of R-5), Enakshi Mukhopadhyay, M. G
 Yogesh Kanna, Jayant Patel for the Respondents.

       The Judgment of the Court was delivered by

       C. NAGAPPAN, J. 1. This appeal is preferred against
 the judgment and decree dated 13.12.2000 passed by the H
178           SUPREME COURT REPORTS                  [2015] 10 S.C.R.


    A High Court of Judicature at Madras in Letters Patent Appeal
      No.183of1994, wherein the Division Bench held that the first
      object of the three charities mentioned in the Will, is of private
      Trust and the rest are of public Trust and therefore, the
      respondent no.1 and 2 therein, have power under Section 64
    B of the Tamil Nadu Hindu Religious and Charitable Endowment
      Act, 1959, to frame a scheme, in so far as, the public Trust is
      concerned.

            2. Briefly the facts are summarized as follows : One
    C Sundararaja Naidu had no male issues, except two daughters
      and his brot.her's son is Kondasamy Naidu and he executed a
      registered Will dated 7 .12.1949 bequeathing properties
      mentioned in Item nos.1, 2 and 3 absolutely in favour of them
      and directed Kondasamy Naidu to be in possession of Item
    D no.4 and perform the charities mentioned in the Will from out
      of the income of the said properties and prohibited the
      alienation of the said item of land. Later Kondasamy Naidu
      alienated a portion of land in Item no.4 in the Will and claimed
      to have purchased some other properties from out of the sale
    E proceeds.

            3. Five persons claiming to belong to the community of
      the testator filed application before the Deputy Commissioner
      for Hindu Religious and Charitable &ldowments under Section
    F 64 of H.R. & C.E. Act for setting a scheme in respect of the
      charities mentioned in the Will of Sundararaja Naidu. The
      Deputy Commissioner held that the Trust is a private Trust and
      no scheme could be framed. On appeal his order was set
    G aside by the Commissioner, who held that the Trust is a public
      Trust and charities required to be performed are religious
      charities and the beneficiaries are the members of the public
      and a scheme could be framed and in fact required to be
      framed. Meanwhile Kondasamy Naidu died and his legal
    H representatives instituted a statutory suit for setting aside the




•
K. S. SOUNDARARAJAN v. COMMISSIONER OF H.R. & 179
             C.E. [C. NAGAPPAN, J.]

order of the Commissioner referred to supra. The trial court A
dismissed the suit and judgment was affirmed by a single
Judge of the High Court and in the Letters Patent Appeal
preferred, the Division Bench modified the order of the
Commissioner to the extent that the scheme to be framed shall
be confined to the specific endowments attached to the temple, B
namely, performance of Pooja and Neivedyam to Subramania
Swami on the occasion of Panguni Uthiram and by feeding by
way of Pundhi Bojanam on the occasion of God Kallalagar
passing through Vaigai river on the Chitra Pournami day to
Vandiyur. Challenging the same the plaintiffs have preferred C
the present Civil Appeal.

     4. Mr. R. Venkataramani, learned senior counsel
appearing for the appellants contended that the pious acts to
be performed under the Will, have no relationship whatsoever D
to the Deities mentioned and there is no charitable activity of
public character and the pious acts do not constitute public
Trust and the High Court misconstrued Section 64(1) of the
Act by misreading the Will and by holding that the term
'attached' occurring in the explanation under Section 64(1) has E
to be understood broadly. Per contra the learned counsel
appearing for the respondents contended that the High Court
has rightly held that the pious acts mentioned in the Will are
religious charities and the framing of scheme in respect of it, F
is within the ambit of power conferred under Section 64 of the
Act.

      5. Provision is made in the Will for the performance of
following charities:
                                                                G
     "1) During Pang uni festival at Thirupparankundram every
     year according to income supplying of food to the people
     of our own caste and performing poojas and neivadhiyam
     to Swami without fail.
                                                                H
180         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A           2) Also every year on Chitra Pournami when Kallalagar
            entering into Vaigai River and going to Vandiur, supplying
            of food calledArasa."

             6. The Presiding Deity of the temple at
s     Thirupparankundram is Subramaniaswami and the
      performance of Neivedyam and Pooja to the said Swami
      during festival mentioned as first charity is clearly a service to
      be rendered to the Deity in the Temple. Supply of food on
      Chitra Pournami day every year has to be done when God
C     Kallalagar is taken in procession through the Vaigai river on
      way to Vandiur, is the second charity mentioned in the Will. It
      is necessary to refer at this stage to some of the relevant
      provisions of the Act. "Religious institution" has been defined
      in Section 6(18) as meaning a math, temple or specific
D     endowment. "Specific endowment" in Section 6(19) reads thus:
      "any property or money endowed for the performance of any
      specific service or charity in a math or temple or for the
      performance of any other religious charity but does not include
      an inam of the nature described in Explanation (1) to Clause
E     (17)". "Religious charity" is defined in Section 6(16) as
      meaning a public charity associated with a Hindu festival or
      observance of a religious character, whether it be connected
      with a math or temple or not. "Religious endowment" or
 F    "endowment" has been defined in Section 6(17) to mean all
      property belonging to or given or endowed for the support of
      maths or temples, or given or endowed for the performance of
      any service or charity of a public nature connected therewith
      or of any other religious charity, and includes the institution
G     concerned and also the premises thereof but does not include
      gifts or property made as personal gifts to theArchaka, Service
      holder or other employee of a religious institution.

       7. The Constitution Bench of this Court in the decision in
 H Mahant Ram Saroop Dasji Vs. S.P. Sahi and Ors. [1959
K. S. SOUNDARARAJAN v. COMMISSIONER OF H.R. & 181
             C.E. [C. NAGAPPA1~. J.]

Supp.(2) SCR 583] has succinctly stated the distinction in            A
Hindu Law between religious endowments which are public
and those which are-private, as under:

     "To put it briefly, the essential distinction is that in a public
     trust the beneficial interest is vested in an uncertain and      s
     fluctuating body of persons, either the public at large or
     some considerable portion of it answering a particular
     description; in a private trust the beneficiaries are definite
     and ascertained individuals or who within a definite time
     can be definitely ascertained. The fact that the uncertain C
     and fluctuating body of persons is a section of the public
     following a particular religious faith or is only a sect of
     persons of a certain religious persuasion would not
     make any difference in the matter and would not make
     the trust a private trust."                                       D

     8. This Court in the decision in Commissioner, Madras
Hindu Religious and Charitable Endowments Vs.
Narayana Ayyangar and Ors. [1965 (3) SCR 168], while
considering the charity to feed Brahmins on the occasion of E
Rathotsavam festival of Sri Prasanna Venkatachalapathiswami
Temple in Gunaseelam, when feeding is not done in the Temple
premises but at a separate place, held that it is a public charity
by observing thus :
                                                                      F
     "On the facts found, it is clear that on the occasion of the
     Rathotsavam            festival    of     Sri    Prasanna
     Venkatachalapathiswami shrine, pilgrims from many
     places attend the festival and the object of the charity is
     to feed Brahmins attending the shrine on the occasion G
     of this festival. It is not disputed that setting up a Fund
     for feeding Brahmins. is a public charity. The primary
     purpose of the charity is to feed Brahmin pilgrims
     attending the Rathotsavam. This public charity has
     therefore a real connection with the Rathotsavam which H
182           SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A            is a Hindu festival of a religious character, and therefore,
             it is a religious charity within the meaning of Section
             6(13) of Madras Act 19of1951."

  The object of the second charity herein is to feed on the
B occasion of God Kallalagar being taken out in procession
  on Chitra Pournami day by entering into Vaigai river and going
  to Vandiyur, and therefore, it is a religious charity and such a
  service should be regarded a~ one meant for the Deity.
  Specific endowment is a religious institution as per the definition
C stated supra. For the purpose of Section 64 of the Act, as per
  explanation provided, the institution means a temple or a
  specific endowment attached to a temple. The expression
  'attached' in the explanation to Section 64(1) has to be
  construed having regard to the history of the legislation and
D the scheme and objects of the Act and as rightly held by the
  High Court it is required to be understood broadly in that sense
  of providing for the performance of any service or charity in or
  connected with temple.

E           9. The charities of offering Neivedyam to Swami during
      Pung uni Uthiaram festival and the feeding by way of Pundhi
      Bojanam on the occasion of God Kallalagar passing through
      Vaigai river to Vandiyur on Chitra Pournami day are religious
      charities and constitute a service to the Deity in the temple •
F     and in our view, the High Court is right in concluding that the
      framing of a scheme in respect of these matters is within the
      ambit of powers vested under Section 64 of the Act.

       10. There are no merits in the appeal and the same is
G dismissed. No costs.

      Nidhi Jain                                         Appeal dismissed.