Holding

Section 77 of the Hindu Religious and Charitable Endowments Act, 1927 applies to the deed of settlement and the Board’s order allocating fifty per cent of the trust income to religious endowment is within its jurisdiction.

Summary

In 1899 a deed of settlement was executed containing donations of both religious and secular character (list E). The Hindu Religious and Charitable Endowments Board, invoking Section 77 of the Hindu Religious and Charitable Endowments Act, 1927, ordered that fifty per cent of the trust's income be treated as a religious endowment. No party applied to modify the order within the prescribed period, so it became final. The appellants later challenged the Board's jurisdiction, arguing that Section 77 did not apply because there was no specific endowment to an institution and that the order violated Article 26 by varying the settlor's intent. The Supreme Court held that Section 77 does apply to the deed, the Board acted within its jurisdiction, and the order did not alter the settlor's intention. Consequently, the appeal was dismissed.

Issues considered

Whether Section 77 of the Hindu Religious and Charitable Endowments Act, 1927 applies to a deed of settlement containing both religious and secular donations.
Whether the Endowment Board had jurisdiction to allocate fifty per cent of the trust income to a religious endowment.
Whether the Board's order, having become final without a timely challenge, is binding.
Whether the intention of the settlor can be varied by the Board or court under Article 26 of the Constitution.
Whether the order is ultra vires and void.

Legislation cited

Constitution of Indias. Article 26

Subjects

Hindu religious endowmentsSection 77Deed of settlementBoard jurisdictionArticle 26Trust income allocationFinal order

Judgment

A SRI SINGAM CHETTY ATTENDROOLOO AND ORS.
v.
THE STATE OF TAMIL NADU AND ORS.

APRIL 25, 2001

B [S. RAJENDRA BABU AND S.N. VARIAVA, JJ.]

Hindu Religious and Charitable Endowments Act, 1927-Section 77
(S. 57G in the Amending Act of 1951): -r-

C Under a deed of settlement property given partly for religious and
partly for secular pwposes-Order passed by Endowment Board under section
77 stipulating fifty per cent of income of trust to form religious endowment-
Held, the order is within jurisdiction.
Generally the intention of sett/or cannot be varied by the court or the
D Endowment Board-However, in the present case there is no variation from
the intention of the sett/or-Only percentage has been laid down-Hence,
order valid-Constitution of India 1950 Article 26.
One 'S' registered a deed settlement. Under clause 7 of the deed of
settlement, list E contained various donations of specific amounts. They were
E of a religious, secular and charitable character. Thereafter, the Endowment
Board passed an order under the Hindu Religious and Charitable Endowments
Act, 1927 As per the order fifty per cent of the income of the trust was to
from the religious endowment No application was fded to modify or set aside
the order and the order became final. As the order was not coinplied with,
a notice was issued to the Appellants. The Appellants then filed without any
F success applications. The Appellants ultimately filed a suit. High court
dismissed suit and the consequent appeal.
In appeal to this court, appellants contended that the order of the
Endowment Board was without jurisdiction because section 77 was not
applicable to the deed of settlements as there was no endowment to any
G particular institution.
Dismissing the appeal, the Court

HELD : 1.1 Section 77 of the Hindu Religious and Charitable Endowments ~
Act, 1927 is applicable to the settlement deed since clause 7 of the deed of
H settlement and list E show that endowments have been made and property was
188
SRI SINGAM CHETTY ATTENDROOLOO v. STATE [S.N. VARIAVA, J.) 189

given partly for religious and partly for secular uses. Therefore, the order A
passed by the Endowment Board waS within .imisdiction. Further, if the.re is
~ a dispute as to whether Section 77 of the Act a1>plies or not, then the Board
can decide the question and 1>ass an order which would be within jurisdiction.
[193-E-F]

1.2. Under the settlement deed the Board or the Court cannot vary the B
intention of the settlor and sanction a deviation. (193-G]

Goda Rao v. State ofMadras, AIR (1966) SC 653 and Rattlal v. !j.fate
of Bombay, AIR (1954) SC 388, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9493 of C
1995.

From the Judgment and Order dated 20.9.90 of the Madras High Court
in O.S.A. No. 93 ofl981.

Sanjay Parikh and A.N. Singh for the Appellants. D
V Krishnanmrthy V Ramasubramanium for Mis. Arputhan1 and Arona
& Co. for the Respondents.

The Judgment of the Court was delivered by

S.N. VARIAVA, J. This Appeal is against a Judgment dated 20th E
September, 1990. Briefly stated the facts are as follows:
'
Sometime in 1899 one Shri Singam Chetty Vakulabharanam Chetty
registered a Deed of Settlement. For the purposes of this Appeal Clause 7 of

.•1. this Deed of Settlement is relevant. It reads as follows:
F
"7. From the rents of landed properties from which incomes are derivable
and from the interest and other incomes, the charges for the repair of
hou~es and landed properties, taxes, etc., establishment and other
expenses, the permanent e>..'Penses mentioned in list E and the e>..-penses •,
mentioned in list G shall be deducted every year, and out of the G
balance money, 20 per cent, shall be held in reserve and the residue
shall be utilized from year to year as the Trustees deem fit, for the
repair of the houses of Tengalai Vaishnavas, devotees ascetics, pious
men, preachers and the poor, who live in Vaishnava sacred places and
other sacred places, their food, education, thread investiture, marriages,
and for the education of the poor and the young among· us Vaisyas. H
190 SUPREME COURT REPORTS [2001] 3 S.C.R.

A If, however, the inco'me be less than the expenses mentioned in the
said lists E and G such deficiency shall be met from the reserve of 20
per cent, set apart in previous years and even if that reserve be
exhausted all the other items of expenses for charity, etc., except the
expenses for the worship of the family idols and for lectures shall be
adjusted from time to time according to the income."
B
List E contained various donations of specific amounts, some of which were
of a religious character and the others of secular and charitable character. List
G contained donations to individuals.
,..--
On 10th December, 1947 the Endowment Board passed an Order under ,.
C Section 77 of The Hindu Religious and Charitable Endowments Act, 1927,
(hereinafter called the Act). The Order was to the effect that 50 per cent of
the income of the Trust should form religious endowment to which the
provisions of the Act would apply. Section 77 of the said Act reads as
follows:
D "77. (1) Where an endowment has been made or property given for
the support of an institution which is partly of a religious and partly
of a secular character or for the performance of any service or charity
connected therewith, or where an endowment made or property given
is appropriated partly to religious and partly to secular uses, the
E Board may notwithstanding anything contained in the Madras
Endowments and Escheats Regulation, 1817, determine what portion
of such endowment or property or of the income therefrom shall be
allocated to religious uses. Such portion shall thereafter be deemed to
be a religious endowment and its administration shall be governed by
the provisions of this Act.
F
(2) Any party affected by an order under sub-section "(1) may
within such time as may be prescribed apply to the court to modify
or set aside such order but, ~bject to the result of such application,
·the order of the Board shall be final."

G No application was made to any Court to modify or set aside this Order. Thus
the Order became final.

In 1951 the Act was amended. In the amended Act, Section 57(g) was .
in terms identical to the old Section 77. ~

H As in spite of the said Order the Appellants had not complied with the
SRI SINGAM CHETTY ATTENDROOLOO v. STATE [S.N. VARIAVA, J.] 191

... directions in t11e said Order, a notice was issued to them on 15th March, 1952 . A
The Appellants then filed Application No. 75 of 1952 before the Deputy
-.; Commissioner. The prayer in this Application reads as follows:

"(8) It is therefore prayed th(lt the Deputy Commissioner be pleased
to hold that the endowments covered by the trust would not come
under Section 57 (g) and that the petitioner be permitted to administer B
and carry out the endowments in the trust deed as per .provisions
made therein and the .directions made in the order of the Deputy
Commissioner dated 15-3-1952 be modified in tlle light of the provisions
"(
of the present Act and in view of the representation aforesaid."
....

The Deputy Commissioner by his Order dated 13th September, 1952 held that c
the directions given by him on 15th March, 1952 were in pursuance of tlle
Order dated 10th December, 1947. It was held tllat that order had become final.
Itwas held that the only remedy of the Appellants, if any, was to file a Petition
to the Government under Section 103(b) of the Act.
D
The Appellants then filed an Application to the Government under
Section 103(b). By an Order dated 2nd January, 1954 that Application was
...(
rejected as being time-barred. It was, however, mentioned that tlle Deputy
Commissioner could be moved afresh for an Order under Section 57(g) of the
Act.
E
The Appellants then moved the Deputy Commissioner under Section 57
(g) by way of Application No. 55 of 1954. Even in t11is Application no
challenge was made to the Order dated I 0th September, 1947. The only prayer
was as follows:
~· '
"(14) The Petitioners therefore pray that this Hon'ble Deputy F
Commissioner will be pleased to hold (a) that the charities enumerated
in question in Schedule "E" to the trust deed have to be carried out
with the amounts provided for therein, to be adjusted if need be at
the discretion of the trustees in the contingencies set out in para 7
of the Trust Deed, and (b) to declare that the endowments do not G
come within the perview of Sec. 57(g) and that the allotment of 50 per
cent of the income is illegal and do not binding upon the trust and
to pass such further or other orders as are just and necessary in the
-..::"
circumstances."

By an Order dated 25th June, 1954 the Application was dismissed on that H
192 SUPREME COURT REPORTS [2001] 3 S.C.R.

A ground that the Deputy Commissioner had no power to sit in Appeal over an ...
order passed by the earlier Board. An Appeal against this Order was dismissed >-.-
by the Commissioner on 27th October, 1954.

The Appellants then filed Suit No. 245 of 1955 in the City Civil Court
at Madras. Jn this Suit they prayed that the Order dated 27th October, 1954
B be set aside as it was ultra-vires the Hindu Religious and Charitable
Endowments Act, 1951. This Suit was decreed on 20th November, 1959. The
Conunissioner filed an Appeal before the High Court of Madras. By a Judgment
dated 5th August, 1969 the Appeal was allowed and the Suit was dismissed. 7-
In this Judgment it has been held that the Deputy Commissioner was right
c when he held that he had no jurisdiction to sit in an Appeal over an order
passed by the earlier Board. It was held that Order had become final. It was
held that the question whether or not there was outright devolution of
property for religious and secular purposes was not free from doubt. It was
held that in 1947 a bonafide dispute had arisen. The Judgment ends with the
following observations:
D
"We are not mentioning any opinion as to whether the plaintiffs can
agitate for their relief in independent proceedings for vacating the >- .....
order of the Board. It will be open to them to take appropriate
proceedings for the purpose if they are so advised."
E
Basing their case upon these observations the ·Appellants then filed
Suit No. 32of1970 praying for an injunction against ~e Board from interfering
with the Trust, its administration and control, either by themselves or.from
their Officers under the provisions of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959 or the earlier Acts. An injunction was also ~
F prayed against defendants on that ground that the previous Acts of the
defendant;> were void and without jurisdiction. Thus now, for the first time,
in an indirect method, the Order dated 10th December, -1947 was being
challenged. To be noted that it had already been held by the earlier Division
J;lench, in its Order dated 5th August, 1969, that a bonafide dispute had
ctxisted in 1947. It had also been held that the Order dated 10th December, 1947
G
had become final. The earlier Division Bench had thus held that the Order of
the Board dated 10th December, 1947 was with jurisdiction.

'$--
The learned single Judge thus dismissed the Suit on 10th September,
1979. The Appeal as against that Judgment was dismissed by the impugned
H Judgment dated 20th September, 1990.
.. ~
,,
SRI SINGAM CHETTY ATTENDROOLOO v. STATE [S.N. VARIAVA, J.]

Mr. Parikh assailed the Orders on the ground that the Order of the
0
Board dated 10th December, 1947 was without any jurisdiction. He submitted
that the Board could only have passed an order provided Section 77 of the
193

A

1927 Act was applicable. He submitted that for Section 77 to become applicable
there should be an endowment made or property given for support of an
institution which was partly of a religious and partly of a secular character.
He submitted that in this case there was no endowment to any particular B
institution. He submitted that therefore Section 77 did not at all apply and the
Board had no jurisdiction.
. 1
_, .... It was nehi submitted that in any event the Deed of Settlement made
specific contributions for specific purposes. It was submitted that where c
specific endowments have been made for specific purposes Section 77 would
.... not apply. It was submitted that Section 77 would only apply if a general
,
endowment was made or property given and that endowment or property was
used partly for religious and partly for secular purposes. It is submitted that
for this reason also Section 77 would not apply.
D
The challenge to Order dated 10th December, 1947, made at such a
.../_ belated stage, could only be sustained provided the Order was without
-~
jurisdiction. The question whether the Order was without jurisdiction had
already been decided against the Appellants by Order dated 5th August,
1969. The first portion of Section 77 undoubtedly talks aboµt an endowment E
made or property given for support of an institution. But that is not the only
provision. Section 77 also applies when an endowment is made or property
given partly to religious and partly to secular uses. Clause 7 of the Trust Deed
and List E show· that endowments have been made and property given partly
for re1igious and partly for secular uses. It, therefore, could not be said with
absolute certainty that Section 77 did not apply. If there was a dispute as to F
whether Section 77 applied or not then the Board could decide the question
and pass an Order. It did so on 10th December, 1947. Such an Order would
be one which was passed with jurisdiction. As the same was not challenged
within the time provided it became final as against the Appellants.

It was ne},_1 submitted that as specific endowments had been made for
G
specific purposes, the Order dated 10th December, 1947 was hit by Article 26
of the Constitution. It was submitted that neither the Board nor the Court
....,...
.
could vary the intention of the settlor and sanction a deviation. In support
of this submission reliance was placed on the cases of Goda Rao v. State of
Madras, reported in AIR (1966) SC 653 and Ratilal v. State of Bombay, H
194 SUPREME COURT REPORTS [2001] 3 S.C.R.

..
A reported in AIR (1954) SC 388 .
There can be no dispute with the general proposition that the intention
of the settlor cannot be varied. However, in this case there is no variation or
deviation from the intention of the settlor. All that has been done is that the
provisions of the Act have been applied and the percentage which has to be
B used for religious purposes have been laid down.

Under the circumstances, we see no reason to interfere. The Appeal
stands dismissed. There will be no Order as to costs.

N.J. Appeal dismissed.
c