THAYARAMMAL (DEAD) BY LR.versusKANAKAMMAL AND ORS.

A                      THAYARAMMAL (DEAD) BY LR.
                                         v.
                           KANAKAMMAL AND ORS.

                               DECEMBER 6, 2004
B
                [D.M. DHARMADHIKARI AND H.K. SEMA, JJ.]

         Hindus Law :

          Religious endowment-Property dedicated for public use as
C   Dharmachatram-A resting place for travelers and pilgrims-Donor
    indicating no administrator or manager-Held, such a dedication made by
    a Hindu for religious or charitable purposes in strict sense is neither a
    gift nor a trust-Such a property is itself raised to the categ01y of juristic
    person.
D
         Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959:

          Ss. 6(5) and .(17)-Charitable and religious endowments -Owner
    dedicating his property for being used by public as Dharmachatram
    (Choultly)-No administrator or manager appointed-Held, High Court
E   rightly opined that the suit property which was a dedication for charitable
    purposes on neither be claimed by plaintiff as a trustee nor by defendant
    as owner-However, order of High Court modified to the effect that the
    suit property being a 'charitable endowment' would be taken in control
    for administration, management and maintenance by State Government and
F   the Commissioner invoking powers under the Act-Administrator Generals
    Act, 1963-0.fficial Trustees Act, 1913-S. JO.

         Evidence Act, 1872 :

         Property dedicated for public use-Document of dedication being a
G   stone inscription-Evidentiary value of

         Suit properties were dedicated for being used by the public as
    'Dharmachatram', where travelers and pilgrims could take shelter and
    be provided with refreshment. The document of dedication was a stone
H   inscription of the year 1805 on the front wall of the property. The
                                         734
                THAYARAMMAL v.KANAKAMMAL                              735

plaintiffs, who claimed themselves in occupation of a portion of the          A
property, filed a suit for eviction of the defendants from the other
portion thereof contending that the latter had wrongly encroached upon
it. The stand of the defendants was that they purchased the said portion
in a court sale in execution ofa compromise decree in respect of the suit
property. The trial court and the first appellate court partly decreed the    B
suit and rejected the claim of the defendants holding that the compromise
decree was collusive and the property being of a public trust, the
defendants could claim no title thereto. In the second appeal filed by the
defendants the High Court also rejected their claim. However, the High
Court modified the decree holding that as the owner of the property did
not appoint any trustees, the plaintiffs too could not claim any right to     c
the property in the assumed status of a trustee; and directed that the
Administrator General and the Official Trustee of Madras should take
over the management of the property. Aggrieved, both the plaintiffs and
the defendants field the present appeals.

     Dismissing the appeal, the Court
                                                                              D

      HELD : 1. The contents of the stone inscription, which is of the year
1805 and has a presumptive evidentiary value under the Evidence Act,
clearly indicate that the owner dedicated the property for use as
'Dharmchartra' (Choultry) i.e. a resting place for the travellers and         E
pilgrims. Such a dedication by a Hindu for religious or charitable
purposes, in the strict legal sense is neither a 'gift' nor a 'trust'. A
religious endowment does not create title in anybody's favour in respect
of the property dedicated. A property dedicated for religious or charitable
purpose for which the owner of the property or the donor has indicated
no Administrator or Manager becomes res nullius i.e. the belonging to         F
nobody. Such a property is itself raised to the category of a juristic
person. [741-D-E; 741-F-GJ

    Manohar Ganesh v. Lakhmiram, ILR 12 Bom. 247 and Krishna Singh
v. Mathura Ahir, AIR (1972) All 273, referred to.
                                                                              G
      B.K. Mukherjea on Hindu Law of Religious and Charitable Trusts,
fifth Edn. by AC Sen, referred to.

    2. The High Court was right in holding that the suit property which
was a dedication for charitable purposes cannot be claimed by the             H
    736                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   plaintiff as a trustee or the defendant as owner, but it failed to make a
    distinction between a 'trust' in strict legal sense and a 'religious or
    charitable endowment' as understood in customary Hindu Law. Section
    10 of the Official Trustees Act shows that it is applicable only in relation
    to a property subject to a trust for which there is no trustee available
B   within the local limits of the jurisdiction of the High Court. It is only
    in such cases that the High Court can appoint an official trustee to take
    over the property for management. Such is not the case here. Similarly,
    Administrators-General Act of 1963 can have no application to a
    charitable endowment to which the provisions of Tamil Nadu Charitable
    and Religious Endowments Act, 1955 are directly applicable.
C                                                       [742-C-D; 742-F-G-H]

          3.1. Sections 6(5) and 6(17) of the Tamil Nadu Charitable and
    Religious Endowments Act, 1955 define 'Charitable Endowments' and
    'religious endowment' respectively to include amongst other religious
D   institutions and charitable institutions, 'choultries' endowed for the
    benefit of public. The Commissioner appointed under Section 9 and his
    delegates have been conferred with ample powers under Chapt,er III
    particularly Sections 23 and 24 to take necessary steps for maintenance
    and management of all 'religious endowments' within the State to which
    the provisions of the State Act are applicable. The State Government
E   is empowered under Section 3 to extend the provisions of the. ~ct to
    'religious endowment'. [743-A-B; 743-E-F]

         3.2. The judgment of the High Court is upheld with the modification
    that instead of Administrator General under Act No. 45 of 1963 or
    Official Trustee under Act No. 2 of 1913, the suit property which is a
F   'charitable endowment' shall be taken in control for administration,
    management and maintenance by the State Government and the
    Commissioner by invoking their powers under the Tamil Nadu Hindu
    Religious and Charitable Endowments Act, 1959. [743-G-H]

G        CIVIL APPELLATE JURISDICTION : Civil Appeal· No. 6060 of
    1999.

         From the Judgment and Order dated 3.12.98 of the Madras High Court
    in S.A. No. 93 of 1985.

H                                      WITH
    THAYARAMMAL v. K.ANAKAMMAL [DHARMADHIK.ARI, J.]                      737

     C.A. No. 6061 of 1999.                                                      A

     M.N. Rao, Y. Ramesh, Ms. Sasmita Tripathy, Y. Raja Gopala Rao for
the Appellant in C.A. No. 6060199 and Respondent in C.A. No. 6061/99.

     Santosh Paul, Sandeep Chhabra, Rajeev Sharma, Ms. Shree Devi and            B
M.J. Paul for the Respondent in C.A. No. 6060199 and Appellant in C.A.
No. 6061/99.

     The Judgment of the Court was delivered by

     DHARMADHIKARI, J. : These two cross appeals have been filed C
as both the plaintiffs and defendants feel aggrieved by the judgment of the
learned Single Judge of the High Court of Madras passed in Second Appeal
whereby decree granted by the two courts below has been modified with
directions to the Administrator General under the Administrators-General ,
Act No. 45 of 1963 and the Official Trustee of Madras under Official D
Trustees Act No. 2 of 1913 (hereinafter referred to as Act 45 of 1963 and
Act No. 2 of 1913) to administer the suit properties as properties ~f the
public trust.

     The facts, relevant to the institution of the suit leading to the present
two cross appeals are as under :                                                 E

     The properties in suit describe in Schedule 'A' & 'B' are admittedly
properties dedicated for being used by the public as Dharmachatram. The ,
document of dedication is in the nature of a ston:! inscription on the front
wall of the property. The property has been dedicated as a Dharmachatram F
meaning a 'Choultry' of South India where travellers and pilgrims can take
shelter and the be provided with refreshment. The stone inscription is of the
year 1805 and has a presumptive evidentiary value under the Evidence Act.
The inscription is in Tamil and the contents of it have been explained to us
in which the dedicator has clearly described himself as the owner of the
property which he dedicated to the general public as a resting place. There G
is no trustee mentioned therein and the witness to the dedication is no
human-being but Lord Thyagaraja Himself. The inscription translated into
English reads as under :

         "Srinivas Sagaptam 6729. Kaliyuga Karthan 4905. Panchegam               H
    738                   SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A            Vattage Dharpitham, 57 years ofRalthase, 3rd day. lppasi Mar 15
             (Tamil) Wednesday. Today, at Chennal Towa belongs to Tadhaval
             Community, Pachaiyammal, wife of Torairallur Sadayappa Pillai,
             dedicated this property as Dharmachatram, which being boundaries
             in East side sixteen Pillar Mandapam. Southside Nallena Mudaliar
             Chatram, west side Kammal Chatram, North side Nada Veethi and
B
             being 73 feet length towards south and north, 31 feet width, towards
             west to east. This Dharmachatram along with all the appurtenant
             rights can be used till the last days of Moon and Sun. No one can
             sell or mortgage this chatram. Thyagaraja Swamlyal and
             Vaduvudaiyammal are witnesses. Any person who would create
c            any encumbrance by selling or purchasing would incur a curse like
             the one, to be incurred by a person who would slaughter a cow on
             the banks of Holy Ganga in Kasi."

          The case of the plaintiffs was that they are in occupation of a part of
D   the dedicated property described in Schedule 'A' of the plaint in the capacity
    as trustees. It is further pleaded that a portion of the said property mentioned
    in Scftedule 'B' has been wrongly encroached upon by the defendants who
    are liable to be evicted and injuncted from entering into the possession of
    any part of the dedicated property.

E        The suit was contested by the defendants pleading inter alia that they
    have acquired titled to the portion of property in their possession on the basis
    of purchase made by them in court sale which was conducted in the course
    of execution of a compromise decree reached in respect of the suit property
    between parties to that suit.
F
         The trial court and the first appellate court partly decreed the suit.
    There is a concurred finding recorded by them that the compromise decree
    was collusive and the property being of a public trust, the defendant can
    claim no ownership to the property on the basis of the alleged purchase of
    the same in court sale.
G
         The defendants preferred as Second Appeal to the High Court. The
    High Court came to the conclusion on the basis of the contents of stone
    inscription on the outer wall of the property that it was dedicated for public
    use. No trustees were appointed by the owner of the property who dedicated
H   the property as Dharmachatra. The High Court, therefore, held that the
    THAYARAMMAL v. KANAKAMMAL [DHARMADHIKARI, J.]                        739

defendant could not acquire any title to Schedule 'B' property on the basis      A
of court sale. The plaintiffs also cannot claim any right to the property in
his assumed status of a trustee.

     The High Court on the above findings and conclusions modified the
decree granted by the courts below and directed that as the property belongs     B
to a public trust with no scheme provided for its management through
appointed trustees, the Administrator-General under Act 45 of 1963 and
Official Trustees Act 1913 should take over the management of the trust.

     The operative part of judgment of the High Court in Second Appeal
with the directions contained therein need verbatim reproduction as the          C
counsel appearing in these two cross appeals have assailed them in favour
of the their parties :

         "In the result the second appeal is allowed in part. The judgment
         and decree of both the courts below in the suit O.S. No. 21/75 on
         the file of II Additional Subordinate Judge's Court at Changalpattu
                                                                                 D
         dated 29.11.1977 and in the first appeal in A.S. No. 272 of 1978
         on the file of District Court at Chengalpattu dated 20 12.1983 are
         modified, and the suit in O.S. No. 21/75 on the file of II Additional
         Subordinate Judge's Court at Chengalpattu is decreed declaring
         that the suit property consisting of the plaint A and B schedule        E
         properties are "Dharmachatram" and it is a public Trust, and the
         Administrator General and Official Trustee of Madras is directed
         to take delivery of possession of the suit property consisting of the
         plaint A and B schedule properties through the process of Court
         before the Subordinate Judge's Court at Chengalpattu, and the           F
         Administrator General and Official Trustee of Madras is directed
         to administer the suit property as a public Trust property in
         accordance with the pre, 1isions of the Administrator General Act
         45/63 and the Official Trustees Act 2/1913. In other respects the
         suit claim of the Respondent/Plaintiffs for the reliefs of possession
         and permanent injunction and also for damages for use and               G
         occupation is dismissed. In the circumstances of the case each party
         is directed to bear their own costs throughout.

         The Registry is directed to send a copy of this Judgment and decree
         in the second appeal in S.A. No. 93 of 1985 immediately to the          H
    740                    SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A            Administrator General and Official Trustee at Madras and to the
             Subordinate Judge's Court at Chengalpattu."

          The principal submission of the learned counsel appearing in these
    appeals representing legal representative of the deceased plaintiff, is that the
B   High Court wrongly held that the property dedicated was a' Trust'. According
    to the learned counsel it was a 'Charitable Endowment' to which the provisions
    of Act 45 of 1963 and Act No. 2 of 1913 were not attracted. It is submitted
    that the property described is Dharmachatram is covered by definition of
    the word 'Charitable Endowments' in Section 6(5) of the Tamil Nadu Hindu
    Religious and Charitable Endowments Act 1959 (hereinafter shortly referred
C   to as the 'State Act.").

          It is submitted that the endowment is not registered. The family members
    of plaintiffs since generations have been occupying a portion of the· suit
    property and putting it to use for providing shelter and refreshment to
D   travellers and pilgrims. It is argued that the High Court ought not to have
    disturbed the concurred findings of the subordinate courts and modified the
    decree in Second Appeal.

          On the other side, as respondents and appellants in the cross appeal,
    learned counsel argues that the contents of the stone inscription do not
E   amount in law to creation of any Trust and the plaintiffs, therefore, can claim
    no status of a Trustee. It is contended that the defendants having purchased
    the property in a court auction and been placed in possession have better
    title than the plaintiffs who are mere imposters with a bogus claim as
    trustees. It is, therefore, prayed that the judgment of the High Court should
F   be set aside and the suit of the plaintiff should be dismissed in Toto.

         After hearing learned counsel appearing for the parties the perusing the
    relevant record of the case, the main question which according to us needs
    decision is as to the nature of the property and whether the stone inscription
    on the outer wall of the property indicates creation of a 'Trust' or a 'Charitable
G   Endowment'.

         In the contents of the stone inscription affixed on the property in
    dispute, it is described as "Dharmachatram." In Hinduism, right from the
    Vedic period, there were institutions like Sarais and Dharmachatra which
H   are resting places. A hymn addressed to the Marut (winds) (Rigveda Ashtka
     THAYARAMMAL v. KANAKAMMAL [DHARMADHIKARI, J.]                           741
                                                                    "   I,

Chapter IV) speaks, of refreshments "being ready at the resting places on          A
the road." This hymn indicates the existence of accommodation for the use
of travellers.

      Dharmachatram is 'Choultry' of South India meaning a place where
pilgrims or travellers may find rest and other provisions. Hindus in India         B
consider the establishment of temples, mutts and other forms of religious
institutions or excavation and consecration of tanks, wells and other reservoirs
of water, planting of shady trees for the benefit to travellers, establishment
of Choultries, sarais or alms houses and Dharamsala for the benefit of
mendicants and wayfarers and pilgrims as pious deeds which would bring
heavenly bliss and happiness to a Hindu. The PROPATHA of the Vedas is              C
the same thing as Chuntry or Sarai and sometimes it is described as
'PRATISHREY AG RAH'. (See : BK Mukherjea on Hindu Law of Religious
and Charitable Trusts, fifth Edition by AC Sen pages 15, 16 & 26).

      The contents of the stone inscription clearly indicate that the owner has    D
dedicated the property for use as 'Dharamchatra' meaning a resting place
for the travelers and pilgrims visiting the Thyagraja Temple. Such a dedication
in the strict legal sense is neither a 'gift' as understood in the Transfer of
Property Act which requires an acceptance by the donee of the property
donated nor it is a 'trust'. The India Trusts Act as clear by its Preamble and
contents is applicable only to private trusts and not to public trusts.            E
A dedication by a Hindu for religious or charitable purposes is neither a
'gift' nor a 'trust' in the strict legal sense. (see : BK Mukherjea on Hindu
Law of Religious and Charitable Trusts, fifth Edition by AC sen pages I 02,
103)
                                                                                   F
      A religious endowment does not create title in respect of the property
dedicated in anybody's favour. A property dedicated for religious or charitable
purpose for which the owner of the property or the donor has indicated no
Administrator or Manager becomes res nullius which the learned Author in
the Book (supra) explains as property belonging to nobody. Such a property
dedicated for general public use is itself raised to the category of a juristic    G
person. Learned author at page 35 of his commentary explains how such
a property vests in the property itself as a juristic person. In Manohar
Ganesh v. Lakhmiram, ILR 12 Bombay 247, it is held that 'the Hindu Law
like the Roman Law and those derived from it recognizes not only corporate
bodies with rights or property vested in the corporation apart from its            H
    742                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   individual members, but also judicial persons and subjects called foundations.'
    The religious institution like mutts and other establishments obviously
    answer to the description offoundations 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
B   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 v. Mathura
    Ahir, AIR ( 1972) Allahabad 273 that a mutt is under the Hindu Law a juristic
    person in the same manner as a temple where an idol is installed.

          The learned judge of the High Court was right in coming to the
C   conclusion that the property in suit which was a dedication for charitable
    purposes cannot be claimed by the plaintiff as a trustee or the defendant as
    owner. Having thus come to the conclusion, the High Court failed to make
    a distinction between a 'trust' in strict legal sense and a 'religious or
    charitable endowment' as understood in customary Hindu Law. It is because
D   of its failure to see this distinction that it committed an error in directing
    that Administrator General in accordance with the provisions of
    Administrators General Act No. 45 of 1963 and a official trustee under
    Official Trustee Act No. 2 of 1913 should take over the property for
    administration.

E         We have looked into the provisions of the two Acts 45 of 1963 and
    Act 2 of 1913 and we find that recourse to them was not warranted when
    State enactment viz. Tamil Nadu Charitable and Religious Endowments Act
    1955 expressly governs the subject-matter in dispute.

F          Section 10 of the Official Trustees Act from its contents shows that
    it is applicable only in relation to a property subject to a trust for which there
    is no trustee available within the local limits of the jurisdictio!l of the High
    Court. It is only in such cases that the High Court can appoint an official
    trustee to take over the property for management. Such is not the case here.

G         Similarly, the High Court can appoint an Administrator General under
    the Administrators-General Act of 1963 only in case there is none to whom
    letters of Administration in exercise of its powers of grant of probate and
    letters of Administrator under the Indian Succession Act can be granted. The
    Act of 1963 can have no application to a charitable endowment to which
H   the provisions of State Act are directly applicable.
    THAYARAMMAL v. KANAKAMMAL [DHARMADHIKARI, J.)                         743

      Sections 6(5) & 6(17) of the State Act define 'Charitable Endowments'       A
and 'religious endowment' respectively to include amongst other religious
institutions and charitable institutions, 'choultries' endowed for the benefit
of public. The definition clauses read as under :

         "Section 6(5). Charitable endowments" means all property given           B
         or endowed for the benefit of, or used as of right by, the Hindu or
         the Jain community or section thereof, for the support or maintenance
         of object of utility to the said community or section, such as
         resthouses, choultries, patasalas schools and colleges, houses for
         feeding the poor and institutions for the advancement of education,
         medical relief and public health or other objects of alike nature; and   C
          includes the institution concerned.

         Section 6(17). "Religious endowment" or "endowment" means all
         property belongs to or given or endowed for the support of maths
         or temples, or given or endowed for the performance of any service       D
         charity of a public nature connected therewith or of any other
         religious charity; and includes the institution concerned and also
         the premises thereof, but does not include gifts of property made
         as personal gifts to the archaka, service holder or other employee
         of a religious institution."
                                                                                  E
      The Commissioner appointed under Section 9 of the State Act and
other authorities under him like Joint, Deputy and Assistant Commissioner
as his delegates have been conferred with ample powers under Chapter III
particularly Sections 23 & 24 to take necessary steps for maintenance and
management of all 'religious endowments' within the State to which the            p
provisions of the State Act are applicable. The State Government is
empowered under section 3 of the State Act to extend the provisions of the
Act to 'religious endowment'.

     For the reasons aforesaid both the appeals are dismissed and the
judgment of the High Court is upheld with the modification that instead of        G
Administrator General under Act No. 45 of 1963 or official trustee under
Act No. 2 of 1913, the suit property which is a 'charitable endowment' shall
be taken in control for administration, management and maintenance by the
State Government and the Commissioner by invoking their powers under
the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959.                H
    744                  SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A        Copies of this judgment be sent to the State Government of Tamil Nadu
    and the Commissioner for Hindu Religious and Charitable ~.n~owments in
    the State of Tamil Nadu for taking necessary actions as required in law for
    proper maintenance and administration of the property in suit.
                                                                                  ...
B   R.P.                                                    Appeals dismissed.