In 1866, a Bill was introduced into the Legislative Council for legislation on the Alienation of Devatra property. The Board of Revenue asked Vidyasagar for his opinion on the subject based on Hindu Law.
Vidyasagar communicated his opinion by a letter, which speaks for itself, and is therefore given below:—
R. B. Chapman Esquire
Secretary to the Board of Revenue.
With, reference to the correspondence forwarded to me under docked No. 656 B. dated 13th ultimo, I beg to state that there do not appear to be any texts in the Books on Hindu Law which either permit or prohibit the alienation of Devatra property. But the general practice of the country does not sanction the disposition of such property in any shape. In fact, when Endowments of this description are made by Hindus, they make them with the sole object of securing the property endowed from any sort of alienation, and attach conditions accordingly. Trustees are consequently prohibited from disposing of the property. Though no distinct ruling on the point is traceable in any of the Text Books, no alienation can be permitted in accordance with the principles of Hindu Law. According to that Law, alienation cannot take place except with the express consent of the owner, and as in the case of Devatra property of the Idol, to which it is consecrated, is the owner, it cannot be disposed of except with its consent, which, as a matter of course, can neither be given nor extorted. Hence, Devatra property has become inalienable.
2. I am fully aware of the difficulties which may occasionally be felt by trustees in the execution of the trusts in connection with Religious Establishments. Circumstances may arise, which may compel them to incur liabilities, which the fixed income of the Trust will never enable them to meet; because, in many cases, the endowers appropriate the income in such a way as to leave little or no margin for any extraordinary or unforeseen expenditure connected with the endowments, such as repairs of temples, payment of Government Revenue in cases when it is not realized from the Ryots in consequence of draught, inundation or other causes &c. It cannot be expected that Trustees will meet this expenditure from their own funds or from subscriptions. Some provision must therefore be made by Law for the purpose, and on this consideration, I see no objection to section 1 of the Bill No 8 of 1866, if it be so worded as to express distinctly that the funds raised by the disposition of the property are to be appropriated solely to meet extraordinary or unavoidable expenditure connected with Religious Endowments. Disposal of Devatra property for such purposes would not, in my humble opinion, be inconsistent with the principle of Hindu Law. The chief object of all endowments is to guard against misappropriation, and as the extra expenditure referred to is solely and entirely required for Devatra purposes, it can, on no account, be considered in the light of misappropriation. Nay, if the Idol could be made to speak, it would certainly not only have given its consent, but would have also insisted on the disposition of its property under such contingencies.
3. Alienation being allowable only under the circumstances above set forth, section 11 of the Bill appears to me to be objectionable, as it confers undue powers on Trustees, and prescribes that it is not necessary for purchasers or mortgagees of Devatra property to enquire into the necessity or expediency of the sale or mortgage or to see that on more than is absolutely required is raised. With such unlimited powers on the part of Trustees, and freedom from all responsibility on that of the purchasers or mortgagees, the property may probably be liable to misappropriation against which it is absolutely necessary to guard. I believe that the Law in regard to the disposition of other Trusts enjoins upon purchasers or mortgagees to make reasonable enquiries about the immediate necessity for the alienation. The benefit to be conferred or the danger to be averted by alienating a portion of the Trust property must be the criterion by which the validity of such alienation is to be judged of. With such provisions in cases of other Trusts, it is not clear why similar conditions should not be attached to transfers of Devatra Trusts. I would therefore take the liberty to suggest that section II may be so modified as to guard against any possible chance of misappropriation. With such modifications, the Bill would, I believe, be opposed neither to the spirit of Hindu Law nor to the general feelings of the Hindu community on the subject.
Calcutta, “I have the honor to be Sir
“Your Most obedt. servant
(Sd.) Issurchandra Sarma.”
The 6th August 1866
The Government saw the soundness of Vidyasagar’s arguments, and the Bill was ultimately rejected.
SOURCE: Isvar Chandra Vidyasagar(1820–1891), a story of his life and work by Subal Chandra Mitra-1902
Printed and Published by Sarat Chandra
Mitra, New Bengal Press,
159, Maniktola Street-1902.