Law of Hindu Debattar Property

Introduction

The customary modes of charity amongst the Hindus are ‘the consecration of images of the deity n temples for workshop, establishment of hospitals of Maths which are either monasteries for Sanyasis or residential colleges for students, asylums for the poor or religious mendicants, shelters for travellers, temples of learning, establishments of Suttaras, or alms-houses, Athithishalas, Pathashalas, excavation and consecration of shady trees and the like’: Shastri’s Hindu Law, VIII Edn. p. 665. These have been more succinctly and methodically stated by the Right Honourable Mr. Ammer Ali, in the judgment of the Privy Council in Vidya Varuthi v. Baluswami ILR 44 Mad 831 at p. 839: (AIR 1922 PC 123 at p. 126), in the following terms:

“Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind and for all purposes considered meritorious in the Hindu social and religious system, to Brahmins, Goswamis, Sanyasis, etc.”

In Hindu law, the mere fact that an idol has been established does not itself create debattar. It seems to be likewise correct to say that mere building of the fire temple did not create the endowment. It is only when the temple was accompanied by endowment of properties that it became an endowment of properties that it became an endowment in the sense that a debattar becomes. It has been stated in Mukherjee’s Hindu Law of Religious and Charitable Trust (2nd ed., p. 142) that

a religious trust by way of debattar can come into existence only when the property is dedicated for worship or service of the idol. In Hindu law, again, where there is a document, the same will prove the terms and conditions of the endowment. In the absence of document it is permissible to prove the nature and the terms of dedication or endowment. In Hindu law, various kinds of evidence have been taken into consideration in the determination of the question whether a trust is a public or private trust.

What is Charity

The word “charity”, like many other words, has both a lay meaning and a legal meaning. In the common use of the term “charity” means any act of kindness or benevolence, and it is usually defined as such by the lexicographers. Thus, by the lay mind it is undoubtedly considered an act of charity for one to aid another in the hour of sickness, distress or need. In law such an act would amount to benevolence and not to charity. Another definition that has been frequently quoted by the courts, but which is broader than the true legal definition, is that whatever is given for the love of God or for the love of a neighbour, in the catholic and universal sense–given from those motives and to these ends, free from the stain or taint of every consideration that is personal, private, or selfish–constitutes charity.

In legal parlance the word “charity” has a much wider significance than in common speech. While a precise and complete definition is difficult to frame, the most comprehensive and carefully drawn definition is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.

It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. Another definition capable of being easily understood and applied is that given by Lord Camden as follows: “A gift to a general public use, which extends to the poor as well as the rich”. The theory of this is that the immediate persons benefited may be of a particular class, and yet if the use is public in the sense that it promotes the general welfare in some way, it has the essentials of a charity. The true test of a legal public charity is the object sought to be attained and not the motive of the donor in establishing the trust: 10 Am. Jur. S. 13 p. 594.

Again, charity has been declared to be active goodness–the doing good to our fellow men, fostering those institutions that are established to relieve pain, to prevent suffering, and to do good to mankind in general or to any class or portion of mankind. General gifts for the relief of the poor and unfortunate persons are for a charitable purpose: 14 C. J. S. page 447.

A gift for a religious purpose is one for a charitable purpose: In re, White; White v. White, (1893) 2 Ch. p. 41; Mukherjee p. 56; 14 C. J. S. p. 449. Religion and charity overlap each other and do not admit of any differentiation. They are both integral parts of Dharma or rule of righteousness which the Hindu sages regard as the upholder of the entire fabric of universe, both in its physical and moral aspects. It has been pointed out by B. K. Mukherjee that flowing from the doctrine of Karma in the Hindu system is no line of demarcation between religion, and charity.

Nature of shebaiti right

1-The question of the nature of shebaiti right, it is well settled now that Shebaiti right is an amalgam of office which enjoins the performance of some religious or spiritual duties and also some material benefits and as such is a property. But the concept of “property” in its application to the office of a shebait is to be understood not in its ordinary or unqualified sense. Shebaitship thus is a property of a very special nature. Reference may be made to. Manohar Mukherji Vs. Bhupendranath Mukherji ; AIR 1943 89 (Privy Council) Pran Krishna Das Vs. Controller of Estate Duty, West Bengal, Calcutta, ; Angurbala Mullick Vs. Debabrata Mullick, ; and The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., ; Bameswar Bamdev Shiva and Another Vs. Anath Nath Mukherjee and Another, .

2-Originally a shebait was considered to be only a manager of a deity and is entitled to discharge the religious, spiritual or even the mundane duties which are required for the worship of the deity. Although, unlike the law of Trust, the debattar estate is not vested in the shebait various principles relating to the law of Trust are applicable to the case of shebaitship. The duties of shebaits are personal and, as such cannot be delegated to any other person. Not onlv the shebait is enjoined to arrange or perform religious ceremonies or practices but also he is entitled to get the benefit which the settler has provided in the Deed of endowment or the Arpannama as secular benefits to the office of shebaitship. As shebaitship involves religious duties it was thought that ordinarily right of shebaitship could not be alienated. It was subsequently, however, thought that if a shebait duly appointed under the Deed of Endowment, relinquishes or surrenders his right of shebaitship he can do so provided he has transferred all his rights of shebaitship to the transferee and also that he transfers the same in favour of all the persons who are next entitled to shebaitship under the Deed of Endowment. But the courts in India have also held that the transfer of she-baiti rights is valid provided the transfer is not inconsistent with the consent of a religious office in shebaitship and also the intention of the founder of the trust. A new situation, however, arose when the Supreme Court in Angurbala Mullick Vs. Debabrata Mullick, has held that shebaitship is a recognised form of property in Hindu Law and there is nothing in the Hindu Women’s Right to Property Act, 1937 which prevents the General Law as Succession to be applicable to shebaitship as well. In certain cases, the validity of a transfer inter-vivos or by will by a shebait in favour of some or all the heirs of the last shebaits arose and the learned Judges in the farts of the respective cases came to conflicting conclusions validating or invalidating such transfer. Juristically the “concept of property” or ownership involves a right of alienation but there are special laws relating to transfer of certain categories of property. To illustrate, right of franchise is a property which cannot be transferred under any circumstances. Similarly copyright or patent rights can be transferred only in a qualified manner. A right to sue cannot be transferred but an actionable claim or a chose in action can be assigned under certain limitations. Shebaitship also constitutes a special kind ol property, transfer of which is permissible in a qualified sense. Transfer of a shebaiti right is invalid if the transferee is a person who is incapable or incompetent to discharge the religious duties according to Hindu Law or whose appointment as a shebait is not beneficial to the worship of the deity. Thus, the transfer of shebaitship might be declared valid if it does not conflict with well established principles of Hindu Law.

Principal Virthi of the Brahmins

P. V. Kane’s History of Dharma Sastra, Vol. II, Part I, chapter III. The duties and privileges of Varnas occupy a very prominent place in all works of Dharma Sastra. The principal Virthi of the Brahmin was teaching, officiating at sacrifices or receiving gifts. The third means of livelihood permitted to Brahmins resulted from the previous two Virthis. The ideal set before the Brahmins was one of poverty, of plain living and high thinking, of forsaking the active pursuit of riches and cherishing cultural preservation and advancement. It is enough to point out for instance Manu lays down the general rule that when not in distress a Brahmin should acquire wealth only just sufficient to maintain himself and his family and that the accumulation of wealth beyond the requirements of immediate needs was a calamity for a Brahmana.

The Dharma Sastras also prescribe rigorous rules regarding Dana and Pratigraha. Gifts should be given to and taken by only worthy persons. But in spite of the noble ideas set before the Brahmanas, it appears that owing to the growth of the Brahmana population and the meagre emoluments derived by teaching and officiating as priests, the rules came to be relaxed. As Professor Kane puts it, teaching brought very little wealth. There was no State educational system as in modern times with stability of tenure and graded rates of salary. Nor was there any Copyright Act under which a learned man could make money by writing books for students and the general public. The Brahmanas had no organised corporate body like the Anglican Church with its high paid hierarchy.

The emoluments of officiating priests and gifts given by charitably disposed persons must have been fitful and offered only a precarious means of livelihood, as it depended upon the volition of others and as the Smritis recommend that even in Sradha too many Brahmins should not be invited. Besides all Brahmanas could not have possessed the memory, intelligence and patience required to be come Shotriyas. Therefore, whereas in the first instance only worthy Brahmins could receive Dana and Pratigraha, in course of time on account of the increasing population of the Brahmanas, various modifications came into existence, Brahmins began to follow other professions, like the profession of arms (like Drona, Aswathama, etc.) and with restrictions the occupations of money-lending, agriculture, trade and rearing of cattle which were once the privileged occupations of other Varnas.

This also led as just now mentioned to the relaxation of receiving Pratigraha and Dana and the Brahmins as a class became eligible for being the recipients of food etc. There is no difficulty also, because caste restrictions regarding food being taken at the houses of the members of the other Varnas were of a later growth. To mention one instance, Apasthamba allows non-Dvajas to be cooks of Brahmana households provided they were supervised by a member of the three higher classes to observe some hygienic rules about paring nails and cutting hair. Side by side with these increased opportunities of being fed, the Brahmins also increased the public inclination to feed them by eulogies of their sacredness and superiority merely on account of birth. To quote Professor Kane, “Most exaggerated and hyperbolical descriptions of the greatness of Brahmans are sown, broadcast over all the Smritis and the Puranas.”

Communal vs Religious Trust

While distinguishing communal from religious trusts, West, J., says in ILR 12 Bom 247 at p. 259:

“There is no difficulty in conceiving the existence of a society having property and receiving gifts from its own members or from strangers which it then disposes of simply for its own benefit or at its own discretion. The guilds and companies in manufacturing and trading societies held and still hold estates without the attendant obligations of a religious trust. The property is their own distributable amongst the members or at the pleasure of the governing body of the society not held for the benefit of any class outside the society, or for the promotion of any purpose of recognised public utility. The latter characteristic is essential to a public charity but in its absence there may be a corporation existing by royal grant, prescription or legal allowance holding property for other than charitable purposes”.

As a family example of a communal trust may be cited the fund held by the Mahajan for communal purposes. Such a fund was held in the case of Thakersey v. Hurbhum, ILR 8 Bom 432, to be a purely secular fund and a suit with respect to such a fund was held not to fall within the purview of S. 539 of the C.P.C., 1882, corresponding with S. 92 of the present Code.

The customary modes of charity amongst the Hindus are ‘the consecration of images of the deity n temples for workshop, establishment of hospitals of Maths which are either monasteries for Sanyasis or residential colleges for students, asylums for the poor or religious mendicants, shelters for travellers, temples of learning, establishments of Suttaras, or alms-houses, Athithishalas, Pathashalas, excavation and consecration of shady trees and the like’: Shastri’s Hindu Law, VIII Edn. p. 665. These have been more succinctly and methodically stated by the Right Honourable Mr. Ammer Ali, in the judgment of the Privy Council in Vidya Varuthi v. Baluswami ILR 44 Mad 831 at p. 839: (AIR 1922 PC 123 at p. 126), in the following terms:

Charities and other trusts

The most important distinction, however, between charities and other trusts is that in the time of duration allowed and the degree of definiteness required. Trusts for public charitable purposes, being for objects of permanent interest and benefit to the public, and perhaps being perpetual in their duration, are upheld under circumstances under which private trusts would fail.

Broadly, a charitable use or purpose may where necessary neither law nor public policy forbids be applied to almost anything tending to promote the well doing and well being of social man, but the use or purpose must be public as distinguished from a private one, for the benefit of the public at large or of a portion thereof or for the benefit of an indefinite number of persons: 14 C. J. S. p. 439. Halsbury Vol. IV 3rd Edn. p. 209 para 488 citing Oppenheim v. Tobacco Securities Trust Co., (1951) AC 297; Gilmour v. Coats, (1949) AC 427: 1949-1 All ER 848; National Anti-Vivisection Society v. I. R. C., (1947) 2 All ER 217; Williams Trustees v. I. R. C., (1947) 1 All ER 513.

In regard to abuses relating to public and private trusts and the powers of the civil Court to give reliefs like the framing of schemes of management etc., in the case of public trusts the powers are regulated by S. 92 of the C.P.C., and S. 58 of the Madras Hindu Religious and Charitable Endowments Act; and in the case of private trusts, by a long series of decisions. It is enough to refer here to the following decisions; In Narayanaswami Naidu v. Balasundaram Naidu. , it was held that:

“even in the case of private trusts, it is open to any member of the founder’s family where his rights are impugned to seek redress in Courts of law……. The Court cannot refuse to frame a scheme in the matter of a private trust. So far as the members of the family are concerned who are interested in the trust, if the trustee for the time being mismanages or acts in breach of trust, it is a civil right which is infringed and under S. 9 C.P.C., they are entitled to seek redress in Court for the purpose of remedying the mischief”.

In Chellam Pillai v. Chatham Pillai, AIR 1953 Trav-Co. 198, it has been held that “though S. 92 C.P.C., in terms does not apply because it relates specifically and definitely to the case of public trusts, in the case of a private family trust the Court has got jurisdiction to frame a scheme for the management of the trust.”

In Vaithinatha Aiyar v. Thyagaraja Aiyar, 41 Mad LJ 20: (AIR 1921 Mad 563), two plaintiffs instituted the suit under S. 92 C.P.C., as the descendants of the founder of the charity, a chatram. On the question of their right to institute the suit it was held that “The fact that the plaintiffs belong to the family of the founder would naturally give them an interest in the family charity so as to enable them to bring a suit under S. 92 of the C.P.C.”

In addition the powers of the civil Court in the case of private trusts to frame a scheme have been affirmed in a Bench decision of this Court in Shah Abdul Latif v. Mohd. Lebbai, A. S. No. 221 of 1951 (Mad), to which one of us was a party.

Hindu Charity

B. K. Mukherjee (late Chief Justice of India) in his Hindu Law of Religious and Charitable Trust (Tagore Law Lectures) at pages 74-75 has the following to say:

“It will be clear from the decision in Dwarka Nath v. Burroda, ILR 4 Cal 443 that reading of sacred books of the Hindus like Mahabharat and Puran, or giving presents to Brahmins and Pandits on sacred occasions are proper objects of charity; so are trust for kirtan or chanting the names of God in His various forms. It will be seen that in the Hindu system there is a tendency to introduce a religious element in what appears to be a purely secular gift. Thus the feeding of the poor or the Brahmins is regarded as meritorious act, even from the religious point of view, and it is an invariable appurtenance to certain religious ceremonies like Sradh or celebration of periodical punjas.

In Kedar Nath Dutt v. Atul Kristo Ghosh 12 Cal WN 1083 the testator directed inter alia that the surplus of a certain reserve fund should be spent for the worship of the God Siva on the night called Sivaratri and for feeding Brahmins, and making presents to them on the day following. It was contended that the bequest for feeding of Brahmins was bad in law as it did not come within charitable purposes. Fletcher, J. overruled this contention. ‘The testator was a Hindu’ thus observed the learned Judge in his judgment, ‘and his will must be construed with reference to Hindu law. There can be no doubt that the feeding and paying of the Brahmins would be in accordance with Hindu ideas, a meritorious act’. A direction in the will to spend income ‘in feeding poor indigent Hindus’ ILR 34 Cal 5 is a valid charity, so is a bequest ‘to give food and raiment perpetually to 50 persons who are lame, diseased or otherwise deserving of charity, (Rajesswree Debia v. Jogendra Nath 23 Suth WR 278) ‘or a trust to feed fakirs and mendicants’ (Shoeshankar v. Ram Shewak, ILR 24 Cal 77.) The fact that the recipients of the benefit are persons belong to particular communities or sects do not make any difference.