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CASE LAW ON MUZRAI INSTITUTIONS & TRUSTS

MODE OF MANAGING A RELIGIOUS OR CHARITABLE INSTITUTION

In Baba Charan Dass Udhasi v Mahant Basant Das Babaji Chela Babn Laxmandas Udasi Sadhu, AIR 2000 SC 2610 , it was held that the mode of managing a religious or charitable institution should be ascertained from the document or instrument by which it had been established.


ABOLITION OF HEREDITARY RIGHTS

The abolition of hereditary trustees and hereditary rights of archakas and office holders, had been upheld by the Apex Court in Pannalal Bansilal Patil and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1023 : (1996)2 SCC 498; And also in . Narayana Deekshitulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765


RIGHTS AND DUTIES OF MAHANT

In Lakshamana Yatendrulu and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1414 : (1996)8 SCC 705, the status, rights and duties of Mahant or Mathadhipathi were discussed. See also Kakinada Annadana Samajam v Commissioner of Hindu Religious and Charitable Endowments, Hyderabad and Others, (1970)3 SCC 359; & Sudhindra Thirtha Swamiar and Others v The Commissioner for Hindu Religious and Charitable Endowments, Mysore and Another, AIR 1963 SC 966. In Shrimad Sudhindra Thirtha Swamy v Sri Kasi Math Samsthan, Tirumala, 2001(6) ALT 329, it was observed at 331: "Math in fact has been the most important institution relating to Hindu religious system. The word "matha" is defined as of an ascetic or student, a monastic school or college and "Matadhipathi" is defined as the head of such institution."



SCHEME

In T. Lakshmikumara Thathachariar v The Commissioner, Hindu Religious and Charitable Endowments and Others, AIR 1998 SC 3252 : (1998)6 SCC 643 : 1998(7) Supreme 135, the power of modification or cancellation of Scheme under Tamil Nadu Act was dealt with.



PRIVATE TEMPLE BY PASSAGE OF TIME MAY BECOME PUBLIC TEMPLE

In Teki Venkata Ratnam and Others v Deputy Commissioner, Endowment and Others, AIR 2001 SC 2436 : (2001)7 SCC 106, it was held that a private temple may become public temple in due course of time.


APPOINTMENT OF PUJARI

In Adhithyan v Travancore Devaswom Board, 2002 AIR SCW 4146, it was held that a person well versed, properly trained and qualified to perform pooja in the manner appropriate to worship a particular deity, can be appointed as pujari and need not be a Brahman by birth or pedigree.



ELEPHANT IN TEMPLE AND DISPUTE BETWEEN TWO SECTS


In R. Jhathadesika Thathachariar v K.V. Alagai Manavala, 1995 Supp. (4) SCC 563, where the dispute arose in temple of Sri Devarajaswami relating to painting of forehead of temple elephant with distinctive mark of Jhengalai Sect or Vadagalai Sect and the elephant died during the pendency of the matter the Apex Court permitted both the sects to provide one elephant painted with their respective distinctive marks to lead the procession, elephant of Jengalai Sect to be followed by elephant of Vadagalai Sect.



ARCHAKATVAM


IN HIS HOLINESS SRIMAD PERARULALA ETHIRAJA RAMANUJA JEEYAR SWAMI V STATE OF TAMIL NADU, AIR 1972 SC 1586, THE APEX COURT OBSERVED THAT THE APPOINTMENT OF ARCHAKA IS A SECULAR ACT. IN ANNAIAH TANTRI V AMMAKKA, ILR 41 MAD. 886, THE INCIDENTS OF ARCHAKATVAM SERVICE HAD BEEN DEALT WITH IN DETAIL. FOR ARCHAKAS AND THEIR RIGHTS, SEE NAR HARI SHASTRI AND OTHERS V SHRI BADRINATH TEMPLE COMMITTEE, AIR 1952 SC 245; JAGANNATH V SATYA NARAN, AIR 1973 RAJ. 13; GURUVAYUR DEVASWOM TRUSTEES, T.M. KRISHNAN NAMBUDIRIPAD AND ANOTHER V KUTTIKRISHNA MENON, AIR 1956 MAD. 3H8; RARNANATHA GURUKKUL V ARUNACHALAM CHT'TTIAR, ILR 1940 MAD. 825; VEERBASAVARADHYA AND OTHERS V DEVOTEES OF LINGADAGUDI MUTT AND OTHERS, AIR 1973 MYS. 280; SRI VEDAGIRI LAKSHMI NARASIMHA SWAMI TEMPLE V INDURU PAITABHIRAMI REDDI, AIR 1967 SC 781; SECRETARY OF STATE V MASK AND COMPANY, AIR 1940 PC 105; SESHADRI AIYANGAR V RANGA BHATTAR, (1912) ILR 35 MAD. 631; JAGANNATHA ACHARIAR V SEENU BHATTACHARIAR, ILR 42 MAD. 618; BADRINATH V PUNAM, AIR 1973 J&K 7; SESHANATH V PREM CLUB, AIR 1972 ALL. 324; VENKATADRI V SESHACHARYULU A. PUJARI, 1947(1) MLJ 287. A PUJARI NEED NOT BE BRAHMAN BY BIRTH OR PEDIGREE. — ADITHYAN V TRAVANCARE DEVASWOM BOARD, 2002 AIR SCW 4146.



HERIDITARY OFFICE HOLDER AND HERIDITARY TRUSTEE

See Angurbala Muttick v Debabrata Mullick, 1951 SCR 1125; Kalipada Chakraborti and Another v Smt. Palani Bala Devi and Others, AIR 1953 SC 125; M. Ranwppa v Sangappa and Others, AIR 1958 SC 937; Bapatla Venkata Subba Rao v Sikharam Ramakrishna Rao and Another, AIR 1958 AP 322; Ramanatham Chetty v Murugappa Chetty, 24 Mad. 283, Vfnkataraman v LA. Thangappa Gounder, AIR 1972 Mad. 119. Abolition of heriditary rights of archakas etc., and heriditary trustees under Andhra Pradesh Act 30 of 1987 had been dealt with in Pannalal Bansilal Patil and Others v State of Andhra Pradesh and Another, AIR 1996 SC 1023; A.S. Narayana Deekshitulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765 : (1996)9 SCC



HINDU AND HINDUISM

K. Eranna and Others v Commissioner for Hindu Religious and Charitable endowments. Bangalore and Others, AIR 1970 Mys. 191 : 1970(1) Mys. L.J. 170; lemmal Nadar (dead) by LRs v Ponnuswami, (1970)1 SCC 605; AIR 1963 SC 1638; Nagu Reddiar and Others v Banu Redder and Others, (1978)2 SCC 591; Ramalinga Chetty v Shiva Chidambaram, ILR 42 Mad. 440.



TEMPLE

The temple includes a Mandira, Samadhi, Brindavana, Gaddige, Shrine, Sub-Shrine, Utsava Mantapa, Tank or other necessary appurtenances, structures and land, However it does not include a temple which is an inseparable integral part of the composite institution consisting of institutions other than a temple. For temple see Commissioner of Income-tax, Calcutta v Smt. Kokila Devi and Others, (1970)2 SCC 10; Pt. Ram Chandra Shukla v Shree Mahadeoji Mahabirji and Hazrat All Kanpur and Others, (1969)3 SCC 700; Sarat Chandra Bhattacharjee v Rabindra Nath Ghosh and Others, AIR 1957 Cal. 11; Gurpur Guni Venkataraya Narasimha Prabhu and Others v B.C. Achia, Assistant Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Another, AIR 1977 SC 1192 : ARC Association v CIT, (1971)3 SCC 475; Venkataramana Devaru and Others v State of Mysore and Others, AIR 1958 SC 255. A private temple may become public temple by passage of time.— Teki Venkataratnam and Others v Deputy Commissioner, Endowments and Others, AIR 2001 SC 2436 : A place in order to be a temple must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. — Bala Shankar Maha Shankar Bhattjee and Others v Charity Commissioner, Gujarat State, AIR 1995 SC 167.





USAGE IN DEROGATION OF LAW


In N. Adithyan v The Travancore Deuaswom Board, 2002 AIR SCW 4146, it was held that any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament and no usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the Country.


VAISHNAVITES


In Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu v Prathivathi Bhayankaram Venkatacharlu and Others, AIR 1947 PC 53, it was held that in Vaishnavite temples of Tirumalai and Tirupathi, the Iyyengar is entitled to conduct the worship exclusively in Jengalai order. See Srinivasa Thattachariar v Srinivasa Aiyangar, (99)9 MLJ 355 and M. Appadomi Ayyangar and Others v P.B. Annangarachariar and Others, AIR 1939 Mad. 102.
Shaivites exclusive right to conduct worship and manage Kashi Viswanatha temple was repelled by Apex Court in Sri Adi Vishweshwara of Kashi Viswanatha temple. — Varnasi v Stale of Uttar Pradesh, (1997)4 SCC 606.


RELIGIOUS PRACTICE

A.S. Narayana Deekshithulu v State of Andhra Pradesh and Others, AIR 1996 SC 1765 :
Seshammal v State of Tamil Nadu, (1972)3 SCR 815; Tilkayat Shri Govindlalji Maharaj v State of Rajasthan and Others, AIR 1963 SC 1638 : Venkataramana Devaru and Others v State of Mysore and Others, AIR 1958 SC 255 : Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 : Sri Adi Visheshwara of Kashi Vishwanath Temple v State of Uttar Pradesh, (1997)4 SCC 606; Bhuninath v State of Jammu and Kashmir, (1997)2 SCC 745, Mannalal Khetan v Kedar Nath Khetan and Others AIR 1977 SC 536.



KARNATAKA ACT OF 1997

The Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 came into force from 1-5-2003 and Section 78 thereof is the repeal and savings clause. The said section provides that Section 6 of Karnataka General Clauses Act, 1899 (Karnataka Act IE of 1899) shall be applicable in respect of the repeal of the said enactment and Sections 8 and 24 of the said Act shall be applicable as if the said enactments are repealed and re-enacted by this Act. .... Section 24 of the Karnataka General Clauses Act is very clear that where an order is issued under the enactments repealed and re-enacted, it shall continue in force if the same is not inconsistent with the provisions re-enacted. or superseded by any order issued under the provisions so re-enacted. .... Inconsistency or repugnancy is shown in the earlier order of the Commissioner dated 25-8-2001, appointing 12 persons for a period of 3 years as Trustees of Sri Someswara Swamy Temple, Utsoor, Bangalore. The right which has already accrued and the existing right cannot be taken away even though they have not worked. The earlier order cannot be set aside without affording any opportunity to parties to be affected. . . . The order dated 30-4-2002 has been passed on the basis of note of the Government and for no reason there should be reasons available on the record. No opportunity was given to the appellants before cancelling the order and the order dated 25-8-2001 was cancelled based on some alleged irregularities. — V, Ramakrishna and Another v State of Karnataka and Others, 2003(5) Kar. L.J. 417 (DB).



BOMBAY PUBLIC TRUSTS ACT


TRUSTEES

Definition of expression 'person having interest' in the section wide enough to include not merely the beneficiaries of the temple, math, wakf etc., but also the trustees. — Shree Gollaleswar Dev v Gangaiuwa Kom Shantayya Math, ILR 1986 Kar. 197 (SC).


POWER OF COURT TO EXERCISE JURISDICTION TO APPOINT TRUSTEES.

The Court can exercise the power when there is a shortfall or the minimum number is reduced to fill up such vacancy so as to bring up the number of the minimum. — Shesh Venkataraman jathar and Others v Vigneshwar Damodhar Dixit and Another, ILR 1984 Kar. 1044


PERSON ENTITLED TO ATTEND WORSHIP

A Hindu who resides 50 miles away from the temple and occasionally goes to the temple and offers worship is not a person having interest in the temple within Section 50 of the Bombay Public Trusts Act. Section 2(10) of the Act gives extended meaning to the word 'interest' and covers a field much wider than that covered by Section 92, CPC. Even under Section 2(10) of the Bombay Act, the expression "entitled to attend worship or service" indicates that the person must have a title to attend worship or service and connotes something more than a mere right of worship. Having regard to the object of the section as well as the scheme in the Act, a person interested must have a real interest in the temple in question and he must be in some manner connected with the temple. Pending appeal against a suit filed under Section 50 of the Bombay Public Trusts Act where the plaintiffs are held to have no interest in the temple within the meaning of that section, the proceedings cannot be validated by adding the Charity Commissioner as a co-plaintiff. M. Vasudeva Rao v Subraya Parameshwar Hebbar, ILR 1967 Mys. 453 : 1967(1) Mys. LJ. 225.



WORSHIP OF FAMILY IDOL AND FEEDING AS PART THEREOF — IF PUBLIC TRUST


A provision in a partition decree provided that the income from the property set apart for religious purposes should be utilised for taking the family God annually to the temple at Srisaila on the occasion of the annual Abhishekam ceremony in that temple and that after the family God was brought back to the family house, there should be a feeding of the Jangamas who belonged to a holy order. Held, that the main and dominant purpose of the provision was the ritual connected with the worship of the family idol and did not involve any public trust. The provision for feeding was ancillary to the main object of the trust and did not create any independent trust or charity. A religious or charitable endowment becomes a public trust only if it is for a public purpose. — Rudrappa Channamallappa Patil v Kadeppa Dareppa, AIR 1967 Mys. 239.


TEMPLE - TRUST - PRIVATE OR PUBLIC

The real test to be applied in deciding whether a temple is a public trust or not is as to whether members of the public or a section thereof are entitled to enter the temple and offer worship therein as a matter of right or whether they do so as a matter of express or implied leave or licence of the owners of the temple, The circumstance that offerings are received from the public who are interested in the temple is not decisive. Where the oral evidence was to the effect that this temple was located on a site belonging to a private person, that only certain five specified families were managing the temple and meeting the expenses thereof, that neither the public nor even the (Gowd. Saraswath) community (which forms a section of the public) could worship at the temple as of right and that only the members of the five specified families had the right to worship in the temple, Held, the temple was a private one. The circumstances that the temple committee constituted under the Religious Endowments Act, 1863 had been appointing trustees and moktesars of the temple, that the temple had been receiving a tasdik and that the devotees of the temple are now spread over 300 families which were branches of the original five families who established the temple, were not sufficient to rebut the evidence that the temple was a private one. — State of Mysore v Madhhv Vitobha, 1975(1) Kar. L.J. Jr. 29 Sh. N. 107.

The Civil Court is not competent to decide the questions whether or not a trust exists and such trust is a public trust or particular property is a property of public trust. As one of the issues involved in the suit is as to whether the chariot in question is the property of the public trust, the question can be decided only by the Deputy or Assistant Charity Commissioner. There is no provision contained in the Act, enabling Civil Court to refer such an issue to the Deputy or Assistant Charity Commissioner. Therefore, it is not competent to refer such question to the Commissioner under the Act. The proper course to adopt in such a case is to stay the suit to enable the plaintiff or defendants, as the case may be to make an appropriate application before the Deputy or Assistant Charity Commissioner to decide as to whether the property which is claimed to be the property of public trust in the suit is or is not, the public trust property and produce the decision of the Deputy or Assistant Charity Commissioner in the suit, thereafter proceed with the suit in accordance with law. — Katikadeui ofShirasangi and Others v S.S. Maharaj and Others, 1985(2) Kar. L.J. 327 : ILR 1985 Kar. 2647 : AIR 1986 Kant. 186.


POWER TO SUPERINTEND THE 'ADMINISTRATION'

The power to superintend the 'Administration' is wide enough to include within it the power to decide whether or not there should be a fee for the performance of sevas in a temple and if so, what should be the fee structure. The argument that the power to fix the fee for sevas vests only in the trustees and that the Charity Commissioner does not enjoy any superintendence or supervision over the exercise of any such power, does not get support from any provision of the Act nor is the same 'patible with the scheme, underlying the same. The Charity Commissioner while discharging his duties and functions under the Act, is entitled to maintain a vigil over the activities of the trustees and take remedial steps wherever the same are found necessary. Inasmuch as the Charity Commissioner in the instant case, modified his earlier order prescribing the seva rates on account of the widespread protest against the hike in the same, he cannot be said to have transgressed the limits of his jurisdiction so as to warrant interference from this Court. . . . From the order it is apparent that not only were representations received from various quarters against the increase in the rates for the performance of sevas, but even the Government had asked the Charity Commissioner to look into the question of reducing the same. The very basis for the issue of the impugned order thus was a general complaint against the new rates prescribed. It is therefore apparent that the reduction was induced by no consideration except that the rates prescribed were excessive. — Shri Saunsthan Mahabaleshwar Deu (by Managing Trustee), Gokarn, Uttara Kannada District v The Charity Commissioner, Belgaum Division, Belgaum and Another, ILR 1997 Kar. 1874.





APPOINTMENT OF SUCCESSOR TO HEAD OF MATH


When it is a matter of appointing a successor to the headship of a math, it is a matter of complexity involving religious practices and principles governing succession to a matadhipathi and the same cannot be acquired with the ordinary mode of succession to an office of trustee as contemplated under Section 19 of Bombay Public Trusts Act, 1950 and the same falls outside its purview. The Act does not provide for a proper procedure for determination of such disputes. Hence the authorities under the Act have no jurisdiction to decide the dispute as to succession of the headship of a math and the mode of succession thereof, ILR 1970 Kar. 1861 (FB), Where after the death of the Swamiji, there has been no successor properly and legally installed, there is no question of registering the name of the successor under Section 22 of the Act. — Shivamurthayya Guru Appaya Swamy v Madiwalappa, 1982(1) Kar. L.J. Sh. N. 41. Dispute as to succession to headship of math — Jurisdiction. The Bombay Public Trusts Act, 1950 was not intended to interfere with the religious matters of public trusts. Its primary purpose is only to ensure proper administration of trust properties. It is not a self-contained code covering all questions pertaining to public trusts. The succession to the office of mahant of a math is a religious matter and is regulated by the practices and customs of the particular math. The matter of such complexity involving religious practices and principles governing succession to a matadhipathi cannot be equated to an ordinary question of mode of succession to the office of a trustee as contemplated under Section 19 of the Act and it falls outside the scope of Section 19. Hence, the authorities under the Act have no jurisdiction to decide a dispute as to succession to the headship of a math and the mode thereof. — Shri Gurugurupadayya Charantayya Adavimath v Chikkayya, 1979(2) Kar. L.J. 53 (FB) : AIR 1979 Kant. 202.


CIVIL COURT JURISDICTION

Where in a suit for declaration of title if one of the defendants raised the contention that the properties were wakf properties, the Civil Court has no jurisdiction to decide that question. — Junnadsaheb Dadesaheb Patiat v Murufsaheb, 1964(1) Mys. L.J. 563.


MANAGEMENT OF TRUST

Management of trust — Changes in — Duty of managers to report changes to Charity Commissioner — Charity Commissioner receiving report of change to make necessary entries in his register after enquiry — Legality or correctness of entries in register can be questioned in appropriate Civil Court by person disputing same — Entries made in register and order passed by Charity Commissioner are valid and lawful and cannot be set aside by Court unless the order is proved to be wrong. Channamalikarjuna Shivacharya Guru Pawadayya Swami Hiremath, Nagathan Taluk, Bijapur District and Others u R.S. Patil and Others, 1996(1) Kar.L.J. 352 (DB).

Defendant 1 was manager of a school. The school was run by the Ideal Education Society which is a registered trust under the Act. Respondents 1 to 3 who were the teaching staff in the said school instituted a suit praying that D-l could not act as manager of the school as he had already been removed from that post on 2-2-1971. They had also prayed for consequential relief of injunction to restrain defendant 1 from acting as manager of the said school. The relief claimed by the plaintiffs being a limited relief as to the right of defendant 1 to continue as manager of the School, which is not a public trust registered under the Act, the Civil Court has power to determine the said question. That is not a question which is required to be decided by the authorities constituted under the Act. — R.D. Pai v Shamsundar Madhavrao, 1975(2) Kar. L.J. Jr. 49 Sh. N. 97.

Section 50 is not an exhaustive provision regulating all suits which may be brought for recovery of property belonging to a public trust and has no higher status than a mere enabling section authorising the Charity Commissioner or two or more persons having an interest in the trust to institute a suit for recovery of property belonging to a public trust. What has been recognised during a long period of time is that a suit for recovery of property belonging to an idol could be brought either by the idol represented by the manager or by the manager himself. There is nothing in Section 50 of the Bombay Public Trusts Act which causes a divestiture of that right, A person who is charged with the administration of a trust such as the manager of a temple is not a person having only 'an interest in the trust'. That expression refers to person who would be prejudiced in some way though not directly if the trust is not administered. A trustee in whom the property vests, although he is subject to obligations annexed to such ownership, is the owner of the property, although to such ownership is annexed an obligation. But that right which he has in the trust property is superior to a mere interest such as that of a worshipper, That would also be the position in the case of the manager of a temple who in a sense is also a trustee although the property belonging to the temple does not vest with him. The ‘person having an interest’ in a public trust is therefore one whose interest is inferior to that of a trustee or manager and it is by reason of the existence of that inferior and smaller interest that Section 50 of the Act like Section 92, CPC authorises the institution of a suit and regulates it in the manner specified in it. But that section does not govern the institution of a suit by a person possessing a larger and a higher interest which is not regulated by it. The expression 'in any case' in Section 50 does not mean that all suits, which may be instituted on behalf of a public trust, should be instituted only by the adoption of the procedure prescribed by Section 50. That section enumerates the suits to which it is applicable and insofar as it concerns itself with the institution of a suit for recovery of property belonging to a public trust, it operates only in respect of a suit 'where a direction is required to recover the possession of such property belonging to the trust'. The meaning of the expression 'direction' used in clause (ii) is no more than that the consent of the Charity Commissioner is necessary only in cases in which the suit is instituted by someone who has only an interest in the trust which falls short of an interest possessed by the idol or the manager or the trustees, as case may be. That is the only way in which it would be possible to give some meaning to the word 'direction' occurring in clause (ii). — Manager Ganapati Ram Naik v Kumtti Shri Venkatranuin Dev, 1964(1) Mys. L.J. 172.




TRUST PROPERTY — SALE OF

Trust property — sale of — Charity Commissioner's powers to impose conditions for — Powers include in itself power to fix minimum price based on market value — Open to Trustee or prospective purchaser to demonstrate that minimum price fixed is unreasonable or arbitrary — Commissioner's order fixing minimum price on basis of location of property and its market value and imposing condition that sale to be effected within six months from date of order — Proper and in interest of trust. It follows that in case the requisite sale deed was not registered within the period granted, the order would lapse for it can hardly be said that the sale consideration once fixed by the Charity Commissioner would hold good for all times to come. — Mahammad Hussain Dabahayatsab Mulla (since deceased) by L.Rs and Others v The. Charity Commissioner, Belgaum and Another, 1996(6) Kar. L.J. 579 A.



FALL SHORT OF THE MINIMUM NUMBER OF TRUSTEES

In the absence of a trust deed or a scheme or a decree of a Court for the administration of the trust, the parties have to establish the required minimum to administer the trust. When a trustee incurs a disqualification, falling within any of the clauses of Section 47(l)((a) to (h) of the Act, automatically there will be a vacancy and if, as a consequence, the existing number of trustees fall short of the minimum number of trustees, then under Section 47(3) of the Act, the Court has the power to fill up the vacancy so as to bring the number to the required minimum. — Shesh Venkataraman Jathar and Others v Vigneshwar Damodhar Dixit and Another, ILR 1984 Kar. 1044.

The minimum number of trustees spoken of in Section 47(2) of the Act is the minimum required by the instrument, scheme, or order or decree or usage or custom of the trust for the administration of the trust. Unless the existing number is less than the minimum required, the District Judge will have no jurisdiction to appoint a new trustee. — Subbaraya Namyana Bhat v Govinda Ganapathi and Another, 1983(2) Kar. L.J. 521.










OFFICE OF MATADHIPATHI

Scope and requirement — Necessity to frame scheme — Administration suit — Whether necessary to make Math a party and whether there could be scheme for Math for which there is no Matadhipathi — Whether Dichotomy of secular and spiritual functions permissible in office of Matadhipathi, Explained. — Ratnakar, B. Kailaje v Ramrao Narsingrao Divigi, ILR 1987 Kax. 1486 (DB).










SUITS RELATING TO TRUST AND TRUST PROPERTY

Two categories of litigation contemplated in statute — In first category suit is instituted by trustees themselves — Under second category comes suit against trustees or against third parties, instituted by persons who are not trustees but are only persons having interest in trust — Special procedure and requirements laid down in Sections 50 and 51 of Act -are applicable only to suits under second category. There are two distinct categories of litigation which could arise in relation to public trusts. The first of them constitutes cases of the present type where the trustees are required to institute legal action. The second category is in relation to cases that have been referred to in Section 92, Civil Procedure Code whereby the Charity Commissioner or persons interested in the trust who have obtained sanction from him, may institute proceedings against the trust or the trustees or for that matter, against third parties for purposes of safeguarding the interests of the trust. There is no parity between the proceedings instituted by a trustee and those instituted by non-trustees. A special provision has been provided for situations where non-trustees institute litigation and for good reason. Sanction is condition precedent for non-trustees if they were to institute such proceedings, and this would be an unreasonable hurdle and an impracticable situation because it would fetter the enforcement of normal legal action of the trustees if in every legal proceedings they are required to obtain prior sanction from the Charity Commissioner. Suit by trustee for recovering trust property — Civil Court of competent jurisdiction can entertain such suit — Prior permission of Charity Commissioner is not required to be taken by trustee for instituting such suit — No requirement that such suit must be filed only in District Court — These requirements prescribed in Act are for suit by persons who are not trustees but have only interest in trust. As far as the rights of the trustees to institute legal proceedings in any Court of competent jurisdiction is concerned, the Bombay Public Trusts Act does not place any restrictions, fetters or exclusions on them. The trustees are entitled to exercise their normal rights under the law without any such restriction because, those restrictions have been put down only in relation to proceedings instituted by non-trustees. Before the jurisdiction of a particular Civil Court is taken away, that it must be demonstrated that there is an exclusion clause. As far as the Bombay Public Trusts Act is concerned, there is no such bar either direct or implied. It is true that, if suits are to be instituted by a trustee, that he could go to whichever Court has jurisdiction to entertain the dispute, but if a non-trustee is to institute a suit or a Charity Commissioner is to institute a suit, that it would have to go to the District Court. This is a special provision and if a special procedure is prescribed in relation to such situations, it would not lead to any serious anamolies or conflicts because, the two categories of suits are very dissimilar insofar as persons of different status institute them. — Shankar Narayan Giri (Dead) Represented by Lalitakumar Ramanarayan Giri, Trustee of Sri Ramachandra dkv Temple, Haliyal v Kamalabai Venkitesh Deshpande. and Others, 1997(1) Kar. L.J. 518B.



In the case on hand admittedly the plaintiff/appellant wants an injunction retraining the second defendant-Secretary to be removed and for other reliefs consent of Charity Commissioner is necessary. — Workmen of Lokashikshana Trust, Bangalore v Lokashiktihana Trust and its Newspaper Publications, Bangalore, and Other, 2001(3) Kar. L.J. 367.


It is open for anyone interested in a trust to file a suit for a declaration whether or not any property belongs to a public trust after securing the required consent under Section 51 of the Act. Any determination to be made by the Charity Commissioner under Sections 18 to 20 in regard to the nature of the property is intended for the purpose of registration of the trust. If such a question were to be raised in an incidental way after the trust is registered, it is no part of the duty of the Charity Commissioner to enquire into it. The provisions (Sections 17 and 18) as co the bar of jurisdiction of suits are qualified by Section 50. Gurupagouda v Mallanagouda, 1974(1) Kar. L.J. Page. 21 Sh. N. 72.



Where plaintiff and defendant were two brothers performing pooja of a deity and enjoying the devasthan inam lands; and plaintiff filed the suit for an injunction to restrain defendant from obstructing his possession and enjoyment or alternatively for partition and possession of his half share. Held, the suit did not require consent of the Charily Commissioner under Section 51 of the Act. If the reliefs that are sought for in a particular suit between the individuals do not affect the rights of the public at large or of the trust as such, Section 50 will not apply to such a suit. A suit, which is filed admittedly against a co-trustee by an individual, would not attract the provisions of Sections 50 and 51 so as to require the sanction of the Charity Commissioner. Karyappa Pamsappa Pujari v Ramappa, 1963(1) Mys. L.J. 461.



Section 50 provides for institution of suits by the Charity Commissioner or by two or more persons interested in the trust and having obtained the consent in writing of the Charily Commissioner under Section 51 of the Act — Suit for recovery of possession of property against person holding adversely — Held, such suit is within the purview of the Act. — Shree Gollaleshiuar Dev v Gangawwa Kom Shantayya Math, ILR 1986 Kar. 197 (SC).







After the addition of the words "proceeds thereof" in Section 50(iii)(a) of the Bombay Public Trusts Act by Act 23 of 1955, no suit could be instituted in regard to the recovery of possession of the proceeds of lands comprised in a public trust without the permission of the Charity Commissioner. The suit which was instituted prior to the amendment was a validly instituted suit and the later amendment would not make the institution of the suit illegal. — Mahadev Yeskuxmt Devulkar v Sitabai, 1962 Mys. L.J. Supp. 285 : ILR 1963 Mys. 132.



The function of the Assistant Charity Commissioner under Section 51 of the Act is very similar to the function of the Advocate General under Section 90 of the CPC, 1908. It is essentially a discretionary power coupled with duty. If the facts recorded as findings are to be interfered with under Article 226 of the Constitution it would create undue hardship to all Tribunals and quasi-judicial authorities who have to determine those facts and arrive at the findings. Therefore, the self-imposed restriction by the High Courts under Article 226 and Article 227 of the Constitution not to act as further Courts of appeal and disturb the findings recorded by the inferior Tribunals. There may be cases where a discretion exercised may be unjust but it is not the High Court which exercises the discretion. If the Charity Commissioner exercised the discretion and gave reasons as to why he has exercised the discretion in a particular manner, the High Court will not interfere with such discretion exercised on further consideration of material placed before the inferior Tribunal or authority. — Gopal Jyotiba Sadare and Another v Ramakrishna Bhimarao Kolekar and Oihers, 1990(3) Kar. L.J. 578.


Under the Bombay Trusts Act, 1950 as in force in the Karnataka State, there is no provision conferring on the Charity Commissioner power to issue an injunction against trustees restraining them from alienating trust properties. — Diwakar R.R. v M.S. Patil, 1975(2) Kar. LJ. 147 : ILR 1975 Kar. 1560.


STAY OF PROCEEDINGS WHEN THERE IS CIVIL SUIT


Where petitioner claiming under a deed of appointment by the predecessor mahant of the math filed an application under Section 22 before the Assistant Charity Commissioner and then filed an appeal against the order to the Charity Commissioner and pending the appeal some disciples of the math filed a civil suit to declare the appointment deed void and the Charity Commissioner stayed the appeal pending disposal of the suit, held, the Charity Commissioner was under a statutory duty to dispose of the appeal, though the decision may be subject to the result of the suit. In staying the appeal the Charity Commissioner had failed to exercise the jurisdiction vested in him. There is no provision under which the appeal could have been stayed. — Gurusiddeshwara Swami Guruchannabasavaswamy Hiremanth v Charity Commissioner, 1974(2) Kar. L.J. Jr. 25 Sh. N. 75.



CHARITY COMMISSIONER

The Commissioner appointed under the Bombay Public Trusts Act is a Corporation sole for all purposes under the Act. Thus, when the charity Commissioner hears an appeal under Section 70 of the Act, he hears it as a Corporation sole. Hence, by reason of Section 109 of the States Reorganisation Act, the Charity Commissioner continued to function and operate in those.areas which have now become part of the new State of Mysore. For the purpose of Section 125 of the States Reorganisation Act, it is not necessary that the corresponding Tribunal or officer should actually be within the State of Mysore. What the section means is that the Tribunal or Officer must be a Tribunal or Officer of the State of Mysore. — Channaviraswami Gum Shivayogi Sivami v M.K, Appajappa, 1960 Mys. L.J. 258 : ILR 1959 Mys. 341.


INSTALLATION OF SWAMI - RIGHTS

A mutt was registered as a public trust by the Assistant Charity Commissioner and respondent 3 was recognised as manager thereof. When later the petitioner was installed as Swami by the disciples of the Mutt, the change was recorded on the application made under Section 22 of the Act. In a revision petition filed by respondent 1 under Section 70-A, the Charity Commissioner set aside the two earlier orders of the Assistant Charity Commissioner specifically challenged, as also the order made in respect of the petitioner under Section 22 of the Act. By virtue of the installation of the petitioner and the subsequent recording of the change, the petitioner would be a person directly concerned with the possession and management of the public trust. Any order, therefore, made affecting the two earlier orders would affect the status of, and possession of the public trust by, the petitioner. He was therefore a party affected within the proviso to Section 70 of the Act. As the petitioner was neither notified nor heard by the Charity Commissioner, The order passed by him was in violation of the statutory obligation imposed on him under Section 7U-A of the Act to give an opportunity to a party affected of being heard. Hence the order of Charity Commissioner cannot be upheld. — H.H. jagadgurn Mummadi Sri Neelakanth Pattadarya v Hampanna Laxmappa Dandi, 1974(1) Kar. L.J.Jr. 109 Sh. N. 264. SEE ALSO 1987(2) Kar. L.J. Sh. N. 155 : ILR 1985 Kar. 636. & 1973(2) Mys. L.J. Sh. N. 129.


REVISION BY CHARITY COMMISSIONER AND APPEAL TO DISTRICT JUDGE

When the Commissioner has exercised his power of revision under Section 70-A of the Act, more so finally, an application by any other person aggrieved-by the order of the Commissioner is maintainable before the District Judge under Section 72. In order to attract Section 72 of the Act by any person aggrieved all that is necessary is that there is a decision by the Commissioner on a revision petition presented before him under Section 7U-A of the Act. In receiving additional evidence under Section 72(1-A) (which is analogous to Order 41, Rule 27, CPC) the District Judge must find that any of the circumstances existed for reception of the additional evidence and that the additional evidence was necessary for pronouncing judgment. He should also give opportunity to the other side to place rebuttal evidence.There is no period of limitation prescribed for aggrieved persons to approach the revisional authority under Section 70-A of the Act. But the power of revision even in the absence of a period of limitation prescribed by the relevant statute, is to be exercised by the appropriate revising authority within a reasonable time and any unreasonable delay in the exercise of the power of revision will affect the validity of the order of the revising authority. As to what is a reasonable time depends upon the facts and circumstances of each case. — Shivappa Veerappa Masnr v jagadguru Mallikarjuna Murugarajendra Swamiji, 1978(1) Kar. L.J. 479.


On being moved by appellant and certain others under Section 18, Bombay Public Trusts Act, the Assistant Charity Commissioner, Belgaum, made an order declaring certain Dargas to be public trust under the Act and further declaring certain properties to be those belonging to the said public trust. Respondents applied to the Charity Commissioner under Section 70-A of the Act to set aside the findings of the Assistant Charity Commissioner. The Charity Commissioner set aside the order and the proceedings of the Assistant Charity Commissioner and remanded the same to him for fresh disposal after giving opportunity to the parties interested to state their objections, if any. An application to the District Judge under Section 72(1) against the order of the Charity Commissioner was not maintainable. Any or every finding falling within the scope of Sections 2U, 70 and 70-A cannot be called in question under Section 72(1). From the enumeration of particulars in Section 19, it is clear that these are only some of the many questions which may be the subject of a finding or order by an Assistant or Deputy Charity Commissioner under Section 20. Whereas a finding in respect of any one of those many questions is open to appeal under Section 70 or revision under Section 70-A, Section 72(1) obviously purports to limit the scope of an application to a Court. Further, the effect of the Commissioner's order is that the whole matter is reopened for a fresh decision. There is no decision in the sense of an adjudication or a statement of a final opinion by him to the effect that the properties are trust properties or that they are not such properties. — Sayyad Sultan v Abul Aziz Saheb, 1964(1) Mys. LJ. 565. ( OVERRULED BY ILR 1990 Kar. 3069 (FB).)


Dismissal for non-prosecution of appeal before District Judge whether permissible - Whether appeal against such an order maintainable. Held: A decision referred to in Section 72(4) means an adjudication QT..3-statement of a final opinion, especially so when sub-section itself makes it clear that it should be a decision of the Court under sub-section (2) which speaks of enquiry and recording of evidence, hearing of argument and pronouncing judgment. No appeal lies against an order dismissing an application for non-prosecution passed in an application under Section 72 of the Act. — Mallikarjunayya and Others v State of Karnataka, 1984(1) Kar. L.J. 89.



DECISION AS TO TITLE TO TRUST PROPERTY

Reading Sections 79 and 80 in conjunction with Section 19 of the Act, one of the powers specifically conferred under the Act upon the Deputy or Assistant Charity Commissioner is to find out whether any property is the property of the public trust in question and the jurisdiction of the Civil Court is ousted to that extent expressly under Section 80 of the Act. Adhishaiah Kadayya Kadadevaru v Dundayya Gum Shiddayya Hiremath, 1982(1) Kar. LJ. 402 : AIR 1983 Kant. 79 : ILR 1982 Kar. 555.


All that Sections 79 and 80 provide for are when a question arises as to the existence of a trust or its public nature or whether any property belongs to it such questions cannot be decided by the Civil Court but only by the authorities under the Act subject to application under Section 72(1) to be decided by the Civil Court and a further appeal to the High Court. That does not militate against the specific power conferred upon the authorities under Section 72 of the Act. Section 70 clearly enumerates the serious matters on which an appeal could be filed. Section 70-A enumerates the power that can be exercised by the Charity Commissioner in an appeal filed under Section 70 of the Act. It empowers him to call for and examine the records and proceedings of such a case for the purpose of satisfying himself as to the correctness of the finding recorded or order passed and may annul, reverse, modify such finding or order with the further power of holding an enquiry or taking additional evidence as may be necessary. And such an order is made subject-matter of an application under Section 72(1) of the Act. Shivalingappa Murigeppa Kadi v Shivayogttppa, ILR 1990 Kar. 3069 (FB).



MADRAS CHARITABLE AND ENDOWMENTS ACT 1926

MANJUNATHA TEMPLE AT DHARMASTHALA

The Manjunatha Temple at Dharmasthala is part and parcel of the composite institution known as Dharmasthala and is so inseparably connected with it that it is its integral part. It cannot therefore be held that the Manjunatha Temple is an endowment within the meaning of Section 9(11) of the Act, as it has not been proved that any property belongs to it, or has been given or endowed for its support or for the performance of any service or charity connected therewith; or that it has any such premises of its own as could be said to form its own endowment. The effect of Section 2 of the Madras HRE Act, 1926 is to exclude not only private religious endowments but also Jain religious endowments. The Act is confined to Hindu religious endowments and will not be applicable where there is no such endowments at all. By virtue of Section 2, the Act applies only, to Hindu public religious endowments. Dedication to a deity necessarily implies cessation of individual ownership. A place of worship which is open to both Jains and Hindus in general or has a mixed character would be a temple within Section 9(12) of the Act. — Commissioner for HRCE v Ratnavarma Heggade, AIR 1977 SC 1846.


SUIT WAS FOR A DECLARATION THAT THE TEMPLE BELONGED EXCLUSIVELY TO

The suit was for a declaration that the temple belonged exclusively to Charodi Community of Mangalore and therefore the State and the Area Committee had no right to appoint trustees and enforce the provisions of Sections 31, 39, 41, 42, 44 and 76(5) of the Madras Act, 1951 and for possession of the 'A' Schedule properties in the possession of defendant 3 who had mismanaged the affairs of the temple. The suit was filed by the President of Charodi Abhyudaya Sangha of the Charodi Community. Held, (1) that the inscription on the stone slab in the garbha gudi of the temple etc the effect "Temple belonging to Charodi People" was the most important circumstance or piece of evidence in the case which clearly indicated that the temple belonged exclusively to the members of the Charodi Community. Merely because brahmins were employed for performing pooja and other religious ceremonies in the temple, it did not necessarily follow that the temple was not one exclusively belonging to the Charodi Community. As the temple was a denominational temple, defendants 1 and 2 were not entitled to enforce the provisions of Sections 39, 41, 42, 44 and 76(5) of the Act inasmuch as all those provisions had been struck down by the High Court in Mukundaraya v State. 1959 Mys. L.J. 708. (2) Since the Charodi Abhyudaya Sangha was an association of the members of the Charodi Community and the suit was filed under Order 1, Rule 8, Civil Procedure Code by the President of the Sangha who was admittedly a member of the Charodi Community, the suit was maintainable. (3) A dispute of the type in the suit which was for restraining the defendants from enforcing the provisions of Sections 39, 41, 42, 44 and 76(5) of the Act struck down by the High Court would not come within the ambit of Section 57 of the Act. The decree for possession passed by the lower Court against all the defendants was not proper. The decree for possession should be only against defendant 3 alleged to be in possession of the property. — State of Mysore v Charodi Abyudaya Sangha, 1972(1) Mys. L.J. 431.


GOVERNMENT HAS TO DECIDE TO APPLY ACT

The Madras Hindu Religious and Charitable Endowments Act, 1951 does not of its own force apply to Hindu Charitable Endowments. Its provisions have to be extended by following the procedure prescribed by Section 3. Where the institution in question is claimed not to be a Hindu public charitable endowment within the meaning of the Act, the Government should decide the dispute before proceeding to take action and they cannot take action on the assumption that they have jurisdiction, relegating the claimant to take such steps as he is advised to get rid of that decision. The existence of the fact that the institution in respect of which the Government propose to take action is a charitable endowment within the meaning of the Act is the very foundation of the Government's jurisdiction. All matters of disputes in any manner relating to the exercise of the Government's power under Section 3 have to be decided by the government itself. Maji Thimmanna Bhat v State of Mysore 1959 Mys.L.J. 109.


TEMPLE

Order passed by Deputy Commissioner declaring institution as — Direction to institution to submit accounts and pay contributions to Board — Suit for declaration that institution is not "temple" coming within purview of Act and that order of Deputy Commissioner is nullity — Held, order of Deputy Commissioner, though erroneous, is binding and conclusive until it is set aside in appeal or revision — Since no appeal or revision was preferred against order, same has attained finality and is enforceable — Suit, held, is not maintainable. H.M. Basamma (deceased) by LRs v The Commissioner of Hindu Religious and Charitable Endowments, Bangalore and Another, 2002(4; Kar. L.J. 535.


PUBLIC TEMPLE - TESTS TO DETERMINE

A denominational or sectional temple belonging to a particular community, which is not a private temple, is a temple within the definition in Section 6(17) of Madras Act. In examining whether a temple is dedicated for the benefit of all the members of the Hindu community, the important consideration is, who is the beneficiary of the dedication. It is the worshipper who is the beneficiary. If the members of the Hindu community in general have offered worship in the temple for a considerable period of time, without anybody's permission and without any prevention, it would be reasonable to infer that the temple was dedicated for the benefit of or the use of the Hindu community in general. That the members of one community have some special privileges or that only members of the community took part in certain rituals or functions may not be inconsistent with the right of the Hindu community in general having a right of worship in the temple. — B.C. Achia, Assistant Commissioner, HR and CE v Gurupur Gum Venkataraya Narasimha Prabhu, 1966(1) Mys. L.J. 519.


TEMPLE, PRIVATE OR PUBLIC

The temple was an ancient temple founded about 40 years ago. The temple was founded by 37 Goud Saraswat Brahmin families of Gurpur. The trustees managing the temple belonged always to the members of the said community, the landed properties owned by the temple had all been endowed by members of this community and there was no reliable evidence of endowment of any immovable property by any person outside the community. Held, the temple (known as Varadaraj Venkataramana Temple at Gurpur in Mangalore Taluk, S.K. Dist.) was not a public temple, but a temple belonging to the Goud Saraswal Brahmin Community of Gurpur. The circumstances disclosed in evidence in this case did not support the inference that Hindus generally used the temple as a place of worship as of right. — Gurpur Guni Venkataraya v Achia B.C.,ILR 1977 Kar. 685 (SC): AIR 1977 SC 1192.




A LAW WHICH TAKES AWAY THE RIGHT OF ADMINISTRATION FROM THE HANDS OF A RELIGIOUS DENOMINATION ALTOGETHER AND VESTS IT IN ANY OTHER AUTHORITY WOULD AMOUNT TO VIOLATION OF RIGHT GUARANTEED UNDER ARTICLE 26 OF THE CONSTITUTION.

Sections 398, 41, 42 and 44 of the Madras Hindu Religious and Charitable Endowments Act are ultra vires as being violative of Article 26 of the Constitution as the effect of these sections is to take away altogether the right of the denomination to manage their institutions. Sections 18, 45(3), 50, 71(4) and 103(e)(ii) are valid. Sub-section (3) of Section 45 in conferring power to appoint a trustee temporarily merely imposes a reasonable restriction and is therefore, valid. Section 103(e)(ii) is not ultra vires as it does not transfer the power of the denomination to the Area Committee. The effect of Section 18 is to impose a reasonable restriction upon the right of administration by the denomination and not to take away altogether the said right and is valid. Section 50 also imposes a reasonable restriction on the power of management by the denomination and is valid. Section 71(4) providing for appointment of auditors for scrutinising the accounts is not violative of Article 26. Section 76(5) empowering making of grants out of surplus funds to other institutions is invalid being ultra vires of the powers of the Legislature. The levy under Section 76 is a fee and the imposition should be commensurate with the services to be rendered and the expenses (hereof, so that there may not be any surplus. Further,-the surplus, if any, cannot be diverted for any purpose other than the purpose of defraying the expenses of such services however laudable the said purpose may be. It cannot be said that a percentage of income as the basis on which the right of contribution has been fixed under Rule 1 framed under Section 76(1) of the Act is unreasonable. — K. Mukundaraya Shenoy v State of Mysore, AIR 1960 Mys. 18 : ILR 1959 Mys. 815.





APPOINTMENT OF ADMINISTRATORS

The power conferred by Section 20 is the power of superintendence and control of the temple and does not include the power to appoint an administrator. — Veerabasappa v Commissioner. H.R.C.E., 1974(2) Kar. L.J. Jr. 71 Sh. N. 266. Appointment of Administrator to perform the functions and discharge the duties of the Board of Trustees of a Temple — Proper person, who is Manager/Executive Officer of a Temple who is required to function under the Board of Trustees — Held, not proper to be appointed as an Administrator. Power of Superintendence not confined to any particular subject or matter relating administration of Religious Endowments — Open to commissioner to pass such orders as are necessary to ensure that endowments are properly administered and their income is duly appropriated — In a given case where the situation demands that administration of Religious institution cannot be safely left in the hands of the Trustees whose term has expired, and at the same it is not possible to constitute a new Board of Trustees, it is open to Commissioner to appoint an Administrator — Explained — Case-law discussed. — B.L Tarali v Kenya Ravindranath Shetty and Others, ILR 1990 Kar. 1114 (DB).


APPOINTMENT OF TRUSTEES

Appointment of trustees to Mali Mahadeshwaraswamy Temple — Legality — On facts, appointments upheld. — B. Madappa and Another v Commissioner for Religious and Charitable Endowment and Others, 1987(3) Kar. L.J. 238.


In this case, admittedly there is no scheme governing the temple in the matter of its administration. Convention is to have elected Trustees including a Managing Trustee. If an election is not properly conducted, the right of the denomination to administer the institution through the elected Trustees will get frustrated. Therefore, the Commissioner has the power and duty to examine whether the Trustees are properly elected. He can issue appropriate order, direction or instruction to regulate the election. He may evolve a proper procedure to conduct the election. He may observe whether all eligible voters has a proper opportunity to participate in the election. Such a power flows from his power of superintendence and control over the administration of the endowment in question. — Sri Ananteshwara and Chandra Mouleshwara Temple v Deputy Commissioner for Hindu Religious and Charitable Endowments, Dakshina Kannada, Mangalore, 1990(1) Kar. L.J. Sh. N. 15 : AIR 1989 Kant 57.






MADRAS HIGH COURT DECLARING SEVERAL SECTIONS AS ULTRA VIRES

In W.P. No. 668 of 1951, the Madras High Court held certain sections of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951) to be ultra vires, and issued a mandamus directing the State Government from enforcing any of the said provisions of the Act against the petitioners. By amending Act 27 of 1954 some of the sections impugned by the Madras High Court were amended. The sections held ultra vires by the Madras High Court, inter alia were, Sections 20, 21, 30(2), 31, 63 to 69, 76 and 89. Petitioners challenged the said Amending Act 27 of 1954. Held, that substantial changes had not been effected by the Amendment in Sections 21, 30{2), 31, 63 to 69 and 89 of the Act and therefore the mandamus issued by the Madras High Court continued to be operative so far as those sections were concerned. But the amendment of Section 76 levying a fee for services rendered is valid and enforceable. It would not be correct to say that as a result of the decision of the Madras High Court in W.P. No. 668 of 1951 and in particular as a result of Section 20 being declared invalid the State is disabled from rendering any service and as there is no service to be rendered fees imposed by Section 76 of the Act cannot be charged. There are other sections of the Act which have not been touched by the Madras High Court in W.P. No. 668 of 1951 and in view of those sections, there are still services to be rendered by the State under the Act for which the fee in question can be levied. They are Sections 25,27, 45, 46, 51 and 72. — Devaraja Shenoy v State of Madras, 1960 Mys. L.J. 245: ILR 1959 Mys. 365.

NON HINDU AS A TRUSTEE OF HINDU TEMPLE

Founder is a person providing the original endowment, but the persons who subsequent to the foundation furnish some additional contributions do not thereby become founders. Under Section 22 of the Act there is a legal prohibition for a non-Hindu (Jain) to hold office of a trustee of a Hindu temple. Simply because a non-Hindu was acting as a trustee for a long period, he is not entitled to continue as a trustee. In order that a temple may be a composite one, it must be open to devotees of all religions, it is conceivable that there might be temples which are composite in nature; that depends upon the founder's universal outlook on life; he might, while founding the institution, keep it open to the devotees of all religions. But because some devotees of other religions go to a temple which is exclusively for Hindus, that temple would not become a composite one.
Parties should not be permitted to make out altogether a new case for the first time in the Appellate Court to the prejudice of the opposite party. —Jinnappa Hegde v Srinivasa Tantri, 1962 Mys. L.J. Supp. 109.


SANCTION TO ALIENATION

The sanction that is required under Section 29 of the Madras Hindu Religious and Charitable Endowments Act to an alienation can be obtained either prior to the transaction or subsequent to the same. — K. Govrrdhana Bhat v Venkatramana Temple, 1958 Mys. L.J. 488 : ILR 1958 Mys. 367.


LEASE OF PROPERTY

In the absence of sanction, a permanent lease of property belonging to a religious institution is void under Section 29 of the HR and CE Act. Since the lease is void the provisions of Section 53-A, T.P. Act will not apply. The plaintiff is not estopped from contending that the lease is void by reason of the recitals in the rent receipt, since there can be no estoppel against a statutory provision. Where the landlord accepts rent subsequent to the date of the void lease, the tenant becomes a monthly tenant. Relied on: AIR (1972)1 SCWR 969 and 1962 Mys. LJ. 861 C.P. Rodrigues v Sri Durga Parameswari Temple, 1973(2) Mys. LJ. Sh. N. 300.




BOARD OF TRUSTEES - CONSTITUTION OF

It can be constituted in respect of religious institution over which there is no "Area Committee" and number of persons appointed as trustees must not be less than three and more than five and power to constitute Board rests with Commissioner — Where Commissioner has not passed any order in this regard, order passed by Assistant Commissioner appointing nine persons as trustees held, without authority of law. The impugned order is passed by the 3rd respondent in exercise of purported Rule 17 of the rules of the Department. Learned Additional Government Advocate is unable to produce the rule referred to in the impugned order despite granting time. Therefore, it has to be presumed that the impugned order is without the authority of law. .... .Section 39(1) of the said Act stipulates that in respect of the religious institution over which there is no "Area Committee", the Commissioner shall constitute Board of Trustees consisting of not less than three and not more than five persons. In the instant case, the Commissioner has not passed any order. No material is placed before the Court to show that "Area Committee" was constituted in accordance with the provisions of the Act. It is not the case of the 3rd respondent that he has passed the impugned order exercising the power under Section 39 of the Act. The impugned order is without the authority of law. Sundara Gowda v Commissioner for Religious and Charitable Endowments in Karnataka, Bangalore and Others, 1999(6) Kar. L.J. Sh. N. 14.


TRUSTEES – ADMINISTRATION - ARRANGEMENTS

Any arrangement between the trustees for carrying on the administration of a temple is not a scheme and cannot have the effect of overriding statutory provision regulating the administration of religious institutions. A regulatory statutory provision does not become automatically ineffective, notwithstanding that the temple is a denominational one.
Section 40(2) and Rule 15 enable the Assistant Commissioner to convene a meeting of the trustees of a denominational temple to elect the Chairman. — K. Raghavendra Nayak v State of Mysore, 1974(1) Kar. L.J. 99 : ILR 1974 Kar. 131.


CHAIRMAN OF BOARD OF TRUSTEES CUSTODY OF TEMPLE PROPERTY

The relevant rules recognize only the Chairman of the Board of Trustees, when the Board comprises of more than one trustee, as the only person entitled to the custody of the property of the temple and therefore he alone has the right to apply for the custody of the temple property. It is not in all cases that the trustees as a body must join. To an application seeking merely to secure the custody of the temple property, only those persons who are either entitled to the custody or those who are resisting the same without challenging either the identity of the property or the right of the temple to the same that are necessary parties. A person elected as Chairman of the Board of Trustees of a (denominational) temple under Section 40(2) of the Act read with Rule 16 is the trustee for purposes of Section 87. — Raghavendra Nayak case 1976(2) Kar. LJ. 258 : AIR 1977 Kant- 53 : ILR 1977 Kar. 43.



SCHEME EMPOWERING THE COMMISSIONER

A clause in a scheme empowering the Commissioner to appoint one of the members as managing trustee is in conflict with the Act and is liable to be struck down. Where a clause in the scheme provided that one of the non-hereditary trustees shall be a Brahmin and in the event of the Board appointing more than one non-hereditary trustees, the second shall be a Bunt, held, the scheme did not require that appointments should be made exclusively from Brahmins and Bunts alternatively and the clause did not prohibit the appointment of members of other communities as non-hereditary trustees. — Vasudeva Bhat v Commissioner for HR & CE, 1981(2) Kar. LJ. Sh. N. 28.


BREACH OF TRUST OR MISMANAGEMENT

Where the income from the trust for performing samaradhana in a temple which was a listed institution, was less than Rs. 20,000, the Deputy Commissioner has power to inquire into an application under Section 45 relating to the trust. When the question before the Deputy Commissioner is whether there was a breach of trust or mismanagement, it should not allow the nature of the proceedings to be altered by adding supplemental parties and enquiring at their instance into the question whether the trust was a religious trust within Section 6(14). — Vasudeva Prabhu v Commissioner for Religious Endowments, 1973(2) Mys. LJ. Sh. N. 212.


ORDER OF APPOINTMENT TO OFFICE OF HEREDITARY TRUSTEE OF TEMPLE

Appeal against — Only rival claimant to office who has been dissatisfied with order has right and locus standi to take appeal before Commissioner — Person who is not rival claimant, is stranger, and such person has no right to question appointment — Appeal by such person is incompetent — Order of Appellate Authority disposing of such incompetent appeal is without jurisdiction and liable to be quashed. Every part of statute must be so interpreted as to give meaning to it — Interpretation which makes one section of statute nugatory or otiose must be avoided — Power conferred on Deputy Commissioner to settle dispute regarding rival claims to office of hereditary trustee of temple and to make appointment when vacancy occurs in that office must not be confused with his power to enquire into and decide whether trustee holds or held office as hereditary trustee.
Held: Under Section 47(1), when a permanent vacancy occurs in the office of a hereditary trustee, the next in line of succession to the last holder of office is entitled to succeed to the office. In case there is a dispute as to who should succeed to the office, the same has to be inquired and decided by the Deputy Commissioner under Section 47(3) of the Act. The person aggrieved by the order under Section 47 has a right of appeal to the Commissioner. .... The person who has a right of appeal is one who is dissatisfied with an order passed under Section 47(3) i.e., to say, "a rival claimant to the office of the hereditary trusteeship", which necessarily means that a non-rival claimant or a person who is not in the line of succession of the last holder of office i.e., a stranger has no right to question the appointment of a person to the post of a hereditary trusteeship. .... In the facts of the present case, the contesting respondent is not a rival claimant to the office of hereditary trusteeship nor claims to be a person in the line of succession of the last holder of office. In other words, he is a stranger to the claim for the post of hereditary trusteeship. He therefore, is not a person who can be said to be affected by the order of the Deputy Commissioner. His appeal therefore, to the Commissioner, was incompetent. In other words, the Commissioner had no jurisdiction to hear and decide an appeal filed by a person not affected by the order under Section 47(3). The Appellate Authority's order therefore, is liable to be quashed as being without jurisdiction. Whenever a 'trustee' makes a claim that he is a hereditary trustee or at some point of time earlier was holding a post of a hereditary trustee and if the same is disputed/ that has to be resolved by the Deputy Commissioner. Clause (b) of Section 57 therefore, presupposes that the disputant must already be appointed or holder of the office of trusteeship. In other words, if a person is not a trustee, and he makes a claim to the office of hereditary trusteeship, such a claim or dispute necessarily gets excluded from the operation of the said clause. The holding of office of trusteeship is a sine ana nan for the operation of Section 57(b). In a case where a person makes a claim to the office of the hereditary trusteeship claiming on the basis that he is in the line of succession to the last holder of office, and if such a claim is disputed, it is Section 47(3) which has application, not Section 57(b). The dispute under Section 47(3) cannot be confused with a dispute stated in Section 57(b). Each one operates in a different field and in different situations. It is a cardinal principle of interpretation of statutes that every part of a statute must be interpreted as to give meaning and as to avoid such interpretation
which makes one section or part of statute nugatory or otiose. — M. Sripathi Sampigethaya v P. Seetharam Bhat and Others, 2003(4) Kar. LJ. 98A.



MAHANT’S – MATADHIPATHI’S - POWERS

The power of the mahant over the income of the Math does not differ in quality from the power he has over the property of the Math. The property and the income belong to the Math, and must therefore be applied for the purposes of the math and consistently with the usage and custom of the endowment. Section 52(l)(f) of Madras Act which authorises the institution of a suit for removal of a Mahant where he is found to have wasted the funds or properties of the institution or has applied such funds or properties for purposes wholly unconnected with the institution does not amount to unreasonable restriction upon the fundamental right of the Mahant in the property under his management. Having regard to the large powers which the Mahant has over the application of the funds not only for maintenance of the dignity of his office, and expenses for the maintenance of the math, but also for such purposes, religious or charitable as are not inconsistent with the usage and custom of the endowment, application of the funds for personal enjoyment or luxury by the Mathadhipathi or for purposes wholly unconnected with the institution would alone be covered by the second part of Section 52(l)(f). By express enactment the expression 'pathakanikas' for the purpose of Section 55 as amended, means gift of property made to a Mahant as the head of the Math. Obligations imposed upon the Mahant to maintain regular accounts of the receipts of pathakanikas of the character defined in Section 55 and to utilise the same in accordance with customs and usages of the institution cannot be regarded as an unreasonable restriction upon the fundamental right of the Mahant. Section 55 as amended will not apply to pathakanikas which are proved to be gifts, personal to the Mahant. Section 76(1) providing for levy of contribution is valid. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out ot the amounts collected, there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax. It is true that ordinarily a fee is uniform and no account is taken of the varying abilities of different recipients. But absence of the uniformity is not a criterion on which alone it can be said that it is of the nature of a tax. A fee being a levy in consideration of rendering service of a particular type, correlation between the expenditure incurred by the Government and the levy must undoubtedly exist, bui a levy will not be regarded as a tax merely because of the absence of uniformity in its incidence, or because of compulsion in the collection thereof, nor because some ol the contributories do not obtain the same degree of service as others may-Section 82 validating contributions which had been levied under Section 76(1) and (2) before it was amended by Act 27 of 1954 is valid. The State Legislature has power to levy a fee under the VII Schedule, List 111, Item 28 read with Item 47. The Legislature was therefore competent to levy a fee for rendering services in connection with the maintenance, supervision and control over the religious institutions and it was competent to levy the fee retrospectively. — Shri H.H. Sudhindra Thirtha Swamiar v Commissioner for Hindu Religious and Charitable Endowments, Mysore, AIR 1963 SC966









DEPUTY COMMISSIONER’S POWERS

Where the question whether a temple is a public or private temple is in dispute, the Deputy Commissioner should in (he first instance decide the dispute (which he is empowered by Section 57 of the Act to do), and it is only thereafter that the Commissioner would have power to demand contribution and audit fees under Section 76. — Sri Varadaraja Venkataramana Temple v Commissioner of Charitable Endowments, W.P. No. 178/1957, dated 21-3-1960. Suit for declaration of right to Archakship and emoluments — The Deputy Commissioner has, under Section 57(e) of the Act, jurisdiction to determine whether a person is entitled by custom or otherwise to the office of archak of a temple, and to the emoluments and perquisites attached to that office. Hence under Section 93 of the Act a suit for declaration of the right to Archakship would be barred. The Deputy Commissioner has jurisdiction to determine not only the right to perquisites and emoluments, but has also jurisdiction to determine the right to hold the office to which the emoluments or perquisites are attached. The power conferred on the Deputy Commissioner under Section 57 of the Act is a power to adjudicate on certain disputes relating to religious institutions and hence such power of adjudication cannot be regarded as interfering with the right to the denomination to manage the affairs of the institution. Hence Section 57 is not violative of the fundamental right guaranteed under Article 26 of the Constitution. Shamaraya v Beloor Sri Mariamma Temple (1973) 2 Mys. L.J. 131.


RIGHT TO ARCHAKSHIP OR RIGHT TO EMOLUMENTS

When a person asserts his right to archakship or right to emoluments and the opposite party disputes the claim, the authority has the power to decide whether he had right to office and if so what was the emoluments to which he was entitled to. Further, it may be seen that clause (e) of Section 57 provides that the Deputy Commissioner can also decide as to what the established usage of a religious institution is in regard to any other matter. Therefore, if the plea of the claimant in a given case is, having regard to the established usage, that the persons belonging to a particular group are entitled to perform pooja in the temple for a specific period, that would also fail within the scope of the words 'any other matter'. — Kaduveera Mada Thammadi v Madathimmadi, G.P., 1987(1) Kar. LJ. Sh. No. 98 : ILR1986 Kar. 1051 (DB).



ALLEGATION OF, AGAINST GOVERNMENT — MALA FIDE INTENTIONS CANNOT BE ATTRIBUTED TO GOVERNMENT IN THE ABSENCE OF ALLEGATIONS IMPLICATING ANY PARTICULAR PERSON/S IN THE GOVERNMENT

The High Court will not investigate the allegations of mala fide intentions whether made expressly or impliedly unless any specific person is named to be behind such mala fide action. The Government is in animate in certain aspects or in a certain sense. To whom the mala fide, action has to be traced must be made clear by those who have accused the Government of any mala fide action, Such person then may offer proper defence. In the absence of such allegations implicating any person in the Government, it will not be proper for this Court to attribute mala fide intentions to the Government in passing the impugned order. — Quraish Educational Society and Another v State o/Karnataka, 1987(1) Kar. LJ. 66,

MYSORE RELIGIOUS AND CHARITABLE INSTITU­TIONS ACT, 1927


MUZRAI LANDS RESUMPTION

A Muzrai Officer could exercise the power for summary resumption of muzrai lands under Section 10 of the Act only if the lands are inam lands granted by the Government to the institution either for its upkeep or for the maintenance of persons rendering service in connection therewith. The mere fact that the lands are extensive or that they are situated close to or around the institution cannot by itself support the inference that they must neces­sarily be inam lands granted by the Government. — Abdul Rehab Khan v State of Mysore, 1963(1) Mys. L.J. 184


LEASE OF PROPERTY

Section 9(2) prohibits the lease of a property belonging to Muzrai Institutions for a term beyond five years without the previous approval of the government or by such officer as may be empowered. Under Government Order dated 30-11-1944 the Muzrai Commissioner is given power to sanction leases of non-agricultural lands upto a period of 20 years when the lease amount exceeds Rs. 500 and this order is still in operation. The order would amount to previous approval envisaged by Section 9(2). — State of Karnataka v S.K. Rama Rao, 1977(1) Kar. LJ. 75 : ILR 1976 Kar, 1587.


PUBLIC OR PRIVATE TRUST

The scheme of the Act is that the Court on a reference under Section 13 of the Act would determine only whether any charitable or religious trust has been actually created in respect of any institution and in a suit instituted under Section 21 the Court would determine whether such a trust was dedicated for the benefit of the public. Section 13 does not cover an investigation regarding the nature of the trust. —Muzrai Officer (Assistant Commis­sioner) Kolar v Dakappa and Others, 1982(1) Kar. L.J. 392 (DB).




SUIT CLAIMING TO BE THE OWNER OF A TEMPLE

Learned Counsel for the petitioners submit­ted that the language of Section 13 of the Mysore Religious and Charitable Institu­tions Act, 1927 which inter alia provides for reference of a dispute whenever a dispute arises as to whether any charitable or religious trust has been actually created in respect of any institution, the muzrai officer, may, with the sanction of the Government, make a reference to the Court of the District Judge in whose jurisdic­tion the institution or the greater part of the property thereof is situated for adjudi­cation. It is therefore contended that, since the dispute was there, the Court of the District Judge alone was competent to decide and not the High Court. The argument is rejected on the sole ground that the suit instituted by the predecessor in title was not on the basis of Section 13 of the Act, but on the basis of the deed of settlement said to have been executed by one Sukandaramma who had been permitted by the Committee of management to be in possession of the temple and its properties. Therefore, it was not a matter arising under the provisions of the Mysore Religious and Charitable Institutions Act, 1927 simpliciter but a matter arising in regard to civil rights of the petitioners or their predecessors in title on the basis of the instru­ment said to have been executed by Sukandaramma who has not competent to do so. If ultimately in deciding the essential issue raised in the suit, that is, whether the plaintiff was the owner of the temple, the answer was that it was a public temple, it cannot be said to be a decision without jurisdiction, much less is it possible for any other Judge of this Court to sit in Judgment over the earlier decision of this Court and say that the decision is not binding on the petitioners, who are successors in interest when no appeal was preferred by the petitioners against that finding. — Chandra Prabha and Another v Vijaya and Others, 1992(4) Kar. L.J. 136.


TRESPASSER CLAIMING RIGHTS

Where a trespasser claims in his own right property which is alleged to belong to a trust, the Muzrai Officer has no power to make any order or take action under any of the sections. —1961 Mys. L.J. 708.


MISMANAGEMENT OF MUTT — ENQUIRY

Under the Act a Mutt is a muzrai institution. But Section 17 of the Act cannot be invoked to hold an inquiry against the management of the Mutt. Section 24 excludes the applicability of Section 17 which is in Chapter III to Mutts. Section 26 provides a separate machinery with regard to Mutts. Whether a par­ticular Mutt is private or public would depend upon the construction of the grant if there was one and if there was no grant by which it was founded, then on the custom and usage of the institution. That persons have contributed to the renovation of the institution is not relevant for determining the nature and character of the institution. — Niravanappa N.M. v KRATand Others, 1981(1} Kar. L.J. 477.





TAKING POSSESSION OF ENDOWED PROPERTY

Authority is muzrai officer and not Government — Shree Yogakshatriya Sadhu Shetty Sangh v Muzrai Officer, 1972 Mys. L.J. Sh N. 81.




APPOINTMENT OF ARCHAK — QUALIFICATION PRESCRIBED FOR

In circular issued in 1892 much before Act came into force — Circular is only executive instruction with no legal force behind it — Government is competent to frame rules prescribing qualification.
Tirath S. Thakur, }., Held.—The qualifications in question are said to have been prescribed in the form of an executive order which does not prima fade have any legal action behind it. The circular relied upon and contained in the Muzrai Manual is said to have been issued some where in 1892, i.e., much before the promulgation of the Karnataka Religious and Charitable Institutions Act, 1927. It is therefore, doubtful whether any such qualification prescribed could at all be called in aid for challenging the appointment of the second respondent particularly when the Act does not recognise the same nor is any such qualification prescribed or adopted under the rules that the Government is empowered to frame under Section 41 of the Act. — G.C. Pmbhuswamy v The Special Deputy Commissioner, Tumkur District, Tumkur and Others, 1997(1) Kar. LJ. 261-A.

POWER TO APPOINT AND DISMISS AN ARCHAK

The power to appoint and dismiss an archak is conferred on the Muzrai Officer. Muzrai Officer is the Deputy Commissioner or the Assistant Commissioner to whom power is delegated. Hence the Tahsildar has no power to dismiss an archak under the Act. — Shivalingaiah v Tahsildar, (1974)2 Kar. LJ. Jr. 64 Sh N. 236. SEE ALSO Chandrappa, P.B. v The Special Deputy Commissioner, Tumkur and Others, 1987(2) Kar. L.J. 144.

(TO BE UPDATED)

KARNATAKA LAND LAWS