Sridhara babu.

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Sridhara babu. N

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-SRIDHARA BABU.N

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SUIT FOR RELIGIOUS OFFICE IS A SUIT OF A CIVIL NATURE Gurupadayya Charantayya ... vs Chikkayya Etc. AIR 1979 Kant 202, ILR 1979 KAR 1861, 1979 (2) KarLJ 53 Suit for religious office is a suit of a civil nature. The general rule of law as provided under section 9 of the Code of Civil Procedure is unless there is an express or implied bar to the entertainment of a suit of a civil nature, the ordinary civil courts are bound to entertain the claim. We do not find any such bar for the Civil Courts in regard to the question with which we are concerned. The view taken by this court in Satchidananda Abhinava Vidya Shankar Bharati's case (W. P. No. 7535 of 1969 disposed of on 1-9-1971), therefore appears to be correct and justified. In Satchidananda Abhinava vidya Shankar Bharati's case (W. P. No. 7535 of 1969 disposed of on 1-9-1971) a dispute arose as to succession to the office of a Mathadhipati. There is no provision in the Act by which any dispute relating to succession to the office of the Mathadhipati is required to be decided by any officer or authority under the Act. Such a dispute concerns the civil rights of the rival claimants. Unless the jurisdiction of the Civil Court is expressly barred, it cannot be taken away by implication. The Constitution and the rules of religious brotherhood amongst the Hindus are by no means uniform and in Mukherjea's Hindu Law of Religious and Charitable trusts (3rd Edition) pages 269 and 270 it is pointed out:- "and it may be taken to be settled law that the controlling rule with regard to the right to the office of the Mohant would have to be found in the usage and customs of the institution provided however that there are no rules relating to the same laid down by the founder. The legal principle seems to be that the wishes of the grantor are to be primarily respected in such matters, but when there is no evidence of any direction given by the founder, the usage or practice that obtains in any particular institution is to be regarded as presumptive evidence of the grantor's intention. Three things you would have to be bear in mind in connection with the question of succession to the office of a Mohant. The first is that if the grantor has laid down any particular rule of succession that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is to be followed; and in the third place, the party who lays claim to the office of a Mohant on the strength of any such usage must establish it affirmatively by proper legal evidence." It is further pointed out:- ".................... Generally speaking, the Mutts are divided into three classes according to the different ways in which the heads or superiors are appointed. These three descriptions of Mutts are Mourasi Panchayati and Hakimi. 'In the first, the office of the Mohant is hereditary and devolves upon the chief disciple of the existing Mohant who moreover usually nominates him as his successor; in the second, the office is elective, the presiding Mohant being selected by an assembly of Mohants. In the third, the appointment of the presiding Mohant is vested in the ruling power or in the party who has endowed the temple."

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PERSON MUST BE INSTALLED WITH DUE CEREMONIES ACCORDING TO SASTRAS BEFORE HE CAN BECOME A PATTADHIKARI MERE NOMINATION WILL NOT ENTITLE THE PERSON WHO IS NOMINATED AS SUCCESSOR TO CLAIM THE RIGHTS OF A PATTADHIKARI Neelakantashivacharya ... vs Virupakashayya Shankarayya 1976 (1) KarLJ 464 The plaintiff in the present suit had no right to claim the office of the Pattadhikari or the right to possession of the suit properties until he was installed as Pattadhikari of the suit mutt. Hence, the plaintiff could not sue for a declaration of his right to the office as well as for recovery of the properties in suit before his installation as Pattadhikari. . In answer to a specific question put to him Mr. Jagadeesh Sastry also conceded that a mere nomination will not entitle the person who is nominated as successor to claim the rights of a Pattadhikari, and that it is necessary according to sastras and customs prevailing in the Puthravarga intuits, including the suit mutt, that a person must be installed with due ceremonies according to sastras before he can become a Pattadhikari. In Veerasaiva Sadadhara Sangraha relied on by Mr. Sastry the details of the elaborate ceremony relating to the installation of Pattadhikari have been set out. Hence, according to the custom and practice as well as the requirements of the religious texts it is necessary that the successor to the suit mutt should not only be nominated but also duly installed with the requisite ceremonies before he becomes entitled to exercise the rights of Pattadhikari. WHO ARE LINGAYATS ? WHETHER THEY ARE SUDRAS ? BOMBAY HIGH COURT SAYS YES KARNATAKA HIGH COURT SAYS - NO ITS NOT CORRECT. Neelakantashivacharya ... vs Virupakashayya Shankarayya 1976 (1) KarLJ 464 In (1940) 45 Mys HCR 311 (Muniamma v. Akkannamma) a Division Bench dissented from the rulings of the Bombay High Court holding that Lingayats were Sudras and, following the Madras and Mysore decisions, held that the parties in that case were Lingayat Vysyas. During the course of the judgment, it was observed as follows: - "That Sivachars are Hindus and are governed by Hindu Law is not disputed. It is not also disputed that Lingayats, are a body of Hindu dissenters. Their tenets are described by Thurston in his "Castes and Tribes of Southern India, Volume IV at page 236 as follows: 'Their religion is a simple one. They acknowledge only one God, Siva, and reject the other two persons of the Hindu Triad. They reverence the Vedas, but disregard the later Commentaries on which the Brahmins rely. Their faith purports to be the primitive Hindu faith, "cleared of all priestly mysticism. They deny the supremacy of Brahmans, and pretend to be free from caste distinctions, though, at the present day caste is in fact observed amongst them. They declare that there is no need for sacrifices, penances, pilgrimages or fasts. The cardinal principle of the faith is an unquestioning belief in the efficacy of the Lingam, the Image which has always been regarded as symbolical of the God Siva.' In the Mysore Census Report, part I of the year 1901 at page 553, it is stated: 'Their religion is a proselytizing one and has admitted into it converts from almost every class of Hindu society. The Lingayats like the Jains have caste distinctions among them, corresponding to the four-fold division of Brahmins, Kshatriyas, Vaisyas and Sudras,

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Representatives of the ancient ruling dynasties such as those of Nagara, Punganur, Hagalvadi and several others are stated to be Lingayat Kshatriyas. Mr. Rice in his Gazetteer of Mysore says that it was the State religion of the Wodeyars of Mysore from 1399 to 1610 and of the Nayaks of, Keladi, Ikkeri or Bednur from 1550 to 1763 A. D. The Nagarthas are the best representatives of the Lingayat Vaisyas while shepherds, potters, tailors, barbers, and others represent the Lingayat Sudras. We refer to these extracts, as the evidence in the case to which we shall presently refer also shows how in recent times the members of the Lingayat faith claim caste distinctions among them. In Bombay, a long line of cases has held that Lingayats are Sudras; but, as is pointed out in Vol. IV of the 'Mysore Tribes and Castes,' there seems to be a particular class of Lingayats in the Bombay Presidency, which we do not find in Mysore. With reference to the Bombay decisions Mr. Ganapathi Iyer in his 'Hindu Lame at page 94 observes: "It cannot, however, be said that the Lingayats as a class are Sudras as we have already stated that Brahmins have become Lingayats. If the Bombay decisions are examined it may be stated that they do not support the broad proposition that all Lingayats are Sudras by caste. Notwithstanding the theoretical non-observance of caste as above stated, the sect is divided into various Sub divisions among many of which even interdining (much less intermarriage) does not exist. And after a discussion of the Bombay Cases, he states: It might be mentioned that the Malwas according to a judgment referred to in the foot-note to Gopal Narhar's case (1879) ILB 3 Bom 273 or as they were called Malis, would appear to rank below Sudras though according to the Hindu law the law applicable to Sudras would also be applicable to the caste below Sudras. It will thus appear incorrect to style all Lingayats as Sudras although in the case of those who were Brahmins by origin it cannot be held that the peculiar principles apply as such. It may also be mentioned that it is mainly on the authority of this early decision, that in the later rulings the Bombay High Court held that Lingayats were Sudras." In (1940) 45 Mys HCR 311 (Muniamma v. Akkannamma) a Division Bench dissented from the rulings of the Bombay High Court holding that Lingayats were Sudras and, following the Madras and Mysore decisions, held that the parties in that case were Lingayat Vysyas. During the course of the judgment, it was observed as follows: "That Sivachars are Hindus and are governed by Hindu Law is not disputed. It is not also disputed that Lingayats, are a body of Hindu dissenters. Their tenets are described by Thurston in his "Castes and Tribes of Southern India, Volume IV at page 236 as follows: 'Their religion is a simple one. They acknowledge only one God, Siva, and reject the other two persons of the Hindu Triad. They reverence the Vedas, but disregard the later Commentaries on which the Brahmins rely. Their faith purports to be the primitive Hindu faith, "cleared of all priestly mysticism. They deny the supremacy of Brahmans, and pretend to be free from caste distinctions, though, at the present day caste is in fact observed amongst them. They declare that there is no need for sacrifices, penances, pilgrimages or fasts. The cardinal principle of the faith is an unquestioning belief in the efficacy of the Lingam, the Image which has always been regarded as symbolical of the God Siva.'

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Nageswara Iyer J. speaking for the Bench observed as follows: - "In the light of the decisions and the extracts we have cited above, it would be quite unsafe to hold that Lingayats are Sudras on the authority of the decisions of the Bombay High Court as the learned Munsiff has done." LIMITATION TO SEEK BACK POSSESSION OF MUTT PROPERTY In AIR 1954 Nag 212 (Gajanan Maharaj SaDsthan v. Ramrao Kashinath) the suit was instituted on behalf of the mutt for possession of the properties belonging to the Mutt alleging that the defendant had taken forcible possession of the properties. It was found that the defendant had taken possession of the property of the Mutt in assertion of his claim to be the exclusive manager and the suit was really for possession against the 'de facto' manager for the office of Shebait with appurtenant rights of possession and management. It was held that since the office is not hereditary, the suit is governed by Article 120 and not Article 124 of the Limitation Act. CLAIMED RIGHT TO OFFICE AND PROPERTIES ATTACHED TO IT IS INCIDENTAL TO IT In (1871) 6 Mad HCR 301 (Tainmirazu Ramazogi v. Pantina Narsiah) the suit was filed to establish that the plaintiff had vested in him the right to the office of karnam of certain villages, from which he had been ousted by the defendant in 1857, and to recover from defendant the mirasi lands annexed to the office. The defendant denied the right of the plaintiff to the land and pleaded that up to 1857 when the plaintiff was performing the duties, he was doing so merely as his (defendant's) representative and that defendant himself was the rightful Karnam. The suit was held to be a suit brought to establish the plaintiffs claim to the office of Karnam and that the interest in immoveable property was incidental to the office of Karnam. RIGHT TO OFFICE WHEN ACQUIRED TITLE TO IT BY ADVERSE PRESCRIPTION In (1903) ILR 26 Mad 113 (Kidambi Ragava Chariar v. Tirumalai Asari Nallux Ragavachariar) the plaintiff was found to have been in adverse Possession of a temple and its properties for more than six years after which he was dispossessed. He sued to recover possession as Dharmakartha basing his claim on prescription. It was held that the suit for possession of the office was governed by Article 120 and that the plaintiff by his adverse possession for more than six years had acquired title to it by prescription. It was also held that the suit was not for possession of immoveable property the right to the land being secondary to, and dependent upon, the right to the office. THE SUCCESSION BY NOMINATION OF THE PREVIOUS MAHANT WAS HELD TO BE NOT A HEREDITARY SUCCESSION In AIR 1926 Mad 1012 (Paramananda v. Radhakrishna) the plaintiff sued for a declaration that he is the lawful Mahant and for recovery of the properties belonging to the Mutt. The plaintiff alleged that the previous Mahant had nominated him as his successor and that the first defendant put himself out as the successor to the previous Mahant on the strength of the will executed by the later, the genuineness of which the

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plaintiff denied. It was held that the plaintiffs claim was not a claim to a heredatary office and that the suit is governed by Article 120 of the Limitation Act, and was therefore barred by limitation. It was held that Article 144 was not applicable relying on the decisions in (1903) ILR 26 Mad 113 (Raghava Chariar v. T. A. N. Raghavachariar) and (1892) ILR 19 Cal 776 ( Jagannath Das v. Birbhadra Das). The succession by nomination of the previous Mahant was held to be not a hereditary succession. THE RIGHT TO POSSESSION OF THE PROPERTIES GOES WITH THE RIGHT TO THE POSSESSION OF THE OFFICE AND THAT IF THE RIGHT TO SUE FOR RECOVERY OF POSSESSION OF THE OFFICE IS BARRED, THE RIGHT TO RECOVER POSSESSION OF THE PROPERTY IS ALSO BARRED In AIR 1935 Mad 449 (Rajagopala v. Ramasubramania) the suit was filed in a representative capacity on behalf of the five groups of inhabitants of, the village to recover possession of the village temples and the properties stated to be their endowments. Following the decisions in (1903) ILR 26 Mad 113 (Kidambi Raghavachariar v. T. A. N. Raghavachariar) and AIR 1926 Mad 1012 (Parmananda Das Goswami v. Radhakrishna Das), it was held that Article 120 applies to suits to recover possession of an office which is not hereditary and where the properties are attached to the office whether by way of endowment or by way of emoluments, the right to possession of the properties goes with the right to the possession of the office and that if the right to sue for recovery of possession of the office is barred, the right to recover possession of the property is also barred. WHETHER A PARTICULAR THREAT GIVES RISE TO A COMPULSORY CAUSE OF ACTION DEPENDS UPON THE QUESTION WHETHER THAT THREAT EFFECTIVELY INVADES OR JEOPARDIZES THE SAID RIGHT EVERY THREAT BY A PARTY TO SUCH A RIGHT, HOWEVER INEFFECTIVE AND INNOCUOUS IT MAYBE, CANNOT BE CONSIDERED TO BE A CLEAR AND UNEQUIVOCAL THREAT SO AS TO COMPEL HIM TO FILE A SUIT ." In (Rukhmabai v. Laxminarayan) 1960 AIR 335, 1960 SCR (2) 253 it has been held that the right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the rights of the plaintiff asserted in the suit. Every threat by a party to such a right, however ineffective and innocuous it maybe, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit, and that whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. RIGHTS AND DUTIES OF MAHANT NO MATH WITHOUT MATHADHIPATHI ITS OBJECTS WONT FAIL WITHOUT MATADHIPATI Ratnakar B. Kailaje vs Ramrao Narasingrao Divigi ILR 1987 KAR 1486 Matadhipathi is the head of a spiritual fraternity and by virtue of his office has to perform the duties pertaining to religious instruction. It is his duty to practise and propagate the religious tenets and precepts of which he is adherent. The object of the Math is to encourage and

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foster spiritual training and instruction by ensuring a competent line of teachers who could impart religious instruction to the disciples and the followers of the Math and to strengthen the religious tenets and beliefs of a particular school of spiritual thought. Math as a juristic person cannot achieve the above purpose without a Matadhipathi or a spiritual head or a presiding element. It is only in this context, it is stated that there can be no Math without a Matadhipathi. But it does not mean that a Math can never exist or its object be defeated by not installing the Matadhipathi and/or the provision providing for framing of a scheme can be defeated for want of Matadhipathi. The Supreme Court in a catena of cases had declared the rights and privileges of Matadhipathi with reference to Chapter III of the Constitution. In Shirur Math case, the Supreme Court was required to consider the extent of executive interference with the right to manage the Math's affairs in the matter of religion and constitutional validity of certain provisions of Madras Hindu Religious and Charitable Endowments Act (19 of 1951). The Madras High Court had held that the Matadhipathi had certain well defined rights in the institution and its endowments, which could be regarded as rights to property within the meaning of Article 19(1)(f) of the Constitution ; that the restrictions imposed by that Act were not reasonable within the meaning of Article 19(5) and consquently invalid ; that the Matadhipathi, as the Head and representative of a religious institution, had a right guaranteed to him under Article 25 of the Constitution to practise and propagate freely the religious precepts of which he and his followers profess to be adherents and infringement of such right is illegal and void. The High Court further held that the right of a religious denomination to manage its own affairs in the matter of religion through the Matadhipathi, who is a spiritual head, is a fundamental right under Article 26 and the provisions of the Act which substantially take away the rights of the Matadhipathi violate the fundamental rights guaranteed under Article 26 of the Constitution. On appeal, the Supreme Court ruled : "-- He is certainly not a trustee in the strict sense. He may be, as the Privy Council, vide 'Vidya Varuthi v. Balusami', AIR 1922 PC 123(A) says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such ; but he is not a mere manager and it would not be right to describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property. Thus in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other ... " .. the ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a Mahant altogether.

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It is true that the beneficial interest which he enjoys is appurtenant to his duties and as he is incharge of a public institution, reasonable restrictions can always be placed upon his rights in the interest of the public. But the restrictions would cease to be reasonable if they are calculated to make him unfit to discharge the duties which he is called upon to discharge. A Mahant's duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents. This purpose cannot be served if the restrictions are such as would bring the Matadhipathi down to the level of a servant under a State department. It is from this standpoint that the reasonableness of the restrictions should be judged.. ....... A Matadhipathi is certainly not a corporate body ; he as the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions, as such cannot practise or propagate religion ; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting." THE PERSONAL OR BENEFICIAL INTEREST OF THE MOHANT IN THE ENDOWMENTS ATTACHED TO AN INSTITUTION IS MANIFESTED IN HIS LARGE POWERS OF DISPOSAL AND ADMINISTRATION AND HIS RIGHT TO CREATE DERIVATIVE TENURES IN RESPECT TO ENDOWED PROPERTIES The Supreme Court in Commissioner, H.R.E. v. Sri. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] SCR 1005, has explained the status of Matadhipathi thus : "Mohantship is not a mere office. A superior of a Mutt has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property -- Thus in the conception of Mahantship as in Shebaitship, both the elements of office, and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mohant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties.... It is true that Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut off, the ordinary rules of succession do not apply .... He is certainly not a trustee in the strict sense. He may be, as the Privy Council vide Vidya Varuthi v. Baluswami (A.I.R. 1922 PC 123) says manager or custodian of the institution who has to discharge the duties of a Trustee and is answerable as such.... "

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MATADHIPATHI IS THE MANAGER AND CUSTODIAN OF THE INSTITUTION In Sarangadeva Periya Matam and Anr. v. Rama-swami Goundar (Dead) By L.Rs., AIR 1966 SC 1603, it is held thus :"A Matadhipathi is the manager and custodian of the institution. The office carried with it the right to manage and possess the endowed properties on behalf of the math and the right to sue on its behalf for the protection of those properties. During the tenure of his office, the Matadhipathi has also large beneficial interests in the math properties." PROPERTY BELONGING TO A MATH IS IN FACT ATTACHED TO THE OFFICE OF THE MAHANT The Supreme Court in Krishna Singh v. Mathura Ahir and ors., AIR 1980 SC 707 has reiterated the same view as under : "The property belonging to a Math is in fact attached to the office of the Mahant, and passed by inheritance to no one who does not fill the office. The head of a Math, as such, is not a trustee in the sense in which the term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution." LITIGATION IF ANY TO BE CONDUCTED IN THE NAME OF MANAGER OF MUTT A Full Bench of Bombay High Court in Babajirao Gambhir-singh v. Laxmandas Guru Raghunathdas, 1903 ILR 28 Bombay 215 has observed that: "A Math like an idol is, in Hindu Law, a judicial persona capable of acquiring, holding and vindicating legal rights through the medium of some human agency. When the property is vested in the Math, then litigation in respect of it has ordinarily to be conducted by, and in the name of, the manager, not because the legal property is vested in the manager, but because it is the established practice that the suit should be brought in that form." MODE OF SUCCESSION TO MATHADHIPATI Supreme Court in Sri Mahalinga Thambiran Swamigal v. His Holiness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, 1974(2) SCR 74, succession to the office of Mahant or Head of a mutt is to be regulated by the custom of the particular mutt and in most cases, especially in Southern India, the successor is ordained and appointed by the Head of the Math during his own life time and in default of such appointment, the nomination may rest with the head of some kindred institution or the successor may be appointed by election by the disciples and followers of the Math, or, in the last instance, by the Court as representing the sovereign. SUCCESSION TO MUTT CANNOT BE DECIDED BY AUTHORITIES UNDER ACT Shiva Murthayya Guru Appayaswamy v. Madiwalappa, 1982(1) KLJ Sh. N. Item No. 41 to which one of us was a party has held thus : "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 Mata-daipathi and the same cannot be equated with the ordinary mode of succession to an office of trustee as contemplated

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under Section l" 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. COMPREHENSIVE LEGISLATION WHICH WILL APPLY TO ALL TEMPLES AND MATHS IN KARNATAKA NEEDED Sri Sahasra Lingeshwara Temple, ... vs State Of Karnataka, 2007 (1) KarLJ 1 In AIR 1980 SC 1, the Supreme Court noticed the argument of Article 14 with regard to application of the Madras Act to South Kanara District of the State of Mysore. Twenty three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislationapart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples and Maths situated in the south Kanara Dist, and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it if perilously near the periphery of unconstitutionally. We have restrained ourselves from declaring the law as inapplicable to the District of south Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of south Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. we do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Maths in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly Section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of Article. STEPS TAKEN TO ARREST ESCALATION OF COMMUNAL TENSION IS NOT ANTISECULAR In (Dr. M. Ismail Faruqui v. Union of India and Ors.), 1995 AIR 605, 1994 SCC (6) 360 the Supreme Court says that: moreover any step taken to arrest escalation of communal tension and to achieve communal accord and harmony can, by no stretch of argumentation, be termed non-secular much less anti-secular or against the concept of secularism a creed of the Indian people embedded in the ethos. STATUS OF SUCCESSOR TO MUTT , WHEN CREATED BY A NOMINATION, CANNOT BE WITHDRAWN OR CANCELLED AT THE MERE WILL OF THE PARTIES Sri Mahalinga Thambiran Swamigal vs His Holiness Sri La Sri Kasivasi Arulnandi thambiran Swamigal 1974 AIR 199, 1974 SCR (2) 74 The custom in the Kasi Mutt was for the head of the Mutt to nominate a successor to succeed him by will and was attended by certain religious ceremonies. The appellant, in

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the present case, was nominated by Exhibit B-1 will and whether the nomination was accompanied by performance of any religious ceremony was not essential. . By exercising the power of nomination, the, head of a Mutt is not disposing any property belonging to him which is to take effect after his death. He is simply exercising a. power to which he is entitled to under the usage of the institution. A nomination takes effect in present. It is the declaration of the intention of the head of the Mutt for the time being as to who his successor would be; therefore, although it is said that the usage in the Mutt is that the power of nomination is exercisable by will, it is really a misnomer, because, a will in the genuine sense of the term. can have no effect in praesenti and it does not become revocable without good cause merely because the power is exercised by a will. It is not correct to say that Mahantship is property and nomination by a Mahant of a successor is a disposal of that property to take effect after the death of the Mahant. Nomination is not a disposal simipliciter.of the office of Mahantship of the Mutt or its properties, to take effect after the death of the incumbent. It is the creation of a relationship generating a capacity in the nominee to succeed to the Mutt on the death of the incumbent. . The fact of a person being legally nominated as junior, having a peculiar relationship with the senior is status, and the capacity to succeed to the head is the incident of that status. The status, when created by a nomination, cannot be withdrawn or cancelled at the mere will of the parties. The nomination when made can be cancelled or revoked only for a good cause and as admittedly, there was no good cause shown in this case for cancellation of the nomination by Ex. B-9, the cancellation was bad in law. The appellant was holding the status of the Elavarasu of the Kasi Mutt during the life-time of the defendant. Now that the defendant is dead, it is declared that the appellant was holding the position of the Elavarasu during the life-time of the defendant, that the revocation of the nomination was bad and the appellant was entitled to succeed to the headship of the Mutt on the death of the defendant. The Supreme Court approved the decision in the earlier Madras case reported in Gnana Sambanda Pandara v. Kandaswami Thambiram, (1887) ILR 10 Mad 375 and observed thus - "By appointment as junior, the Tambiran becomes a spiritual brother or a brotherly companion and by both the senior who appoints and the junior who is appointed belonging to the same Adhinam, they were associates in holiness." The observations of Seshagiri Ayyar J. in Thiruvambala Desikar (Chinna Pandaram) (1917) ILR 40 MAd 177: (AIR 1917 Mad 578) were quoted with approval and it was held by the Supreme Court that the Head of the Mutt is entitled to appoint a Junior Pandarasannadhi, that this Junior has a recognised status, that he is entitled to succeed to the headship if he survives the appointed, that for good cause shown he can be removed and that it is not open even to the head of that Mutt to dismiss him arbitrarily. CEREMONIES HAVE BEEN PERFORMED SUCH AS PINDADANA OR BIRAJAHOMA OR PRAJAPATHIYESTHI WITHOUT WHICH THE RENUNCIATION WILL NOT BE COMPLETE Sri Krishna Singh vs Mathura Ahir And Ors 1980 AIR 707, 1980 SCR (2) 660 A math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity and of the manager of the secular properties of the institution of the Math. The

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property belonging to a Math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The Head of a Math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution.. In the instant case, the evidence on record sufficiently establishes that a Math came to be established at Garwaghat and the building known as "Bangla Kuti" and certain other buildings including the house in suit constituted the endowment of the math itself. . Succession to Mahantship of a Math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. . The succession to the office of the Mahant according to Sant Sampradaya is by nomination, i.e. from Guru to Chela, the Guru initiates the chela after performing the necessary ceremonies. The person initiated as a Chela adopts the life of a sanyasi and is pledged to lead a life of celibacy and religious mendicancy. The sitting Mahant hands over the management of the Math to one of his virtuous Chelas fittest to succeed when he nominates and when he wishes to install as Mahant after him in his place. He makes clear this desire to the members of his Sampradaya, and also authorises the nominated chela to give Bhesh Dikshwa. After the death of the Mahant, the Bhesh and Sampradaya give Chadar Mahanti of the math to the said disciple at the time of the Bhandara. . One who enters into a religious order severs his connection with the members of his natural family. He is accordingly excluded from inheritance. Entrance to a religious order is tantamount to civil death so as to cause a complete severance of his connection with his relations, as well as with his property. Neither he nor his natural relatives can succeed to each other's properties. .. Any property which may be subsequently acquired by persons adopting religious orders passes to their religious relations. The persons who are excluded on this ground came under three heads; the Vanaprastha or hermit; the Sanyasi or Yati, or ascetic and the Brahmachari or perpetual religious student. In order to bring a person under these heads, it is necessary to show an absolute abandonment by him of all secular property, and a complete and final withdrawal from earthly affairs. The mere fact that a person calls himself a Byragi or religious mendicant, or indeed that he is such, does not of itself disentitle him to succeed to property. Nor does any Sudra come under this disqualification, unless by usage. This civil death does not prevent the person who enters into an order from acquiring and holding private property which will devolve, not of course upon his natural relations, but according to special rules of inheritance. But it would be otherwise if there is no civil death in the eye of the law, but only the holding by a man of certain religious opinions or professions. The after-acquired property passes on his death not to his natural but to his spiritual heirs. . In order to prove that a person has adopted the life of a Sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life. It must also be proved in case of orthodox sanyasis, that necessary ceremonies have been performed such as Pindadana or Birajahoma or Prajapathiyesthi without which the renunciation will not be complete. .. QUALIFICATIONS FOR A PERSON'S NOMINATION TO THE MAHANTSHIP

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Mahant Bhagwan Bhagat vs G. N. Bhugat And Ors 1972 AIR 814, 1972 SCR (2)1005 A fairly large number of witnesses stated that the qualifications for a person's nomination to the Mahantship did not depend only on seniority but on ability to manage, celibacy, adherence to religious principles and a habit of serving sadhus, fakirs and visitors besides a good moral character. Some even suggested that it was the ablest Chela who was made the Mahant. Making due allowance for the witnesses who came to support the case of the party examining them, the oral testimony unquestionably leads us to hold that in the matter of nomination of a successor to the Mahantship seniority was not the decisive factor but that ability and efficiency in management coupled with a good moral character and adherence to the religious rites practised at the mutt and a spirit of service to sadhus etc. all entered into consideration in the selection of a successor by a Mahant. CLAIM TO THE OFFICE OF A MOHUNT ON THE STRENGTH OF ANY SUCH USAGE MUST ESTABLISH IT AFFIRMATIVELY BY PROPER LEGAL EVIDENCE Mukharji's book on the Hindu Law of Religious and Charitable Trusts. The learned author states (third edition, p. 257): "Once a Mutt is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution." . "The, primary purpose of a Mutt...... is to encourage and foster spiritual learning by maintenance of a competent line of teachers who impart religious instructions to the disciples and followers of the Mutt and try to strengthen the doctrines of the particular school or order of which they profess to be adherents." . "In a Mutt.... it is the custom or practice of a particular institution which determines as to how a successor is to be appointed." . "The first is that if the grantor has laid down any particular rule of succession, that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is to be followed; and in the third place, the party who lays claim to the office of a Mohunt on the strength of any such usage must establish it affirmatively by proper legal evidence. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he be a disciple of the last Mohunt, unless he succeeds in proving, particular usage under which succession takes place in the particular institution." . "Generally speaking, the Mutts are divided into three classes according to the different ways in which the heads or superiors are appointed. These, three descriptions of Mutts are Mourasi, Panchayati and Hakimi. In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt who moreover usually nominates him as his successor; in the second, the office is elective, the presiding Mohunt being selected by an assembly of Mohunts. In the third, the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple. In a Mourasi Mutt the chela or disciple of the last Mohunt succeeds to the office when there are more, chelas than one the eldest generally succeeds, but a junior chela may succeed if he is found more capable and if he is selected by the last Mohunt is his successor In various institutions the custom is that in order to entitle a chela to succeed, be must be appointed or nominated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document. In other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the life time of the last Mohunt or when the funeral ceremonies of the latter are performed." "When

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the Mohunt has the right to appoint his successor, he may exercise the right by an act inter vivos or by will." .. "In a Mourashi Mutt it is possible for the Mohunt to make over the endowment during his life time to his chela whom he appoints as a successor." .. "In many cases when a successor is appointed by Mohunt, he is installed in office with certain ceremonies,This cannot be deemed to be essential." . ORDINARY RULES OF SUCCESSION TO MAHANTSHIP DO NOT APPLY MAHANT SEVERES HIS RELATIONSHIP WITH HIS NATURAL FAMILY ONCE TOOK DEEKSHA Supreme Court in SRI SRI SRI LAKSHAMANA YATENDRULU v. STATE OF A.P. (1996) 8 SCC 705 in which the Court was dealing with the provisions under The A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (30 of 1987). "Chapter V of the Act deals with maths and specific endowments attached thereto. Section 47 defines 'mathadhipathi' to mean any person whether known as Mahant or by any other name in whom "the administration and management of a math or specific endowment attached to a math are vested". In the concept of mathadhipathi, both the elements of power to hold property and duty to properly maintain it are blended and neither can be detached from the other. The Mahant, therefore, as the spiritual head of the math is entrusted with the administration and management of the math or the specific endowment. The personal or beneficial interest of the Mahant in the endowment attached to the math is manifested in his power of administration and disposal of the property. His right to administer and manage the property endowed to the math and other rights of similar character are vested in the office of the Mahant and, therefore, they are legal rights attached to the management and the administration of the property endowed to the math. He holds the office by custom and usage of the institution. He acts for the benefit of the institution of which he is the head. The Mahant as an ascetic holds the property and, therefore, it is not heritable like ordinary devolution of the property since he has completely severed all his mundane connections with his natural family; cut off from the mundane affairs and is ordained to impart religious education to his disciples and teaching of the religious scriptures etc. to the followers of the religion or the sect. Therefore, the ordinary rules of succession to Mahantship do not apply." SUCCESSOR TO MUTT CANNOT BE REMOVED EXCEPT WITH GOOD CAUSE Ambalavana Pandara Sannathi ... vs State Of Tamil Nadu AIR 1983 Mad 72 It is common ground that the appellant squarely comes within the definition of 'Math' as per the Act and this is not in controversy. In Gnana Sambanda Pandara Sanmadhi v. Kandasami Thambiran, (1887) ILR 10 Mad 375, it was held that "in legal parlance Math connotes a monastic institution presided over by a superior and established and maintained for the use and benefit of section belonging to a particular order who generally are disciples or co-disciples of the superior." Some spiritual leaders of South India, who were actuated by a desire to disseminate religious knowledge and promote religious charities have established Maths in various places, and in Tamil Nadu they are often referred to by the term "Adheenam' and their heads as "Adheenakarthars.". The founders of these Maths gather round them a number of disciples whom they initiate into the tenants of their order for the propagation of religious knowledge which includes the doctrine of a

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particular cult, and this is done by maintenance of a competent line of teachers. Grants of property came to be made by pious persons for the use and benefit of the fraternity and in this process the Maths were constituted. It has been well settled by a longline of decisions of the High Court and the Supreme Court that the primary purpose of a math is to encourage and foster spiritual learning by maintaining a competent line of teachers who impart religious instructions to the disciples. The status of a Mahant is described by the Privy council in Ram Prakash Das v. Anand Das, (1916) 43 Ind App 73: (AIR 1916 PC 256), thus:- "The Mahant is the head of the institution - he manages the property of the institution - he administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself. In these institutions ordinarily, the custom to entitle a 'chela' to succeed to the gadi or headship or peetam is that he must be appointed or nominated by the Mahant in office during his life time. The Privy Council in Greedhari Doss v. Nundokissore (1866067)11 Moo Ind App 405 observed that 'the only law of these Mahants and their offices, functions and duties is to be found in custom and practice which is to be proved by testimony." Thus, the law on the question of succession to the office or the Head of the mutt is that if the founder has laid down any particular rule of succession, that has to be given effect to. In Thiruvambala Desikar v. Manikavachaga Desikar, (1917) ILR 40 Mad 177: (AIR 1917 Mad 578) it has been held that the practice for the pandara Sannadhi or Head of the Math is to nominate and ordain a Junior Pandara Sannadhi who acts as a coadjudicator during the lifetime of the senior and succeeds him after his death and the right thus acquired by the Junior Mahantt cannot be deprived except for grave cause. Thus the right of making an appointment is appurtenant to the office of the Mahant and the duty of the Head of the Mutt is to impart spiritual instruction and to propagate Hindu religion. GOVERNMENT HAS NO AUTHORITY TO APPOINT MATHADHIPATHI Shilpi Papachar vs State Of Karnataka And Ors. AIR 2003 Kant 111 Government cannot appoint any Swamiji and the Government has no authority to appoint of Peetadhipathi to a Math. MATHADIPATHI OFFICE MUST BE TRANSMITTED TO THE SUCCESSOR ACCORDING TO SOME DEFINITE RULES OF DESCENT In Sri Mahant Paramanda Das Goswami v. Radhakrishna Das I.L.R. [1957] Mad. 1084, the Madras High Court took the view that where succession to the mahantship is by nomination by the holder in office, it was not a hereditary succession. In that case Venkatasubba Rao, J. said: "If the successor owes his title to nomination or appointment, that is, his succession depends on the volition of the last incumbent and does not rest upon independent title, I am inclined to the view that the office cannot be said to be hereditary." Krishnan J., stated as follows: "Where succession is by nomination by the holder in office of his successor it seems to be impossible to contend that it is a hereditary succession. Hereditary succession is succession by the heir to the deceased under the law, the office must be transmitted to the successor according to some definite rules of descent which by their own force designate the person to succeed.

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There need be no blood relationship between the deceased and his successor but the right of the latter should not depend upon the choice of any individual." RULES OF SUCCESSION IN MUTT IS BY CUSTOM AND USAGE Sambudamurthi Mudaliar vs State Of Madras 1971 AIR 2363, 1970 SCR (2) 424 In the case of mutts, whose heads are often celibates and sometimes sanyasins, special rules of succession obtain by custom and usage. In Sital Das v. Sant Ram A.LR. 1954 S.C. 606. the law was taken as wellsettled that succession to mahantship of a mutt or religious institution is regulated by custom or usage of the particular institution except where the rule of succession is laid down by the founder himself who created the endowment. LEGAL POSITION OF SHEBAIT OR PUJARI Angurbala Mullick v. Debabrata Mullick AIR 1951 SC 293 The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami [48 I.A. 302] that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not he correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji [I.L.R. 60 Cal. 452] and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary [63 I.A. 448] and again in Bhabatarini v. Ashalata [70 I.A. 57]. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee [16 I.A. 137], 'when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the

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shebaitship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder. Sambudamurthi Mudaliar vs State Of Madras 1971 AIR 2363, 1970 SCR (2) 424 Ordinarily a shebaitship or the office of dharmakartha is vested in the heirs of the founder unless the ,founder has laid down a special scheme of succession or except when usage or custom to the contrary is proved to exist. Mukherjea J., in Angurbala Mullick v. Debabrata Mullick AIR 1951 SC 293, delivering the judgment of Court observed: "Unless therefore, the founder has disposed of the shebaitship in any particular manner--and this right of disposition is inherent in the founder--or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder." A RELIGIOUS MUTT IN NORTHERN INDIA IS GENERALLY KNOWN AS ASTHAL, A MONASTIC INSTITUTION FOUNDED FOR THE MAINTENANCE AND SPREAD OF A PARTICULAR SAMPRADAYA OR CULT Bihar State Board Religious ... vs Mahant Sri Biseshwar Das AIR 1971 SC 2057. The mere fact that Mahants of a particular order did not marry and properties held by them is descended from Guru to Chela was not indicative of and did not raise a presumption of such properties being religious properties. If originally the property was acquired by a Mahant the fact of its descent subsequently from guru to chela did not also lead to the conclusion that it had lost its secular character. Evidence that Sadhus and other persons visiting the temple were given food and shelter was not by itself indicative of the temple being a public temple or its properties being subject to a public trust. . The mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication ,depends on the circumstances which give strength to the inference that the user was as of right. .. A religious mutt in northern India is generally known as asthal, a monastic institution founded for the maintenance and spread of a particular sampradaya or cult. The distinction between dedication to a temple and a mutt is that in the former case it is to a particular deity, while in the later case it is to a superior or a mahant. But just as in the case of the debutter endowment, there is both private and public endowment, so too there can be the same distinction between a private and public mutt. A mutt can be dedicated for the use of ascetics generally or for the ascetics of a particular section or cult, in which case it would be a public institution. But it is not impossible to have a private mutt where the endowment is not intended to confer benefit upon the public generally or even upon the members of a particular order. Examples do occur where the founder may grant property to his spiritual preceptor and his disciples in succession with a view to maintaining one particular spiritual family and for perpetuation of certain rites and ceremonies which are deemed to be conducive to the spiritual welfare of the founder and his family. In such cases it would be the grantor and his descendents who are the only persons interested in seeing that the institution is kept up for their benefit. Even if

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a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a section of it is interested. Such charities appertain to a private debutter also. .. The existence of a private mutt in which the property was given to the head of the mutt for his personal benefit only has in the past been recognised. In such cases there is no- intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted. In each case the court has to come to its conclusion either from. the grant itself or from the circumstances of the case whether the grant was for the benefit of the public or a section of it i.e. annas curtained class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which properties had been dealt with as also other established circumstances. The fact that idols were installed permanently on a pedestal and the temple was constructed on grounds separate from the residential quarters of the mahant could not,lead to inference of dedication to the public. In the first place such factors are also found in private temples and mutts and therefore are not conclusive. In the second place there was the evidence that the mahants residential quarters were in fact, not separate from the temple premises. The expression 'appertaining to the asthal' in the deeds of gifts made by the reigning mahants in favour of their nominees as successor$ meant things which were appurtenant to and forming part of the principal property which was the subject matter of the instrument. The expression would at best mean that the properties formed part of the asthal and were not the properties of the mahant as distinct from those of the asthal. But unless the asthal itself was a public trust for the religious or charitable purposes, the properties appertaining thereto would not be properties of a public trust for religious or charitable purposes. The use of the expression 'appertaining to the asthal', therefore, could not lead to the conclusion that the property in question was stamped with a trust for public purposes. DEDICATION TO THE CHARITY NEED NOT NECESSARILY BE BY INSTRUMENT OR GRANT BY CONDUCT OF PARTIES IT CAN BE DEDICATED In Menakuru Dasaratharami Reddi and Anr. v. Duddukuru Subba Rao and Ors. AIR 1957 SC 797, the Apex Court in Para-7 of the judgment has held that dedication to the charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to the charity. PERPETUAL DEDICATION OF PROPERTY BY A HINDU FOR PERFORMANCE OF WORSHIP AT A TOMB WAS NOT VALID In Saraswathi Ammal and Another v. Rajagopal Ammal [1954 SCR 277] the question as to whether worship at the Samadhi of a person would be valid under Hindu Law came up for consideration. It was held that dedication must have a Shastraic basis. While, however, saying so, it was noticed that there are instances where Hindu Saints had been worshipped and entombed. The Court proceeded on the basis that "Their Lordships were aware about the dedication of property on such tombs amongst Hindus". It was, however, observed: "Such cases, if they arise, may conceivably stand on

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a different footing from the case of an ordinary private individual who is entombed and worshipped thereat. The case reported as The Board of Commissioners for the Hindu Religious Endowments, Madras v. Pidugu Narasimham and others has also been referred to. It is a somewhat curious case furnishing an instance where images of as many as 66 heroes who were said to have been killed in a war between two neighbouring kingdoms in the 13th century were installed in a regular temple and systematically worshipped by the public for several centuries and inam grants therefor made during the Moghul period. With reference to the facts of that case, the learned Judges were inclined to hold that the worship was religious. This, however, is a case of a grant from a sovereign authority and in any case is not an endowment for worship of a tomb. In the three Madras cases in which it was held that the perpetual dedication of property by a Hindu for performance of worship at a tomb was not valid, there was no suggestion that there was any widely accepted practice of raising tombs and worshipping thereat and making endowments therefor in the belief as to the religious merit acquired thereby" In Malayammal and Others v. A. Malayalam Pillai and Others [1991 Supp (2) SCC 579], a three-Judge Bench of this Court opined: "12. The perpetual dedication of property for construction of a samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto however, has not been recognised as charitable or religious purpose among the Hindus. But the samadhi of a saint stands on a different footing. This was the consistent view taken by the Madras High Court in several cases, namely, C. Kunhamutty v. T. Ahmad Musaliar A. Draiviasundaram Pillai v. N. Subramania Pillai , Veluswami Goundan v. Dandapani 6 . This Court inSaraswathi Ammal v. Rajagopal Ammal has approved those decisions of the Madras High Court. Jagannatha Das, J., who spoke for the court said (at p. 289) : "We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus." Sri Gedela Satchidananda Murthy ... vs Dy. Commnr., Endowments Deptt 2007 AIR SCW 3482, Religious practices vary from State to State, region to region, place to place and sect to sect. When the legislature makes a legislation, the existing state of affairs and the basis on which such legislation has been made would be presumed to have been known to it. Whereas the property for construction of a Samadhi or tomb by itself may not amount to a permanent dedication involving public character of such institution, a distinction must be borne in mind about a tomb constructed on the Samadhi of an ordinary man and a saintly person. In a case falling within the latter category, the answer to the question, in our opinion, should be rendered in the affirmative. .. Ordinarily, even the body of an ordinary Hindu would not be buried. It would be cremated. Kalyan Das Anr. Rambir Das & Anr vs Rambir Das & Anr. Kalyan Das Anr 1997 ( 2 ) SCR 210 . Chela nominated must be one who is independent and capable to renounce the worldly affairs or capable to adopt himself as Bairagi. He cannot adopt anyone as his successor by application of the general principles of law. .. Having seen that Bansi Dass did not reserve any right to cancel the nomination and that too for valid reasons, the Will became operative as soon as it was executed. Thereby, he had no more

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any power to cancel it and thereby the right of adoption would not be approved of by this Court as valid in law, as he is a Bairagi and he could not adopt anyone except nominating a chela who follows the principles and precepts the founder had laid for being observed. Unfortunately, there is no plea in this behalf nor is any power in that behalf. The Will in the normal connotation, takes effect after the demise of the testator. But in the case of nomination of a shebait, the nomination takes effect from the date of its execution though it is styled as will. . QUOTED CASE LAWS In Mayne's Hindu Law & Usage [14th Edn.] at page 965, para 639 on "Entrance into religious order", it is stated as under : "One who enters into a religious order severs his connection with the members of his natural family. he is accordingly excluded from inheritance. Neither he nor his natural relatives can succeed to each other's properties. The person who are excluded on his ground come under three heads, viz., the Vanaprastha, or hermit; the Sanyasi or Yati, or ascetic; and the Brahamchri, or perpetual religious student. In order to bring a person under these heads, it is necessary to show an absolute abandonment by him of all secular abandonment by him of all secular property, and a complete and final withdrawal from earthly affairs.. The mere fact that a person calls himself a Hyragi, or religious mendicant, or indeed that he is such does not of itself disentitle him to succeed to property. Nor does any Sunder come under this disqualification, unless by usage. This civil death does not prevent the person who enters into an order from acquiring and holding private property which will devolve, not of course upon his natural relations, but according to special rules of inheritance. But it would be otherwise if there is no civil death in the eye of the law, but only the holding by a man of certain religious opinions or professions." In Baba Kartar Singh Bedi V/s. Dayal Das & Ors.[AIR 1939 PC 201 AT 207] this Court had held thus: "It was also argued by the respondent's counsel that the word 'chela' in will meant an adopted son. This contention too, in their Lordships' view, is totally without foundation. A chela, as is well knowing India, means a disciple. His different from an adopted son, both in the process of his initiation and in the purpose of his existence. A chela is generally nominated by the ruling mahant during his lifetime to conduct the affairs of a religious institution, or if he fails to do so, the chela is nominated by his principal followers after his death, who are connected with the institution. There could be no analogy between him and an adopted son, as known to Hindu Law. In the case of the latter, it is imperative that on of his genitive parents must give, and one of his adoptive parents must receive him in adoption. Without such a gift and taking no adoption can be valid. There are, in addition, rituals such as the are, in addition, rituals such as the sacrificial fire, called "Homa" to complete ceremonially the transaction of adoption and lastly if may be mentioned that the principal function of a that the principal function of a adopted son is to performs periodically sharaddas, or obsequial rites to his parents and other souls, according to salvation of their souls, according to salvation of their should according to Hindu sentiment. None of these incidents are to be found in the case of a chela, whose affiliation, if it may be so described, is mainly for the purpose of continuing the traditional obligation of the institution and holding and managing its property for purposes incidental thereto. His main function is not to perform obsequial rites for the benefit of his ancestors, for in most cases, a sanysasin or

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a mahant, when he enters that order, abrogates (householder), whose future felicity in a post mortem existence is the object of solicitude on the part of his male descendants". In Parma Nand V/s. Nihal Chand [65 IA 252 at page 257] Sir Shadi Lal speaking on behalf of the Judicial Committee held thus : "In the town of Gujranwala there is a building variously described as Baghichi Thankaran or Gurdwara Baghichi, and the main issue which their Lordship have to determine in this appeal is whether that buildings, together with the shops and other property attached to it, is the subject matter of a trust for a public purpose of a charitable or religious nature. The issue was raised by the defendants who, claiming to be the representatives of the Hindu public made an application to the District Judge under s.3 of the Charitable and alleging that he Baghichi Thakaran was a public endowment for religious and charitable purpose, and called upon Mahant Narain Das who was described by them as the trustee of the endowment, to furnish details of the nature and purposes of the trust, and of the value of the property belonging to the trust, and also to render an account of the income and expenditure of the trust property. Their allegation were contested by Narain Das and the controversy between the parties led to the present action, brought by Narain Das for the purpose of obtaining an authoritative pronouncement upon the nature of the trust and of the property attached to it". In Krishna Singh V/s. Mathura Ahir & Ors. [AIR 1980 SC 707 at 725] this Court had pointed out in paras 77 and 89, as regards the rights of a sanyasi, thus: The learned Civil Judge in his judgment observes: The fact of Harsewanand being a sanyasi remains undoubted'. His finding that he was not a Hindu sanyasi law mere 'renunciation' of the world is not sufficient. Hence, he holds that a Sudra who renounced the world and became sanyasi cannot be said to be a Hindu Sanyasi, as according to the Hindu Sastras no Sudra can become a sanyasi. The underlying fallacy lies in his overs looking that the question not according to the orthodox view, but according to the usage or custom of the particular sect or fraternity. It is needless to stress that a religious denomination or institution enjoys complete autonomy in the matter of laying down the rites and ceremonies which are essential. We must accordingly hold that the plaintiff was the validly initiated chela of Swami Atmavivekanand and upon his demise was duly installed as the mahant of Garwaghat Math according to the tenets of his 'Sant Mat' Sampradaya. In the instant case, the appellant himself, of course, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted the respondent No.1 Harshankarnand, as his heir and legal representative, while disputing his claim that he had been appointed as the mahant, as he felt that the appeal could not proceed without substitution of his name. In his reply, the respondent No.1 Harshankaranand alleges that after the demise of mahant Harsewananad he was duly installed as the mahant of Garwaghat Math by the 'Sant Mat' fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. Thus fact that he is in management and control of he math properties is not in dispute. The issue as to whether he was so installed or not or whether he has any right to the office of a mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased Mahant Hareswanand as he is a legal representative within the meaning of S.2 (11), as he indubitably is intermeddling with

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the estate. He has therefore, the right to come in and prosecute the appeal on behalf of the math." In Sri Mahilinga Thambiran Swamigal V/s. His Holisness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal [(1974) 2 SCR 74 at 88-61], this court had held as under : "The definition of "Will" in s.2 (h) of the Indian Succession Act, 1925 would show that it is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. By exercising the power of nomination, the head of a Mutt is not disposing of any property belonging to him which is to taken effect after his death. He is simply exercising a power to which he is entitled to under the usage of the institution. A nomination makes the nominee stand in a p[eculiar relationship with the head of the Mutt and the Hindu community and that relationship invests him with the capacity to succeed to the headship of the Mutt. A nomination takes effect in presenti. It is the declaration of the intention of the head of the Mutt for the time being as to who his successor would be; therefore although it is said that the usage in the Mutt is that the power of nomination is exercisable by will, it is really a misnomer, because, a will in the genuine sense of the term can be made by deed or word of mouth. IN such a case, the nomination can be made by deed or word of mouth. In such a case, the nomination invests the nominee with a present status. That status gives him the capacity to succeed to the headship of the Mutt on the death of the incumbent for the time being. If that is the effect of the nomination when made by deed or word of mouth, we find it difficult to say that when a nomination is made by will, it does not take effect in presenti, and that it can be cancelled by executing another will revoking the former will. Such, at any rate, does not seem to be the concept of rate does not seem to be the concept of nomination in the law relating to Hindu Religious Endowments. A nomination need not partake of the character of a will in the matter of its revocability, merely because of power f nomination is exercised by a will. In other words, the nature of character of a nomination does not depend upon the type of document under which the power is exercised. If a nomination is otherwise irrevocable except for good cause, it does not become revocable without good does not become revocable without good cause, merely because the power is exercised by a will. If the power of nomination is exercised by a will, it is pro-tanto a non- testamentary instrument. A document can be partly testamentary and partly non-testamentary. In Ram Nath vs. Ram Nagina [Air 1962 Patna 481], the head of the Mutt for the time being exercised his power of nomination more or less in terms of Exhibit B-1 here, namely, by making the nomination of a successor and providing that he of a successor and providing that the will be owner of the properties and charities of the Mutt and also of the other properties standing n the name of the head of the Mutt. The Court held that so far as the nomination and devolution of the properties of the Mutt were concerned, the will operated as a non-testamentary instrument. The Court said that the condition which must be satisfied before a document can be called a will is that there must be some disposition of property and that the document must contain a declaration of the intention of the testator not with respect to any thing but with respect to his property. According to the Court, if there is a declaration of intention with respect to his successor, it cannot constitute a will even if the document were to state that the nominee will become the owner of the properties of the Mutt after the death of the executant of the will as that is only a statement of the legal consequence of the nomination."

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At page 88, this Court, looking from another angle, held as under : "Looking at the matter from another angle, we come to the same conclusion. We have already said that the power of nomination must be exercised not corruptly or for ulterior reason but bona fide and in the interest of the Mutt and the Hindu community. It then stands to reason to hold that power to revoke the nomination must also be exercised bona fide and in the interest of the institution and the community. In other words, the power to revoke can be exercised nor arbitrarily, but only for good cause would be good and the defendant had no case before us that he revoked that nomination for a good cause. We hold that a nomination when made can be cancelled or revoked only for a good cause and, as admittedly, there was no good cause shown in this case for cancellation of the nomination by Exhibit B-9, the cancellation was bad in law. Therefore, it must be held that the appellant was holding the status of the Elavarsu of the Kasi Mutt during the life time of the defendant. Normally, a court will declare only the right of the parties as they existed on the date o the institution of the suit. But, in this case, on account of the subsequent event, namely, the death of the defendant, we have to mould the relief to suit the altered circumstance. If the defendant had been alive. it would have been sufficient if we had declared, as the learned single judge has done, that the appellant was the Elavarsu of the Kasi Mutt. Now the defendant is dead, we make a declaration that the appellant was holding the that the applellant was holding the position of the Elavarsu during the lifetime of the defendant, that the revocation of the nomination of the appellant as the Elavarsu by Exhibit B-9 was bad, and that the appellant was entitled to succeed to the headship of the Mutt on the death of the defendant." SALE OF MUTT PROPERTY In Muthusamier v. Methanithi Swamiyar AIR 1916 Mad. 332 it was held that the corpus of the Mutt property is inalienable except in special circumstances, and it seems difficult to withhold from the Matadhipathi the right to make for his own life or rather for the period during which he occupies the position as head of the Mutt, a lease of a portion of the property for any rent however small which he may deem sufficient. It was further held that an alienation by the head of a religious foundation is not necessarily utterly void and of no effect and a lease, though beyond the power of the lessor, could not be avoided during his own lifetime but is voidable by the lessor's successors. In Perumal Gramani v. Mahamad Kasim Sahib AIR 1916 Mad. 502 it was pointed out that the general rule undoubtedly is that a permanent lease of religious trust property is beyond the powers of the trustee and whether the permanent lease was to the benefit of Darga is a question of fact. In Bawa Magniram Sitar am v. Kasturbhai Manibhai L.R. Vol. XLIX 49 Indian Appeals p. 54 the Privy Council followed Chockalingam Pillai v. Mayandi Chettiar I.L.R. 19 M. 485 wherein it was held that although the manager for the time being had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation, yet the long lapse of time between the alienation and the challenge of its validity is a circumstance which enables the Court to assume that the original grant was

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made in exercise of that extended power, and held that: If in fact the grant was made by a person who possessed the limited power of dealing under which a shebait holds lands devoted to the purposes of religious worship, yet none the less there is attached to the office in special and unusual circumstances, the power of making a wider grant than one which enures only for his life. At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made. In Sree Sree Lakshmi Narayan Jiu Thakur v. Jagadish Chandra Sur AIR 1938 Cal. 541 the evidentiary value ofrecitals in ancient documents was considered and the view of the Privy Council in Banga Chandra Dhur Biswas v. Jagat Kishore 43 IA 249 was followed which is as under: As the time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that an inquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise, would result in deciding that a title becomes weaker as it grows older, so that a transaction perfectly honest and legitimate when it took place, would ultimately be incapable of justification merely owing to the passage of time. In Sri Thakurji Ramji v. Mathura Prasad AIR 1941 Pat. 354 in a case where the parties to the transactions as also the attesting witnesses to the document are all dead, it was held that some value had to be attached to the recitals in the document and the decision of the Privy Council in Banga Chadra Dhur's case (supra), was reiterated. It was also pointed out that the matter of justifying necessity should be approached not from an absolute standard of necessity but from the point of view of what considerations would weigh in the mind of a prudent manager. It was held that: "Necessity" and "benefit of the estate" are general and elastic terms. To a religious institution like a math its prestige and influence are of vital importance. Preservation of its prestige and influence is no less necessary than preservation of its property. The evidence in this case shows that an elephant was being maintained in the Asthal since the time of Mahanth Bhagwan Das. If an elephant was necessary for use during festival occasions, Mahanth Damodar Das was the best person to judge whether, in the circumstances, it would be prudent for him to purchase one by borrowing." In G.V. Kalmath v. Vishnu Deo it was held that: A wahivatdar or a manager has not got an unqualified power of alienation in respect of debutter properties. His powers in that

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regard are restricted. He can alienate debutter properties only for legal necessity or for the benefit of the deity. The expressions legal necessity' and 'the benefit of the deity' have been the subject-matter of decisions of Courts in India and of the Privy Council for over one hundred years. The powers of a manager or wahivatdar with regard to alienation of debuttar property are analogous to the powers of a guardian in relation to the estate of a minor. A permanent lease under which the rent payable is a fixed one and not subject to variation at the instance of the lessor, is also considered as an alienation which is subject to the restriction that it cannot be created unless there is legal necessity or it is established that it is for the benefit of the deity. It was pointed out that the lender, unless he is shown to have acted mala fide, will not be affected though it may be shown that with better management the estate might have been kept free from debt. It was also held that unless it is shown that the permanent lease was entered into for legal necessity or benefit of the deity, the lease cannot be binding on the deity and the burden of establishing the circumstances justifying an alienation of debutter property is on the alienee. The scope of Article 134-B of Indian Limitation Act, 1908 was considered by a Division Bench inC. V. Purushotham v. C.J. Mutt AIR 1975 AP 153. It was noted that under law of endowments as settled by the decisions of the Privy Council and the Supreme Court, alienation of endowed property by a Mathadhipathi is not binding on the Mutt unless it is supported by necessity, and a permanent lease is considered to be of the same nature as an alienation and it was observed that after the death, resignation or removal of the Mathadipathi, the succeeding Mathadhipathi is entitled to sue for a declaration that the alienation is not binding on the institution, which is a right under the law governing the endowments and existed under both the Limitation Acts 1908 and 1963. Consequently, it followed in that case that the period of limitation prescribed by Article 134-B of Indian Limitation Act, 1908 expired before the commencement of Limitation Act, 1963 as the suit had to be filed within 12 years from the date of death, resignation or removal of the transferor and as the transferor died on 13-9-1906 and the suit was filed in O.S.No. 81 of 1965. It was further made clear that Section 31 of the Limitation Act, 1963 provides that nothing in the new Act shall enable any suit to be instituted for which the period of limitation prescribed by Indian Limitation Act 1908 expired before the commencement of the new Act. Hence, Article 96 of the new Limitation Act, 1963 was held to have no application and the suit was held barred by limitation. In Bishwanath v. Sri Thakur Radha Ballabhji, AIR 1967 SC 1044, the suit for declaration of title and possession of property from a person who was in possession of the property of idol under an alienation was filed by the idol through a devotee and worshipper. It was held that when an unauthorised alienation has been effected by the Shebait acting adversely to the interests of the idol, even a worshipper can file the suit, the reason being that the idol is in the position of a minor and when the personinterested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It was further held that the suit filed by idol represented by a worshipper in the circumstances was maintainable. Bhagauti Prasad Khetan And Etc. vs Laxminathji Maharaj AIR 1985 All 228 , The Supreme Court has clearly held in Bishwanath v. Sri Thakur Radha Ballabhji, AIR 1967

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SC 1044 that the worshipper has an ad hoc power of representation of the deity when the Shebait acts adversely. It follows from this the worshipper having right to represent the deity can represent the deity without any specific order from the Court about his appointment. There is no definite procedure laid down in the Civil P.C. relating to suits on behalf of idol. The provisions of order 32 C.P.C. which relate to minor do not specifically provide for the appointment of the next friend. . The manner in which he was allowed to continue the suit indicates that he should be deemed to have been accepted as next friend of the deity. Thus the suit cannot be held not maintainable because Atma Ram did not make an application and was not appointed as next friend of the idol plaintiff in the trial Court.

Bhagauti Prasad Khetan And Etc. vs Laxminathji Maharaj AIR 1985 All 228 , It was lastly argued in connection with the maintainability of the suit that it is barred by Section 34, Specific Relief Act and Section 92 Civil P.C. We do not find any force in this argument also. The suit is for declaration and permanent injunction about alienation of debutter properties. It has been held in Vemareddy Ramaraghawa Reddy v. Kondaru Seshu Reddy AIR 1967 SC 436 that worshipper can file a suit for declaration without claiming relief for possession. It is undisputed that the property alienated is in possession of the tenants and as such in the present case the relief for actual possession could not be claimed. At the most the deity could claim constructive possession, where the plaintiff is entitled to constructive possession by receipt of rent from the defendant, a declaration of title is ail he needs, because under such circumstances even if he asks for possession it; can only be delivered by notifying the declaration of the plaintiffs title which has already been prayed for. The plaintiffs could claim further relief for perpetual injunction and that has been claimed. Thus Section 34, Specific Relief Act does not affect maintainability of the suit in any way. Venuareddi Ramaraghava Reddy vs. Konduru Seshu Reddy, AIR 1967 SC 436, the Supreme Court observed: "(11) In our opinion, Section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of Section 42 of the Specific Relief Act." DHARMACHATRAM WITH HINDUS Thayarammal (Dead) By Lr. vs Kanakammal And Ors. (2005) 1 SCC 457 Dharmachatram is 'Choultry' of South India meaning a place where pilgrims or travellers may find rest and other provisions. Hindus in India consider the establishment of temples, mutts and other forms of religious institutions or excavation and consecration of tanks, wells and other reservoirs of water, planting of shady trees for the benefit of travellers, establishment of Choultries, sarais or alms houses and Dharamsala for the benefit of mendicants and wayfarers and pilgrims as pious deeds which would bring heavenly bliss and happiness to a Hindu. The PROPATHA of the

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Vedas is the same thing as Chuntry or Sarai and sometimes it is described as 'PRATISHREYAGRAH'. RIGHT TO PERFORM PUJA IS CUSTOMARY RIGHT STATE CAN REGULATE AND ABOLISH BY LEGISLATION Bhuri Nath & Ors. Vs. State of J&K & Ors. [1997(2) SCC 745] Court while dealing with the validity of J & K Shri Mata VaishAND ABOLISH SUCH RIGHTSno Devi Shrine Act, 1988, and the abolition of the right of Baridars to receive share in the offerings made by pilgrims to Shri Mat Vaishno Devi, observed their right to perform pooja is only a customary right coming from generations which the State can and have by legislation abolished and that the rights seemed under Articles 25 & 26 are not absolute or unfettered but subject to legislation by the State limiting or regulating any activity, economic, financial, political or secular which are associated with the religious behalf, faith, practice or custom and that they are also subject to social reform by suitable legislation. It was also reiterated therein that though religious practices and performances of acts in pursuance of religious beliefs are, as much as, a part of religion, as further belief in a particular doctrine, that by itself is not conclusive or decisive and as to what are essential parts of religion or behalf or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question arise on the basis of materials- factual or legislative or historic if need be giving a go bye to claims based merely on supernaturalism or superstitious beliefs or actions and those which are not really, essentially or integrally matters of religion or religious belief or faith or religious practice. GROUP OF SHAIVITES - EXCLUSIVE RIGHT TO CONDUCT WORSHIP AND MANAGE KASHI VISHMANATH TEMPLE CAME TO BE REPELLED BY SUPREME COURT 1997 SC A challenge made to U.P. Sri Kashi Vishwanath Temple Act, 1983 and a claim asserted by a group of Shaivites the exclusive right to conduct worship and manage the temple in question came to be repelled by this Court in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varansi and Others vs State of U.P. and Others [1997(4) SCC 606]. While taking note of the aim of the constitution to establish an egalitarian social order proscribing any discrimination on grounds of religion, race, caste, sect or sex alone by Articles 15 to 17 in particular, it was once again reiterated as hereunder: "28. The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos/Creator and realize his spiritual self. Sometimes, practices religious or secular are inextricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti, human actions from birth to death and most of the individual actions from dayto-day are regarded as religious in character in one facet or the other. They sometimes claim the religious system or sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional religious model and

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another diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjudged strictly within the parameters of the right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity. Law is a tool of social engineering and an instrument of social change evolved by a gradual and continuous process. As Benjamin Cardozo has put it in his Judicial Process, life is not logic but experience. History and customs, utility and the accepted standards of right conduct are the forms which singly or in combination all be the progress of law. Which of these forces shall dominate in any case depends largely upon the comparative importance or value of the social interest that will be, thereby, impaired. There shall be symmetrical development with history or custom when history or custom has been the motive force or the chief one in giving shape to the existing rules and with logic or philosophy when the motive power has been theirs. One must get the knowledge just as the legislature gets it from experience and study and reflection in proof from life itself. All secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State. Whether the traditional practices are matters of religion or integral and essential part of the religion and religious practice protected by Articles 25 and 26 is the question. And whether hereditary archaka is an essential and integral part of the Hindu religion is the crucial question. Justice B.K. Mukherjea in his Tagore Law Lectures on Hindu Law of Religious and Charitable Trust at p. 1 observed: "The popular Hindu religion of modern times is not the same as the religion of the Vedas though the latter are still held to be the ultimate source and authority of all that is held sacred by the Hindus. In course of its development the Hindu religion did undergo several changes, which reacted on the social system and introduced corresponding changes in the social and religious institution. But whatever changes were brought about by time and it cannot be disputed that they were sometimes of a revolutionary character the fundamental moral and religious ideas of the Hindus which lie at the root of their religious and charitable institutions remained substantially the same; and the system that we see around us can be said to be an evolutionary product of the spirit and genius of the people passing through different phases of their cultural development."

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LAW AS APPLIED TO MUTTS ADMINISTRATION IN BOMBAY REGION AND MYSORE REGION OF KARNATAKA Sri Sringeri Nelamau Samsthanam, ... vs State Of Karnataka And Others ILR 1998 KAR 1532, 1998 (2) KarLJ 621 It is time now to examine whether there is any material difference between the Scheme underlying the Bombay Act in its application to the Bombay Karnataka areas as against other enactments that are applicable to the remaining areas of the State, It is essential to do so because it was argued on behalf of the respondents that there was no material difference between the legal position as it applies to Bombay Karnataka areas and that applicable to the remaining regions so as to constitute a differential treatment offensive to Article 14 of the Constitution. As noticed earlier, the State is presently governed by five different enactments insofar as charitable and religious institutions are concerned. These laws are materially different from each other, but for the purposes of demonstrating the legitimacy of this contention, it would be enough if we compare the provisions of the Bombay Act with those of the Mysore Religious and Charitable Institutions Act, 1927 applicable at present to the old Mysore areas of the State. Section 24 of the latter Act specifically excludes maths and other institutions of similar nature from the provisions of Chapters II and III. Chapter II of the Act deals with control and management of Muzrai Institutions whereas Chapter III relates to public religious and charitable institutions other than Muzrai Institutions. It is noteworthy that Section 14 appearing in Chapter III of the Act empowers the Government to undertake either temporarily or permanently the management of a public religious and charitable institution in the situations enumerated therein. By reason of the provisions of Section 24, however, the power vested under Section 14 are not available to the Government in the case of maths or properties owned or possessed by them. Section 25 of the Act, however, empowers the State Government to take over the management of any maths in certain situations which are by their very nature exceptional in character. The power to take over is exercisable only when the Matadhipathi or the head of the institution voluntarily applies for such help and places the institution and its property under the management of the Government or when he is dead or has left the country and has not been heard of for more than seven years and has not made legal and satisfactory arrangements for carrying on of the ordinary business of the institution and there is no successor duly appointed, according to law, or custom applicable to succession of the office. And lastly, when he is a minor without a duly appointed guardian, fit and willing to act as such, or is by reason of physical or mental infirmity unable to manage the affairs of the institution. The only other situation, in which the Government may take over the management of a math or similar other institution is where a complaint is received by it in writing by the disciples or other persons interested in the math and the Government has reason to believe that the Matadhipathi or the head of the institution has been grossly mismanaging the property of the institution or has alienated or is attempting to alienate the whole or any part of such property for improper purposes. In any such event, the Government has the power under Section 26 of the Act to order an enquiry by a Committee of not less than 3 persons, one atleast of whom shall be a disciple of or a person interested in the math. It is only upon the completion of the enquiry by the Committee and the receipt of the report by the Government, that it may take over the management of the institution or pass such other orders as may be deemed fit concerning its affairs and properties. The Scheme of the Mysore Act therefore in its application to maths and similar other

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institutions is limited to the provisions contained in Chapter IV comprising Sections 24 to 31, which provide for Government intervention only in exceptional situations or in a situation where a statutory enquiry conducted under Sections 26 and 27 of the Act has established gross mismanagement of the property of the institution or attempts to alienate whole or any part of the property by the Matadhipathi or the head of any such institution. It is noteworthy that except Chapter IV of the Mysore Act, the maths and similar other institutions headed by Matadhipathis, who are entitled by law or general or particular usage to exercise the powers of management or ownership are free from any State or other regulatory control under the Act in so far as the management of the affairs of the maths are concerned. Placed in juxtaposition, the Scheme underlying the Bombay Public Trusts Act is entirely different. This can be demonstrated by a brief reference to some of the provisions of the Act, which deal with the major features of the said scheme. Section 3 of the Bombay Act empowers the State Government to appoint a Charity Commissioner to exercise powers and perform duties and functions conferred under the provisions of the Act. The powers exercisable by the Charity Commissioner are detailed in Section 69 and include the power to direct a special audit of the accounts of a Public Trust under Section 33, the power to enter and inspect any trust property, to call for and inspect any proceedings of the trustees and to call for any written statement, account or report from them, or any person connected with a Public Trust and the power to hold an enquiry in regard to any loss caused to a Public Trust under Section 40 and to order a surcharge under Section 41. The term Public Trust has been defined to mean an express or constructive trust for either a public, religious or charitable purpose or both including a temple, a math, a wakf, a charity or any other place of public religious worship including religious or charitable endowments. In terms of Section 18, the trustees of a Public Trust to which the Act applies are duty bound to make an application for registration of the trust, whereas under Section 22 of the Act, the trustee is within the period prescribed obliged to report any change or proposed change in the trust to the Deputy or the Assistant Charity Commissioner. Section 31 of the Act bars suits for enforcement of any right on behalf of a Public Trust if the trust has not been registered under the Act. Under Chapter V of the Act, the trustees are obliged to keep regular accounts in such form as may be approved by the Charity Commissioner and to balance the same and get them audited annually in terms of Sections 32 and 33 of the Act. Chapter VI of the Act deals with the control of Public Trusts and empowers under Section 37 the Charity Commissioner to enter and inspect or cause to be entered on and inspect any property belonging to a trust, to call for and inspect any proceedings of the trustees of any Public Trust and any book of accounts or document in the possession or under the control of the trustees or any person connected with the trust. Section 40 of the Act empowers the Charity Commissioner to determine the amount of loss caused to a Public Trust and the amount which any of the trustees or any person connected with the Public Trust is liable to be applied to the Public Trust. Under Section 41 of the Act, the Charity Commissioner can hold any person liable to pay to the Public Trust any amount for the loss caused to the trust and any such order made by him is subject to Section 72 of the Act final and conclusive. In terms of Section 47, the Charity Commissioner can suspend, remove or discharge trustees and vest the property of the trust in new trustees on any one of the grounds stipulated therein, whereas Section 50 deals with suits by or against or relating to Public Trust or trustees. Section 51 provides for consent of the Charity Commissioner

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to be obtained before institution of suits of the nature specified in Section 50 whereas Section 52 excludes the application of Sections 92 and 93 of the Civil Procedure Code to Public Trusts, Section 57 provides for establishing a fund to be called a Public Trusts Administration Fund, whereas Section 58 obliges the Public Trusts to pay into the said fund such contributions as are prescribed annually. Non-payment of any such contribution is made penal by Section 59. So also the violation of the provisions of Sections 18(1) and (4), 18(7), 22, 29, 32, 35 and 59 of the Act are in terms of Section 66 of the Act made punishable. Section 67 provides for the consequences of contravention of any other provisions of the Act or failure without reasonable cause to comply with any order passed or direction issued under the provisions of the Act by the Charity Commissioner or the Joint, Deputy or Assistant Charity Commissioner and makes them punishable with fine. . Except the historial reasons, by which maths in Bombay Karnataka areas were treated differently by the law, there is no other reason why that differential treatment should continue qua similar institutions in other parts of the State. Historial reasons could but temporarily justify such treatment. That justification has, worn out with passage of time, without a uniform law having been brought to remove the inequalities. The Bombay Public Trusts Act, 1950, in the above backdrop violates the equal protection clause contained in Article 14, and is therefore unconstitutional in its application to the State of Karnataka. ORIGIN OF MUTT INSTITUTIONS Sri Sringeri Nelamau Samsthanam, ... vs State Of Karnataka And Others ILR 1998 KAR 1532, 1998 (2) KarLJ 621 The concept of maths owes its origin to 8th Century A.D. when the great Hindu thinker and reformer Adi Shankaracharya established four maths in the four corners of the Indian Peninsula, namely; Kalika Math at Dwarka in the West, the Joytir math at Badrinath in the North, the Goverdhan math at Jagannath in the East and the Sarda Math at Sringeri (Mysore) in the South. These maths were meant to inculcate knowledge of the Shastras and the Vedas from generation to generation. They were centres of learning established to perpetuate Vedanta and strengthen the Doctrine of Non-dualistic Philosophy which Shankara preached. In due course, similar other maths and institutions were established in other parts of country also which have flourished, from one generation of gurus to the other. The purpose and the philosophy underlying these institutions continues to be to impart religious education and train scholars for preparation of the tenets of Hindu religion. It is not therefore possible to distinguish one math from the other on the basis of any rational or intelligible differentia. They are all religious centres with no philosophical or functional difference, capable of providing a sound basis for a valid classification distinguishing one group from the other. WHEN MANAGER FAILS TO PROTECT THE INTEREST OF MUTT ANYONE CAN CHALLENGE SUCH ACTION THE HON'BLE MR JUSTICE HULUVADI G RAMESH of Karnataka High Court in the case of Kaliya Mardhana Krishna Devaru vs The Special Officer on 20 June, 2012 In the case of Bishwanath & Anr Vs Sri Thakur Radha Ballabhji & Ors - AIR1967 SC 1044, it is held that when an alienation has been effected by the shebait acting adversely

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to the interests of the idol, even a worshiper can file a suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an adhoc power of representation to protect its interest. In the case on hand, the act of the manager in withdrawing the appeal which was pending before the Appellate Tribunal is shown to be against the interest of the Mutt. In the context, it is not necessary the decision of the manager who stands in the position of a Shebait, has to be final. When such interest of the Mutt is let down by the manager, the Pontiff or any person who is concerned and very much interested in protecting the property of the Mutt can very well take a decision to revive the stand of the Mutt and protect the interest of the deity and the Mutt. As such, the decision taken by the earlier manager in withdrawing the appeal being adverse to the interest of the Mutt, can very well be challenged so as to protect the interest of the Mutt. In Krishnabhat Hiragange v. Kapabhat Mahabalbhat, (1869) 6 Bom HCR 137 the plaintiff, the hereditary priest of a temple, claimed that in 1813 the right of worship was divided between his ancestors and the ancestors of the 1st defendant that he died while the plaintiff was an infant and on the plaintiff attaining majority and seeking to assume his share in the worship and its emoluments, he had been prevented by the defendants, who except the 1st defendant were the head-men of the temple. . In second appeal, relying on the texts of Hindu Law, it was held that the hereditary office was classed as immovable property and was in consequence of the custom the office of priestship in a temple may not in the ordinary sense in a temple may not in the ordinary sense be termed immovable property, but is an incorporeal hereditament of a personal nature, yet being by the custom of Hindus classed with immovable property and so regarded in their law, the suit was within limitation. In Ramakrishna v. Ranga, (1804) ILR 7 Mad 424 at p. 427 the suit of the plaintiff that he be declared to be herditarily entitled to be the purohit of the defendants and for loss of fees caused by the defendants employing another purohit was dismissed on the ground that the plaintiff has no cause of action. It was argued that as the original purohit was appointed to the village for the convenience of the inhabitants, the later are not entitled to employ may other purohit and if they do, they must pay the plaintiff the fee the would be entitled to if he performed the service. This contention was negatived on the ground that in the early days the Govt. had in each village, appointed village artizans to whom inams were assigned to secure their presence for the performance of duties and that no usage has been alleged or proved to establish the right which the plaintiff claimed, and that though the Bombay High Court in Dinanath Abaji v. Sadashiv Hari Madhave, (1879) ILR 3 Bom 9 recognised such a claim, and held the suit to be maintainable there was no decision in the Madras Presidency recognising such a claim. It was also pointed out that the Bengal and the North-Western Provinces has also denied such claims. So is the case in Tolappala Charlu v. Venkata Charlu, (1896) ILR 19 Mad 62, where another Bench of the Madras High Court, consisting of Collins, C. J. and Parker, J. held that the suit by the plaintiff as Anagundi Raja guru to be entitled to a declaration of his right to the hereditary office of priest of Samayacharam was not cognisable by a Civil Court. The bench posed the question whether the priestship of Samayacharm is an office for which suit will lie in a Civil Court, and in answering this question, it distinguished most of the cases cited before it on the ground that as the priestship was not attached to any

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particular temple or place and no specific pecuniary benefit was attached to the office, the only emoluments being voluntary contributions, which the duties of the office were to exercise spiritual and moral supervision over people who were a certain caste mark in a certain tract of country, a suit would not lie in a Civil Court as no such supervision over people who wear a certain caste mark in a certain tract of country, a suit would not lie in a Civil Court as no such supervision over the members of the caste can be enforced by law, it being entirely within the option of each individual member of the caste whether he will submit to it or not. In Valeswara Iyer v. Muthukrishna Aiyar, (1911) 21 Mad LJ 57 at p. 62 The suit was for a perpetual injunction to restrain the defendants from acting as purohits to certain classes of pilgrims resorting to Rameswaram and for recovering Rs. 4000 damages. The Advocate-General had argued that the suit was not of a civil nature, that the right to administer purohitam is not an office that the conception of an office involves the conception of a duty and of a liability to be compelled to discharge the duties appertaining thereto, that the office must be exercisable with reference to some particular locality and there must, as a rule, be emoluments attached to it, and that these elements attached to it, and that as the plaintiffs cannot be compelled to employ or pay plaintiffs. In Srinivasa Thathachariar v. Srinivasa Aiyangar, (1899) 9 Mad LJ 355 it was held by the Officiating Chief Justice that the term, `office' implies a duty in the officeholder to be discharged by him as such. In other words the conception of office involves corresponding obligation to perform the duties of an office. In Saripaka China Mahadeva Vazulu v. Muthura Suryaprakasam, 26 Mad LJ 482 = (AIR 1915 Mad 597), Sadasiva Aiyar, J. one of the eminent Judges of the Madras High Court whose profound learning and through knowledge of the Shastras inclined him to take an objective and liberal view of the Hindu polity earned him the reputation of a reformist, did not accept the Bombay view, which was based on a long set of precedents. The learned Judge held that it is against public policy to recognise a monopoly of the right to initiate as a priest which is a legitimate calling for all Brahmins. At p. 483 (of Mad LJ) = (at p. 597 of AIR) he said: "I am strongly against the recognition of an office which could give rise to an exclusive right to officiate as purohit for a particular person or in a particular village or villages, especially, a right which can be enforced in court of law. I adopt the arguments of the learned Advocate General as reported at page 63 in (1911) 21 Mad LJ 57 Supra, and I hold that a monopoly to officiate as purohit should not be recognised by Courts and that it is against public policy to allow any such claim. One of the lawful occupations of a Brahmana is officiating as priest for other and receiving whatever is freely and voluntarily given after such priestly office is performed. But there is no authority in the Shastras for the view that the occupation carries with it the right to put the duties on the shoulders of a third person while receiving a portion of the remuneration given for the performance of the duties. That a custom to claim a monopoly to pursue an occupation which is reasonable at one time may become unreasonable at another time has also been suggested by Lord Macnaghten in the course of the arguments before the Privy Council in the case in Sadagopachariar v. A. Rama Rao, (1907) 17 Mad LJ 240. The right to exclude other people from following a legitimate calling or profession (the calling of purohitship being open to all Brahmins) cannot be countenanced by Courts. There can be no individual property in any such common calling though, of course the following of that calling by the plaintiff as an

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individual can give rise to rights in his as against those who have entered into contracts and obtained benefits from the exercise of that calling by the plaintiffs." Sri Bhashyam Konayamma v. Sri Bashyam Ramaswami, AIR 1928 Mad 851. In that case Waller and Madhavan Nair, JJ., had to consider whether a suit for recovery of a share of offering technically called sishyadayam made by disciples and collected by the Guru, is cognizable in a Civil Court. The Bench held that the suit was not cognisable because the existence of any office in connection with which the voluntary offering were made by disciples had not been established. "It is conceded that he (the plaintiff) cannot institute any suit against the disciples themselves for enforcing the payment of their offerings. In view of the decision of this Court, we are satisfied that a suit of the nature brought by the plaintiff will not lie in a Civil Court." A Full Bench of the Hyderabad High Court in Gopal Rao v. War Nasi , AIR 1953 Hyd 1 was also of a similar view. In that case the suit was for a declaration of a right to perform `prohitgiri' in particular village to the exclusion of others. At p. 3 it was observed: "Whatever might have been the trend of the decisions of the Courts in India or in Hyderabad prior to the coming into force of the Constitution, the view contended for by the respondent's counsel can no longer continue to prevail after the 26th January 1950 for the reason that it would clearly offend Art. 19 (g) of the Constitution, for among the fundamental rights conferred by the Constitution, the right to practise freely any profession or to take up any calling without any hindrance, is one of the fundamental rights which has to be protected. If the Court were to give a decree in favour of an individual declaring him alone to entitled to practise the profession of `purohitgiri' to the exclusion of others, it would amount to laying a restraint upon the others to carry on the same profession in the village. It would decidedly offend the fundamental rights and as such cannot be countenanced." 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

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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

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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

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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 preconstitutional 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,

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(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 reenacted, it shall continue in force if the same is not inconsistent with the provisions reenacted. 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

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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

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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

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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

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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

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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

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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

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51 so as to require the sanction of the Charity Commissioner. Pujari v Ramappa, 1963(1) Mys. L.J. 461.

Karyappa Pamsappa

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

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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

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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

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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 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

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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

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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

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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 the case on hand, 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,

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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 nonHindu (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.

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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

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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

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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.

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MAHANTS MATADHIPATHIS - 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 COMMISSIONERS POWERS

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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

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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 neces-sarily 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

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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

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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. A Division Bench of Karnataka High court in MUNIYALLAPPA v. KRISHNAMURTHY 1977 (1) KAR LJ 700 while pronouncing on the scope and applicability of the Act in respect of agricultural lands in former inam villages, observed: "Agricultural lands in former Inam villages are not excluded from the purview of the Land Reforms Act. The consequence vesting of inam lands in the State under the Inams Abolition Act is that the lands absolutely vested in the State and all rights of inamdar and tenants under him are extinguished and the only right of the inamdar and his tenants, whether Kadim tenant, permanent tenant or quasi - permanent tenant, is to make applications for grant of occupancy. The State thereafter when it grants occupancy under Sections 4, 5 and 6 or 9 of the Inams Abolitions Act, confers fresh title on the grantees of occupancy. All prior rights are extinguished, except as provided under Section 9A, where under in the case of other tenants they are entitled to continue as tenants of the lands of which they were tenants immediately before the date of vesting." TENANTS UNDER INAM LAND AND LAND REFORMS:- In Doddamma vs Muniyamma ILR 2005 KAR 568 by Justice V.G. Sabhahit observed that It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the rights of the tenants are concerned, the provisions of the Karnataka Land Reforms Act are similar to the provisions of the Inams Abolition Act though the provisions may not be similar in respect of the owners of the lands under Karnataka Land Reforms Act and Inam holders and inamdars under the Inams Abolition Act. However, so far as the tenants are concerned, the effect of the above said proceedings is that from the appointed date, the relationship of the landlord and tenant ceases and the property vests with the Government and the tenant is entitled to conferment of occupancy right as per the provisions of the Inams Abolition Act. INAM LANDS / TENANTS/ POSSESSION/ PROTECTION:The law on the subject is clearly laid down in The Full Bench of Karnataka High Court in SRI RANGACHAR v. STATE OF MYSORE, 1966(1) Mys.LJ. 655, which is further quoted in Judgement of Doddamma vs Muniyamma ILR 2005 KAR 568 by Justice V.G. Sabhahit

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Section 3 of the Inams Abolition Act enumerates the consequences of vesting of an Inam in the State of publication of a notification under Sub-section(4) of Section 1 of the Act in the Mysore Gazette. All rights, title and interest vested in the Inamdar cease and stand vested absolutely in the State Government, free from all encumbrances.. Sections 4 and 5 respectively confer rights on the Kadim tenants and permanent tenants to be registered as occupants. Sections 7 and 8 provide for the recognition of the rights of holders of minor inams and for their registration. Section 9 specifies the kinds of lands and buildings to which the inamdar is entitled to be registered as occupant. Section 9A confers an identical right on the tenants of the inamdar other than the tenants entitled to be registered as occupants under Sections 4, 5 and 6 of the Act. Section 10 deals with the determination of claims under Sections 4,5,6,7,8,9 and 9A and lays down..A tenant found to be in possession of any land on the first day of July, 1948, shall be presumed to be a quasi-permanent tenant, unless the Inamdar proves that such tenant is not a quasi-permanent tenant as defined in Clause(14) of Sub-section (1) of Section 2 GRANTED LANDS ENURES TO THE BENEFIT OF FAMILY REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5646 OF 2008 (Arising out of SLP (C) No. 21197 of 2006) K.V. Sudharshan VS A. Ramakrishnappa & Ors. JUDGMENT TARUN CHATTERJEE, J. Mysore (Religious and Charitable Inams) Abolition Act, 1955: Inam lands - Granted to eldest son with the consent of brother and other family members - Partition - Father of respondent Nos. 1 & 2 was serving as an Archak in a temple and had been cultivating the inam lands attached to the temple. After his death, the lands were granted by the authority to respondent No.1, the eldest son, with the consent of other members of the family. Respondent No.1 was also acting as the Manager of the ancestral and selfacquired property of his father. Appellant, son of respondent No.2, issued a legal notice to respondent No.1 demanding partition of the joint family properties including inam lands. Respondent No.1 refused to partition the immovable properties. The appellant filed a suit for partition claiming his share in the properties along with mesne profits. The Trial Court dismissed the suit holding that prior partition was established in view of the admission by respondent No.2 and as such the appellant could not demand partition. Aggrieved, the appellant filed an appeal, which was dismissed by the High Court. Review petition was also dismissed by the High Court. Hence the present appeal. Appellant contended that in respect of inam lands granted to respondent No. 1, the High Court had committed an error by holding that since the appellant and the respondent No.2 had not performed the duties as archak of the Inamdar Temple and they had not personally cultivated the lands, they were not entitled to grant of the inam lands. Counsel for respondent Nos. 1 and 3 submitted that respondent no.1 had got the properties, imam land in question, vacated from the tenants who had been cultivating it and thereafter he was personally cultivating the same and after coming into force of the Mysore (Religious and Charitable Inams) Abolition Act, an application for grant of occupancy rights was moved on his behalf and the right was conferred on him by the competent authority after proper inquiry and therefore, the appellant could not claim partition of the same; that respondent no.1 was admittedly the archak of the temple and

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he was also cultivating the properties personally for a continuous period of 3 years prior to the date of its vesting with him and therefore, he was entitled to apply for registration of his right in terms of provisions of the Act; and that the grant of such right is a personal right which cannot be characterized as an ancestral right because in this case, even if his father was alive, he could not have become entitled to grant of occupancy rights because he was not cultivating the lands. Allowing the appeal, the Court HELD: Under the scheme of the Mysore (Religious and Charitable Inams Abolition) Act, inam lands are liable to be granted to the tiller of such lands, be, as it may, as tenants, archaks or office bearers of the inamdar temple. Accordingly, this Court is of the view that such grants are meant for the benefit of the family of the tiller and not for him individually and for this reason, there can be no justification to disregard the rights of the junior members of the family if their eldest member was performing the duties of archak with the consent of others. For this reason and in view of the decision of this court in the case of Nagesh Bishto, this Court is of the view that grant of land to archak cannot disentitle the other members of the family of the right to the land and such granted land, therefore, is also available for partition. Furthermore, it also emerges from the judgment of the Trial Court that the tenants cultivating the land had stated that respondent no.2 had requested his father to allow him to cultivate the lands who accordingly gave his consent before the land tribunal also. Such being the position, if other members of the family had not objected to his becoming the archak of the temple because he was the eldest and also allowed him to cultivate the lands then, if subsequently he was, by virtue of the fact that he was the archak and also personally cultivating the lands, granted the lands, he cannot take away the rights of such other members of the family in the granted lands. However, this Court is not inclined to look at Section 6A in isolation. If seen in totality, it is discernible that the father of respondent No.1 gave his consent and allowed respondent no.1 to cultivate the land after taking the same from the tenants. Even the land tribunal, while passing the order granting occupancy rights, had not confined itself to the fact that the conditions in Section 6A were fulfilled. Rather, the land tribunal had observed that the father of respondent No. 1 was the archak and anubhavdar of the temple and this was a prime consideration in granting occupancy rights to the respondent No.1. Therefore, it would be wrong to hold that simply because the conditions in Section 6A were fulfilled, the respondent no. 1 was granted occupancy rights and it was his individual rights. The truth is that the respondent No.1 became the Archak after the death of his father because he was the eldest in the family and only then came the question of satisfying the conditions of Section 6A of the Act. It is wrong on the part of respondent No.1 to say that his father, even if he had been alive, would not have been granted occupancy rights because the lands at that time were cultivated by the tenants. For grant of occupancy rights, personal cultivation is just one condition. The other conditions include that if a person is managing the properties, which his father was doing, would also be entitled to the grant of occupancy rights.

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Respondent No. 1 was made archak after the death of his father because he was the eldest member of the family. Being the archak, he cultivated the lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their share in the properties by relying only on Section 6A of the Act. Therefore, this Court is also of the opinion that the granted lands are also available for partition and grant of occupancy to one member will not disentitle the other members.

R. Gururajan, J. in the case of Sri Anjaneyaswamy Temple vs State Of Karnataka And Ors. Decided on 5 April, 2006 It is no doubt true that the agrarian reform is a welcome measure. But, in the said process, the religious institutions, to which lands have been otherwise provided by devotees, are not to be deprived of their lands unless a very strong case is made out by an applicant seeking occupancy rights thereof. Lands are provided to the temples or Mutts by the devotees for the temple/mutt activities. If there is a real tenancy, such tenancy has to be respected given to a rightful tenant in the light of agrarian laws. But, a doubtful tenant cannot get temple lands on the ground of agrarian reforms. Authorities and Courts are to be careful in evaluating the merits for the purpose of granting temple lands. Any prudent man could say that in the RTC particularly for the year 1974-75 and before made in the name of Srinivasamurthy along with the name of Archak Srinivasamurthy is a later entry and in particular with a different ink and writing. When such is the case, the entry of the name of Sri Srinivasamurthy in column No. 12(2) could be said that it is illegal, unauthorised and that therefore it is liable to be cancelled, The 1st respondent has failed to show any document in support of his contention that he was under the cultivation of the land in question and except his statement. If entry is made for the first time in the year 1971-72 after the land was vested with the Government, those entries would be of no relevance in deciding the claim of the petitioner under the provisions of the said Act as he must demonstrate that prior to the date of vesting on 1-3-1970 he was in occupation of the land and therefore he is entitled for occupancy rights. .. Merely because the archak of the temple who was cultivating the land has not made any application for grant of occupancy rights that is no reason to uphold the entries made in the name of the petitioner without any valid and legal order mutation order being passed in his favour. . Any order passed on irrelevant material is nothing but a perverse order as understood in law. Neither there is any acceptable evidence nor is there any document for the purpose of grant in favour of third respondent. Residents of Thindlu Village filed a petition under Section 136(3) of the Karnataka Land Revenue Act, 1964 with regard to entries in the RTC. In this order the Special Deputy Commissioner observes as follows.-- In the first instance it would be relevant to mention that the land in question is an inam land endowed to Sri Anjaneyaswamy temple. The villagers and the petitioner who are Dharmadarshis of the temple and agitating that the land in question is under the cultivation of the Archak of the temple-

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Sri Srinivasamurthy from the time of his ancestors and that he was in possession, cultivation and enjoyment of the land and utilising the yield and proceeds for the performing pooja in the temple and the 2nd respondent has no any manner of right and title over the land in question. As could be seen from the entries in the RTCs, it could be seen that the name of Sri V. Krishnappa is a later insertion in the RTCs for the years 1971-72 to 1975-76 and as it appears the insertion of the name of Sri V. Krishnappa is in a different handwriting; whereas originally the name of Shri Srinivasamurthy as continuing. And as it appears from the year 1975-76 the name of Srinivasamurthy is deleted and RTC. The vehement allegation is that the 1st respondent has in collusion with the 2nd respondent, has got his name entered in the RTCs along with the name of Srinivasamurthy and subsequently the name of Srinivasamurthy is deleted. As could be asserted from the contention of the 1st respondent no gutta or lease deed was entered in favour of the 1st respondent to cultivate the land in question either before vesting with lands with Government or later after the Act came into force. Any prudent man could say that in the RTC particularly for the year 1974-75 and before made in the name of Srinivasamurthy along with the name of Archak Srinivasamurthy is a later entry and in particular with a different ink and writing. When such is the case, the entry of the name of Sri Srinivasamurthy in column No. 12(2) could be said that it is illegal, unauthorised and that therefore it is liable to be cancelled, The 1st respondent has failed to show any document in support of his contention that he was under the cultivation of the land in question and except his statement. However, the matter is now remanded to the Deputy Commissioner quash the order of Land Tribunal with a direction to dispose of the matter in accordance with the rules. Thus, the question of entering the name of Srinivasamurthy and its validity has to be decided by the Deputy Commissioner under the provisions of the Inams Abolition Act. THE HON'BLE MR.JUSTICE K.L.MANJUNATH AND THE HON'BLE MR.JUSTICE V.SURI APPA RAO of Karnataka High Court, in the case of Sree Anjaneyaswamy Temple vs Land Tribunal Decided on 3 August, 2012 The Writ Petition is filed in 2010 nearly 30 years after the order is passed by the Tribunal. We are also of the view that the appellant - Trust has no locus standi to challenge the order of the year 1981 passed by the Land Tribunal because the Trust come into existence only in 2009. On perusal of the Trust deed produced before us by the learned counsel for the appellant, we are of the view that the Trust deed does not disclose who has selected the Trustees. The Trust deed reads that the Trustees on their own have formed a Trust to improve the temple. Therefore, even if the Trustees are having any power they can only improve the temple from the day the Trust has come into existence and not of incident earlier to that.

Parvathamma W/O Late G Venkanna vs The State Of Karnataka Rep By Its ... on 10 October, 2012 THE HON'BLE MR. JUSTICE N. KUMAR & THE HON'BLE MR. JUSTICE ARAVIND KUMAR Land in question is Devadaya Inam land vested under the provisions of the Mysore(Religious and Charitable Inams Abolition)Act, 1955. The question of applying the provisions of Karnataka(Personal and Miscellaneous) Inams Abolition Act, 1954 in respect of Devadaya Inam land is not permissible. Therefore, the said application under the provisions of Karnataka(Personal and Miscellaneous) Inams

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Abolition Act, 1954 is not maintainable. However, liberty is reserved to the petitioner to work out his remedy in the manner known to law. Dealing with the application filed by the fourth respondent under Section 77A of the Karnataka Land Reforms Act, 1961, the learned Single Judge was of the view that it is a mischievous exercise and he has set aside the grant in favour of the fourth respondent. The application filed by the fourth respondent is under Section 77A. The authority under the Land Reforms act who is vested with the power to adjudicate such claims is the Assistant Commissioner and not the Tribunal. Though the application is filed to the Assistant Commissioner, the Assistant Commissioner being the Chairman of the Land Reforms Tribunal, the Tribunal has taken up the said application and has considered the said application along with the application of the petitioner. The Land Reforms Tribunal has no jurisdiction to consider the application under Section 77A of the Act. Therefore, the order passed by the Land Reforms Tribunal granting occupancy rights is one without jurisdiction and to that extent it is rightly set aside by the learned Single Judge. If it is an order under Section 77A, a statutory appeal is provided if that order had been passed by the Assistant Commissioner. As the order is passed by the Tribunal writ petition is the only remedy. Stumpp Scheule And Somappa (P) ... vs Chandrappa ILR 1985 KAR 3872 After the inams were abolished and the lands vested in the State Government, the only right preserved to the parties is to apply for registration of occupancy rights either as 'Kadim' tenant, permanent tenant or other tenants recognised under the law. When such applications are made, the Special Deputy Commissioner,who is the statutory authority constituted under the Inams Abolition Act, is required to make an enquiry and grant relief. His order is appealable under Section 28 to the Karnataka Revenue Appellate Tribunal and the decision of the Tribunal becomes final. Section 31(3) states that no order passed by the Deputy Commissioner or Tribunal shall be liable to be cancelled or modified except by the High Court under Section 31. The jurisdiction of the High Court under Section 31 is, however, limited and confined only to orders determining compensation except those referred to in Section 28. .. It is thus seen that the Inams Abolition Act attaches finality to the orders granting registration of occupancy rights. What does it mean ? Is it not an implied exclusion of the jurisdiction of Civil Courts ? Is not the Inams Abolition Act a complete Code by itself ? Does it not provide machinery for adjudicating the rights of parties with appellate forum to correct the errors of the adjudicating authority ? If that is so, could Civil Courts still exercise general jurisdiction over the same dispute. Had the Legislature intended to provide dual remedies to parties or intended to establish two authorities to determine the same question ? We think not. The grant of occupancy right as 'Kadim' tenant, permanent tenant or any other tenant is within the exclusive jurisdiction of the special authority constituted under the Inams Abolition Act which is a special enactment. Its order is appealable to the prescribed authority and it then becomes final. It is, therefore, legitimate to infer that by reason of the provisions of Section 28 read with Section 31(3) of the Inams Abolition Act, the adjudication as to registration of occupancy right in respect of the land which immediately before the date of vesting was properly included in the holding of the applicant becomes final and conclusive. The Civil Court has no jurisdiction to reopen that matter.

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Court in Rangappa -v.- Chinnappaiah 1965(1) KLJ 145 while referring to the earlier decision in Kempamma -v.- Kempanna 1964(2) KLJ 444 has taken a similar view. There it was observed : "So, it becomes clear that the very provision for an adjudication by the Deputy Commissioner under Section 10 and for an appeal from his adjudication under sub-section (1) of Section 28, are by themselves more than sufficient to support the view that that adjudication should be made only in manner provided by the Act and only by those tribunals entrusted with the power to make that adjudication and by no other. If, in addition sub-section (I) of Section 28 adds that the decision of the prescribed authority in appeal shall be final, the inference deducible from the fact that there is a complete machinery provided by the Act for the adjudication of a claim that the Civil Courts shall not exercise jurisdiction for such adjudication stands reinforced." In another decision of a Division Bench of this Court in W.P.Nos.4719 & 4720/1979, K.S. Ranganna and another vs. State of Karnataka dated 10.09.1980, also reported as a short notes case in 1981 (1) KLJ Short Notes 43, it is held that when land vests in the State Government by virtue of the notification issued under the Inams Abolition, the question of its resumption under the provisions of the KVOA Act, did not arise. Therefore, the land in question would not have been treated as a service inam land resumable by the State Government under the KVOA Act, when that Act was inapplicable to the land in question. In Stump Shule and Somappa Private Limited vs. S.M. Chandrapp (1985 (2) KLJ 483), another Division Bench of this Court has laid down that, after the inams were abolished and lands vested in the State Government, the only right reserved to the parties is to apply for registration of occupancy rights either as a khadim tenant or permanent tenant or other tenants recognized under the law and when such applications are made to the statutory authority constituted under the Inams Abolition Act, he is required to make an enquiry and grant the relief. The order is appealable under Section 28 and the decision of the Appellate Authority is final. The order passed by the competent authority or the Appellate Authority is not liable to cancellation or modification except by the High Court under Section 31. Even that power is limited and confined to orders determining compensation except those referred to in Section 28. The Division Bench has held that the Act attaches finality to the orders granting registration of occupancy rights and that a Civil Court would not have jurisdiction to reopen that matter. Seshammal and Ors., etc. v. State of Tamil Nadu, (1972) 2 SCC 11, which examines the practice of temples having priests or Archakas and their unique role ordained by custom, particularly on the following observations: "10.....With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as 'Agamas'. The authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaruv. The State of Mysore [1958]1SCR895 . Agamas are described in the last case as treatises of ceremonial Law dealing with such matters as the construction of temples, installation of idols therein and conduct of the worship of the deity. There are 28 Agamas relating to the Saiva temples, the important of them being the Kaimi kagama the Karanagama and the

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Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The Agamas contain elaborate Rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship. Where the temple was constructed as per directions of the Agamas the idol had to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of deity is fit to be worshipped. Rules with regard to daily and periodical worship have been laid down, for securing the continuance of the Divine Spirit. The rituals have a two-fold object. One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in variety of ways. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine [1958]1SCR895 . Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious. ... In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of anybody else would defile it. Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which place in the temple are all matters of religion as shown in the above decision of this Court. 11. The Agamas have also Rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or Sub-group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas prohibit is his appointment as an Archaka in a temples of a different denomination....They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity,

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must also belong, according to the Agamas, to a particular denomination...Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution." In KRISHNA SINGH v. MATHURA AHIR AND OTHERS - AIR 1980 SC 707 the Supreme Court in paragraphs 20 & 21 observed thus: " 20. The property belonging to a math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The words `the burden of maintaining the institution' must be understood to include the maintenance of the math, the support of its head and his disciples and the performance of religious and other charities in connection with it, in accordance with usage. 21. From these principles, it will be sufficiently clear that a math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math."

Rajkali Kuer vs. Ram Rattan Pandey [ 1975 (2) SCR 186 ] wherein it was observed "that religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law is now well established." On the view that Shebaiti is property, Supreme Court has also recognized the right of a female to succeed to the religious office of Shebaitship in the case reported as Angurbala vs. Debabrata[(1951) SCR 1125], where the question as to the applicability of Hindu Women's Right to Property Act to the office of Shebaitship came up for consideration. On the same analogy as that of a Shebaiti right, the right of a hereditary priest or Pujari in a temple must also amount to property where emoluments are attached to such an office." Ram Rattan, through Lrs. Vs. Bajrang Lal and ors. [ 1978 (3) SCC 236] wherein while dealing with the question whether hereditary office of Shebait is immovable property, it was noted that : "The question then is whether the hereditary office of Shebait is immovable property. Much before the enactment of the Transfer of Property Act a question arose in the context of the Limitation Act then in force whether a suit for a share in the worship and the emoluments incidental to the same would be a suit for recovery of immovable property or an interest in immovable property. In Krishnabhat bia Hiragange vs. Kanabhat bia Mahalbhat etc. [ 6 Bom HCR 137] after referring to various texts of Hindu Law and the commentaries of English commentators thereon, a Division Bench of the Bombay High Court held as under : Although, therefore, the office of a priest in a temple, when it is not annexed to the ownership of any land, or held by

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virtue of such ownership, may not, in the ordinary sense of the term, be immovable property, but is an incorporeal hereditament of a personal nature, yet being by the custom of Hindus classed with immovable property, and so regarded in their law" Raj Kali Kuer vs Ram Rattan Pandey 1955 AIR 493, 1955 SCR (2) 186 Though a female is personally disqualified from officiating as a Pujari for the Shastrically installed and consecrated idols in the temples, the usage of a Hindu female succeeding to a priestly office and getting the same performed through a competent deputy has been well-recognised and it is not contrary to textual Hindu Law nor opposed to public policy. - Subject to the proper and efficient discharge of the duties of the office being safeguarded by appropriate action when necessary, a Hindu female has a right to succeed to the hereditary priestly office of a Pujari and Panda held by her husband and to get the duties of the office performed by a substitute except in cases where usage to the contrary is pleaded and established. In Bishwanath v. Sri Thakur Radha Ballabhji, AIR 1967 SC 1044, the Hon'ble Apex Court has observed as under : "When such an alienation has been effected by the shebait acting adversely to the interests of the idol even a worshipper can file the suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest." In Veerbasavaradhya and Ors. v. Devetoees of Lingadagudi Mutt and Ors. , AIR 1973 Mys 280 the Division Bench of Mysore High Court held as under: ...An archak or Poojari in a temple is not a shebait as the said expression is understood in Northern India or a dharmadarshi as those expressions are understood in Southern India. A Poojari is always appointed by the shebait or dharmadarshi or dharmadhikari for the purpose of conducting the wordship. Such appointment would not have the effect of conferring any right on the poojari. He is ordinarily not entitled to be continued as a matter of right in his office as Poojari. Poojaries and archaks are liable to be removed for any act of misconduct or indiscipline which would be inconsistent with the duties of the office which they hold.... In Yagnapurushdasji v. Muldas Bhundardas, AIR 1966 SC 1119 while dealing with Hindu religion Supreme Court observed: "Whilst we are dealing with this broad and comprehensive aspect oi: Hindu Religion, it may be permissible to enquire what according to this religion, is the ultimate goal of humanity? It is the release and freedom from the unceasing cycle of births and rebirths. Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute absorption and assimilation of the individual soul with the infinite. What are the means to attain this end? On this vital issue, there is great divergence of views; some emphasise the importance of Gyan or knowledge, while others extol the virtues of Bhakti or devotion; and yet others insist upon the paramount importance of the performance of duties with a heart full of devotion and mind inspired by true knowledge. In this sphere again, there is diversity of opinion, though all are agreed about the ultimate goal. Therefore, it would be inappropriate to apply the traditional tests in determining the extent of the jurisdiction of Hindu religion. It can be safely described as a way of life based on certain basic concepts to which we have already

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referred.".. "The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; Mahavir founded Jainism; Basava became the founder of Lingayat religion, Gyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak inspired Sikhism; Dayanand founded Arya Samaj, and Chaitanya Mahaguru began Bhakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most attractive, progressive and dynamic form. If we study the teachings of these Saints and religious reformers, we would notice an amount of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion."

In S. P. Mittal v. Union of India, AIR 1983 SC 1, Chinnappa Reddy, J., also expressed the same views: "I apprehend, I share the views of those who have neither faith nor belief in religion and who consider religion as entirely unscientific and irrational Chanting of prayer appears to me to be mere jingoism and observance of ritual, plain superstition. But my views about religion, my prejudices and my predilections, if they be such, are entirely irrelevant. So are the views of the credulous, the fanatic, the bigot and the zealot. So also the views of the faithful, the devout, the Acharya, the Moulvi, the Padre and the Bhikshu each of whom may claim his as the only true or revealed religion. For our present purpose, we are concerned with what the people of the Socialist, Secular Democratic Republic of India, who have given each of its citizens freedom of conscience and the right to freely profess, practise and propagate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expression 'religion' and 'religious denomination'. We are concerned with what these expressions are designed to mean in Articles 25 and 26 of the Constitution."

IN CASE OF MVC DEATH OF SWAMIJI MUTT CAN SEEK COMPENSATION AND NOT NATURAL FAMILY OF SWAMIJI North West Karnataka Road ... vs Matadipathi And Successor 2006 (4) KarLJ 172 , The Tribunal dismissed the claim of the parents correctly on the ground that after renouncing the mundane world there will be a civil death of the person entering monastic order. The deceased after becoming Swamiji becomes member of the Guruparampara and his links with natural family gets severed. . the head of the Mutt is entitled to maintain the petition to seek compensation though not for loss of dependency but for loss to estate caused to the Mutt. The decision of the Supreme Court in Sital Das v. Sant Ram AIR 1954 SC 606, at para 20, the following observations are made: It is well-known that entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say, a spiritual son of the latter, the other disciples of his Guru

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are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family.