STUDY ON THE MANAGEMENT OF LAND IN RELIGIOUS/CHARITABLE INSTITUTIONS IN RAJASTHAN

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FINAL REPORT

SPONSORED BY GOVT. OF INDIA

(DEPT. OF RURAL DEVELOPMENT)

K.UMARAPPA INSTITUTE OF GRAM-SWARAJ B-.190, UNIVERSITY MARG, BAPU NAGAR, JAIPUR

1995

"_,>'

STUDY ON THE MANAGEMENT OF LAND IN RELIGIOUS/CHARI TABLE INSTITUTIONS IN ~.ASTHAN

.FINAL REPORT

Dr. Awadh Pr aaad

SPONSORED Sf GOVT. OF I NDlA (DEPI'. OF RURAL DEVELOPMENT)

KUMA..~PA INSTITUTE GE' GRAM-SvlARAJ B-190, UNIVERSITY MARG, BAPU NAGAR, JAIPUR

1995

CHAPI'ER -

I

CHAPrER -

II

CHAPI'ER - III

CHAPTER - IV

CHAPI'ER V

CHAPTER - VI

CHAPTER - VII

CHAPTER - VIII

CHAPTER - IX

CHAPTER - X

CHAPTER - XI

CHAPTER - XII

Introduction of the study

Role of ReI ig ious Ins ti tu tions in Social Organisation - Traditional System of Economic Resources.

ReI igious!Cha ri table Institu" tions in Rajasthan an Analysis.

Obj ecti ve,'Methodology and Sample.

Historical Background

Constitution, Policy and Land Reforms (Religious/Charitable Institut ions)

LaT'o Reform 1Jegis La+ Lon and

Re Li.q i.o'us Charitable Institutions.

Raj asthanTenancy Act, 1955 apd its impl Lc e t.Lo n on ReI igious/

Charitable Institutions.

Land Reforms Legislation in the Opinion of Courts.

Imposition of celiinJ in Religious Charitable Institutions.

An Lrrt roduc t.t on on Survey Insti tutions ~ .

Socio-Economic Analysis of survey in Hous ef16lds.

1. I nt roducti on

2.. Population

1

12

20

26

39

69

90

115

141

151

171

3.
4.
5.
-6.
r
7.
8. II

.Social Stai~s - Religion and Castes

Literacy and Education

Housing

Implements

Cattle Wealth

Agricultural Land with surveyed households.

Land : Perso nal and of Religious Ins titutions Irrigated and unirrigated land.

9. l-'J.gricultu::.-al Pr0duction and Religious land.

(a) Production f rom Land :

Personal, Religious Institutions.

(b) Source of Ir.:::ome

(c) Analysis of per family income.

10. Per c ap Lt e income from land of religious institutions and other sources.

11. Per capita annual and monthly income.

CHAPTER - XIII

Summary and Policy Implications on field survey.

180

CHAPTER - XIV

Summing Up

193

CHAPTER - XV

References and Tables

200

k,< ****** ** **

.. The Raja-Maharajas, Nawabs,Tl"\akurs, Jagirdars, state

. officers I _ Seth-Sahuk'ars have been very religious minded from

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the e'arliest times and have alway~rovided land and money

,_ to temples, mathas, mosques, as hr ams and I"'Ither religious and' educational places. It is roughly estimated that about forty ~housand such religious temples and eentres constructed and maint ad ned by people of Raj as+han are Ln ' existence at present in this st ate.

To most of these temples and centres, agriculturallaBd

was dOnated in the name of the presiding diety by these religi~u.s

.

minded people for the purpose of Bho-q a and management." This

land has been under the management of Mahants and pujaris. The administration of these Rajas and Jagirdars liid not exercise any legal control over these establishments. Of course, the.y

. ~ had some kind of Mahakama Punya, Dharmada or ~vasthan to look after the prosperity and management.

After the fio rrn at Lon of Raj asthan State, Jagirdari system was abolished under law in 1957 and all the agriculture lands of the whole state carne undergovernment-control. At that time about a thousand temples came under the control of the Devastnaft Department of the State. With the passage of Raj asthanPublic Trust Act (1956), all religious trusts and temples were com~ulsorily registered under the laW, while under Rajasthan Tenancy Act, all lands came under government contr01, under this land

no temple lands can be transferred to anY other person, eveft

the pujaris, by sale, gift or reward. Under this Act even the Pujaris can not be given tenancy rights on temple lands. But

in actual practice, only five thousand templesl only 1/8th of the total number, have been registered. Thus in Rajasthan Devasthan Department and Rajasthan Rural Development both la~k upto date information regarding th3 owmrship of agricultural

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land under religious trusts, their actual occupancy,

agriculture conditions, their problems and futUre development

These departments have felt that after independence, lands under the religious trusts have not been properly utili and developed during this period 01 M0reover, they have no and sufficient information about the ownership, rights. and putes, .:their requirements and reforms and dave lopment s , Unjer these circumstances the Land RefoIfOs section of the Rural lopment Department of Government of. India decided to take up study project to study the problems of agricultural land of rali.gious trusts in Rajasthan. The project was entrusted to

.Kumarappa'insti,tute of Gram Swaraj, Jaipur. The Institute

'c.arr.iE:!.d 'out thej survey work in 1990-91 and aubm L tt~d it s or report to the Department I Which was studied by the specialist . of tn~ Department, who gave certain suggestions about the st

._ .,.J ....

which the Institute discussed and studied

. poratedin the report. I am glad +o note t.hat the amended was dulyacce,pted by expert body and now the duly revised is before the department.

t hope that in near future the department would be to undertake f>rofE r development of agricultuI"al lands of the religiOUS' Trusts of Raj asthan, r-es o Lve theirpr9blems and disputes and imprvve and enhance t l"1e public services to the people.

JAWAHAR LAL JAIN Secretary - Director

CH.Z\r!'~~~~._O l'.~ +~7'g9~Y9'E;r9N."9f_ ... ~~" s!.V@..

The object of this ~dy is to make an aDalysis of the legal provisions existing in the land reform Lawe relating to religious and charitable institutions and exemptions under tenancy and agriculture lan& ceiling provisions, impact of the leg21 f:Jrovisions I awareness, conscienlization in effecting changes I changes in the system of. management of land after independence etc. An

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attempt has also been made to pinpoint the loopholes in

the legislation, and suggestions have been made to plug them and identify the administrative constraints in implementing them.

In order to understand the impact of laws on the functioning of religious and charitable institutions, it

is necessary to know their historical background. Rajasthan state was formed by merger of 22 princely states., All the

erstwhile states had different types of revenue laws. About 60% of the area was under j agir system and only 40% area was under rayyatwari system on which the revenue laws of the states were applicable.

In the areas under jagirdari system, there was hardly and land surveyor revenue record. In a maj ori ty of jagir villages land survey and settlement were

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conducted after the formation of Rajasthan in 1950. To

bring the entire state under a single land revenue system,

t he Government passed the Raj as t nan abolition of Jagirdari

Act in 1952. Under this Act I all types of j agirs were abo-

••. L

lished and the land under them was brought under the owner-

ship of the state. Jagirdars, who were landholders under

the jagirdari system, were paid handsome amounts in compen-

sation for acquisition of their jagir lands. They were

also allotted agricultural land as Khudkasht (Self-cultiv-

ated), if no land is left under their personal cultivation.

The e r s t whd Le rulers and the common people of Raj as-

than were very religious minded and so for the maintenance

of temples agriculture lands

had been gifted to them

by the rulers, Jagirdars and the public. Temples were also

built by the rulers and j agirdars. On the formation of

Raj asthan, the st ate Government inherited about' 1000 temples

from the erstwhile rulers wh Lc h are mow managed by the

state DevasthanDepartment. The public of the erstwhile

states being religious minded, according to a rough estim~

ate, about 40, 000 temples, big and small exist in Rajasthan.

Majority of these temples had been donated agriculture

land in the name of the diety to ffi'3et the expenditure on

them. Such lands were managed by the puj aris as trustee.

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There was no legislation in the erstwhile states

to govern the temples or charitable trusts, eLt houqh

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separate departments known by different names, such as

Mahakma Dharmada, Maha.lana Punyarth or Devasthan existed

to contrbla.'ncf'managethei:C afff'irs. The 3.g,r;iculture lands of the't:empHis :were entered in the name of the deity with 'ffie' n~e"ofthe'puJari as trust,-~ein revenue records. The

entry of land;inc the revenue record used to be as: Mandir ,sri Govii"id- DevjiWake (situated) £ gram Savai Jaipur, ba-

",_' ,

atmin "pujari Radhey Lal Goswami.

No census of the temples, -charitable :j.nstit,]J.tions, mosques, churches. or gurudwaras had ever been conducted

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during the erstwhile ~tate period or after In~ependen.e,

hence no relia.ble record is available about i=.l'leJJ\,at any place, whether it is the Devasthan Department or ~and Ree cords Department or Wakf Board. BUt during the erstwhile state the record of lands donated to temples as Jagir,Bhog

udak/or r-1afi were entered in separate

register called

-'Reg'ister Mafiyat I,' But aft;;r the abolition of Jagirs

under the Resumption of Jagirs Act, the maintenance of

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this reglster had been diseontiflued. 1?res~IJtly no Govern-

ment department claim to possess in~ormati9n, regarding

t he lands belonging to charitable trusts, temples/or mosques.

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In such a st ate of affairs prevailing with regard

to. the lands belo.nging to. temples and charitable trusts,

we made all effo.rts to. co.llect available infermatien. We have written letters to. the Beard ef Revenue fer Rajasthan, Ajmer, Di vd s Lorie I cemmissieners, District Cellecters, Sub Divisienal Officers, tehsildars, the Devasthan Department, Wakf BOard, Revenue Department and the Civil secretariat

to. secure the infermation .. We also. made personal visi ts

to some of these offices, from Revenue Board dewn to. the Tehsil, Devasthan Department andWakf-Board, but ceuld net

succeed in cellecting complete informatien at any place.

But after all our' endeaveurs, viC! could succeed in cellecting infermatien from 79 tehsils only after repeated reminders to. them.

surprisingly I «e f ou nd that the maj o r temples did

net pessess complete infermation about their land holding let alene the past history of donations made to the temples. The Devasthan Department and Wakf BOard of the state Government also ceuld not claim to possess even near complete infermatien with them and c ou Ld previde only an iota

of infermatien. Although there is previsio.n fer cempulsery registration ef charitable trusts and temples under the Rajasthan Public Trust Act,1956. no.t mere than five thousand

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temples and charitable trusts got themselves registered

during the last 36 years. At this pace, the work of com-

plete registration of trusts may take a long time.

with regard to the legal provisions in the land reform laws relating to land or religious and charit·3ble

trust~ Rajasthan Resumption of jagir Act did not make any

differentiation with regard to resumption of land of religio-us trusts and other j agirdars. l~ccording to the

phased programme adopted by the state Government to abolish jagirs and jagir l::1nds, all lands 'irrespective of

belonging to the religious trusts or jagirdars were resumed by the state. On resumption of lands, the jagird-

ars received cash compensation in lieu of his land but

the religious trusts, instead of getting cash com~ensation

in lump sum I were provided annual annuf ty grant by the

Government. The Devasthan Department has been entrusted

the work of distr,ibuting annua Lvarmu Ley to the religious

trusts.

After the resumption of jagirs, state government

framed the Rajasthan Tenancy Act, 1955 which carne into

force from 15th Oc to'be.r , 1955, whcch brought all agriculture lands to be administered and managed under this

single law by rescinding all the revenue laws of the

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erstwhile states. Raja.sthan Tenancy Act has differentinted between the land belonging to temple and lands of other tenants. The Act excluded the temple land from being transferred to others by sale, gift or through any other mode. The Act also prohibited acquisitioln~ of khatedari rights

on temple lands by others even ,by the Puj aris. The relev-

ant sections regarding the above provisions are enumerated below ;-

Section'19 of Rajasthan Tenancy Act relates to confirment of khatedari'fights on certain tenants of

khudkast and sub tenant s • This sect ion, besides o-cher

things, says ...

(1) Every person who, at the commencement of this Act (a) Was entered in t he annual registers then current as a tenant of khudkasht or sUb-tenant of land other than grove land or

(b) Was not so entered but was a tenant of khudkasht or sub-tenant of land other than groveland shall, aB ~~~ ~-5-1959~ become subject to the other provisions contained in this chapter, the khudkasht tenant of such part of land held by

him ••• provided that khatedari rights or rights

of improvement shall not so accrue.

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(i)· if such part of the said land is held from

any of the persons enumerated in saction 46

or ••

(ii) if such rights therein may not accrue under

the proviso to. sub-section ••

(1) of S3C. 15 or under section 15A or I5B or

under sec. 16.

sect ion 16 of Raj ~ Tenancy Act enumerates :

Not-withstanding anything in t his Act or in any other law

or enactment for the time being in f9rce .in any part of the -state, khat cdaz-L rights shall not accrue in - (The relevant portion from the point of our study is) (*i) land

j_"

acquired or held for a public purpose or work of public

utili ty.

section 46 of Raj. TGncmcy .. ~ct says that the restri-

ctions iOtposed by section 45 on letting by a holder of

.

khudkasht and on sub-letting by a tenant shall not apply

to (a) a minor or ••• Deity being a perpetual minor. It

is now settled law that the diety being perpetual minor,

the mand in his possession cannot be transferred a nd no

Khatedari rights could aCcrue to a sub-tonant under sec-

tion 46 of Raj. Tenancy dct and his land may be given on

sub-lease under this section

( State vis Jethmal-

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lunia 1973 RRD 702). The pujari of the temple cannot acquire khatedari rights on land belonging to the temple (state vis Ram~shwar 1982 RRD 302) and the land of idol cannot be transferred (&~anwar Lal vis Nst. Bhuri 1984 •• RRD iV) and state vis Brijmohan 1984 RRD 568.

All this proves that though the Raj. Tenancy hct has conferred khatadari rights to the sUb-tenants of land under sec. 19 but it has excluded the temple land from its purview. The Tenancy ;~ct has also put a bar on the transfer of temple lands in favour of others. BUt such restriction has not been put with regard to Wakf lands or lands of Charitable trusts. Till now, hardly any case law is available with'regard to the wakf land and 'Charitable trust lands with regard to transfer and accrual of khatadari rights. But according to the Larger bench Judgment in

(Durgalal vis Mandir Sanisharji Maharaj (1984 RRD 1) the Board of Revenue hGld that it is alsO our considered opinion that acquisition of khatedari rights irithe lands endowed or held by and for not only Hindu idOls and deitiesl but on religious denominations iJ debarred by the provisions of Sec. 16 of Raj. Tenancy Act because such lands are held for public purposes .. The Wakf lands and lands of charitable trusts have been covered under the'above cited

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j udqernerrt and khatedari rights do not accrue to others on such lands under ,Section 16 of Raj.Tenancy Act. It has

also been held in Durgalal vis Mandir sanicharji Maharaj that no khatedari rights can accrue in maufi lands. During princely period, maufi land was also donated to muslim mos-

ques and Takiyas etc.

Inspite of all these restrictions in the law with

regard to transfer of religious trust lands and on accrual

0t" khat~dari rights on such lands I ,according to a rough e,stimate, over 60% of such lands have been transferred to

:-'-' .. -

others, illegally by the Puj aris or khatedari rights have bee,n conferred under Sect ion '19 0 f Raj. Tenancy Act by the revenue staff against the provisions of law. This fact is

in, the no t Ice of the qoveernme rrt and the revenue department

from time to time issued orders to the revenue officers

and settlement Department to re-enter such lands in the

name of temples or Wakfs as late as sinae8.5.78. BUt due

to legal complications and due to the fact that such lands

had changed hands several times, the oxercise was abandoned.

And, thus, the trust lands have been illegally continuing in the possessions of tresspassers who have wrongly being

declared khatedars of such lands.

Lands belonging to temples, charitable trusts and Wakfhave b3en exempted from the provisions of~griculture

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langc~;lirlg. sect ion 22 of the Raj asthan Impos it ion of Ceiling onAgr~culture holding Act,' 1973, inter alia states ;·(1) Nothip.g contained rn this Act s he Ll, apply to ...••••

. (d) land held by religious and charitable trust

(inolu9ing a wakf .as defined in the Wakf Act, 1954) of a public nature or by.a gaushala existing on or before

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26-9~70. According to the ruling given in the case BhaironLalV/sState (RRD 1977 tfJC- 9), land entered in the name

6f temple cann't be treated as be.longing to pujari for pur-

" poses of ceiling law. Pujari is not to be treated as sub -

t~nant for this pu~pose. In another case of Idol Shri Gopalj i Maharv.j V / sst a,te 1976 (RRD 188) • It has been held

".

that temple isa religiol.ls trust of public nature and its

land is exempted under Sec. 22 (1) (d) of the ceiling Act.

In our study we have made a detailed survey of

14 temples and wakfs taken from different districts

(Table 14) in order to find out the impact of land reforms

on trusts :ands. Different aspects like families engaged

in agriculture, th3ir social conditions -ac adem.fc qualifications, housing position, cattle wealth, economic conditions

etc., has been enumerated from Table No. 16 to 30. And

detailec enumeration of this has been written in Chapter XI of t he report. Besides this, temple-wise details have been

given in Chapter XII.

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Inspite of all the drawbacks and non-eo-operative attitude of the Govern~ent staff and Trusts management, we have tried to go deep to make the study factually correct in every detail.

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CHAPI'ER - TWO

--~.- ... ~"""*,-,--, ....... ,_.. ...... ,,,.. ... ~:~"-

l3.Q.__,u,J_~9..~ __ ~g9~OUS._ :I:N$'f'I:;ry'!J.0tl§~J.!L..~09.!~~gI3:G~~A'J;';rq~· ttRADITIONAL SYSTEM OF ECONOMIC RESOURCES)

_~.,--, .. , •••• :~.~-- .. , •• " •.• '- ... , ••••••• ~ •• ' .... - •• _ '-"-_.,_.""_"'" " .. _ .... ~" ••••. -. .... __..,_ .•• "I: •• -- ...... """O: •..• ~ ... -: ..... _.,. ....

1. INTRODUCTION:

Viewing from historical background, we find that

there occurred a gradual change in the form and organisat-

ion of religious institutions with the attainment of

maturity in the social order. Here religion refers to faith

in such a power in which 'Han I has dedicat ion beyond all

reasoning. We may also call it faith in supernatural power.

Religion, in its practical and more meaningful sense, may

also be depicted as oternal r3cognition of laws or faith

observed by man. The important aspect is the dedicated

faith of man. The spirit of this dedication and faith is

named GOD. with the passage of time the religion was added

with I the concept of GOD. Giving recognition to God in the

shape of incarnation, the man pnssessing power and knowledge,

more than average, was categorised as incarnation of God.

In this way the sects (sampradaya ) had grown up with

different incarnations. In common language, r8ligions took

their forms on the basis of the preachings, the names,

life - stories, thoughts of these great personalities,

although the Ultimate goal of all religions is the

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realisation of one pure & formless God - ( Niranjan - Nirakar Bramha).

2. TRADITION:

............. ~. . .....

The begin~ing of the erection of forms & structures

at a certain place for the sake of religious worship may

be dated b2ck to Ashoka period. The great emperor got

carved the teachings of Hahatma Budha on pillars, stones-

lubs for the guidance of society in right direction and

these pillars are known as Ashoka. pillars. It was during his regime, that religious and worship places named as

Budh Vihar - 'Ghetya' were constructed. Theso Vihars were

qeveloped·· as centres of educat ion, culture and religions,

and during this period wera constructed worship places and

t cmples with the name of "Chetya". Chetya is related to

burning pyre. The construction on samadhi of contemporary

great personalities were ca.l Led "Chetya II Even today smaller

temples, worship and offering places are callad "Chetyalaya".

The tradition of expecting permanent structures with the I

names on stone pillars, Chetya, Vihar, Math, Mandir etc.

raay be noted with a historical aspect. Masjid, Makbara

and Girjaghar were later added. In their construction the

state, the Saaman·tas, traders, landlords and even common

men had their own place in providing land & money. On the

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otherside the work of injecting life into them was done by

hermits, saints, Rishis, and priests. The great planners,

engineers, great masons with states and labourers had their

Own important contribution in giving grand and elegant form

to these important structures.

3 •

Religious places have been the centres of religious

philosophy and spiritual devotion and fine art of different

~{

~

n

t

vedic age. It should be accepted that in ancient period f

Rishi-Munies circumscribed themselves to individual I Tapasya I I

ages. There is nO mention of permanent religious places in

and for their livelihood depended on 'Roots' (Kand-Mool etc.)

Later on 'Gurukuls' and (Ashrams· were developed. But it

is hard to describe the date and period of construction of

present day temples, Maths, Vihars eCCe In India it seems

that the Almighty God and Goddesses were worshipped in the

beginning but it is difficult to trace as to when did they

start the making of idols & temples for them. As mentioned

above the date of the BUddhist Vihars and Maths may be

about 2500 years ago. The idols of contemporary great per-

sons, Gods and Goddesses are found in the remains of this

period. This makes it clear that the worship of idols~

installed at religious places, had begun during the later

period. r n tl-}is way religion had taken the shape of an

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i nsti tution and permanent centre. During the later Buddhist period religious places were centres of guidance for education and religious & social organisation. It was during this period that the disciples of Mahavir swami also established religious places for propagation of their thoughts.

The contribution of "Ad! Shankracharya" in establishing the religious institutions in the form of Hindu temples and Maths is very notable. For the establishment of religion he errected four temples (Math) around India:-

(1) Jyotirmath at B2drinath. (2) Dwarika Math.

(3) She.rde Math and

(4) sringeri Math (south).

After the establishment of these temples U'1ath) there came a noticeable change in the type of propogation of religion and this ~~rk was strengthened by establishing temples here and there. Through these temples, Shankra - charya performed the great task of re-establishment of

r Vaishnav I religion. It seems that is was a beginning

of making temples, a media of propagation and expansion of religion. During last 1500 years, there were constructed temples & worship places of various religious concepts and there also developed a particular order of these temples.

16 :-

(a) The question of this economic aspect is twineed

with the 8stablis~~8nt of religious places. The fulfilment

of this requirement gave place to gifts, offerings and

donations etc. to temples. In ancient period, the religious

p Lacas were, to a gre3.t extent, self - supporting. They

had their resources from forests and agriculture. In Guru-

ku L system, the expenses of Ashram were met from out of

donat ions and toil of d Lcd p Lo s , I'he state putronage was

! ... ~ i - .. "

a Lso available • With the es t ab Li s hment of tGmples in the

form of i1 permanent institution, its sources of regul'3.r

income aLso developed.· It being religious places, the income

from offerings, gifts, and other ancillary receipts, may

be taken as a regular source of income. Besides, the dona-

tions and assistance given by the well-to-do people of

the society were the main sources of incomG. The contribu-

tiori of the rulers W'JS an important One. They p l ay ed an

important role in substanti2ting the aconomic means of

these places.

Raj ast han was const i tuted by uniting a number of

states. It included big st2tes like Jaipur, Udaipur, Bik-

anor,Jodhpur, Jaisalm3r, Bharatpur, Alwar etc. Almost all

the states had a close relationship with the religious

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places in their area. All the states had their own family Godl Goddesses. The arrangement of their worship was the responsibility of the state. The ruler and his guards paid homage to the family deity and god. The subjects of the state also worshipped them following their ruler. For examplesri Govind Deo Ji in Jaipur and Shila nevi in Amer are the famiJ.y God & diety of Jaipur state .. Similarly Ekling Ji in Udaipur and "ke La Devi II in Karoli were worshipped by

tha resnect i ve ru:"ers ofchese states .. So it can be said that the temples and -Lhe rulers had a close relationship

in the St3.tes. According to the facts available, these temples were granted Jagirs by the king and agricultural land was also allotted to them. Fo Ll.ow Lnq the rulers important Jagirdars and big land )_ords also han their own temples, which were pz ov Ld ed wit~ villages and agricultural lands for their maihtenance.

(b) The pr e se rrt prominent temples of Raj as than do not

have a very old history .. Generally, praninent old temples are 500 tr5 700 years old. The idols installed in temples differ in their types and region of their installation. The temples of l'1ewar region (Udaipur - Chi ttor ) have mainly idols of lord kr.Ls hna , which were brought from near by areas of Hathura - Br.indavan. This fact is established about these idols that during Mughal period, dUe to the

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o ppz e s Lve and anti-religious policy of Aura,ngzeb, the priests of Mathura & Braj Bhoomi with their old idols fled to Rajasthan and sought patronage of Hindu rulers there. This resulted in the installation of idols in many places and construction of temples. The prominent of them are the temples of Sri Nathdwara, Kankroli, Madan Mohanji, Govind Deo Ji, Gopi Nathji and Hathuradheshji etc. at Udaipur, Kota & Jaipur. On the other hand, while analysing the idols in the temples of Raj asthan, this fact also

comes out that there was constructed a large number, of temples installed with the Gods, Goddesses & idols having local recognition. They mi:linly include the temples of BabaRam Dev, Karni HZ"ltJ.1 B,J.la. Ji (Eenuman), Charbhujaji,

Ke s az Ly a j i etc.

(c) There is:'ln old and strong tradition of economic

sy stern of temples in Raj as t han , The income of religious institutions may broadly be classified as under:-

1. T he income H.!cei ved from general public and

devotees in the form of gifts and offerings.

2. The income derived from agricultural land attached to the religious places - Agricultural produce, fruits, livestock, timber, fuel & grass etc.

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4.

The income accrued from Jagir:- Some vill.ages were attached to the temple by the Kings. From these villages income accrued in shape of revenue, Tax etc.

Special donation;- The assistance received from traders of the society, Zamidars etc.

Other sources of Income:-

3 •

5 •

Land in many forms was allotted by the kings" zamindars etc. to the temples. For example rentfree land to help the temples was allotted by the king which was known as IIUdiJ.kll Similarly rent free land was allotted to manage "Bhog" of God/deity of the temple. and it was termed as "Bhog". Similarly rcnt- free land was given to Mosques also.

*

Dr. Ram Pandey II Appraisal of land reforms RCljasthan Page 21 - 24 SHODHAK JAIPUR 1066.

-: 20 :-

AN ANALYSIS

"""-.1'"- .•. -,.. •. ,..._ ._

It is necessary to have knowledge about the legal

position and number of religious places in Rajasthan to go

deep into the matter.

Rajasthan adopted in 1959 "Rajasthan Public Trust

Act" which is based on Bombay Public Trust Act 1950. All

the religious institutions and public trusts are governed

by this Act. Persuant to this act, ma~y Government and

semi - government orga.nisations were const ituted for diff-

erent religions in the state. The state Government created

Devasthan Vibhag' for Hindu religious places, which included

Jain & religious places also. Similarly there is Rajasthan

wakf Board for Huslim religion. 'rhe religious places are governed and supervised through them. Wakf Board is charged

wi th the responsibi lity of protect ion and promotion of

Muslim religious places, property and their land etc. Simi-

larly 'Devasthan Vibhag' looks after the safety, protection

and promotion of Hindu religious places.

From the property, ownership and arrangement point

of view the Hindu religious places can be divided broadly

into three categories -

-: 21 :-

(1) Religious placesundar Government Control.

(2) Religious places run by Trusts and

(3) private religious places cOntrolled by

individuals.

The position ,of agricultural land and its utili-

sation, the priests and offerings of religious places, are

worth Considering" It may be clarified here that land of private indiv~ual temples is owned by the owner of the

temple" He has the right on ag~icul tural produce. It is seen during tl'1e course of survey that the position of actual owne;rship,cand farming on land of individual terI),ples

is not sLmd Lar' Ln a,,11 cases. The \vell-to-do priests are in better position and they have their actual ownership on land. But there is a good' number of such temples the land

of which i$ .no+ under the actual possession of temples or its main priests. The land has been i'n actual possession of those who have been tilling the lana. Generally the

, ,i

priests of temples do not do farming themselves but get

it tilled on 'Batai' basis. In this si'tuatiozi., other people

have taken unauthorised possession of the lal1.d,~More or less similar is 't>he position of land of relig,ious places

run by trusts. The public has e nor-oaohed On "the land of

Government Temples (Devasthan Vibhag) also. In such Cases

the land is in actual possession of others, althOUgh· on

-: 22 :-

record the land is in the name of the temples and rent of

land is being paid by the priest. The priests have a special place in almost all th~ traditional religious places in

Raj asthan. Generally the income from duY to day offerings

g08S to the priests. In certain trusts the priests are

paid salary and they have no rights on offerings. Commonly,

persons from mora than one family are priests of tha temple.

In such cases turn wise change to serve as priest is avail-

~le, according to the number of priests.

Thera is no accura.teuccount ava.ilable with res-

poct to the number of religious places in the state and and agricultural land_ possessod by them. In an effort to

have this Lnf ozmat; ion, contact was made with the Revenue

Deptt. i settlement Deptt., Devasthan Vibhag ,Wakf Board,

Tehsil offices and other government agencies, Agriculture

census report was also consulted .. Devasthan Vibhag has inf-

orrna t ion only in respect of those temples which fall under 'its control. Data_regarding land, here too,' is scanty. All told, this fact has come to light that the information of

accurate position of agricultural land with religiOUS places in the statel's not available. A survey of land with muslim

. - ~.~

,. '::

'/ '.

religious._places was 'conducted in 1965. Its report _is not

-: 23 ;-

withWakf Board. BUt according to Wakf Board the factual

position is otherwise. because the land h s s gone into unauthorised possession of other people. The agricultural land of mosques has been unauthorisedly possessed by farmers. Tahsil offices were also contacted to collect information regarding lanq. T'~hsJJ.s also do not have complete data. An effort was made to approach all the tehsils and we were

successful in obtaining lists ofrel,igious places and land with them, in respect ~f 79 out" of 213 Tahsils i'n the state.

As per information received from all sources

regard1'ng 79 Tehsils e.g. Dav a s't hari Vibhag; wakf Board etc.

we could have a ~st of 10619 religious places which have land in some measure (Table No.2). But this number is not a right estimate of the total number of religious places

in the state because in this information:-

(1) ,Data regarding 79 Tehsils only is included.

'"

(2) Complete number of all religious places of

D3v.Jsthan Vibhag and Wakf Board could not be

obtained.

(3) Data regarding these religious places is not

there, which don It possess agricultural land, while the number of such religious ple:'=es is

very large.

, .

-~ 24 :-

Most of the Jain temples, Churches, Gurdwaras,

Mosques do not have agricultur21 land. It may be said that

actual number of religious places exceeds many times more

than the number received. The present study is limited to agricultural land only. As such an anqlysis of facts avail-

able regarding agricultura,l Land only is completed.

The'G>wnership of the property of religious places is supposed to be assigned to Thakurjee (the idol). Since Thakurjec himself, is not phys Lca j Ly active, so his repres-

-- -

entative performs his task. Here, Thakurjee is taken as

<, minor and his property is looked after by his representat-

ive. The represent?tivc of religious places of v3rious types differ 'from eachp:ther .. In an individual temple the priest is - the represcn::;3.tive of Thc:.kurjee. The representa-

tives'of TfiakUrjee in temples run by trusts are known as

Trustees .In the same m anne.r, Devasthan vibhag is the

rapresentative of Thakurjee of the temples controlled by

Vibhag.

As is evident from data, .. the religious places have

hundreds of hectares of ~gricultural land. To expect the

right utilisation of agricultural land 'is but natural. Naturally it is' also desir.3~le that the agricultural land be properly developed and the optimum produce is obtained

from that, as also the faci.1itie§ af iand reforms,

..;,: 25 : ...

, '

irrigation atc. are available and production increased.

It is also desirable that there should be actual Ownership of Thckurjee (Temple) on land and their property remains safe. But generally it is seen that neither the agricultural land of religious places is safe nor developed. The agricultural land of religious places has gone into unauthorised possession and this practice is continued.

Such examples are not few where agricultural land and property of religious places has been sold. A good number of examples of use of 'agricultural land of temples for personal purposes can alsO be cited. This is worth consideringas to how far the aim behind and the purpose with which the' agricultural land W3S given to the religious places is served .,This considerat ion also 'would be useful

as to what is the ec.onomiccondition of;_farmers, attached to the agricultural land. It would alSO be advantageous to go through the laws in existence and their effects.' Furtheri t may .a l so be viewed for future as to what changes are desirable in the present system so that the agricultural land is utilised to the~full extent and present

problems removed.

• ••

I

-: 26 :-

CHAPI'ER - FOUR

--,------------

;{ OBJECTIVE METEODOLOGY AND SAMPLE SIZE *

~.,.~.~,_ ... ..,.~_,.....__....~ ... ,.;;,,J..,.~ ...... , __ ..._..-_ ......... ,.. ' ....... ' ..... ~.- - ...... _._._ ........ - ..... ",___....._......,

OBJECTIVE OF THE STUDY:-

_ ....... _. __ ,~_ ~,.- _h •... -- ..... .-.- __ - .. ,._.- ....... ,.", ....... --_

The obj ect i ve of this study is to examine and analyse the impact of land reforms, ·undertaken by the state Government after i ndc pe nderice , on the religious and .. charitable institutions. How far the provisions of Raj as-

than Ten<:lncy Act, Raj a s t han Land RevenUe Act, Rajasthan

Resumption of Jagir Act I Raj asthan agricultural land

Ceiling Act and other land legislations have benefittad

-

or adver se Ly affected the religious institutions of Hindus,

r •

Muslims, "christians,· Jain, Sikhs and other Communities.

The study'has also explored the pOSition of lands belonging to charitClble trusts on account of land reforms legis'lat:L"6n.

The study has explored the affect of land reforms

regarding lands of religious and charitable institutions.

What changes occurred

in the traditional agricultural

system because of the land reforms act. The affects of

':>

...

law on individual interest, ve s ted interest and the

interest of the diety. Along with this an analysis of the

socio - economic condi tions and exploitation of farmers,

labourers, sharecroppers, SUb-tenants etc. engaged with

L

-: 27 :-

has also been taken.

The study has further analysed the present position of agricultutists, the awakening engineered in them, their knowledge about laws and the rights bestowed upon them by these reforms etc. and the social and economic impact on them. The study has considered and given suggestions regarding the present system of agricultural land with religious places and the flaws and lacunas of the 'lawsandCtheweakness of the system.

Why do the religous institutions need agricultural land and why do" they need exempt ion from ce L ling law and r-equ Lz e other concessions and facilities? What may be the alternatives 6itr-e' present system and concessions?

~ie have examined the protect :Lon provided to the religious and ch~ritu.ble trusts regarding eviction, subletting I share cropping, security of tenure, impact of land ceiling and other related aspects. i:,.n analysis has been made with regard to their application on religious and charit2.ble trust lands and their impact on such institutions. Whether the provisions of land reforms legislations have been implamented"properly in words and spirits of the laws by Government officials ?

L

The studyJ:1as examined the pos Lt Lon of these institutions with regard to the management of their land holdings, personal culti v=rt Lon , share cropping, sub-letting and leasing out on contract. The study has also explored the leg~l aspect and the practical position of it. Whether land of these institutions have been grabbed by adopting

fictitious devices by sub-tenants and lease holders in contravention of laws in connivance with the officers?

The study has exerru ned in detail the legal position of the religious and charit0ble institutions with regard to their agricultural lands, litigations initiated with regard to such lands and their outcome. How far the legalwrovisions hove served the interest of the religious institutions and tenants with respect of fair rent, protection from eviction, status of their tenants, conferment of khatedari rights on land of religious institutions etc.

The study has also dealt with the impact of the ceiling and whether the exempt ions given to these insti tut ions were at all necessary even if they have cont inuous alteranate sources of income from other avenues. The study has also suggested alternate arrangements for enhancement of trust's income in lieu of agriculture land taken over by Government under the Resumption of Jagir Actor mutated in the name of others by misusing the laws.

L

-: 29 :-

The study has also examined the status of charitable and religious institutions under the Rajasthan Public Trust Act and how far the Act has succeeded in streamlini ngthe management of public trusts. Whether the .1ct_has improved the working of the trusts and how far the act

has restrained the trust from misusing its position and rights. How much sucCess the Government has achieved in

implementing the provisions of the i~ct to improve the administration and management of public trusts andreligious institutions?

r:!.~!!iQ.l2QLOGY • ~D.~£:

After collecting the available data and information regarding' religious and charitable trusts and the agriculture land and property owned by these institutions from different SOUrces, we tried to adopt random system

in our study. BUt it could not be adhered to as the institut10C8 covered in study under this system, could not provide a true picture of t he problem. The reason being either the chosen institutions possessed very little land on which

the impact of land reforms could not be studied as per

norms or they had no agriculture land left with them. Hence our scheme of selecting institutions for study through random system was frustrated.

L

-.

- 30 -

Therefore, it was decided to identify and select

religious institutions with high concentration of land held by them, from different districts, belonging to Hindus, Jains,

and Muslim institutions. We could not find an agriculture

land with sikhs and chtistian institutions from the data

collected by us~ ~n this study we h2ve examined the position

of 14 institutions in detail which truly represents the problems.

Attempt has been made to select at least two institution with

regard to the size of their land holdings. Tge institlktion

wise detailed study has been given in Chapter XI of this study.

In the next chapter i.e. chapter XII, we have given a detailed

socio-economic analysis of t he surveyed households of these

selected religious institutions in order to provide a true

picture to the readers regarding the impact of land reforms

vis-a-vis religious and charitable institutions.

The legal position of, religious' and charitable institutions and the Imyth' regarding the position of idol attributed

to it iri law, has been dealt in detail in chapter V. Ample case

law has been cited to make clear the position of religiolls

trusts, their rights with regard to property, including agri-

culture property.

SAMPLE :-

,._-~

According to the established sampling procedure, the agricultural 'land of all the rGligious places was divided

- 31 -

into various land holding categories and at l~ast two religious

places were selected for case study from each category. The reli-

gious places were categorised as under :-

-.-.-.-.-.-.-.-.-.-.-.-.~.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.

Category

No. of religious institutions

No. selected for c:ase study

-,-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.~.~.-.-.-.-.-.-.-.-.

1

2

3

-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.

1. Up to 50 hectares 10382 5 (Table NO.3)
2. 50 - 100 " 166 3 (Table No.4)
3. 100 - 150 " 33 2 (Table No.5)
4. 150 - 200 " 11 (Table No.6)
5. More than 200 (Hectares) 27 4 (Table No.11)
-- -
Total 10619 ·14
-~ .-
.
After categorising the religious insti tutipns in above five categories, we have selected at least. two institutions from

each category for our detailed study. we have takehover adequate sample of actual cultivators from different catego~e3 of persons like share cropper, sub-tenant, leaseholder '. land grabbers, agriculture labour, tenant on contract etc. fro~ these institutions

for our detailed study from different size- classes .," Our attempt had always been to find out the real position with regard to each

class of tenants.

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37 -

P_R_O_B_LE~M;.;;.;S;;;....;A ... N_D __ LI;;;;;;;;M __ I~§. :-

Many problems were faced during the cOUrse of study.

Some of t he problems are such as indicate towards limitat-

ions even in the study.

(a): want of Lnf ozm at Lon with the institutions :-

It has come to notice t hat; the religious places lack

complete Lnfo rrna t Lo n about ilgriculturCll Larid ; They do

not possess the Lnro rma+Lons as to when a nd who donated

the li'l.nd. Almost -3.11 the religious plClces comp13ined

of the unauthoris~d possession of agriculturQl l:l.nd.

They 21so lacked the informo.tion about the l~nd acq-

uircd by them earlier, and how much land did they have

or possess now.

(b)

The information is also not available about the land

under CUltivation and th,~ numbo r of families a t c ached

to it.

(c) The difficulty in getting the information arose due

to the ceiling ::lnd other Laws enacted reg2.rding agri-

cultural land. 7hey doubted the fear that l~nd m~y

be acquired by Govt .through 'enactment reg::..rding reli-

gious land.

(d) Farmers, labourers, s h are croppers (Bataidar) sub-

tenant also abstained from giving full information.

Large number of people have unauthorised possession

38 -

on religious land and theY h2.d their fear of Land being snatch8d from them.

(e) Difference in d2.t<1 c.bout Land - It is obae rv ed that there is difference between dcta provided by Tehsil

or any other Government Office and that made available by office of religious places. One of the reasons of this difference is that Tahsil 11')s rc~cord of only that land which ox;i.sts in th2t p::lrticular Tahsil only, while land of religious .. p Lr.c e s ,;xisted in other Tehsils also. It is also noticed thot the Government record showed the land, but tl}e religious place HaS less or no land in actual possession. This made the difference.

- 39 ...

CHAPTER - FIVE

. ,

~""'_""'.""';~~-;Y_""""'_"""-""-""--

* HISTORICAL BACKGROUND OF RELlGIOUS INSTITUTION *

"""_",__ .. ~.,.,,....-...-"""_"'."''''''-~~r·,,,,--,,,,~_,-,,,,__ _,,,,,,,,,,~.~,_. .. ... rr--- .... .._.~"' ............

1. It is now certain that temples and Haths (a.lso spe-

lIed as Huths ) did natexi st in the 'vedic pe r Lod , In

the sutra period also maths did not exist though it

seems that templ2s in some form existed. Th2 Gautama

Dharmasutra mentions temples of God at more than one

place" but we do not know what ty pc of temple it was

and wh:::Jt were the deities that Hindus worshipped,therfi).

It is not eiJ.,sy to S2y whori exactly idol worship came

into exd s tanoe ; I'tis certain that it did not exist in the vedic period. The Hindus, for the most part,

worship the, pouranic gods. Tho age of the poura ria s is

uncertain. SOm8where in 4th Century

____ .., ... .. _,.".,,_.. __ ..... _.,.·~_,....,...,..,~~-.w ...... _~ .. ,..·'_ ",...,_'_ ,,._ ,.'_ ._

1. The pou r ana s var e s did to be e Lcrrt ee n in number and are attributJd to sage Vyasa. hOst of them seem to be of the: post budhistic compilations. The purcnas

a r e 8tctlass of Hindu epiC' 'liter2ture. They Cl.eal- with various matters, such exploits of gods, sageS and kings, how various Awatars of visnnu cam8, of rites

,

of worshipping gods a.nd qoddo ss e s by prayers, fasting

volive offerings, pilgr:Unag, etc. of geneologies & coamogony.

40 -

and 8th century. A.D., the worship of the pouranic

gods became very popular. 'The Gupta emperors were the

patrons of the pouranic faith. The idea of trinity of

God - Brahma, CB God of creation, Vishnu. as God of

preservation and Siva, as God of destruction - is pouranic idea. However, the pouranas make it clear that these

Gods. though three in form really consititute one entity. The deities that Hindus mostly wor srid.p are Vishnu, Durga ( in their various mainfesations and

forms, such as Rama and Krishna of the former, Kali,

chan9~if, Bhairvi of the latter), Shiva, Ganesh and aury e , They constitute the pancha Devatas of Hindus.

Hindus do riot wo=ship the image, but the supreme being,

The idol is but an image of that supreme being. The

images do not represent separate gods or goodesses

but each is a symbol of the same universal principle, the supreme God. This is made clear by the following verse: It is for the benefit of the worshipper that

there is conception of images of supreme being which

is bodiless. has not attribute, which consists of pure spirit and has got no second2• With the emergence of idol worship, there came into existence dedications

of property for the construction and maintenance of

temples and consecration of idols.

2. auotted by Raghunandan.

.... : 41 :-

-,

The institution of Hath was unknown to the

.yedic Aryans. The vedic Grihya sutras did not approve

of asceticism .of life. Every Hindu was required to

pass his life through four ashrams. Even the life of

akhanda brahmacharya was s a nc t Lo nad in exceptional

cases. It was in ->::h3 last sta.ge of life viz. in the

Sa1yas ashrama that a life ·of contemplative ascetic

was sanctioned. Snuh a life was the life of a wander-

ing sanyasi who lived on whatever was offered to" him

by people, He mostly lived on herbs and roots. In

such an organisation of life and society, the monostich institution were out of question.

Related Interests

    1i th the

    revival of Hindusim between 4th century and 8th

    century A.D. there came into existence the institu-

    tion of Hath. In India the institution of Math is

    essentially a contribution of Buddhism. In the eighth century A.D. was born the great Shankaracharya who ·established Maths <1t the four extermities of India3•

    After the great Shankaracharya the hameof Rama.nuja

    1 holda a place of pride on the development and spread

    of the institution of Haths. Shankaracharya pro-

    3. The Jyotir Maths, Badrinath Hath in the no r t h , the sarda math in Gtij arat, the sringeri ·mathin' sounh and the Gobardhan math at P uri in east.

    ... : 42 :-

    pounded a theory of pUra-monism but Ramanuja pro-

    pounded the philosphy of qualified mond sm s The fo11-

    Owers of Ramanuja are known as sri Vaishnavas. After

    the death of Ramanuj a several sects .and sub-sects of

    Vaishnavas carneinto existence. Shankara and his follow-

    ers were not in favour of ascetic life for sudr~s, but

    in course of time, sudra maths also came into existence.

    With the coming into existence of maths, properties

    began to be dedicated to Maths.

    1.3

    Gifts for religious and charitable pUrposes had

    amongst the Aryans their source in charity and the

    desire to acquire religious merit. They fall in two

    divisions ; Kstha and purtta. the former meant sacri-

    fices & sacrificial gifts and the latter meant char-

    ities. The former led to heaven and the letter provi-

    ded relief to the sick, the establishment of proce-

    ssions for the' honour of deities and so on. Gifts for

    the promotion of education and knowledge are specially meritorious 6.

    1.5 According to English Law -'Charitable trusts in the

    legal sense comprise four principal divisions :-

    (i) Trusts for t he relief of poverty

    (2) Trusts for the advancement of education.

    7. Halabury's law of England, 2nd Ed., 109-10

    -: 43 :--

    (3) Trust for the advancement of religion and

    to the c0mmunity not falling under any 7

    of t he preceding heads •

    All charities to be administered by the

    court must fall within one or other of

    these divisions but not every obj act

    which falls withint hose divisions is

    charitable unless it is of a public nature

    intended to benef it the communi ty or some

    part of it and not melfely private individuals or c La s s of private ;i.ndividuals8•

    , ,

    1.6 The Courts in India in relation to Hindu wills and gifts

    adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term charity in the statute of Elizabeth9• All pu r-poaes which are chari table accord-

    ing to Eng lish law will be charitable under Hindu law#

    7. Halsbury's law of England, 2nd Ed., 109-10

    . --, .. ~.,

    8. Re Macduff, (1896) 2ch. 451. 466 CA. Re Topham(1938}

    i All ER l~l, 195.

    9 • University of -Boml:iay v e' Hunicipal cormu s s i onar I Bombay (1892) 16 Bom 217; Monic V. scott (1919) 43 Born 281. 292.

    -: 44 : ..

    but in addition under the head of advancement of

    religion. there are other charitable obj ects in

    Hindu law which will not be charitable according

    to English law, for that law forbids bequeats for

    superstitious uses, a restriction which doe5 not

    apply to grants of this c haz ac t e r in India even in the" presidency towns 10 and such grants have been repeatedly e nr.or ced by the Privy council11• What are

    religious purposes and what religious purposes will

    be ch'2.ritable must, of course,be entirely decided

    according to Hindu law and HindU notions.

    1.7 The def.ini tion of charitable purpose in the charitable endowments act (VI of 1890) includes relief

    to poor" education, medical relief I and the advance--mentof any other object of general public utility

    \ but does not include a purpose which relates exclusively to religious teaching of \,vorship12. The civil

    . profedure code of 1908 "refers to public purposes of charitable or rei:i.gious.natur~ and the charitable and

    10.Ganpathi Iyer, Hindu. and MU,lamedan religious Endowments (1918) 196-197.

    11.Sonatun by sack V. Inggusoondred (1859) 8 11.1 ~A. 66.

    12. The Charitable Endowments Act. 1890, section 2.

    ... : 45 :-

    religious trusts Act (XIV) of 1920 refers to trusts created

    or existing for a public purpose of a charitable or relig-

    ious nature. The Transfer of property Act, 1882 defines in

    effect public religious and charitable trusts as transfers

    of property f o r+ t he benefi t of the public in the advancement

    of religion, knowledge, commerce, health safety or any other

    b' t b f' 1 k' d 13

    o J ec ene Lc i a to man a n •

    1.8 A charitable or religious endowment in order to be charity

    in the )eg<1l sense wi 11 have to be for purposes of a public nature, Ln other words for the benefit of the community or

    some part of it, otherlVise, it will be private trusts. A

    trust is none the less a. trust f oz a public purpose if its

    main object is I in f?ct J tna support of fakirs of particu- 14 lar sect and the propogation 'of the: tenets of that sect •

    . ' The distinction in Hindu law be t we e n ~eligious and cha.rit- 15

    abl e endowments .. in a modern one.

    1.9 Re:lig ious endowment s are of two ki nd s I public and private.

    I na public endowments the dedicat ion is for the use or

    13. The Transfer of Property Act, S. 18

    14. Puran Atal V. Darshan Das (1912) 34 All 468

    :> ..

    15. Manohar Mukerji V. Bhupendranath (1933) 60 Cal

    452, 475.

    1

    -: 45 :-

    benefit of the public. aut where property is set

    apart for the worship of a family god, in which the

    public are not interested, the endowment is a priv-

    ate one. The family idols are not however chattels

    or the prope~ty of the family. They are legal entities having, within limits, independent rights.16

    J

    1.10

    Requests to idols and temples are not invalid for transgressing the rule which forbids the creation of perpetuities. It being assumed to be a principle of Hindu law that a gift con be made to an idol, which isa 92.Pul .... !!l%~_y,~~ and incapable of alienating, you can not break in upon that principle by engraft ing upon it the English law of perpetutles.1

    1.11

    With this background in mind let us now see objects

    of religious and charitable endowments.

    (1) -Religious endowments: Gifts for the installation,

    consecr'at Lori, worship and service of idols & gifts

    to idols already installed and consecrated, gifts

    for building and renovation of temples, for the

    1 6. (1925) 5 2 I.A 245.

    17. Kumars As ima V. KUI'nar Krishna (1859) 2 13.L.R

    (OCJ) 11 Urafulla Chandra V. Jogendra Nath (1905) 9 CWN 528.

    -: 47 :-

    precession of idols and their vehicles for religious festivals,18 in other words, Gifts to religious ins-

    titutions for religious purposes of ~very kin are valid religious endowments. Thus Maths are in the

    main religious institutions. The primary purpose is

    the maintenance of a competent line of religious

    tea~hers for the adv?ncement of religion and partly for promotion of religious knowledge, the imparting o~spiritual instruction to the disciples and followers of the math and the mainte!lance of the doctr-

    ines-of particular schools of religion or philssophy.

    Though "there are idols connected with the maths,

    their-worship is quite a secondary matter. In addi-

    tien to religiouS instruction, other Qharitable

    purposes are also served by these insti tnrtLoris ,

    some-of thesemaths being more charitable than relig Lous , 'l'henature and origin of these institutions

    were described in sammantha pandars V. Sellapa chetty19

    18. Vaithilinga V. Samasundara (1893) 17 Mad.199 see also Bhupati nath V. Ram Lal Maitri, (1910) 37 Cal 128

    F .B.i Mohar sIngh V. Het Singh (1910) 32 All 337

    (to complete a temple and - mai rrt ad n an idol),

    Khub Lal V.AjodhYa Missir (1916) 43 eel 574 (Completion of temple buildings.)

    19. (1879) 2 Mad. 175

    : ... ' ..

    (2 )

    -: 48 :-

    as" Preceptor of religious doctrine gathers around him a number of disciples, whom he initiates into the particular misteries of the order, and instructs in its religious tenents. such of these disciples

    as intend to become religious te2chers, renounce their connection with their family and all claims

    to the L:unily we a Lt h and as it were, 2ffiliate themselves to the spiritual teacher whose school they have entered. Pious persons endow the schools with property which is vest in the preceptor for the time being, and a home for the school is erected and a matham constituted, the property of the matham does not descend to the disciples or elders in common, the preceptor, the head of the institution, selects among the affilliated disciples whom he deems the mose competent 2nd in his own life time installs the:disciple, so selected, as his successor, not uncommonly with some ceremonies. After the death of the preceptor the disciple so chosen is installed in the gaddi ,. and takes by succession the property which has been held by his predecessor.

    Illustrations of cequests for charitable purposes arathose for s.adavart s I dharmasa.1a s, rest houses and annasatrams ( choultries ) for feeding

    -. 49 :-

    the poor, for the establishment and support of

    schools, college and universities, for dispensaries'

    ~nd hospitals, for medical help to the sick and the

    infirm, for the construction and maintenance of

    tanks, wells and reservoirs of water & for the pro-

    vi sion of drinking \f'1ter for men and animals and so 20

    on.

    1'2

    Where the dedic;:>.t ion is of the completed

    character, the property comprised in it belongs to

    the idol or the religious Or charitable foundation

    conceived as a juristic person capable of taking and ho Ld Lnq property. 21

    The possession an~ management of tha dedicated

    . -~ .. ",'

    property and the right to sue in respect of it

    are vested in the manager, dhu.rmakarta, or shebait.

    A suit respect ing theprope.rty in which the idol is

    interested is properly trought and defended in the

    name of the idol, a.lt hotaqh ve.x ne cee i.a't e the proceed-

    ings in the suit must be carried on by some person

    20. Jamanabai V. Khim 3i (1890) 14 Born. 4 other cases.

    21. J2lunath V. Thakur Sita Ram Ji, (1917) ~4 I-A. 187.

    -: 50 :-

    who represents the idol, usually the manager of the temple in which the idol is installed.22 But it is

    permissible to file a suit in the name of the idol

    where the shebait has not been appointed, the court

    appointing some person to act as the guardian ad -

    litem of the idol. Where there is a breach of trust,

    or the shebait claims adversely to the idol it is

    necessary that the idol should be represented by a

    disinterested next freind. In pramatha Nath Mullick

    v. predyumna Kumar Hullick, where the appellant

    claimed the right to remove the image during his

    terms of workship, their lordships held that the

    will of the diety as reg~rds its location must be

    respected and the suit was remitted in order that

    the image might appear by a disinterested person to be appointed by the court.23 In this case the privy

    council also observed that "A Hindu Idol is, accor-

    ding to long established authority founded upon the

    religious custom of Hindus and the recognition

    there of by courts of law, a juristic antity. It has

    a juridical status with the power of suing & being

    22. Jodhi Rai V. Basdio Prasad (1911) 33 All 735 F.B.

    23. (1925) 52 I.A.345.

    ., •.

    )~'

    sued. Its interests are attended to by the person whQ has the diety in his ~harge and who ip in law j,ts _manager with all the power which WOuld, in such

    circumstances on analogy" be given to the. manager of theestai::e of an infant heir".

    Position of a Shabait, manager or dh<:lrmakarta:

    The' manace r of a temple is by virtue of his office ,

    the administrator of the propeJ;ties attached to it, as regards to which he is in the position of a tru-

    s+ee , As regards the service of the temple and the duties pertaining to it, he is rather in the posi-

    . tion6f the holder of an ~ffice of dignity. 24 The position ofa dharmakarta of a public temple is not

    .. ',.. -

    that; Of a shaba:i.t or puj ari of a shrine or of the

    head of a math. Those funct ionaries have a much

    higher right with larger power of disposal and adm-

    . inistratibn and they have a personal int;erest of a

    " .

    beneficial chara.cter. The Dharmakarta is literally

    no more than the manager of a charity and his rights.

    are never in a'higher legal category than that of 25

    a mere trustee. The shebait is one who serves and

    24. Ramanathan Chetti V. MarugappaChetti (1906) 33 I eA. 139.

    25. srinivasa chariar V.EVALAPPA HUDALIER. (1922) 49 IA 237

    -. .. .-

    -; 52 :-

    sustains the diety whose image is installed in the shrine. The duties and'privileges of a shebait are

    primarily those of one who fills a sacred office.

    Shebaitship in its true conception, therefore, in-

    volved two ideas, the ministrant of the diety and

    its manager. It is not a bare office, but an office with certain rights attached to it.

    The p031tion of a shebait, dhatmakarta or

    manager cf a temp2.e or other religious institution towc.rds debuttar property is not similar to that in

    England of trustee towards the trust property. It is only that certain duties have to be performed by him which are analogous to those of trustees. 26 They have not the legal property which is vested in the diety or the institution. ~<;ach of them has only

    the title of a manager of a religious endowment

    and ls, as such, eLtitled, sUbject to usage, to the custudy of the idol and its property.27

    1.14

    The right of a shabait or of a priest to offerings

    made to an idol naturallY depends upon the nature

    -_ .. ----.._-..._..,_,....,_..."..., _I ,.-.,__.'.--.,.-.-_ _,~._""" __ .. .......---. ,..__._._.-~ .. _.

    26. Nagendranath palit v. Robindra, (1925) 53 Cal. 132.

    27. Manohar Mukerjee V. Bhupendra Noth Mukerjee (1933) 60 Cal. 452. FB.

    of the offerings in the absence of a custom or an express declarat;j.on by the founder to the' concr ary , When they 'are of ,:3, permanant character ,theyordin-

    28

    arily belong to the temple. Where they 'are

    pe z'Ls hab Le they may be appropriated by the'priest 29

    or other pez s on entitled to it by custom.

    1.15

    Borrowing and alienations for necessity: The posse-

    .s s Lon and me naqemerrt of the property of a religious

    endowment .be Lonq .. .t o the manager, 'dharmakarta or

    shebait arid this carries with'it the right to bring

    whatever suits are neces s ary for. the protection of

    the properi:y. H~ is bound to do whatever is necess-

    ;.'

    ;,.,>. ar¥ for the benefit or ptese~vation of the proper-

    ',.,

    "'-.

    ties of the LdoL, Therefore they are competent to

    incur debts and borrow money for the prbperexpen-

    ses of keeping up the religious worship, repairing the temples, or other possessions of the idols,

    insti tut ion or defending' hostile litigious attacks and to prevent the endowed properties from being

    brought to:sale in execution of decrees binding

    . .

    28.. KUmar Aswanf, V. Lakshmana (1930) 53 Med. 608 29. Gangadhar Mudali V. Daraisami (1937) Man 975

    .; ....

    '.

    -: 54 :-

    upon the institutions.30 The authority of the man-

    ager of an idol's est ate would appear to be in

    -this respect, analogous to that of the manager for

    an infant heir whose power to alienate can only be

    exercised rightly in a case of need or for the be- 31

    nefit of the estate. Thus borrowing for dischurge

    of prior mortgage and payment of legitimate expenses

    of temple is valid. For an absolute alienation of

    d.;;;buttor property there must, it would seem, be an

    comparative necessity constraining the manager to make : it. 32

    1.16

    Permanent leases by manager, shebai t are invalid. 33 In palaniappa chatty V. sreemath Daivasikamony.

    Lord Atkinson observed, "Three authorities have

    been cited which established t.lat it is a breach

    of duty on the part of a shabait, unless constrained

    thereto by unavoidClble necessity, to grant a lease in perpetuity of debuttar lands at a fixed rez:1t,

    _______ -.-. ... ............--. .,. .• ....-,_ ... ~ __ __.._-_, __ 'I"-' .... ~_ ... --.r:--o __ ...,._ ••. _.,.,. .- ........ _, .. .... _~ __ ~

    30. Jogendra Nath v, Hemanta KUmari (1904) 31 I eA. 203.

    31. Premdas V. Sheo Prasad, AIR 1934 Nag. 222.

    32. Ananta Krishna Shastri V. prayag Das (1937) 1 Cal. 84 (Where all the cases are discussed)

    33 .. (1917) 44 I.A. 147.

    I I

    -; 55 :-

    however adequate that rent may be at the time of

    granting, by roason of the fact that bY this means,

    the debutter is deprived of the chance ·it would

    have, if the rent wer~ varinble, of deriving bene-

    fit from the onhGDcement in value in the future of

    the lunds leased.

    1.17 fosition of the head of n math i.o. Mahanta; As

    regards the class of institutions knownas maths, particularly in south India, there have been confli-

    . .

    cting views as to whether the head of a math is a

    trustee or a corporat ion sole. I twas sett Led that

    he is neither the one no r the other, he is simply

    the manager of an institution with wider powers

    than those possessed by a dharmakartu., manClger or

    trustee of a temple. It was held by the privy coun.' 34

    cil that "the head of ·:1 m atrh is not a truste.e with

    regard to its endowments I save as to any specific

    property proved to have been vested in him for a

    specific and definite object. It added 'Called by

    whatever name, he is only the manager and custodian

    of the idol or the institution. In almost every case

    he is given the right to a part of the usufruct,

    34. Vidyav2.netl1i V. Balusami (1921) 48 IA. ·302

    -: SIS :-

    the mode of".enJoyment and the arnourrt of the usu-

    ,'.', .. - ""'- ..

    fruct depending~gairi on usage and custom. In

    no case was the property conveyed to or vested

    in him, nor is he a trustee in the English sense of the term, although in view of the obligations

    and duties resting on him. he is answerable as a

    trustee in the. general sensei formal administration"

    1.18

    As regards sUits' to set aside alle,hations and to recover propert;i..~s of such insti tut ions, in

    vidyavaruthi V • Balusami and inponnambala Desikar V. Periyanan Chetti 36 it was further held

    that in the case of' a po.rmane nt; lease; acceptance of rent by a successor of the transferor, who

    made the invalid alienation, would create a. new

    lease for the life of the seccessorsothat adv-

    erse possession could run against the institution on Iyrcn his death. Where , however, no such infer-

    enee of a new lease could be made, the possession

    would be adverse from the termination of the

    office of the transfer •. Where# however, a temple

    and its properties or a math and its properties are sold I the alianation will not be good for the

    36. (1936) 63 I.A. 251 •.

    I I

    -. 57 :-

    life of the transferor and adverse possession will commence to run from the date of the alienation as it is a destruction of the entire trust. The alienat ions of endowed propert ies

    can be set aside not only by his successor but also by persons interested in the endowment

    Gven during the life time of the alienor. The above deci s Loris were all given under the law as it stood before the amendment of the limitation Act in 1929. After the amendments of sections

    10 and articles 134 A and 48 B of the Limitation Act I which make the manager of the e ndowme n t a trustee in whom the property is vested, have

    not only effected a change in the law of limitat Lon but have given statutory recognition to

    the view that manager is in law a trustee, at least for the purpose of alienation, and for

    the purpose of following the property of the

    institution. TheY recognised the right of persons
    interested in the institution to have the alien-
    ation made by the manaqe r set aside altogether during his lif~. l~ would seem, therefore, that an alienation will not bind the institution in

    t he absence of necessity or benefit aven during the term of office of the alienor.

    1.19

    -: 58 :-

    In. this regard it would be worth noting the

    views of Hon'ble shri B.K. Mukherjee in his

    H.indu law of Religious and Charitable Trusts (Fourth Edition - P.307) as under "Position

    be£qre 1929 - to recapitulate in brief, prior to vidyavaruthi's case37 a shebait or Mutawalli

    was treated as a 'trustee' within the meaning of

    Article 134 of the Limitation Act of 1908. Debu-

    . j;tee and, alienations by him of the Debutter or _. w~l<f .property were held to be governed by that

    article .• The Privy

    council having overruled

    that view in vidy~varuthi's case, suohcases

    tall thereafter to be decided on the foc:jling that the +esiduary.~ticle 144 applies. By the amending Act 1 of 1929 (addi..ng a new paragraph to section 10) managers offelig_iou_s and charitable e ndowmerrt s (,shebai ts etc) were placed in

    the same position as express truste~s,apc:i p.li_c ena;t.ion~ by.~hem were specially provided for

    by the new Articles 48 B. 134 A, 134 Band 134C.

    ThG operation o_fArticle 134 was, therefore I in

    .-._) < '-I

    general, restricted .t o cases of mortgaged

    37.

    See para 1. 18 Supra.

    I I

    1.20

    -: 59 ;-

    property and ordinary (i.e. secular) trusts, The

    following .r'e conme nde't t o ns of the civil Justice committed may be noted in this connection.

    HIn view of ce r+e i n recent decisions I the alienat ion

    of property vested 1il the hand of a religious inst-

    itution raises special problems for limitation

    purposes and should be specially provided for. II

    In pursuance of this recommendation. in section 10

    of the Indian Limitation Act 1908, the second para-

    graph was added by Act 1 of 1929 and new Articles

    134 AI 134 B, 134 C were also added. Again, when

    new Limitation Act was enacted in 1923, Section 10

    .'

    of the said Ac t together wi th relevant recas. Arti-

    cles thereof were retained,inthe same revised form.

    section 10 & the relevant Articles viz. 92 to 96

    are as fOllows :-.

    section 1 o~ Suits 'against trustees and their

    representatives .- Notwithstanding anything contained

    in the foregoing provisions of this Act, no suit

    against a person in whom property has become vested

    in trust for any specific purpose or against his

    .'"

    legal representatives or assigns {not being assigns

    for valuable considerat ion j I for the purpose of

    I I

    -; 60 :-

    following in his or their ha~ds such property, or the proceed thereof, or for an uccourtt of such

    property or proceeds, shall be barred by any length

    of time.

    Explanation- For the purposes of this section any property comprised in a HindU,. Muslim or Buddhist religious or charitable end oWll'le nts shall be deemed to be property vested intrust for a specific pur-

    .-\., .---.

    pose and the manager of the property shall be deemed

    to be trustee thereof."

    L .. () ::

    Part<~ y!-~J. .... suits relat~J1g, to .tr:usts

    'I'rust property A.rticl~s 92 to 96 replaced respectively old Articles 134 (First part) 48 A., (first - part), 134 A, 48 B, 134 B & 134 C. The last two

    ;Artic·les have bee,n·replaced by Article 96 in the

    new Art icle •

    New Ai"ticlesare as'unaer:

    92.

    To recover possession of immovable property conveyed or bequeathed in trust and afterwards trp,nsferred by the trustee for a valuable cons ide r at ion.

    When the transfe becomes known to the plaintiff.

    Twelve years

    93.

    94.

    95.

    -: 61 :-

    To recover possession of movable prope:c.-ty· conveyed or bequeathed in trust and afterwards transferred by the trustee for a valuable consideration.

    To set asine a transfer of irrmov&ble progerty comprised in a Hindu, Musl::'m or Buddhist re::"igjous or chari:cable e nc.owrne rrt , made by a manager thereof for a

    v a Luab Le cons t.de.r a+i on.

    To set as ide a transfer of movable property comprised :Ln a Hindu, Muslin: or BUddhist roligious or charitable e ndowrne rrt , made by a ~anager thereof f0r a valuable consideration.

    by the manager of a ~in~u,Muslim or Buddhist religious or char.itable _;ndcwment to recover possession of movable or Lrnrnov ab Le pro perty oom+ p::isad in the c nd owmer.b vhich has ; . .Jean transferred by a previous manager for a v a.l.ue c Le consideration.

    ThJ_-ee Years

    Twelve years

    Three

    YGars

    Twelve years

    When the transfer becomes known to the plaintiff.

    When the transfer becomes known to the plaintiff.

    When the transfer becomes known to the plaintiff.

    The date of death, resignation or removal of the transferor or

    the data of appointment of the plaintiff as manager of the endowment I whichever

    is later.

    -: 62 ;-

    1.21 Le9i§'!~j:ion§: Legislation has provided for safeguarding the maintenance of religious endowment and for their superintendence and has conferred rights on persons interested to mOve courts or special authorities in respect of breaches of trust and management of such institutions. Such enactments are Religious endowments Act. <xx of 1863); the Charitable and Religious Trustes Act (xIV of 1920); the Madras Hindu

    Religious Endowment Act (II of 1927): The BOmbay Act

    (II of 1863). The Hadras Act of 1927 has repealed

    the Religious Endowment Act , 1863 and the Madras Endowment and Escheat Regulation, 1817 so far as r"Jligious endcwments are co nce.r ned and has consti-:tuted a Board of Hindu Religious Endowmants in the provinCe. ~i virtue of Sac. 73(3) of the Act, section 12 of the civil procedure code has ceased to have application to any suit, claiming any relief, in respect of the adminis~ration or management of a religious institution. It further provides that no

    .. suit in respect of such administration or management shall be instituted except as provided therein. The Hadras Act is virtually a complete c0de in itself. It does not apply to the city of Madras. The

    -: 63 :-

    ~haritable and Religious Trust Act, 1920 enables

    any person, having an interest in any public religious or charitable trust, to apply to the government. level.38 The law has not been codified, though we

    have a~etailed report of the Hindu Religious Endow-

    ment Commission. The state legislations have tried

    to tackle the problem, but it has been able to tackle

    it only on the fringes. In this state of affairs

    there ha~ always been a great temptation to draw

    freely from the English law of charitable trusts. It

    is submitted that this is a pit fall which must be

    avoided. If we would trj to understand the Hindu End-

    owrnent on the analogy of English trusts we are bound to falter. This is so, for the simple reasons, that

    the endowments are not trusts. The Hindu notions of what" are chari table and religious objects differ

    from English notions.

    38. The state statutes are:. The Bihar Hindu Religious Trust Act, 1950. The Madrq.s Hindu Religious and Charitable Endowment Act, 1951; The Puri shri Jagnnath Temple (Administration) Act, 1952. The Bombay Public Trust Act 1950., The Madhya Pradesh PUblic Trust Act 1951, The orissa Hindu Religious EndOWment Act, 1951. The Travancore Cochin Hindu Religious Institutions Act, 1970. The Rajasthan Public Trust Act,1959, The Uttar Pradesh Hindu public Religious Institutions (Prevention of Dissipation of properties) Temporary powers Act,1962, The Andhra Pradesh Charitable and Hindu Religious Institutions and Endo\vments Act,1966.

    -: 64 :-

    1.23 It is nota-worthy that even aiter the commencement

    of the constitution and statutory changes, the courts

    have up-held the 'principles laid down by the privy Council in early tim.as .;, Thus in Deoki Nandan v. Murlidhar 39 t he s~pre;ne court observed:

    Ceremonies relating to"idedication are sankalpa, utsargaand piatistlia. sarikalpa means determination,

    ~ _(.

    :and is reaily aforma.l declaration by the settlor of

    hi:sintenti6n to dadlcate' the property.' Utsarga is formal renunciati'on' by the founder of his ownership in the property, the- result where-of being that it

    -becomes impressed wi th trust for which he dedicates it "If ;utsarga is proved to have been performed, the

    dedication must behaldto have been to the public. utsarga has to be performed only for charitable endowments,like construction of tanks, rearing of groves

    -or :gardens and the".liket and nOt for religious foundation, Pratistha ta.k~s the place of, utsarga in

    : ",

    dedication of temples. Where prathistha i.e. formal

    installation of the~~e:ty is proved, the dedication is complete and valio.':notwithstanding that utsarga

    i.'.

    has not been performed. In Shahazad Kanwar V. Raja

    .~~~.~_ • ......,... .r", 0,,"_ • __ ._._;"' __ ' •• .,.....-._,...,~ .• ~ __ • _,.,._ .• ..- __ -.,_~.,.,- .... , ... .,..-.-.,._ __ • .."...___......._~

    39. AIR 1957 SC 133 at 140.

    --: 65 ,-

    Ram Karan the owner constructed a temple, installed

    a deity and made gift of property, but there was no

    formal dedication. It was held that by making the

    gift and by his conduct the fOunder made the property 40

    devottar. Dedication to charity need not necessarily

    by instrument or grant. It can be established by

    cogent satisfactory evidence of conduct of the parties

    and user of the property which show extination of

    private secular character of the property and its com- 41

    plete dedication to charity •.

    1.24 Dedication may be absolute or partial. It is an

    absolute dedication when the donor divests himself

    of all be ne f Lc i. al :i_nterest in th~ property dedicated

    to the endowment. The d edd c at Lo n is partial when

    only a charge for an endowment is created on the property.42 For instance, the·donor may lay down that

    certain portion ,of income is to be applied for an endowment. In such a case the property will devolve

    , ~r,

    . .

    /~"""""'_"_""__"' __ _';'. __ -'~""._-"~ .. -r- .... _.,......,~ ... .--~. __ .,r- .... ~ ... ._..........",...,.. __ ~ ... _ ...... _..... . .,.~

    40. AIR 1965 SC 254

    41. Dashratha v. Subna Rao, 1957 SCR 1122; AIR 1957 SC 797

    See also Govindalaji v. Stat:e of Raj. AIR 1963 SC 1638

    42. See Dashrath V. $ubba Rao, supra '3.nd S~S. Pilla! v.

    K.S. Pillai AIR, 1972, sarnman! V. Sethusubramania. (1975) ISCJ. 246.

    -: 66 :-

    in an ordinary way, subject to the charge in favour 43

    of the endowment. The 59-me will be true when an

    endowmerrcj, Whether. a debuttor i,s p(U:'tial or absolute depends upon the' 'intention of the settlor. In: ascertaining the intent;ion' 'regard must be. had to the deed

    as a whole and the terms used therein. Grant of right

    of residences to the Shebait in the Temple or a grant

    of a small portion of income fOr his maintenance or

    a direction of accumulation in the deed will not render the endowment as partilll.44

    1.25 The essentials of a valid e.nd'owrnerrt are said to be

    (1 J The dedication must be complete.
    (2 ) 'llhe subject mat'ter must be spec"if ied •
    (3 ) The object must be defini"ce and
    (4) 'rhe settlor must have capacity to make the endowment. The case law on the subjects support the

    view as discussed above. As ragards the status of

    an idol, it is clear that it is a juristic person.

    43. Nirmala V. Balai. AIR 1965 SC. 1874.

    44. Shree V. Sushila 1954 SCR 407, Dashrath's Case &

    sarojni V. Jaynendra, 24, CIJ 241

    1

    I

    I

    -: 67 : ...

    An interesting question. came before the supreme court 45

    in Jogendra Nath V.I.T. Commr. , could the income of

    the diety be liable to income tax assessment. The

    court answered the question in affirmative. Deliver-

    ing the judgment ~f the court, Ramaswami J. said that it should be remembered that a juristic person fa

    the idol is not the materiRI image, but the supreme

    Being. It is also riot correct that Supreme Being of Which the idol is symb~l or image, is the recipient

    and owner of the ded:i..cated property. The correct legal

    position is, the ;learned judge said, that the idol as

    representingand'embOdying the spiritual purpose of the donor; is the juristic person recognised by law

    and in this juristic person dedicated propeEty vests.

    A distinction should be mClde between the legal and

    spiritual aspect of the Hindu idol. Neither God nor

    any super natural being could be a person in law. But

    so far as the diety stands as the representative and

    symbol of the particular purpose indicated by the

    donor, it can figure as a legal person. It is in that

    capacity alone that dedicated property vests in it.

    The Hindu idol is a juristic entity c~pable of holding

    45. AIR 1969 SC 1089.

    -: 68 :-

    property a,nd being taxed through its shebaits who are entrusted with the possession and management of its property. The d8cision lays down that since the accumUlation and exploitation of wealth are the secular aspects of the debuttor endowment, they are liable to taxation. It maY be submitted that the judgement blends nicely the old concept and the modern social need; idol worship is to be preserved but income and wealth of such endowment can not escape the incidence of ta,xation. Though idol is a juristic person and

    in the ideal sense the property vests in it, it is

    not its beneficial owner. The true beneficiaries are the worshippers.

    -: 69 :-

    CHA.PI'ER - SIX

    ..... 'i· .. _

    The constitution of India conferred certain fundamental rights upon the citizens and persons. Thus clause (1)

    of the Article 19 provided that 'all citizens shall have

    the right ••

    (i) To reside and settle in any part .f the terri tory

    of India ( Sub. CI. e).

    (i1) To· acquire, hold and d Ls po se of property (sub. CI.f)

    BUt the states can impose reasonable restrictions on

    these rights in the interests of the general public

    or for the protection of the interest of any Schedu-

    led Tribe (CI.5J similarly Article" 31 (1) provided that 'no person shall be deprived of his property

    save by authority Of law. Then this Article provided

    for the compensation to be determined and given to

    the person whose property is acquired or possession taken of.'

    (2) The land :R~form legislations made by the states wez-e

    challenged before the Courts under these Articles

    and thus parliament took the steps by amending the const'itution to protect such laws from the judicial

    3.

    -: 70 : ...

    review. Although thero is a series of amendments. and

    cases on the point but it is suffice to say that Articles 31A. 31B and 31C read with Schedule IX were

    knserted in protection to such laws. In other words amendments were made in order to achieve the goals laid down under article 38 and 39 which find place among the Directd.'Vc principles of the state policy. Article 31 A provides for saving of laws providing

    for acquisition of est atesei;,c. AI;'~,~cle 31B provides for validation o;{; certi3.in, Act~, Regulat ions, specified in the 'Ninth Schedule. The Raj asthan Tenancy Act ,1955'

    was also inserted in the said schedule vide the

    cerise i tution( Sevent;eent h Amendment ) Act I 1964

    at Item NO. 55. Ultimately although the property

    right as e ns hd r ned , in, .;;rti,cles 19 (1) (f) and 31 \Vere repealed by, the constitution" (Forty fourth) Amendment Act, 1978 w.e ... f.·,20.6.~979 but the same was made as constitut ionalrJgl1-t under Article 300 A as I No person shall be deprived of his property save by authority

    of laws.

    Article 26 of tbeconstitution provides as undcr:-

    12 6. Freedom to ma naqe r9ligious affairs-

    subject to.public Q¢er, morality and health certain religious denomination of any section thereof shall

    .. : 71 :-

    have the right:-

    (a) To establish and maintain insti tut ions for religious

    and charitable purposes.

    (b) To manage its own affairs in matters of religion.

    (c) To own and acquire movable and immovable property.

    and

    (d) To administer such property in accordance with law.

    2. Ever since the 45th session, held at Karachi in

    March, 1931, The lndian Nat ional Congress formulated

    various policies relating to land reforms. In the

    "

    famous Karachi Resolution it was recommended;

    It Substential reduct ion in agricultural rent or.

    revenue paid by the peasantry and in case of unecono~ic holdings exemption from rent for such period as may pe necessary, relief being given to small Zamidar

    b ~ h d t' 47

    whenever necessary y reason o r sUc re uc a.o n ,

    Then some clarifications were made by the congress

    <workinej Committee in regard to that declaration in

    '. J,anuary 1932. Subsequently I however the Indian Nati-

    onal Congress in its 50th session at Faizpur in

    , .

    _ ..... ~ ••. .,..~_.,.._ ~.,-...,-.~ ~~. " .... _._ ...... ~,_, ,.~,., •.•• - - ... _,"~-"'"",,_,.'" " ·.or', '" ... ,..._._,..,. ~r-"",",. •• __ .~_'."'. ·_-,,,, __ ,·~....,.,,..,....·.I,_·.. •.• • -.--:----=-___.._,.

    47 • Resbl~tiotion Economic pOlicy programme and Allied

    matters, 1924'-69,New Delhi, Indian National congress

    -. 72 :-

    December 1936 draw up an agrarian programme which

    said that lithe depending croses has made the burden

    on the peasentry an intolerable one and immediate

    relief is urgently called for." The most of the measures were relating to reduction, exemptiqn and lowering -of rent'orrevenue and irrigation rates .Aboli tion

    of fe,udal levies:, :rern6'\tal of rural debt and fixity oft,enu+",e with': heritable rights etc.

    3.

    The congress Election malhifesto of 1936 reiterCited its declaration made at Karanchi and declared certain

    reliefs to agricultural tenants, peasant propert~s"

    Small landholders' pending the formulation of a fuller

    programme. A l~ational p12mning coromi ttee, under the presidentship of Pancli tJawaharlal Nehru, was constituted in 1936. With' different sub-Committees, including

    one.; ori land policy, the report of the sub-committee

    on Land policy was presented in June 1940. But the

    National planning committee, however, met in September

    and then in November,1945 and resolved as to ownership

    & working of land. The stress was given to collective

    farming and cooperat iva working ••

    48. 1948 Report of the National Planning COmmittee 162 N.PC. Series Report of the Sub-Committee-Land Policy New Delhi.

    -~ 73 :-

    It was further decided that no intermediaries

    between the state and the cultivator should be

    recognised and their rights and titles be acquired

    by the state paying such compensation as may be con-

    sidered necessary & desirable. The Floud Commission

    Report did support the demand for abolition of

    Zamindaris & intermediaries.

    4 •

    The land reform measures could not be carried

    out before world war II but afterwards due weight

    was given to these reforms. The congress manifesto

    for the 1945;-46 election stated explicitly that

    .. The reform of land sy stem which is so urgent ly needed in India involves the remova149 of intermediaries between the peasant and the state. It A special

    cornrnittee-was appointed by the congress in 1947 with

    :. tC--:- -: J .

    Pandi t Jawahar Lal Nehru as chairman to workout the

    'main lines of congress economic policy. 'l'he recomrnendations~l\he committee ~re approved at a special meeting of t'he' -,;11 India Congress Committee in 1948. As regards the agrarian reforms the committee proposed

    ", ':'that,i'all intermediaries between the tiller and the

    49.

    Ibid, 1 P 27

    L (15-1~)

    -: 74 :-

    state should be replaced by no profit taking agencies such as cooperatives. The maximum size of holding

    should be fixed. The su~plus land should be acquired and placed at the dispOsal of the village cooperatives. Small holdings be consolidated and steps be taken to prevent further fragmentation.S-

    5. Congress Agrarian Reforms Committee: Dr. Rajendra

    Prasad, the then president of thaI.N.C., was reque-

    sted at a meeting of the Revenue Minist~rs of the states in December, 1947 t<?appoint a c:ommittee for study and reconrnendat ions as to land reforms. Thus

    the Congress A~rarian Refor.mscornrni1;tee,_ with .~hri

    v" ~ .~;. ",'

    J .C. Kumarappa as its Chairman, w-asappointed.The

    , ,- .,' ;','~ - - -' ',' .

    Kumarappa coromi ttee after detai.,led survey o~ the agrarian relat ions prevailing in the country made comprehensive recommendations in 1949. The main

    recommendat ions relating to our area were .as __ follows:

    (1) Thernain-principlE3s fo~· governing the4grariart policy

    are:

    (a) the agrarianeqqnomyshould be: provided an opportuni ty for the development of the fa.rmers

    personali ty •

    50. Ibid I (P.27) 23-26.

    -: 75 : ..

    (b) There should be no scope of exploitation of one class byanot her.

    (c) There 'should be maximum efficiency of production,

    (d) The scheme of reforms should be within the realm of pract ic abili ty.

    (2) All intermediaries between the state and the

    tiller should be eliminated in order to enhance production and efficiency. There is,no place for intermediaries in India and land must belong to the tiller.

    (3) subletting Of land should be prohibited except in

    the case of widows, minors and other disabled person.

    (4-) Only those who put in minimum amount of physical labour and part ic ipate i;o actual agricultural operationswould be deemed to cultivate personally •

    ..(5) A differentiated approach has to be developed towards land holdings on the basis of the size of the holdin~s.

    (6) A single integrated machinery with regional units oompoaed of different elements- officials, experts,

    and representatives of the people was necessary to

    -: 76 :-

    impart the functicnal character of land administration.51

    6. The Kumarappa committee also evolved concept of three types of holdings viz (a) Economic holdings (b) Basic holdings and (c) Optimum holding. The first is reason-

    able hOlding to provide labour for the family members

    and a pair of bu.Lfoc ks, The basic holdings is below the first but not uneconomic. The optimum holding indica-

    tes towards tb3 maximum limit upon Size which s.~ould

    be imposed' under ceiling laws. (The committee also con-

    sidered'~ltimate pattern 6fagrarian society in India,

    out of the alternative £arms such as capital farming,

    c-,»

    . , _ _'~~·,:'..~.,r - ( __ ,':'_- .- ,.:",.'. __ . _ .-~,';'-\ ..'i:>~_ .. _' ",,,:,.,':?,' ': <~)

    statefarrnlng etc~ The committee' rej ected toe capital

    farming but recornmended':~.it~te anc' cOll~ct;i~e;''-farming

    ~- ;

    forre:c'Ia'frned waste landsonly~t It favdUJZ:ed individual peasant:' :'fatming'tocO"nstitute' the gene,ralpattern of socio-,cconomic stJ;uc~l::lre 'of Indian ag;r:j:p:'ian society. 52 It is,-now recognisedo#a~~ hands tha~~,th.e~umarappa

    commi ttee e xe r'c i sed a considerable inf+l.:+e,I]l9~, on the evolution of land reforms policy in su}:)sequent years.

    ~ ~' r- - ;

    51. Repo.r-t, National corrmf s sjori on Agriculture'. 1976 vo L xv. PP 21. 22.

    52. Ibid PP 23 ..

    -: 77 :-

    7. out of the above propositions we must keep in mind certain basic issues such as sub-letting, personal cultivation and ceiling. Because this paper deals with the problem of land attached to the religious and charitable endowments, how far the respective laws' could effect the lands of su~h institutions is the basic issue at hand.

    8. After these recommendaticns, legislative ~easures were taken for desired ends by the states including Rajasthan. BUt we must keep in mind that the policies relating to land reforms were subjected to some changes in the future Five Year plans on one or the other pr-e t ext , Th'3se may be no ccd in brief as below.

    9. It was recommended in the Firs~ Year plan (1951-56)' that lands under the cultivation of 'tenants at willi may be allowed to be resumed for cultivation by owners or their family members up to three family holdings. It further laid down that tenency should ordinarily be for five to ten years and should be renewable. Thus a right' to resume land, for personal cultivation was opined and sub-letting was also made permissiblG. This was a departure from the Kumarappa

    i d t· 53

    Comm ttee recomrnen a 10ns.

    10. Then a panel of land reforms was set up by the planning commission in May 1955 under the chairmanship of

    Shri Guljarilal Nanda. The panel reviewed, through

    its various sub-committees, the progress of land

    reforms.in the country and made certain positive proposals which influenced, in a large measure, the

    thinking of the planners of the second Five year plan.

    The proposals relevant to the present paper were as

    under:

    (1)

    The panel stressed the need of:iJnposing ceiling on land holdings and, laid down detailed gUidelines. The

    following.categories of land which could possibly qualify for exemption from ceiling~

    Sugar c ane farms. owned by sugar factories:

    (ii) (iii) (Lv )

    Orchards.

    Planuat ions (Tea, Coffee and Rubber);

    SpeCial farms such as cattle breeding, dairy

    farms etc.

    (v ) Fanns in compact blocks. (vi) Efficient farms.

    53. Ibid PP 24- 25

    -: 79 :-

    Mechanised farrns and farms 'with heavy

    investment.

    (2) The panel also recomrnended measures for ej ectment

    of ten?nts on the ground of default, mischeif etc.

    and also for security of tenure of a tenant holding

    land for twelve years period and not cultivated by

    owner during 'che said period but subject to the right to resume for r;ersonal' -bultivationby land lords.

    (3) As regardsdi£ini t:ic.1 of the term pe r s oria L ou L tivation it found that IIm;:=J_ny people v;ho had never engaged

    themselves in actual oper2tion of cultivation and in

    some

    cases were i:i.viI19 i~ distant t ov.ns have resumed

    land by ejecting tenants or, the ground of personal

    _ cqltivation arldgot thel;J_nds cultivated by hired labour or through par+ne r-s r,;mur_erated by a share of 54

    the produce. Thep-::tnel defined three major conditi-

    oris for pe r ac rt.l. cultivat5.on which are:

    (i) (ii) (iii)

    ;:Qsk of cu L t Lv at Lon

    Personal supervision and

    personal labour.

    54. Report of the committeadffirsc panel on land

    reforms- :v. 42.

    -: 80 : ..

    It recommended that while the three should gradually

    be achieved, it is not necessary at thiS stage to

    i-·

    insist upon the Performance of minimum labour i provided the owner meets the entire risk of cultiva.tion,

    lives in the village and personally supervises agricultur al operations. 55

    (4) The panel did not support the idea of a complete

    prohibi tion of leasing of land. It observed that in the existing circumstances complete prohibition

    of leasing is not a practical or even a desirable proposition.56

    (5) It is worthwhile to note that the panel had departed from the v Lews opined by Kumarappa Committee on

    crusial points. Firstly, the element of physical

    labour in personal cUltivation was done away with, secondly, leasing was made permissible. This led

    to the serious-consequences viz. amendment of relevent

    legal prOVisions and survival of absenteeism. Thus a

    set-back was put to the desired g-Oa15 of lqnq to the

    tiller. Parhaps the penel did not address properly to

    the problem and reversed the gear completely.

    55. Ibid. 63

    56. Ibid. 95

    ..... ~1 :-

    11. second Five Year plan (1956-61); The Plan supported the views of the first panel on land reforms as discussed above Qnd thus resumption of land by owners for personal cultivation was permitted under certain conditions. Tenants of nonresumable areas to be made owners. Ceiling to be impOsed and categories of

    farms to be exempted.

    12. The Third Five yG~r plan (1961-66): The plan simply reiterat~d ~he objectives as clready discussed above but stressed the need fOr implementation of the land reform programmes wi t:1out delay.

    13. Fourth Five Year pc Ln (1969-75); The plan reviewed existing lund re£oJ:Tr.s and aCKnuwledged that there were many gaps between objectives 2Jd legislation and the laws and their implementation. It was noted that

    there had been Le a s i.nq of land on a considerable scale. Aft_ r unwritten.. 8ven in areas where intermidib.nry tenures did not exist, and sub-leasing in

    azce s where sucb"tenur€:y existed. The ownership to tenants was conferred to tnetune of 16 percent only and tenents and sha:re-Cropp,~rs' with Lnaeour-e t e nuz-ea waro estimat.:.;d to be 82 percent 6f the total number

    of tenants. :!:n view of the ins~qur:i..ty of informal

    I

    -: 82 : ..

    tenancy and share cropping, the tenant or share -
    cropper was either unable or reluctant to invest in
    inputs. The land owrter also considered it unwise to
    invest for raising agricultural productivity. The plan considered it an essential step forward that a culti-

    vatingt;enant or a sharer should have effective

    security of tenure and the existing tanancies be

    declared non-resumable and permanent.

    The following measures were recommended :-

    (1) Al:l tenancies should be declared non-resumable and

    permanent except in cases of land holders, who are

    serving in defence forces or suffering from a specii

    fied disabilities.

    (2) Where resumption permitted, q uick dd apo s a L of such

    cases should be made, large scale evit.tions on such

    g~ound must be restricted.

    (3) "Voluntary surrenders 1 should be regulated prohibi-

    -

    ting'lahd owners from taking possession of land

    already ten~nted and empowering the Government or

    local authori-tY to settle other tenants thereon.

    (4) Homestead land should be secured completely in favour

    of cultivators, artisans and agricultural labourers.

    (5) security of tenure to sub-tenants should be ensured

    and wrongful evictions are penalised.

    (6) The plan pinpointed several other loopholes in the existing laws and suggested that the ceiling legi-

    slat ion should be throughly re-examined and reoriented to better effect.56

    14. Central land reform committee:

    _-~,_._,_~_._..,., .... ~~ __ ... _._-r. .... _.--.r ~<.--,,_ ",",., "~_- . .,~.,,-. or __ · .. ~·:t.~ ..

    In November, 1969 the Chief Ministers' conference convened by the Minister of Food Agriculture

    emphasised the need for a central Body for watching

    the protyress of land re.forms and providing guidance

    to the ~:t,ate Government s •

    " (In september,1970 a subsequent conference of Chief Mii'd-sters of Land Reforms he..1.<i1. in Delhi, ,which was -also attended by the Prime Minister, decided that

    the entire range of problem connected \vith land

    reform should be ref,erred to a Central Body. Accordingly Labove. committee was constituted under the

    Chairmanship of th-= Union Hinister of Agriculture 57

    with certain terms of reference.

    56. Se3 supra:f. No' 50 PP, 3 6~37

    57. Ibid, 37-38

    I

    -: 84 : ...

    The committee in its meeting held on August 3,

    1971 made t he following recommendat Loris :-

    Ceiling should be .applicable to the family as a whole, the term 'family' being defined .so as to include husband, wife and minor children. In case members exceed five, additional land may be permitted subj ect to the condition that it does not exceed twice the ceiling limit for a family.

    (ii) It also proposed ceiling limits on ~he basis

    of soil classificat ion which might vary between lOt 0 54 acre s •

    Exemption in the existing state laws in favour of mechanised fanns, well-managed farm etc. ~hould be withdrawn and those in favour of plantation of tea, coffee etc. be reexamined.

    15. A high powered committee of nine members was appointed by the COngress President to review the question of ceilings and allied matters relating to land reforms. The issues were considered by it in June,1972.!t generally agreed with the recommendations of the central land ~~forms committee except on the following pointsl-

    -: 85 :-

    The committee disagreed with the view that

    term family should include only the minor child-

    ...

    rene It was of the vie,v that ceiling should be

    'applied to the family '®f five as a suit, consis-

    '. '

    ting of husband, wife and three children

    whether major or minor.

    , , ,.'.~

    (ii)

    It also recommended that to the extent that the

    actual number of members in a family was less

    than five, the ceiling ~hould be reduced by a

    .1"_

    fifth· perpersori.

    (iii)

    It also recommended by for

    (a) rigidly defining plantations •

    (b) Withdrawing blanket exemptions in case of

    1 d h ld b t' t't t' t 58

    an e y trus s 1ns 1 u 10ns e c.

    16. The recommendations of the above two committees

    were considered in Chief Ministers' conference on

    ceiling on Agricultural Holdings held on July 23,

    1972 in Delhi and detailed guidelines were laid

    down. The relevant gUidlines on the sUbject of the

    present paper were as under:

    58. Ibid. 39-40

    - .-'~

    -: 86 :-

    (i) The level of ceiling should be fixed between 18 to 54 acres depending on the nature of land and irrigation facilities.

    (il_' The unit of application of ceiling shall be a

    ..

    -'.-family of five members, the family being defined

    as to include husband, wife and minor children.

    In case, the number of members in the family

    exceed five, additional land may be allowed for

    each member in excess of five in such a manner

    that the total area admissible to the family

    does not exceed twice the ceiling limit for a

    fa-nily of five members.

    (iii)

    Every major son wil~ be treated as a separate

    urn, t for the purpose of 2.pplicat ion of ceiling.

    ·,(iv)

    The existing ceiling laws were to be amended

    in the light of these guidelines and be given retrospective effect from a date not later than

    January. 24, 1971. The onus of proving the

    bonafide nature of any transfeF of land made after date will be on thetJ:"ansferor.

    (v~ As to exemptions it was of the opinion that it

    should continue to plantations of tea, coffee,

    I I

    -: 87 ~-

    rubber, cardamon & cocoa, The state Governments

    at their discretion, may grant exemption to the

    existing religious, charitable and educational

    trusts of a public natura.

    ~i) The institutions or trusts will not be exempted

    from the operation of tenancy law and all till-

    ,

    ers of the land should b3 b.":"ought in direct

    relationship with the trusts or institutions

    to the exemption of all intermediary interests.· No exemption should be allowecl- to private trusts of any land.

    (vii)

    The conference also laid down guidelines for

    ." i

    compe ns at; i;)~l., distr ibution of surplus land and

    for setting up of non-of~icial bodies at appropriate leveli3 & place, competent official organisat.:ibnin order to administer the ceiling legislatlon~

    17. The Draft fifth five year plan emaneted from the

    experience of the actual developments in the coun-

    try in respect of land reforms. It was formulated

    with a very realistic and practical approach. It

    sununed up the achievemen-ts in the field of land

    reforms, the shortfalls in the state legislation,

    , ,

    ~, .

    -: 88 :-

    the gape between policy, legislation and implementation. Thus it was recommended:

    (i) The gaps between the policy, legislation and implementation should be removed on priority basis.

    (i1) Immediate legislative measures were suggested for plugging the loopholes in the existing laws to ensure complete security of tenure, conferment of ownership rights on the cultivating tenants and sharecropgers according to a time bound programme.

    The issue of 'personal cultivation' should be

    (i1i)

    reexarnined'·and the element of 'supervision' involved in personal cUltivation should be exercised by the lar.d owned by being resident of the same village or the adjacent village. Future transfers of agricultural lands should also be confined to persons who reside in the same village or the adjacent village.

    (iv) Though leasing out cannot be totally stopped, yet it should be permitted only in such rare cases as specified disabilities or services in the defence forces.

    II

    ~,

    -: 89 :-

    (v ) Records should be updated SO as to ensure indentificq.t ion of tenants and share-croppers. 59

    So far the

    sixtband seventh five year plans

    are conce rned, s tr'e ss wa.s made upon the implementation

    of the land reforms legislations. No. hew policies were

    introduced. In view of these ,ideals the-states initiated

    :. oj. , ••

    the legislative measures and Lrnp Lernerrtod the same , The

    scope of this paper ~.s to examine the impact of land reform

    legislations upon the lands held by religiou.s and charit-

    able institutions in the statec·of Rajasthan. Tl-}e land

    . >.

    refor.m policies can be summed up as under:

    1.

    Abolition of inter~9diaries and land to the

    .Jc i-l:l(~r.

    2.

    Security of tenures.

    3.

    Imposition of ceiling and distribution of

    surplus la::1ds ..

    Wi th these ideals a.n mi nd let Us

    now examine

    the legislative measures taken in the State of Rajasthan •

    59. -Ibid. 44-46.

    .. • c

    -: 90 : ..

    CHAPrER - SEVEN

    q _0: • ._.,._. _ ... ,,., ..... .,_.

    The first step in thi s direct ion was the enactment

    of the Rajasthan land reforms and resumption of Jagirs Act (Act No. VI of 1952). The object of the Act was to

    provide for resumption of jagir lands and other measures of land reforms. The act came into force with effect from

    60

    18.2.1952. But the implementation of the Act was held

    up by the courts as its validity was challenged by the vested interests at various forms. 61 Simultaniously the I jagirdars also entered into negotiations with the State

    Government and agreed to refer the dispute to the then Prime Minister Shri J'awaharlal Nehru who, in turn, deliv-

    ered the awa.rd in September, 1953. Under the award the

    j agirdars were allowed to resume lands for personal culti-'

    vation if such lands were being cultivated personally by them upto 1948 and there after to tenants who could not

    be ejacted due to protective measures taken by the state.

    60. Vide Notification Nr, F. 4 (314) Rev. 51 dated 16.2.52 published in the Rajasthan Gazette. Ext. No. 157, dated 16.2.52.

    61. Thakur Amar Singh V. state of Rajasthan,AIR 1954 Raj. 291 (F.B.)and AIR· 1955 SC 504 (The writ petitions were dismissed by both the courts)

    -: 91 : ...

    Thus following, the Nehru Award and dismissal of the writ petitions by the Supreme Court of tndia, the

    state Government gradually implemented the provisiOns of

    the Act with effect from 16th Junc,1954. The Act was also

    amended time and again to suit the interest of the Jagir-

    dazs , 'I'he main pr ov i.s Lons of the Act for our purpose are

    'as underl

    (1) 1:'he term Khudkasht was originally defined as to

    "mean" any land cultivated personally by a jljgirdari'. BUt later on the same was amended so as to inClude

    within its purview:-

    (1) The land recorded as Khud}qasht, Sir or Hawala

    in settlement records and

    (1i) any land allotted to C_._ j agirdar as khudkasht under Chapter IV. 62

    "

    2.

    ILaild cultivated personally' with its grammatical v-arlationsCUld cognate expressions means

    land cultivated on one's own account -

    62. The Raj. Land Reforms and resumption of Jagirs Act,

    1952 section 2(1)

    ~: 92 : ...

    (i) by one' s "own Labour-a or

    .(ii) by the labour of any member of one's family,

    or

    by 'servants on wages payable in cash or in "kind (but not by way a share in crops) or by

    hired labour under One's personal supervision

    of :any member of one I s f ami ~y :

    Provided that in the case of a person who is a

    - - ! .

    widow or minor or is subject to any p).1.ysical or mental

    disability or is a member of the Armed Forces:' of the union

    or who being g_~ttldent of an educational institution

    recognised by t he GOvcrrmlent below the age of twenty five years, land shall be deemed to be cultivated personally even in the absence of such personal supervision.63

    (3) 'Jagirqar,' means any person recognised as a Jagir-

    dar unde r+eny existing Jagir law.and includes a

    , .. ' .... , .

    grante~ oJ.J.agirlahdfrom a Jagirdar.64 and

    (4) lJagir Larid ' means any land in whi.ch orin relation

    to ~hich a, Jagirdar has rights in respect .of Land revenue or any other kind of revenue and included

    63. Ibid. Section 2 (K).

    64. Ibid. Section 2 (9).

    -: 93 :-

    any land held on any of the tenures specified in the First schedul~.65 The First Schedule enumerates

    forty four types of Jagir lands including Muafi.

    3.

    'The basic features ,of the Act may be summarised

    as under:

    (1) all j ag:1.r lands were made liable to payment

    of land revenue to the state Government as

    from t:h~ 'commencement of the Act. So also

    the liabilities of all jagirdars or grantees

    of the jagirdars to pay tributes or any s~m

    to the oove rtment; or to Jagirdars respecti-

    ve Iy ceased from ,9uch date. This provision

    was not appiicable to the Jagir lands having

    annual rental income Le.s s than Rs., 5,00/- or

    -.,

    the income of ,which was utilised for th,{

    maintenance of educational or charitable or

    any place ,of religious worship or such ser-

    vices., so .a.Lso principles and procedure for

    assessment of land revenue were also laid down for settlE:d"and unsettled villages. 67

    . .'~ -" '"

    .... ........._"~>-.~-.-- •• ~ ...... , ... .......,..._...~...,._.,...,..,~-.~- .. --- . ....-,.,.-:-,~-.-._,..~,__ ........ ___..........,,.--...,...--,_ ....... ...".-. ,_ .• ....,. .. --,- _. '''''--''_,'',

    65. Ibid, Section 2 (h)

    66. Ibid, S.4 (i) 'arid proviso.

    67. Ibid, SS 5 to 8

    " .

    -t 94 :-

    (2) Eve.ry tenant in a, Jagir land who at the

    encement of the Act was entered in the

    rev~nue records as a Khatedar, Pattedar,

    Khadamdar or under any description implying thereby that he had heritable and full trans-

    ferable rights in the tenancy continued to

    hold such rights in the tenancy and became

    Khatedar tenant. But the Jagirdars were

    conferred Khatedari rights on theirKhudke.strt i-and'as from the date of resumption and

    , .

    were made liable to assessment at the village

    68

    z atre se .ir:

    ,". i

    The>i1agirs were not resumed automatically

    _.J ••

    on the date of corrrne ncemerrt of the Act. For

    the actual resumption of a Jagir or classes ,of Jagirs , a date had to be notified by the state Government under Section 21 of the Act.

    From the date of resumption the various

    ;-rights of the Jagird ar s in respect of Jagir

    Land, :porests, trees, wells, village sites,

    minerals etc. st:ood resumed to the state

    free from all encumbarences whatsoever.

    68. Ib1d, SS, 9-10 respectively.

    "

    Related Interests

      1i th the

      revival of Hindusim between 4th century and 8th

      century A.D. there came into existence the institu-

      tion of Hath. In India the institution of Math is

      essentially a contribution of Buddhism. In the eighth century A.D. was born the great Shankaracharya who ·established Maths <1t the four extermities of India3•

      After the great Shankaracharya the hameof Rama.nuja

      1 holda a place of pride on the development and spread

      of the institution of Haths. Shankaracharya pro-

      3. The Jyotir Maths, Badrinath Hath in the no r t h , the sarda math in Gtij arat, the sringeri ·mathin' sounh and the Gobardhan math at P uri in east.

      ... : 42 :-

      pounded a theory of pUra-monism but Ramanuja pro-

      pounded the philosphy of qualified mond sm s The fo11-

      Owers of Ramanuja are known as sri Vaishnavas. After

      the death of Ramanuj a several sects .and sub-sects of

      Vaishnavas carneinto existence. Shankara and his follow-

      ers were not in favour of ascetic life for sudr~s, but

      in course of time, sudra maths also came into existence.

      With the coming into existence of maths, properties

      began to be dedicated to Maths.

      1.3

      Gifts for religious and charitable pUrposes had

      amongst the Aryans their source in charity and the

      desire to acquire religious merit. They fall in two

      divisions ; Kstha and purtta. the former meant sacri-

      fices & sacrificial gifts and the latter meant char-

      ities. The former led to heaven and the letter provi-

      ded relief to the sick, the establishment of proce-

      ssions for the' honour of deities and so on. Gifts for

      the promotion of education and knowledge are specially meritorious 6.

      1.5 According to English Law -'Charitable trusts in the

      legal sense comprise four principal divisions :-

      (i) Trusts for t he relief of poverty

      (2) Trusts for the advancement of education.

      7. Halabury's law of England, 2nd Ed., 109-10

      -: 43 :--

      (3) Trust for the advancement of religion and

      to the c0mmunity not falling under any 7

      of t he preceding heads •

      All charities to be administered by the

      court must fall within one or other of

      these divisions but not every obj act

      which falls withint hose divisions is

      charitable unless it is of a public nature

      intended to benef it the communi ty or some

      part of it and not melfely private individuals or c La s s of private ;i.ndividuals8•

      , ,

      1.6 The Courts in India in relation to Hindu wills and gifts

      adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term charity in the statute of Elizabeth9• All pu r-poaes which are chari table accord-

      ing to Eng lish law will be charitable under Hindu law#

      7. Halsbury's law of England, 2nd Ed., 109-10

      . --, .. ~.,

      8. Re Macduff, (1896) 2ch. 451. 466 CA. Re Topham(1938}

      i All ER l~l, 195.

      9 • University of -Boml:iay v e' Hunicipal cormu s s i onar I Bombay (1892) 16 Bom 217; Monic V. scott (1919) 43 Born 281. 292.

      -: 44 : ..

      but in addition under the head of advancement of

      religion. there are other charitable obj ects in

      Hindu law which will not be charitable according

      to English law, for that law forbids bequeats for

      superstitious uses, a restriction which doe5 not

      apply to grants of this c haz ac t e r in India even in the" presidency towns 10 and such grants have been repeatedly e nr.or ced by the Privy council11• What are

      religious purposes and what religious purposes will

      be ch'2.ritable must, of course,be entirely decided

      according to Hindu law and HindU notions.

      1.7 The def.ini tion of charitable purpose in the charitable endowments act (VI of 1890) includes relief

      to poor" education, medical relief I and the advance--mentof any other object of general public utility

      \ but does not include a purpose which relates exclusively to religious teaching of \,vorship12. The civil

      . profedure code of 1908 "refers to public purposes of charitable or rei:i.gious.natur~ and the charitable and

      10.Ganpathi Iyer, Hindu. and MU,lamedan religious Endowments (1918) 196-197.

      11.Sonatun by sack V. Inggusoondred (1859) 8 11.1 ~A. 66.

      12. The Charitable Endowments Act. 1890, section 2.

      ... : 45 :-

      religious trusts Act (XIV) of 1920 refers to trusts created

      or existing for a public purpose of a charitable or relig-

      ious nature. The Transfer of property Act, 1882 defines in

      effect public religious and charitable trusts as transfers

      of property f o r+ t he benefi t of the public in the advancement

      of religion, knowledge, commerce, health safety or any other

      b' t b f' 1 k' d 13

      o J ec ene Lc i a to man a n •

      1.8 A charitable or religious endowment in order to be charity

      in the )eg<1l sense wi 11 have to be for purposes of a public nature, Ln other words for the benefit of the community or

      some part of it, otherlVise, it will be private trusts. A

      trust is none the less a. trust f oz a public purpose if its

      main object is I in f?ct J tna support of fakirs of particu- 14 lar sect and the propogation 'of the: tenets of that sect •

      . ' The distinction in Hindu law be t we e n ~eligious and cha.rit- 15

      abl e endowments .. in a modern one.

      1.9 Re:lig ious endowment s are of two ki nd s I public and private.

      I na public endowments the dedicat ion is for the use or

      13. The Transfer of Property Act, S. 18

      14. Puran Atal V. Darshan Das (1912) 34 All 468

      :> ..

      15. Manohar Mukerji V. Bhupendranath (1933) 60 Cal

      452, 475.

      1

      -: 45 :-

      benefit of the public. aut where property is set

      apart for the worship of a family god, in which the

      public are not interested, the endowment is a priv-

      ate one. The family idols are not however chattels

      or the prope~ty of the family. They are legal entities having, within limits, independent rights.16

      J

      1.10

      Requests to idols and temples are not invalid for transgressing the rule which forbids the creation of perpetuities. It being assumed to be a principle of Hindu law that a gift con be made to an idol, which isa 92.Pul .... !!l%~_y,~~ and incapable of alienating, you can not break in upon that principle by engraft ing upon it the English law of perpetutles.1

      1.11

      With this background in mind let us now see objects

      of religious and charitable endowments.

      (1) -Religious endowments: Gifts for the installation,

      consecr'at Lori, worship and service of idols & gifts

      to idols already installed and consecrated, gifts

      for building and renovation of temples, for the

      1 6. (1925) 5 2 I.A 245.

      17. Kumars As ima V. KUI'nar Krishna (1859) 2 13.L.R

      (OCJ) 11 Urafulla Chandra V. Jogendra Nath (1905) 9 CWN 528.

      -: 47 :-

      precession of idols and their vehicles for religious festivals,18 in other words, Gifts to religious ins-

      titutions for religious purposes of ~very kin are valid religious endowments. Thus Maths are in the

      main religious institutions. The primary purpose is

      the maintenance of a competent line of religious

      tea~hers for the adv?ncement of religion and partly for promotion of religious knowledge, the imparting o~spiritual instruction to the disciples and followers of the math and the mainte!lance of the doctr-

      ines-of particular schools of religion or philssophy.

      Though "there are idols connected with the maths,

      their-worship is quite a secondary matter. In addi-

      tien to religiouS instruction, other Qharitable

      purposes are also served by these insti tnrtLoris ,

      some-of thesemaths being more charitable than relig Lous , 'l'henature and origin of these institutions

      were described in sammantha pandars V. Sellapa chetty19

      18. Vaithilinga V. Samasundara (1893) 17 Mad.199 see also Bhupati nath V. Ram Lal Maitri, (1910) 37 Cal 128

      F .B.i Mohar sIngh V. Het Singh (1910) 32 All 337

      (to complete a temple and - mai rrt ad n an idol),

      Khub Lal V.AjodhYa Missir (1916) 43 eel 574 (Completion of temple buildings.)

      19. (1879) 2 Mad. 175

      : ... ' ..

      (2 )

      -: 48 :-

      as" Preceptor of religious doctrine gathers around him a number of disciples, whom he initiates into the particular misteries of the order, and instructs in its religious tenents. such of these disciples

      as intend to become religious te2chers, renounce their connection with their family and all claims

      to the L:unily we a Lt h and as it were, 2ffiliate themselves to the spiritual teacher whose school they have entered. Pious persons endow the schools with property which is vest in the preceptor for the time being, and a home for the school is erected and a matham constituted, the property of the matham does not descend to the disciples or elders in common, the preceptor, the head of the institution, selects among the affilliated disciples whom he deems the mose competent 2nd in his own life time installs the:disciple, so selected, as his successor, not uncommonly with some ceremonies. After the death of the preceptor the disciple so chosen is installed in the gaddi ,. and takes by succession the property which has been held by his predecessor.

      Illustrations of cequests for charitable purposes arathose for s.adavart s I dharmasa.1a s, rest houses and annasatrams ( choultries ) for feeding

      -. 49 :-

      the poor, for the establishment and support of

      schools, college and universities, for dispensaries'

      ~nd hospitals, for medical help to the sick and the

      infirm, for the construction and maintenance of

      tanks, wells and reservoirs of water & for the pro-

      vi sion of drinking \f'1ter for men and animals and so 20

      on.

      1'2

      Where the dedic;:>.t ion is of the completed

      character, the property comprised in it belongs to

      the idol or the religious Or charitable foundation

      conceived as a juristic person capable of taking and ho Ld Lnq property. 21

      The possession an~ management of tha dedicated

      . -~ .. ",'

      property and the right to sue in respect of it

      are vested in the manager, dhu.rmakarta, or shebait.

      A suit respect ing theprope.rty in which the idol is

      interested is properly trought and defended in the

      name of the idol, a.lt hotaqh ve.x ne cee i.a't e the proceed-

      ings in the suit must be carried on by some person

      20. Jamanabai V. Khim 3i (1890) 14 Born. 4 other cases.

      21. J2lunath V. Thakur Sita Ram Ji, (1917) ~4 I-A. 187.

      -: 50 :-

      who represents the idol, usually the manager of the temple in which the idol is installed.22 But it is

      permissible to file a suit in the name of the idol

      where the shebait has not been appointed, the court

      appointing some person to act as the guardian ad -

      litem of the idol. Where there is a breach of trust,

      or the shebait claims adversely to the idol it is

      necessary that the idol should be represented by a

      disinterested next freind. In pramatha Nath Mullick

      v. predyumna Kumar Hullick, where the appellant

      claimed the right to remove the image during his

      terms of workship, their lordships held that the

      will of the diety as reg~rds its location must be

      respected and the suit was remitted in order that

      the image might appear by a disinterested person to be appointed by the court.23 In this case the privy

      council also observed that "A Hindu Idol is, accor-

      ding to long established authority founded upon the

      religious custom of Hindus and the recognition

      there of by courts of law, a juristic antity. It has

      a juridical status with the power of suing & being

      22. Jodhi Rai V. Basdio Prasad (1911) 33 All 735 F.B.

      23. (1925) 52 I.A.345.

      ., •.

      )~'

      sued. Its interests are attended to by the person whQ has the diety in his ~harge and who ip in law j,ts _manager with all the power which WOuld, in such

      circumstances on analogy" be given to the. manager of theestai::e of an infant heir".

      Position of a Shabait, manager or dh<:lrmakarta:

      The' manace r of a temple is by virtue of his office ,

      the administrator of the propeJ;ties attached to it, as regards to which he is in the position of a tru-

      s+ee , As regards the service of the temple and the duties pertaining to it, he is rather in the posi-

      . tion6f the holder of an ~ffice of dignity. 24 The position ofa dharmakarta of a public temple is not

      .. ',.. -

      that; Of a shaba:i.t or puj ari of a shrine or of the

      head of a math. Those funct ionaries have a much

      higher right with larger power of disposal and adm-

      . inistratibn and they have a personal int;erest of a

      " .

      beneficial chara.cter. The Dharmakarta is literally

      no more than the manager of a charity and his rights.

      are never in a'higher legal category than that of 25

      a mere trustee. The shebait is one who serves and

      24. Ramanathan Chetti V. MarugappaChetti (1906) 33 I eA. 139.

      25. srinivasa chariar V.EVALAPPA HUDALIER. (1922) 49 IA 237

      -. .. .-

      -; 52 :-

      sustains the diety whose image is installed in the shrine. The duties and'privileges of a shebait are

      primarily those of one who fills a sacred office.

      Shebaitship in its true conception, therefore, in-

      volved two ideas, the ministrant of the diety and

      its manager. It is not a bare office, but an office with certain rights attached to it.

      The p031tion of a shebait, dhatmakarta or

      manager cf a temp2.e or other religious institution towc.rds debuttar property is not similar to that in

      England of trustee towards the trust property. It is only that certain duties have to be performed by him which are analogous to those of trustees. 26 They have not the legal property which is vested in the diety or the institution. ~<;ach of them has only

      the title of a manager of a religious endowment

      and ls, as such, eLtitled, sUbject to usage, to the custudy of the idol and its property.27

      1.14

      The right of a shabait or of a priest to offerings

      made to an idol naturallY depends upon the nature

      -_ .. ----.._-..._..,_,....,_..."..., _I ,.-.,__.'.--.,.-.-_ _,~._""" __ .. .......---. ,..__._._.-~ .. _.

      26. Nagendranath palit v. Robindra, (1925) 53 Cal. 132.

      27. Manohar Mukerjee V. Bhupendra Noth Mukerjee (1933) 60 Cal. 452. FB.

      of the offerings in the absence of a custom or an express declarat;j.on by the founder to the' concr ary , When they 'are of ,:3, permanant character ,theyordin-

      28

      arily belong to the temple. Where they 'are

      pe z'Ls hab Le they may be appropriated by the'priest 29

      or other pez s on entitled to it by custom.

      1.15

      Borrowing and alienations for necessity: The posse-

      .s s Lon and me naqemerrt of the property of a religious

      endowment .be Lonq .. .t o the manager, 'dharmakarta or

      shebait arid this carries with'it the right to bring

      whatever suits are neces s ary for. the protection of

      the properi:y. H~ is bound to do whatever is necess-

      ;.'

      ;,.,>. ar¥ for the benefit or ptese~vation of the proper-

      ',.,

      "'-.

      ties of the LdoL, Therefore they are competent to

      incur debts and borrow money for the prbperexpen-

      ses of keeping up the religious worship, repairing the temples, or other possessions of the idols,

      insti tut ion or defending' hostile litigious attacks and to prevent the endowed properties from being

      brought to:sale in execution of decrees binding

      . .

      28.. KUmar Aswanf, V. Lakshmana (1930) 53 Med. 608 29. Gangadhar Mudali V. Daraisami (1937) Man 975

      .; ....

      '.

      -: 54 :-

      upon the institutions.30 The authority of the man-

      ager of an idol's est ate would appear to be in

      -this respect, analogous to that of the manager for

      an infant heir whose power to alienate can only be

      exercised rightly in a case of need or for the be- 31

      nefit of the estate. Thus borrowing for dischurge

      of prior mortgage and payment of legitimate expenses

      of temple is valid. For an absolute alienation of

      d.;;;buttor property there must, it would seem, be an

      comparative necessity constraining the manager to make : it. 32

      1.16

      Permanent leases by manager, shebai t are invalid. 33 In palaniappa chatty V. sreemath Daivasikamony.

      Lord Atkinson observed, "Three authorities have

      been cited which established t.lat it is a breach

      of duty on the part of a shabait, unless constrained

      thereto by unavoidClble necessity, to grant a lease in perpetuity of debuttar lands at a fixed rez:1t,

      _______ -.-. ... ............--. .,. .• ....-,_ ... ~ __ __.._-_, __ 'I"-' .... ~_ ... --.r:--o __ ...,._ ••. _.,.,. .- ........ _, .. .... _~ __ ~

      30. Jogendra Nath v, Hemanta KUmari (1904) 31 I eA. 203.

      31. Premdas V. Sheo Prasad, AIR 1934 Nag. 222.

      32. Ananta Krishna Shastri V. prayag Das (1937) 1 Cal. 84 (Where all the cases are discussed)

      33 .. (1917) 44 I.A. 147.

      I I

      -; 55 :-

      however adequate that rent may be at the time of

      granting, by roason of the fact that bY this means,

      the debutter is deprived of the chance ·it would

      have, if the rent wer~ varinble, of deriving bene-

      fit from the onhGDcement in value in the future of

      the lunds leased.

      1.17 fosition of the head of n math i.o. Mahanta; As

      regards the class of institutions knownas maths, particularly in south India, there have been confli-

      . .

      cting views as to whether the head of a math is a

      trustee or a corporat ion sole. I twas sett Led that

      he is neither the one no r the other, he is simply

      the manager of an institution with wider powers

      than those possessed by a dharmakartu., manClger or

      trustee of a temple. It was held by the privy coun.' 34

      cil that "the head of ·:1 m atrh is not a truste.e with

      regard to its endowments I save as to any specific

      property proved to have been vested in him for a

      specific and definite object. It added 'Called by

      whatever name, he is only the manager and custodian

      of the idol or the institution. In almost every case

      he is given the right to a part of the usufruct,

      34. Vidyav2.netl1i V. Balusami (1921) 48 IA. ·302

      -: SIS :-

      the mode of".enJoyment and the arnourrt of the usu-

      ,'.', .. - ""'- ..

      fruct depending~gairi on usage and custom. In

      no case was the property conveyed to or vested

      in him, nor is he a trustee in the English sense of the term, although in view of the obligations

      and duties resting on him. he is answerable as a

      trustee in the. general sensei formal administration"

      1.18

      As regards sUits' to set aside alle,hations and to recover propert;i..~s of such insti tut ions, in

      vidyavaruthi V • Balusami and inponnambala Desikar V. Periyanan Chetti 36 it was further held

      that in the case of' a po.rmane nt; lease; acceptance of rent by a successor of the transferor, who

      made the invalid alienation, would create a. new

      lease for the life of the seccessorsothat adv-

      erse possession could run against the institution on Iyrcn his death. Where , however, no such infer-

      enee of a new lease could be made, the possession

      would be adverse from the termination of the

      office of the transfer •. Where# however, a temple

      and its properties or a math and its properties are sold I the alianation will not be good for the

      36. (1936) 63 I.A. 251 •.

      I I

      -. 57 :-

      life of the transferor and adverse possession will commence to run from the date of the alienation as it is a destruction of the entire trust. The alienat ions of endowed propert ies

      can be set aside not only by his successor but also by persons interested in the endowment

      Gven during the life time of the alienor. The above deci s Loris were all given under the law as it stood before the amendment of the limitation Act in 1929. After the amendments of sections

      10 and articles 134 A and 48 B of the Limitation Act I which make the manager of the e ndowme n t a trustee in whom the property is vested, have

      not only effected a change in the law of limitat Lon but have given statutory recognition to

      the view that manager is in law a trustee, at least for the purpose of alienation, and for

      the purpose of following the property of the

      institution. TheY recognised the right of persons
      interested in the institution to have the alien-
      ation made by the manaqe r set aside altogether during his lif~. l~ would seem, therefore, that an alienation will not bind the institution in

      t he absence of necessity or benefit aven during the term of office of the alienor.

      1.19

      -: 58 :-

      In. this regard it would be worth noting the

      views of Hon'ble shri B.K. Mukherjee in his

      H.indu law of Religious and Charitable Trusts (Fourth Edition - P.307) as under "Position

      be£qre 1929 - to recapitulate in brief, prior to vidyavaruthi's case37 a shebait or Mutawalli

      was treated as a 'trustee' within the meaning of

      Article 134 of the Limitation Act of 1908. Debu-

      . j;tee and, alienations by him of the Debutter or _. w~l<f .property were held to be governed by that

      article .• The Privy

      council having overruled

      that view in vidy~varuthi's case, suohcases

      tall thereafter to be decided on the foc:jling that the +esiduary.~ticle 144 applies. By the amending Act 1 of 1929 (addi..ng a new paragraph to section 10) managers offelig_iou_s and charitable e ndowmerrt s (,shebai ts etc) were placed in

      the same position as express truste~s,apc:i p.li_c ena;t.ion~ by.~hem were specially provided for

      by the new Articles 48 B. 134 A, 134 Band 134C.

      ThG operation o_fArticle 134 was, therefore I in

      .-._) < '-I

      general, restricted .t o cases of mortgaged

      37.

      See para 1. 18 Supra.

      I I

      1.20

      -: 59 ;-

      property and ordinary (i.e. secular) trusts, The

      following .r'e conme nde't t o ns of the civil Justice committed may be noted in this connection.

      HIn view of ce r+e i n recent decisions I the alienat ion

      of property vested 1il the hand of a religious inst-

      itution raises special problems for limitation

      purposes and should be specially provided for. II

      In pursuance of this recommendation. in section 10

      of the Indian Limitation Act 1908, the second para-

      graph was added by Act 1 of 1929 and new Articles

      134 AI 134 B, 134 C were also added. Again, when

      new Limitation Act was enacted in 1923, Section 10

      .'

      of the said Ac t together wi th relevant recas. Arti-

      cles thereof were retained,inthe same revised form.

      section 10 & the relevant Articles viz. 92 to 96

      are as fOllows :-.

      section 1 o~ Suits 'against trustees and their

      representatives .- Notwithstanding anything contained

      in the foregoing provisions of this Act, no suit

      against a person in whom property has become vested

      in trust for any specific purpose or against his

      .'"

      legal representatives or assigns {not being assigns

      for valuable considerat ion j I for the purpose of

      I I

      -; 60 :-

      following in his or their ha~ds such property, or the proceed thereof, or for an uccourtt of such

      property or proceeds, shall be barred by any length

      of time.

      Explanation- For the purposes of this section any property comprised in a HindU,. Muslim or Buddhist religious or charitable end oWll'le nts shall be deemed to be property vested intrust for a specific pur-

      .-\., .---.

      pose and the manager of the property shall be deemed

      to be trustee thereof."

      L .. () ::

      Part<~ y!-~J. .... suits relat~J1g, to .tr:usts

      'I'rust property A.rticl~s 92 to 96 replaced respectively old Articles 134 (First part) 48 A., (first - part), 134 A, 48 B, 134 B & 134 C. The last two

      ;Artic·les have bee,n·replaced by Article 96 in the

      new Art icle •

      New Ai"ticlesare as'unaer:

      92.

      To recover possession of immovable property conveyed or bequeathed in trust and afterwards trp,nsferred by the trustee for a valuable cons ide r at ion.

      When the transfe becomes known to the plaintiff.

      Twelve years

      93.

      94.

      95.

      -: 61 :-

      To recover possession of movable prope:c.-ty· conveyed or bequeathed in trust and afterwards transferred by the trustee for a valuable consideration.

      To set asine a transfer of irrmov&ble progerty comprised in a Hindu, Musl::'m or Buddhist re::"igjous or chari:cable e nc.owrne rrt , made by a manager thereof for a

      v a Luab Le cons t.de.r a+i on.

      To set as ide a transfer of movable property comprised :Ln a Hindu, Muslin: or BUddhist roligious or charitable e ndowrne rrt , made by a ~anager thereof f0r a valuable consideration.

      by the manager of a ~in~u,Muslim or Buddhist religious or char.itable _;ndcwment to recover possession of movable or Lrnrnov ab Le pro perty oom+ p::isad in the c nd owmer.b vhich has ; . .Jean transferred by a previous manager for a v a.l.ue c Le consideration.

      ThJ_-ee Years

      Twelve years

      Three

      YGars

      Twelve years

      When the transfer becomes known to the plaintiff.

      When the transfer becomes known to the plaintiff.

      When the transfer becomes known to the plaintiff.

      The date of death, resignation or removal of the transferor or

      the data of appointment of the plaintiff as manager of the endowment I whichever

      is later.

      -: 62 ;-

      1.21 Le9i§'!~j:ion§: Legislation has provided for safeguarding the maintenance of religious endowment and for their superintendence and has conferred rights on persons interested to mOve courts or special authorities in respect of breaches of trust and management of such institutions. Such enactments are Religious endowments Act. <xx of 1863); the Charitable and Religious Trustes Act (xIV of 1920); the Madras Hindu

      Religious Endowment Act (II of 1927): The BOmbay Act

      (II of 1863). The Hadras Act of 1927 has repealed

      the Religious Endowment Act , 1863 and the Madras Endowment and Escheat Regulation, 1817 so far as r"Jligious endcwments are co nce.r ned and has consti-:tuted a Board of Hindu Religious Endowmants in the provinCe. ~i virtue of Sac. 73(3) of the Act, section 12 of the civil procedure code has ceased to have application to any suit, claiming any relief, in respect of the adminis~ration or management of a religious institution. It further provides that no

      .. suit in respect of such administration or management shall be instituted except as provided therein. The Hadras Act is virtually a complete c0de in itself. It does not apply to the city of Madras. The

      -: 63 :-

      ~haritable and Religious Trust Act, 1920 enables

      any person, having an interest in any public religious or charitable trust, to apply to the government. level.38 The law has not been codified, though we

      have a~etailed report of the Hindu Religious Endow-

      ment Commission. The state legislations have tried

      to tackle the problem, but it has been able to tackle

      it only on the fringes. In this state of affairs

      there ha~ always been a great temptation to draw

      freely from the English law of charitable trusts. It

      is submitted that this is a pit fall which must be

      avoided. If we would trj to understand the Hindu End-

      owrnent on the analogy of English trusts we are bound to falter. This is so, for the simple reasons, that

      the endowments are not trusts. The Hindu notions of what" are chari table and religious objects differ

      from English notions.

      38. The state statutes are:. The Bihar Hindu Religious Trust Act, 1950. The Madrq.s Hindu Religious and Charitable Endowment Act, 1951; The Puri shri Jagnnath Temple (Administration) Act, 1952. The Bombay Public Trust Act 1950., The Madhya Pradesh PUblic Trust Act 1951, The orissa Hindu Religious EndOWment Act, 1951. The Travancore Cochin Hindu Religious Institutions Act, 1970. The Rajasthan Public Trust Act,1959, The Uttar Pradesh Hindu public Religious Institutions (Prevention of Dissipation of properties) Temporary powers Act,1962, The Andhra Pradesh Charitable and Hindu Religious Institutions and Endo\vments Act,1966.

      -: 64 :-

      1.23 It is nota-worthy that even aiter the commencement

      of the constitution and statutory changes, the courts

      have up-held the 'principles laid down by the privy Council in early tim.as .;, Thus in Deoki Nandan v. Murlidhar 39 t he s~pre;ne court observed:

      Ceremonies relating to"idedication are sankalpa, utsargaand piatistlia. sarikalpa means determination,

      ~ _(.

      :and is reaily aforma.l declaration by the settlor of

      hi:sintenti6n to dadlcate' the property.' Utsarga is formal renunciati'on' by the founder of his ownership in the property, the- result where-of being that it

      -becomes impressed wi th trust for which he dedicates it "If ;utsarga is proved to have been performed, the

      dedication must behaldto have been to the public. utsarga has to be performed only for charitable endowments,like construction of tanks, rearing of groves

      -or :gardens and the".liket and nOt for religious foundation, Pratistha ta.k~s the place of, utsarga in

      : ",

      dedication of temples. Where prathistha i.e. formal

      installation of the~~e:ty is proved, the dedication is complete and valio.':notwithstanding that utsarga

      i.'.

      has not been performed. In Shahazad Kanwar V. Raja

      .~~~.~_ • ......,... .r", 0,,"_ • __ ._._;"' __ ' •• .,.....-._,...,~ .• ~ __ • _,.,._ .• ..- __ -.,_~.,.,- .... , ... .,..-.-.,._ __ • .."...___......._~

      39. AIR 1957 SC 133 at 140.

      --: 65 ,-

      Ram Karan the owner constructed a temple, installed

      a deity and made gift of property, but there was no

      formal dedication. It was held that by making the

      gift and by his conduct the fOunder made the property 40

      devottar. Dedication to charity need not necessarily

      by instrument or grant. It can be established by

      cogent satisfactory evidence of conduct of the parties

      and user of the property which show extination of

      private secular character of the property and its com- 41

      plete dedication to charity •.

      1.24 Dedication may be absolute or partial. It is an

      absolute dedication when the donor divests himself

      of all be ne f Lc i. al :i_nterest in th~ property dedicated

      to the endowment. The d edd c at Lo n is partial when

      only a charge for an endowment is created on the property.42 For instance, the·donor may lay down that

      certain portion ,of income is to be applied for an endowment. In such a case the property will devolve

      , ~r,

      . .

      /~"""""'_"_""__"' __ _';'. __ -'~""._-"~ .. -r- .... _.,......,~ ... .--~. __ .,r- .... ~ ... ._..........",...,.. __ ~ ... _ ...... _..... . .,.~

      40. AIR 1965 SC 254

      41. Dashratha v. Subna Rao, 1957 SCR 1122; AIR 1957 SC 797

      See also Govindalaji v. Stat:e of Raj. AIR 1963 SC 1638

      42. See Dashrath V. $ubba Rao, supra '3.nd S~S. Pilla! v.

      K.S. Pillai AIR, 1972, sarnman! V. Sethusubramania. (1975) ISCJ. 246.

      -: 66 :-

      in an ordinary way, subject to the charge in favour 43

      of the endowment. The 59-me will be true when an

      endowmerrcj, Whether. a debuttor i,s p(U:'tial or absolute depends upon the' 'intention of the settlor. In: ascertaining the intent;ion' 'regard must be. had to the deed

      as a whole and the terms used therein. Grant of right

      of residences to the Shebait in the Temple or a grant

      of a small portion of income fOr his maintenance or

      a direction of accumulation in the deed will not render the endowment as partilll.44

      1.25 The essentials of a valid e.nd'owrnerrt are said to be

      (1 J The dedication must be complete.
      (2 ) 'llhe subject mat'ter must be spec"if ied •
      (3 ) The object must be defini"ce and
      (4) 'rhe settlor must have capacity to make the endowment. The case law on the subjects support the

      view as discussed above. As ragards the status of

      an idol, it is clear that it is a juristic person.

      43. Nirmala V. Balai. AIR 1965 SC. 1874.

      44. Shree V. Sushila 1954 SCR 407, Dashrath's Case &

      sarojni V. Jaynendra, 24, CIJ 241

      1

      I

      I

      -: 67 : ...

      An interesting question. came before the supreme court 45

      in Jogendra Nath V.I.T. Commr. , could the income of

      the diety be liable to income tax assessment. The

      court answered the question in affirmative. Deliver-

      ing the judgment ~f the court, Ramaswami J. said that it should be remembered that a juristic person fa

      the idol is not the materiRI image, but the supreme

      Being. It is also riot correct that Supreme Being of Which the idol is symb~l or image, is the recipient

      and owner of the ded:i..cated property. The correct legal

      position is, the ;learned judge said, that the idol as

      representingand'embOdying the spiritual purpose of the donor; is the juristic person recognised by law

      and in this juristic person dedicated propeEty vests.

      A distinction should be mClde between the legal and

      spiritual aspect of the Hindu idol. Neither God nor

      any super natural being could be a person in law. But

      so far as the diety stands as the representative and

      symbol of the particular purpose indicated by the

      donor, it can figure as a legal person. It is in that

      capacity alone that dedicated property vests in it.

      The Hindu idol is a juristic entity c~pable of holding

      45. AIR 1969 SC 1089.

      -: 68 :-

      property a,nd being taxed through its shebaits who are entrusted with the possession and management of its property. The d8cision lays down that since the accumUlation and exploitation of wealth are the secular aspects of the debuttor endowment, they are liable to taxation. It maY be submitted that the judgement blends nicely the old concept and the modern social need; idol worship is to be preserved but income and wealth of such endowment can not escape the incidence of ta,xation. Though idol is a juristic person and

      in the ideal sense the property vests in it, it is

      not its beneficial owner. The true beneficiaries are the worshippers.

      -: 69 :-

      CHA.PI'ER - SIX

      ..... 'i· .. _

      The constitution of India conferred certain fundamental rights upon the citizens and persons. Thus clause (1)

      of the Article 19 provided that 'all citizens shall have

      the right ••

      (i) To reside and settle in any part .f the terri tory

      of India ( Sub. CI. e).

      (i1) To· acquire, hold and d Ls po se of property (sub. CI.f)

      BUt the states can impose reasonable restrictions on

      these rights in the interests of the general public

      or for the protection of the interest of any Schedu-

      led Tribe (CI.5J similarly Article" 31 (1) provided that 'no person shall be deprived of his property

      save by authority Of law. Then this Article provided

      for the compensation to be determined and given to

      the person whose property is acquired or possession taken of.'

      (2) The land :R~form legislations made by the states wez-e

      challenged before the Courts under these Articles

      and thus parliament took the steps by amending the const'itution to protect such laws from the judicial

      3.

      -: 70 : ...

      review. Although thero is a series of amendments. and

      cases on the point but it is suffice to say that Articles 31A. 31B and 31C read with Schedule IX were

      knserted in protection to such laws. In other words amendments were made in order to achieve the goals laid down under article 38 and 39 which find place among the Directd.'Vc principles of the state policy. Article 31 A provides for saving of laws providing

      for acquisition of est atesei;,c. AI;'~,~cle 31B provides for validation o;{; certi3.in, Act~, Regulat ions, specified in the 'Ninth Schedule. The Raj asthan Tenancy Act ,1955'

      was also inserted in the said schedule vide the

      cerise i tution( Sevent;eent h Amendment ) Act I 1964

      at Item NO. 55. Ultimately although the property

      right as e ns hd r ned , in, .;;rti,cles 19 (1) (f) and 31 \Vere repealed by, the constitution" (Forty fourth) Amendment Act, 1978 w.e ... f.·,20.6.~979 but the same was made as constitut ionalrJgl1-t under Article 300 A as I No person shall be deprived of his property save by authority

      of laws.

      Article 26 of tbeconstitution provides as undcr:-

      12 6. Freedom to ma naqe r9ligious affairs-

      subject to.public Q¢er, morality and health certain religious denomination of any section thereof shall

      .. : 71 :-

      have the right:-

      (a) To establish and maintain insti tut ions for religious

      and charitable purposes.

      (b) To manage its own affairs in matters of religion.

      (c) To own and acquire movable and immovable property.

      and

      (d) To administer such property in accordance with law.

      2. Ever since the 45th session, held at Karachi in

      March, 1931, The lndian Nat ional Congress formulated

      various policies relating to land reforms. In the

      "

      famous Karachi Resolution it was recommended;

      It Substential reduct ion in agricultural rent or.

      revenue paid by the peasantry and in case of unecono~ic holdings exemption from rent for such period as may pe necessary, relief being given to small Zamidar

      b ~ h d t' 47

      whenever necessary y reason o r sUc re uc a.o n ,

      Then some clarifications were made by the congress

      <workinej Committee in regard to that declaration in

      '. J,anuary 1932. Subsequently I however the Indian Nati-

      onal Congress in its 50th session at Faizpur in

      , .

      _ ..... ~ ••. .,..~_.,.._ ~.,-...,-.~ ~~. " .... _._ ...... ~,_, ,.~,., •.•• - - ... _,"~-"'"",,_,.'" " ·.or', '" ... ,..._._,..,. ~r-"",",. •• __ .~_'."'. ·_-,,,, __ ,·~....,.,,..,....·.I,_·.. •.• • -.--:----=-___.._,.

      47 • Resbl~tiotion Economic pOlicy programme and Allied

      matters, 1924'-69,New Delhi, Indian National congress

      -. 72 :-

      December 1936 draw up an agrarian programme which

      said that lithe depending croses has made the burden

      on the peasentry an intolerable one and immediate

      relief is urgently called for." The most of the measures were relating to reduction, exemptiqn and lowering -of rent'orrevenue and irrigation rates .Aboli tion

      of fe,udal levies:, :rern6'\tal of rural debt and fixity oft,enu+",e with': heritable rights etc.

      3.

      The congress Election malhifesto of 1936 reiterCited its declaration made at Karanchi and declared certain

      reliefs to agricultural tenants, peasant propert~s"

      Small landholders' pending the formulation of a fuller

      programme. A l~ational p12mning coromi ttee, under the presidentship of Pancli tJawaharlal Nehru, was constituted in 1936. With' different sub-Committees, including

      one.; ori land policy, the report of the sub-committee

      on Land policy was presented in June 1940. But the

      National planning committee, however, met in September

      and then in November,1945 and resolved as to ownership

      & working of land. The stress was given to collective

      farming and cooperat iva working ••

      48. 1948 Report of the National Planning COmmittee 162 N.PC. Series Report of the Sub-Committee-Land Policy New Delhi.

      -~ 73 :-

      It was further decided that no intermediaries

      between the state and the cultivator should be

      recognised and their rights and titles be acquired

      by the state paying such compensation as may be con-

      sidered necessary & desirable. The Floud Commission

      Report did support the demand for abolition of

      Zamindaris & intermediaries.

      4 •

      The land reform measures could not be carried

      out before world war II but afterwards due weight

      was given to these reforms. The congress manifesto

      for the 1945;-46 election stated explicitly that

      .. The reform of land sy stem which is so urgent ly needed in India involves the remova149 of intermediaries between the peasant and the state. It A special

      cornrnittee-was appointed by the congress in 1947 with

      :. tC--:- -: J .

      Pandi t Jawahar Lal Nehru as chairman to workout the

      'main lines of congress economic policy. 'l'he recomrnendations~l\he committee ~re approved at a special meeting of t'he' -,;11 India Congress Committee in 1948. As regards the agrarian reforms the committee proposed

      ", ':'that,i'all intermediaries between the tiller and the

      49.

      Ibid, 1 P 27

      L (15-1~)

      -: 74 :-

      state should be replaced by no profit taking agencies such as cooperatives. The maximum size of holding

      should be fixed. The su~plus land should be acquired and placed at the dispOsal of the village cooperatives. Small holdings be consolidated and steps be taken to prevent further fragmentation.S-

      5. Congress Agrarian Reforms Committee: Dr. Rajendra

      Prasad, the then president of thaI.N.C., was reque-

      sted at a meeting of the Revenue Minist~rs of the states in December, 1947 t<?appoint a c:ommittee for study and reconrnendat ions as to land reforms. Thus

      the Congress A~rarian Refor.mscornrni1;tee,_ with .~hri

      v" ~ .~;. ",'

      J .C. Kumarappa as its Chairman, w-asappointed.The

      , ,- .,' ;','~ - - -' ',' .

      Kumarappa coromi ttee after detai.,led survey o~ the agrarian relat ions prevailing in the country made comprehensive recommendations in 1949. The main

      recommendat ions relating to our area were .as __ follows:

      (1) Thernain-principlE3s fo~· governing the4grariart policy

      are:

      (a) the agrarianeqqnomyshould be: provided an opportuni ty for the development of the fa.rmers

      personali ty •

      50. Ibid I (P.27) 23-26.

      -: 75 : ..

      (b) There should be no scope of exploitation of one class byanot her.

      (c) There 'should be maximum efficiency of production,

      (d) The scheme of reforms should be within the realm of pract ic abili ty.

      (2) All intermediaries between the state and the

      tiller should be eliminated in order to enhance production and efficiency. There is,no place for intermediaries in India and land must belong to the tiller.

      (3) subletting Of land should be prohibited except in

      the case of widows, minors and other disabled person.

      (4-) Only those who put in minimum amount of physical labour and part ic ipate i;o actual agricultural operationswould be deemed to cultivate personally •

      ..(5) A differentiated approach has to be developed towards land holdings on the basis of the size of the holdin~s.

      (6) A single integrated machinery with regional units oompoaed of different elements- officials, experts,

      and representatives of the people was necessary to

      -: 76 :-

      impart the functicnal character of land administration.51

      6. The Kumarappa committee also evolved concept of three types of holdings viz (a) Economic holdings (b) Basic holdings and (c) Optimum holding. The first is reason-

      able hOlding to provide labour for the family members

      and a pair of bu.Lfoc ks, The basic holdings is below the first but not uneconomic. The optimum holding indica-

      tes towards tb3 maximum limit upon Size which s.~ould

      be imposed' under ceiling laws. (The committee also con-

      sidered'~ltimate pattern 6fagrarian society in India,

      out of the alternative £arms such as capital farming,

      c-,»

      . , _ _'~~·,:'..~.,r - ( __ ,':'_- .- ,.:",.'. __ . _ .-~,';'-\ ..'i:>~_ .. _' ",,,:,.,':?,' ': <~)

      statefarrnlng etc~ The committee' rej ected toe capital

      farming but recornmended':~.it~te anc' cOll~ct;i~e;''-farming

      ~- ;

      forre:c'Ia'frned waste landsonly~t It favdUJZ:ed individual peasant:' :'fatming'tocO"nstitute' the gene,ralpattern of socio-,cconomic stJ;uc~l::lre 'of Indian ag;r:j:p:'ian society. 52 It is,-now recognisedo#a~~ hands tha~~,th.e~umarappa

      commi ttee e xe r'c i sed a considerable inf+l.:+e,I]l9~, on the evolution of land reforms policy in su}:)sequent years.

      ~ ~' r- - ;

      51. Repo.r-t, National corrmf s sjori on Agriculture'. 1976 vo L xv. PP 21. 22.

      52. Ibid PP 23 ..

      -: 77 :-

      7. out of the above propositions we must keep in mind certain basic issues such as sub-letting, personal cultivation and ceiling. Because this paper deals with the problem of land attached to the religious and charitable endowments, how far the respective laws' could effect the lands of su~h institutions is the basic issue at hand.

      8. After these recommendaticns, legislative ~easures were taken for desired ends by the states including Rajasthan. BUt we must keep in mind that the policies relating to land reforms were subjected to some changes in the future Five Year plans on one or the other pr-e t ext , Th'3se may be no ccd in brief as below.

      9. It was recommended in the Firs~ Year plan (1951-56)' that lands under the cultivation of 'tenants at willi may be allowed to be resumed for cultivation by owners or their family members up to three family holdings. It further laid down that tenency should ordinarily be for five to ten years and should be renewable. Thus a right' to resume land, for personal cultivation was opined and sub-letting was also made permissiblG. This was a departure from the Kumarappa

      i d t· 53

      Comm ttee recomrnen a 10ns.

      10. Then a panel of land reforms was set up by the planning commission in May 1955 under the chairmanship of

      Shri Guljarilal Nanda. The panel reviewed, through

      its various sub-committees, the progress of land

      reforms.in the country and made certain positive proposals which influenced, in a large measure, the

      thinking of the planners of the second Five year plan.

      The proposals relevant to the present paper were as

      under:

      (1)

      The panel stressed the need of:iJnposing ceiling on land holdings and, laid down detailed gUidelines. The

      following.categories of land which could possibly qualify for exemption from ceiling~

      Sugar c ane farms. owned by sugar factories:

      (ii) (iii) (Lv )

      Orchards.

      Planuat ions (Tea, Coffee and Rubber);

      SpeCial farms such as cattle breeding, dairy

      farms etc.

      (v ) Fanns in compact blocks. (vi) Efficient farms.

      53. Ibid PP 24- 25

      -: 79 :-

      Mechanised farrns and farms 'with heavy

      investment.

      (2) The panel also recomrnended measures for ej ectment

      of ten?nts on the ground of default, mischeif etc.

      and also for security of tenure of a tenant holding

      land for twelve years period and not cultivated by

      owner during 'che said period but subject to the right to resume for r;ersonal' -bultivationby land lords.

      (3) As regardsdi£ini t:ic.1 of the term pe r s oria L ou L tivation it found that IIm;:=J_ny people v;ho had never engaged

      themselves in actual oper2tion of cultivation and in

      some

      cases were i:i.viI19 i~ distant t ov.ns have resumed

      land by ejecting tenants or, the ground of personal

      _ cqltivation arldgot thel;J_nds cultivated by hired labour or through par+ne r-s r,;mur_erated by a share of 54

      the produce. Thep-::tnel defined three major conditi-

      oris for pe r ac rt.l. cultivat5.on which are:

      (i) (ii) (iii)

      ;:Qsk of cu L t Lv at Lon

      Personal supervision and

      personal labour.

      54. Report of the committeadffirsc panel on land

      reforms- :v. 42.

      -: 80 : ..

      It recommended that while the three should gradually

      be achieved, it is not necessary at thiS stage to

      i-·

      insist upon the Performance of minimum labour i provided the owner meets the entire risk of cultiva.tion,

      lives in the village and personally supervises agricultur al operations. 55

      (4) The panel did not support the idea of a complete

      prohibi tion of leasing of land. It observed that in the existing circumstances complete prohibition

      of leasing is not a practical or even a desirable proposition.56

      (5) It is worthwhile to note that the panel had departed from the v Lews opined by Kumarappa Committee on

      crusial points. Firstly, the element of physical

      labour in personal cUltivation was done away with, secondly, leasing was made permissible. This led

      to the serious-consequences viz. amendment of relevent

      legal prOVisions and survival of absenteeism. Thus a

      set-back was put to the desired g-Oa15 of lqnq to the

      tiller. Parhaps the penel did not address properly to

      the problem and reversed the gear completely.

      55. Ibid. 63

      56. Ibid. 95

      ..... ~1 :-

      11. second Five Year plan (1956-61); The Plan supported the views of the first panel on land reforms as discussed above Qnd thus resumption of land by owners for personal cultivation was permitted under certain conditions. Tenants of nonresumable areas to be made owners. Ceiling to be impOsed and categories of

      farms to be exempted.

      12. The Third Five yG~r plan (1961-66): The plan simply reiterat~d ~he objectives as clready discussed above but stressed the need fOr implementation of the land reform programmes wi t:1out delay.

      13. Fourth Five Year pc Ln (1969-75); The plan reviewed existing lund re£oJ:Tr.s and aCKnuwledged that there were many gaps between objectives 2Jd legislation and the laws and their implementation. It was noted that

      there had been Le a s i.nq of land on a considerable scale. Aft_ r unwritten.. 8ven in areas where intermidib.nry tenures did not exist, and sub-leasing in

      azce s where sucb"tenur€:y existed. The ownership to tenants was conferred to tnetune of 16 percent only and tenents and sha:re-Cropp,~rs' with Lnaeour-e t e nuz-ea waro estimat.:.;d to be 82 percent 6f the total number

      of tenants. :!:n view of the ins~qur:i..ty of informal

      I

      -: 82 : ..

      tenancy and share cropping, the tenant or share -
      cropper was either unable or reluctant to invest in
      inputs. The land owrter also considered it unwise to
      invest for raising agricultural productivity. The plan considered it an essential step forward that a culti-

      vatingt;enant or a sharer should have effective

      security of tenure and the existing tanancies be

      declared non-resumable and permanent.

      The following measures were recommended :-

      (1) Al:l tenancies should be declared non-resumable and

      permanent except in cases of land holders, who are

      serving in defence forces or suffering from a specii

      fied disabilities.

      (2) Where resumption permitted, q uick dd apo s a L of such

      cases should be made, large scale evit.tions on such

      g~ound must be restricted.

      (3) "Voluntary surrenders 1 should be regulated prohibi-

      -

      ting'lahd owners from taking possession of land

      already ten~nted and empowering the Government or

      local authori-tY to settle other tenants thereon.

      (4) Homestead land should be secured completely in favour

      of cultivators, artisans and agricultural labourers.

      (5) security of tenure to sub-tenants should be ensured

      and wrongful evictions are penalised.

      (6) The plan pinpointed several other loopholes in the existing laws and suggested that the ceiling legi-

      slat ion should be throughly re-examined and reoriented to better effect.56

      14. Central land reform committee:

      _-~,_._,_~_._..,., .... ~~ __ ... _._-r. .... _.--.r ~<.--,,_ ",",., "~_- . .,~.,,-. or __ · .. ~·:t.~ ..

      In November, 1969 the Chief Ministers' conference convened by the Minister of Food Agriculture

      emphasised the need for a central Body for watching

      the protyress of land re.forms and providing guidance

      to the ~:t,ate Government s •

      " (In september,1970 a subsequent conference of Chief Mii'd-sters of Land Reforms he..1.<i1. in Delhi, ,which was -also attended by the Prime Minister, decided that

      the entire range of problem connected \vith land

      reform should be ref,erred to a Central Body. Accordingly Labove. committee was constituted under the

      Chairmanship of th-= Union Hinister of Agriculture 57

      with certain terms of reference.

      56. Se3 supra:f. No' 50 PP, 3 6~37

      57. Ibid, 37-38

      I

      -: 84 : ...

      The committee in its meeting held on August 3,

      1971 made t he following recommendat Loris :-

      Ceiling should be .applicable to the family as a whole, the term 'family' being defined .so as to include husband, wife and minor children. In case members exceed five, additional land may be permitted subj ect to the condition that it does not exceed twice the ceiling limit for a family.

      (ii) It also proposed ceiling limits on ~he basis

      of soil classificat ion which might vary between lOt 0 54 acre s •

      Exemption in the existing state laws in favour of mechanised fanns, well-managed farm etc. ~hould be withdrawn and those in favour of plantation of tea, coffee etc. be reexamined.

      15. A high powered committee of nine members was appointed by the COngress President to review the question of ceilings and allied matters relating to land reforms. The issues were considered by it in June,1972.!t generally agreed with the recommendations of the central land ~~forms committee except on the following pointsl-

      -: 85 :-

      The committee disagreed with the view that

      term family should include only the minor child-

      ...

      rene It was of the vie,v that ceiling should be

      'applied to the family '®f five as a suit, consis-

      '. '

      ting of husband, wife and three children

      whether major or minor.

      , , ,.'.~

      (ii)

      It also recommended that to the extent that the

      actual number of members in a family was less

      than five, the ceiling ~hould be reduced by a

      .1"_

      fifth· perpersori.

      (iii)

      It also recommended by for

      (a) rigidly defining plantations •

      (b) Withdrawing blanket exemptions in case of

      1 d h ld b t' t't t' t 58

      an e y trus s 1ns 1 u 10ns e c.

      16. The recommendations of the above two committees

      were considered in Chief Ministers' conference on

      ceiling on Agricultural Holdings held on July 23,

      1972 in Delhi and detailed guidelines were laid

      down. The relevant gUidlines on the sUbject of the

      present paper were as under:

      58. Ibid. 39-40

      - .-'~

      -: 86 :-

      (i) The level of ceiling should be fixed between 18 to 54 acres depending on the nature of land and irrigation facilities.

      (il_' The unit of application of ceiling shall be a

      ..

      -'.-family of five members, the family being defined

      as to include husband, wife and minor children.

      In case, the number of members in the family

      exceed five, additional land may be allowed for

      each member in excess of five in such a manner

      that the total area admissible to the family

      does not exceed twice the ceiling limit for a

      fa-nily of five members.

      (iii)

      Every major son wil~ be treated as a separate

      urn, t for the purpose of 2.pplicat ion of ceiling.

      ·,(iv)

      The existing ceiling laws were to be amended

      in the light of these guidelines and be given retrospective effect from a date not later than

      January. 24, 1971. The onus of proving the

      bonafide nature of any transfeF of land made after date will be on thetJ:"ansferor.

      (v~ As to exemptions it was of the opinion that it

      should continue to plantations of tea, coffee,

      I I

      -: 87 ~-

      rubber, cardamon & cocoa, The state Governments

      at their discretion, may grant exemption to the

      existing religious, charitable and educational

      trusts of a public natura.

      ~i) The institutions or trusts will not be exempted

      from the operation of tenancy law and all till-

      ,

      ers of the land should b3 b.":"ought in direct

      relationship with the trusts or institutions

      to the exemption of all intermediary interests.· No exemption should be allowecl- to private trusts of any land.

      (vii)

      The conference also laid down guidelines for

      ." i

      compe ns at; i;)~l., distr ibution of surplus land and

      for setting up of non-of~icial bodies at appropriate leveli3 & place, competent official organisat.:ibnin order to administer the ceiling legislatlon~

      17. The Draft fifth five year plan emaneted from the

      experience of the actual developments in the coun-

      try in respect of land reforms. It was formulated

      with a very realistic and practical approach. It

      sununed up the achievemen-ts in the field of land

      reforms, the shortfalls in the state legislation,

      , ,

      ~, .

      -: 88 :-

      the gape between policy, legislation and implementation. Thus it was recommended:

      (i) The gaps between the policy, legislation and implementation should be removed on priority basis.

      (i1) Immediate legislative measures were suggested for plugging the loopholes in the existing laws to ensure complete security of tenure, conferment of ownership rights on the cultivating tenants and sharecropgers according to a time bound programme.

      The issue of 'personal cultivation' should be

      (i1i)

      reexarnined'·and the element of 'supervision' involved in personal cUltivation should be exercised by the lar.d owned by being resident of the same village or the adjacent village. Future transfers of agricultural lands should also be confined to persons who reside in the same village or the adjacent village.

      (iv) Though leasing out cannot be totally stopped, yet it should be permitted only in such rare cases as specified disabilities or services in the defence forces.

      II

      ~,

      -: 89 :-

      (v ) Records should be updated SO as to ensure indentificq.t ion of tenants and share-croppers. 59

      So far the

      sixtband seventh five year plans

      are conce rned, s tr'e ss wa.s made upon the implementation

      of the land reforms legislations. No. hew policies were

      introduced. In view of these ,ideals the-states initiated

      :. oj. , ••

      the legislative measures and Lrnp Lernerrtod the same , The

      scope of this paper ~.s to examine the impact of land reform

      legislations upon the lands held by religiou.s and charit-

      able institutions in the statec·of Rajasthan. Tl-}e land

      . >.

      refor.m policies can be summed up as under:

      1.

      Abolition of inter~9diaries and land to the

      .Jc i-l:l(~r.

      2.

      Security of tenures.

      3.

      Imposition of ceiling and distribution of

      surplus la::1ds ..

      Wi th these ideals a.n mi nd let Us

      now examine

      the legislative measures taken in the State of Rajasthan •

      59. -Ibid. 44-46.

      .. • c

      -: 90 : ..

      CHAPrER - SEVEN

      q _0: • ._.,._. _ ... ,,., ..... .,_.

      The first step in thi s direct ion was the enactment

      of the Rajasthan land reforms and resumption of Jagirs Act (Act No. VI of 1952). The object of the Act was to

      provide for resumption of jagir lands and other measures of land reforms. The act came into force with effect from

      60

      18.2.1952. But the implementation of the Act was held

      up by the courts as its validity was challenged by the vested interests at various forms. 61 Simultaniously the I jagirdars also entered into negotiations with the State

      Government and agreed to refer the dispute to the then Prime Minister Shri J'awaharlal Nehru who, in turn, deliv-

      ered the awa.rd in September, 1953. Under the award the

      j agirdars were allowed to resume lands for personal culti-'

      vation if such lands were being cultivated personally by them upto 1948 and there after to tenants who could not

      be ejacted due to protective measures taken by the state.

      60. Vide Notification Nr, F. 4 (314) Rev. 51 dated 16.2.52 published in the Rajasthan Gazette. Ext. No. 157, dated 16.2.52.

      61. Thakur Amar Singh V. state of Rajasthan,AIR 1954 Raj. 291 (F.B.)and AIR· 1955 SC 504 (The writ petitions were dismissed by both the courts)

      -: 91 : ...

      Thus following, the Nehru Award and dismissal of the writ petitions by the Supreme Court of tndia, the

      state Government gradually implemented the provisiOns of

      the Act with effect from 16th Junc,1954. The Act was also

      amended time and again to suit the interest of the Jagir-

      dazs , 'I'he main pr ov i.s Lons of the Act for our purpose are

      'as underl

      (1) 1:'he term Khudkasht was originally defined as to

      "mean" any land cultivated personally by a jljgirdari'. BUt later on the same was amended so as to inClude

      within its purview:-

      (1) The land recorded as Khud}qasht, Sir or Hawala

      in settlement records and

      (1i) any land allotted to C_._ j agirdar as khudkasht under Chapter IV. 62

      "

      2.

      ILaild cultivated personally' with its grammatical v-arlationsCUld cognate expressions means

      land cultivated on one's own account -

      62. The Raj. Land Reforms and resumption of Jagirs Act,

      1952 section 2(1)

      ~: 92 : ...

      (i) by one' s "own Labour-a or

      .(ii) by the labour of any member of one's family,

      or

      by 'servants on wages payable in cash or in "kind (but not by way a share in crops) or by

      hired labour under One's personal supervision

      of :any member of one I s f ami ~y :

      Provided that in the case of a person who is a

      - - ! .

      widow or minor or is subject to any p).1.ysical or mental

      disability or is a member of the Armed Forces:' of the union

      or who being g_~ttldent of an educational institution

      recognised by t he GOvcrrmlent below the age of twenty five years, land shall be deemed to be cultivated personally even in the absence of such personal supervision.63

      (3) 'Jagirqar,' means any person recognised as a Jagir-

      dar unde r+eny existing Jagir law.and includes a

      , .. ' .... , .

      grante~ oJ.J.agirlahdfrom a Jagirdar.64 and

      (4) lJagir Larid ' means any land in whi.ch orin relation

      to ~hich a, Jagirdar has rights in respect .of Land revenue or any other kind of revenue and included

      63. Ibid. Section 2 (K).

      64. Ibid. Section 2 (9).

      -: 93 :-

      any land held on any of the tenures specified in the First schedul~.65 The First Schedule enumerates

      forty four types of Jagir lands including Muafi.

      3.

      'The basic features ,of the Act may be summarised

      as under:

      (1) all j ag:1.r lands were made liable to payment

      of land revenue to the state Government as

      from t:h~ 'commencement of the Act. So also

      the liabilities of all jagirdars or grantees

      of the jagirdars to pay tributes or any s~m

      to the oove rtment; or to Jagirdars respecti-

      ve Iy ceased from ,9uch date. This provision

      was not appiicable to the Jagir lands having

      annual rental income Le.s s than Rs., 5,00/- or

      -.,

      the income of ,which was utilised for th,{

      maintenance of educational or charitable or

      any place ,of religious worship or such ser-

      vices., so .a.Lso principles and procedure for

      assessment of land revenue were also laid down for settlE:d"and unsettled villages. 67

      . .'~ -" '"

      .... ........._"~>-.~-.-- •• ~ ...... , ... .......,..._...~...,._.,...,..,~-.~- .. --- . ....-,.,.-:-,~-.-._,..~,__ ........ ___..........,,.--...,...--,_ ....... ...".-. ,_ .• ....,. .. --,- _. '''''--''_,'',

      65. Ibid, Section 2 (h)

      66. Ibid, S.4 (i) 'arid proviso.

      67. Ibid, SS 5 to 8

      " .

      -t 94 :-

      (2) Eve.ry tenant in a, Jagir land who at the

      encement of the Act was entered in the

      rev~nue records as a Khatedar, Pattedar,

      Khadamdar or under any description implying thereby that he had heritable and full trans-

      ferable rights in the tenancy continued to

      hold such rights in the tenancy and became

      Khatedar tenant. But the Jagirdars were

      conferred Khatedari rights on theirKhudke.strt i-and'as from the date of resumption and

      , .

      were made liable to assessment at the village

      68

      z atre se .ir:

      ,". i

      The>i1agirs were not resumed automatically

      _.J ••

      on the date of corrrne ncemerrt of the Act. For

      the actual resumption of a Jagir or classes ,of Jagirs , a date had to be notified by the state Government under Section 21 of the Act.

      From the date of resumption the various

      ;-rights of the Jagird ar s in respect of Jagir

      Land, :porests, trees, wells, village sites,

      minerals etc. st:ood resumed to the state

      free from all encumbarences whatsoever.

      68. Ib1d, SS, 9-10 respectively.

      "

      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