You are on page 1of 11

Table of Contents Chapterisation Page no.

List of Abbreviations..1

List of Statues..2



Different kind of Endowments5

Essentials of Endowments..6


Page 1

List of Statutes

Charitable and Religious Trusts Act, 1920 Indian Contract Act, 1872 Indian Majority act, 1875 Indian Succession Act, 1925 Rajasthan Public Trusts Act, 1950 Societies Registration Act, 1860 The Charitable Endowments Act, 1890 Transfer of Property Act 1882 U.P Zamindari Abolition and Land Reforms Act, 1951

Page 2

INTRODUCTION Let him without tiring always offer sacrifices (istha) and perform works of charity (purta) with faith, for offering and charitable works made with faith and with lawfully earned money procure endless rewards. Let him always practice according to his ability with a cheerful heart, the duty of liberality (danadharma) both by sacrifices (istha) and charitable work (purta) if he finds a worth recipient for his gifts. - Manu Smriti, IV, 216-217. The Hindu society has always been, at least apparently, a religious society. Therefore, there are innumerable religious and charitable endowments built here and there all over the country. But strangely enough the legal literature of the subject is very meagre. It does not figure in the eighteen topics listed of legal action listed by Manu. There is no treatise in it unlike on subject of adoption and partition. This absence was for two reasons. First, the priests who managed the institution has a high character giving little rise to disputes of claim. Dispute is the mother of law, little dispute little law. Secondly, the religious endowments were regulated by their own customs and usage which were as much binding as the smritis. Thus the law on the subjects has been largely constructed and developed by the courts. The English judges who took considerable part in this job naturally introduced their own ideas and ideals of such endowments. The Shastras Hindu law authorized the ruler to exercise a right of supervision and protection over the management and functioning of the religious and charitable endowments. The British asserted this right as rulers. They passed a number of regulations and acts dating from 1810. They were revised and at present there are only two all India enactments on the subject of endowment. The Charitable Endowments Act, 1890 and the Charitable and Religious Trusts Act, 1920. The former relates to charitable endowments but not religious ones and the latter touches both. These Acts are not comprehensive: they legislate on only a fraction of the subject. Section 92 of the CPC also provides for instituting a suit for the proper management of endowment. The Charitable Trusts Bill, 1960 was introduced in the Lok Sabha but it was permitted to lapse because a report on the subject was awaited from the Law Commission. In 1962 the Law Commission submitted its report with the suggestion that early steps should be taken to implement its recommendation. So far the Central Government has paid little heed to this suggestion. It is certain that temples and Mutts did not exist in the Vedic period. In the Sutra period also mutts did not exist, though it seems that temples in some form existed. Gautama- Dharma sutra mentions a temple of God at more than one place, but we do not know what type of temple that existed and
Page 3

which were the deities that Hindus worshipped then. It is not easy to say when exactly idol worship came into existence. It is certain that it did not exist in the Vedic period. The Hindus have been worshipping Pouranic gods. The age of the Pourannas is uncertain. Between 4th century and 8th century A.D., the worship of the pouranic gods became very popular. The Gupta Emperors were the patrons of Pouranic faith. The idea of trinity of God- Brahma as God of creation, Vishnu as God of preservation and Siva as the God of destruction is a Pouranic concept. With the emergence of idol worship, there came to existence and dedication of property for the construction and maintenance of temples, mutts and construction of idols. From this time onward Hindus have been dedicating property for religious and charitable purpose. This has been mainly under two heads, Ishta and Purta. The former indicates the vedic sacrifices and rites associated with such sacrifices, while the latter stands for all other religions and charitable acts and purposes unconnected with the Vedic sacrifices. The ishta-purta have been considered as means for going to heaven. The Ishta works as enumerated by Pandit Pran Nath Saraswati in his work on Endowments are(a) Vedic Sacrifices, (b) gift offered to priests at the vedic sacrifice, (c) preserving the Vedas, (d) religious austerity, (e)rectitude, (f) Vaiswaradeva sacrifices, (g) Hospitality. The Purta works signify works of Public utility such as building tanks, wells groves, the gift of food, dharmashalas, schools, asylums, supplying drinking water, relief for sick, gift for promotion of education and knowledge, temples and processions of deities, etc. It is evident that no clear cut distinction was made between religious and charitable acts. Hospitality was an Ishtha work and the construction of temples was a purta work. It is submitted that the philosophy that Hindu propounded the social structure that they founded and the concept of law that they enunciated did not have any scope for such distinction that we make today between religious objects and charitable objects. All objects of dana enunciated by sages were meritorious as all dana led to heaven. In that context any distinction between the religious charity and the charity proper were wholly unfounded. Various types of gifts were emphasized. But merely by making gifts of performing sacrifices, a charitable or religious endowment does not come into existence. An endowment will come into existence only when some property or fund is dedicated for a religious or charitable purpose or object.

Page 4


Endowments are the dedication or entrustment of property either for a religious purpose or for a charitable purpose or both: religious and charitable purposes. It may be called a religious endowment or a charitable endowment depending upon its objects. A Hindu who is of sound and not a minor may dispose of his property by gift or will for religious and charitable purposes shall as the establishment and worship of an idol, feeding the Brahmins and the poor, performance of religious ceremonies like shradh, endowment of a hospital, etc. No list of what conduces to religious merit in Hindu law can be exhaustive. However, when any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastric basis. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.

Different Kinds of Endowments Endowments are of different kinds which can be placed in different categories in the following manner Public or private; Religious or charitable
Public and Private Endowment:

In order to ascertain the nature of the endowment as to whether it is public or private the subsequent conduct of the settler and use of the evidence of the property set apart by the public at large are to be considered. In fact when a temple is thrown open for public at large for worship, a valid inference can be drawn that a public trust has been intended to have been created. Where the outsiders along with the members of the family of the settler take part in worship in celebration of festivals in a temple as in public temples, the state of affairs point out to the public nature of the endowment. In contrast private endowment is that in which the public has no ingress, as an endowment for the worship of the family deity of the settler. Where the property is kept separate safely for the worship of family deity by family members only, with which the public has nothing to do, it is a private endowment. Even if other Hindu worshippers are allowed to worship a family deity, it will not confer public nature to the endowment. In Venugopalaswamy v. H. R.E. Board, it was laid down that where the temple was initially set apart for the use of the family members only and subsequently if some outsiders are allowed ingress therein, it will not automatically alter the private nature to public. The Madras High Court too in Keshav Gounder v. D.C. Rajan, held that there is very minute difference between the public and private endowment. In public endowment the interest of general public or of a group of persons is protected and involved, wherein in private endowment the interest of the settler of the
Page 5

trust or his family members only is protected and involved. In fact in private trust the interest is to dedicate pleasurly to the family diety something and the public has nothing to do with it. Again the Supreme Court in G.S. Kaha Lakshmi v. Shah Ranchod Das, said that the temple of Sri Gokulnath Nadeyad in a public temple and the trust created is of public nature dedicated and created by the Ballabh cult and its supporters of Nadiad. The fact that any individual could enter into the temple only after the worshipping by goswami is over, does not militate in any way the public nature of the temple. Further the fact that temple is having house like appearance does not clearly establish that the temple is not a public temple. The Supreme Court has delivered an important judgment after a lapse of a decade in Radha Kant Deo v. The Commissioner, Hindu Religious Charitables. The Court observed that a religious endowment of private nature cannot be conceived under English law. It can only be thought of in Hindu law. The court laid down the following test to determine the public and private nature of endowment (1) Where the origin of endowment cannot be ascertained, the question to be determined is as to whether the members of public use it by way of right. (2) Another fact to be determined is that whether it is controlled by a group of persons or by the founder of endowment only. (3) It may be concluded that the endowment is of public nature where the document with respect to its creation is available and it is clear from the language of the deed that the control over the endowment is vested in the founder or in his family and a greater part of the property of the founder has been dedicated in the endowment to that temple. (4) Again in absence of any evidence to show that the founder has given any classification with respect to the fact that the member of public would contribute any share to it, this itself proves that the endowment is of private nature. The Allahabad High Court too in Suit. Sarjoo v. Ayodhya Pd., founded the view that it is not possible to conclude about the nature of endowment from a single characteristic alone. In fact the entire evidence and circumstances are to be examined under which it was created. Non-appointment of a pujari shows the private nature; but appointment of pujari by members of different families establish the public nature. Even giving permission to the members of public to perform puja will not convert it into public. In Radha Kant Deo v. The Commissioner of Hindu Religious Charitables, the Supreme Court took the view that the idea of a

Page 6

private religious trust could be conceived in Hindu law only and is foreign to the English law. In such an endowment the prime purpose of the beneficiary is to establish a temple for the family worshippers. Though public may be allowed access to such a temple but that will not convert its nature as the property in facts vests with the beneficiaries and not with the diety. Certain worth mentioning tests were formulated by the court which is as under (1) Where the origin of endowment is not known, the question arises as to whether members of public use it by way of right. (2) The fact whether it is controlled by a group of persons or by the founder of endowment will also be considered. (3) Where the documentary evidence is available which clearly establishes that the control invested in the founder or in his family and a greater part has been dedicated to the temple, so that it may be properly managed, it all will suggest that the endowment is of a private nature. (4) Again in absence of any proof available to show that the founder intended the public to contribute any share to it, it will be treated as a private endowment.

Charitable Endowments:

Where the gifts are made for charitable purposes such as for the institution of Dharmashala, Anathashram (choultries), Sadavratas of the establishment of educational and medical institutions or/and for the construction of Anathashrams (orphanage) tanks, wells and bathing ghats etc., they are known as charitable endowments. In such endowments property is dedicated through the usual ceremonies of Sankalpa and Utsarga. The popular charitable institutions created through endowments and recognised under the Hindu law are Dharmashala or rest houses, Sadavrats Anathashram, public institutions, constructions of tanks, wells, groves etc. Dharmashalas are the rest houses provided for the travellers known as Pratishraya Griha in ancient times.The property dedicated to the Dharmashalas vest in Dharmashalas itself. Its management may vest in the founder himself or a committee constituted by the founder. The benefit of Dharmashala may be available to public in general or it may be restricted to the members of a community or to the followers of a
Page 7

particular religion. Sometimes gifts are made for the establishment of educational institutions or hospitals. Imparting free education to the people in general has been one of the prime objects of charity throughout the ages amongst Hindus. Similarly hospitals and dispensaries known as Arogashalas have also been the objects of charitable endowments. The establishment and maintenance of Goshalas is also a valid charitable purpose. Similarly the excavation of tanks and wells has also been recognised as charitable objects from the very beginning. According to Dharmashastra, construction of a well is equal to Agnistoma sacrifice; in desert it equals the Aswamedha. The well flowing with drinking water destroys all sins. The well maker, attaining heaven, enjoys all the worldly pleasures. The consecration of trees and groves is also a well recognised charitable purpose amongst Hindus. Dedications for groves and trees have been held valid .Similarly Sadavrats, where free distribution of food and alms to the needy and poor are arranged, have been well known charitable institutions amongst Hindus. Langars and Anathashram are species of Sadavrats. Endowments for them have been held valid. Similarly endowments for reciting sacred books and for the food and maintenance of Brahmacharies and Brahamans have also been held valid.

Requisites of a valid endowment:

Following are the requisites of a valid endowment(1) The author or settler of the endowment must be competent to settle it. (2) The object must be either religious or charitable or both. (3) The dedication by the settler must be bona fide and unambiguous. (4) The object or purpose of dedication must be definite or certain. (5) The property dedicated must be ascertainable.

1. Competence of an Endower

A person who has the following three qualifications can donate his property for an endowment by a gift inter vivos or by testamentary disposition. (a) Age of Majority- He must have attained the age of majority. It is not the Shastric Hindu law which decides the age of majority here. There is no statutory provision aso for this purpose under any act relating to the personal Hindu law. The age of majority here is to be settled by the provisions of the Indian Majority
Page 8

act, 1875. Section 7 of the Indian Trusts Act, 1882 provides that a trust may be created by or on behalf of a minor also with the permission of a principal civil court of original jurisdiction. But that does not govern the public or private religious endowments. Hence, a minor is totally incompetent to settle or create a religious or charitable endowment. (b) Mental Soundness- He must be of a sound mind. Here, the law as laid down in Section 12 of the Indian Contract Act, 1872 is to be followed. The settler is of a sound mind if at the time he endows the property, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind but occasionally of sound mind may settle his property for an endowment during a lucid interval. Similarly, a person who is usually of sound mind but occasionally of unsound mind is not capable of making the endowments when he is of unsound mind. (c) Right over Property- An endowment is made by making a gift of ones property either inter vivos or by ones will. The settler must respect the limitations, restrictions and conditions imposed upon him while making a donation by gift or will for an endowment. It was held by the Calcutta High Court that an endowment by a Hindu Widow in 1948 was invalid because she exceeded the reasonable limits within which she could endow out of her Hindu womens estate. 2. Religious or Charitable purpose- The purpose of an endowment may be either exclusively religious or exclusively charitable or both braided together. It is difficult to define which are religious purposes exclusively. The religions are all pervasive and consider nothing to be out of fold of religious purposes. But the secular and scientific thinkers limit the bounds of religion to what is considered as the other- worldly and spiritual affairs. Even if the ultimate aim is the good of human beings or any other creatures they are charitable purposes and not religious ones. The religionists hold the charitable purposes also as religious purposes and vice versa. (i) Ishta-Purta- The Hindu Shastras make little distinction between religious and charitable purposes. They describe religious purpose by the concept of IshtaPurta. Prannath Saraswati has perused the Hindu shastras in his Tagore Law Lectures on the Hindu Law of Endowments14 and compiled the following as the Ishta deeds which include Vedic sacrifices, gifts offered to priests at the vedic offerings (Yajna), Preserving the Vedas, Religious austerity, Rectitude, Vaisvadara sacrifices and hospitality. While the Purta deeds included Gifts offered outside the Yajna ground, gifts offered in an eclipse or solstice, the construction of well or tank, the construction of temples for the gods, the gift of food, and the relief for the sick. The distinction between the Ishta and Purta is that the former is vedic and the latter is based on the smritis. According to
Page 9

Yama, smriti-writer, heaven is attained by Ishta and one gets emancipation by Purta. Eg- the Ardajame Kattalai grants in South India, which is an endowment for midnight service. 3. Endowments- how to be created-No writing is necessary to create an endowment except where the endowment is created by a will, in which case the will must be in writing and attested by atleast who witnesses if the case is governed by the Indian Succession Act, 1925, s. 57. A mere entry in the account of a firm of moneylenders showing that the firm is indebted to the temple followed by creating of interest does not create an endowment. A Hindu who wishes to establish a religious or charitable institution may according to his law express his purpose and endow it. A trust is not required for that purpose. All that is necessary is that the religious or charitable purposes should be clearly specified and that the property intended for the endowment should be set apart for or dedicated to those purposes. Even in the case of a dedication to an idol which cannot itself physically hold lands, it is not necessary, though it is usual to vest the land in trustees. Nor it is necessary that there should be any express words of gift to the idol. No religious ceremony such as sankela, samarpan or pranapratishta is necessary and a clear and unequivocal manifestation of intention to create a trust vesting of the same in the donor or another as a trustee is enough to constitute dedication. Such a dedication is valid, but the subject of the endowment has to be certain.The Indian Trusts Act does not apply to public or private religious or charitable endowments. The Transfer of Property Act 1882, s.123- it has been held by the High Court of Madras that a dedication of land for a public temple is not a gift within the meaning of s. 122 of the Transfer of Property Act. The provisions therefore of s. 123 of the Act, which require a gift of land to be effected by registered instrument, do not apply to such a dedication.Further, section 5 of Transfer of Property Act which states that transfer of property means an act by which a living person conveys property, in present or in future, to one of more other living persons, or to himself, or to himself and one or more other living persons, and to transfer property is to perform such act. Hence this provision does not apply in the case of Hindu Endowments. A valid endowment once created cannot be revoked by the donor. 4. Certainity of Subject- although for the creation of a valid endowment for a religious or charitable purpose no trust is required in Hindu law, such an endowment is nevertheless in the nature of a trust, for the property once dedicated to a pius purpose is placed extra commercium and is entitled to a special protection at the hands of the soverign whose duty it is to intervene to prevent fraud and waste in delaing with religious endowment. Bhupatinath v. Ramlal(1910) 37 Cal 128 (FB). the reliogiouis or charitable purpose for which endowment must therefore be capable of being administrated. If the subject or the object of an endowment is uncertain the endowment cannot be protected by
Page 10

the court. As it is a maxim that the execution of a trust shall be under the control of law, it must be of such a nature that it can be under that control so that the administration of it be reviewed by the court, or if the trustees died, the court itself can execute the trust- A trust which in case of administration could be reformed and a due administration directed and this, unless the subject and object can be ascertained upon principles familiar in other case it must be directed that the court can nither reform mal administration nor direct a due administration. Maurice v. Bishop of Durham. 5. A subject and ObjectThe subject of endowment must be certain, it is necessary is to set a part specific property for a specific purpose or purposes which are religious or charitable, the object of endowment must be certain. In accordance with the statement of the law as to trust by Lord Eldon in Maurice v. Bishop of Durham quoted above, it has inter Alia had been held in England that trust for object of benevolence or liberty or charitable or benevolent purposes or purposes charitable or public purposes as the trustee thinks proper.


In the personal view of the researcher it is high time we discuss the legality of such Hindu Endowment Acts. Though these Endowment Acts, the Government feigns to bring in various regulatory measures over management & administration of Hindu Religious Institutions under the pretext that vast funds available to such religious institutions are ill-managed and there is not uniform organisational framework for temples. Every religious group or denomination has right to- (i) to establish & maintain institutions for religious & charitable purposes; (ii) to manage its own affairs in matters of religion; (iii) to own & acquire movable & immovable property and ;(iv) to administer such property in accordance with law.

Page 11