Shebaitship and alienation of debutter property PDF

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Hindu religious and charitable endowments...

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HINDU RELIGIOUS AND CHARITABLE ENDOWNMENTS

THEME: SHEBAITSHIP AND POWER OF ALIENATION OF DEBUTTER PROPERTY

INDEX S.No

Topic

Page No.

1.

Introduction

6-8

2

Dedication

9-13

3

Debutter

14-16

4

Shebait

17-19

5

Devolution of Shebaitship

20-25

6

Powers and Obligations of Shebait

26-29

1

7

Alienation of Endowed Property

30-36

8

Transfer f Shebaiti Right

37-38

9

Conclusion

39

10

References

40-41

2

LIST OF CASES S.NO

CASE NAME

CITATION

1.

Ramchandra Shukla v. Shree Mahadeoji

AIR 1970 SC 458

2.

Deoki Nandan v Murlidhar

AIR 1957 SC 133

3.

5.

Hemanth Kumar Debi and Others v. Gauri AIR 1988 MP 152 Shankar Tewari Rita Shaw And Ors. V. Dipendra Lal Shaw 2006 (4) CHN 414 And Anr Manorama v. Kalicharan (1902) ILR 24 All 256

6.

State of Bihar v. Mahant Shri Biseshwar

1971 1 SCC 574

7.

Kalanka Devi Sansthan v. M R T Nagpur

AIR 1970 SC 439

8. 9.

Chintamani Khuntia And Ors. v The State Of AIR 1994 Ori. 46. Orissa And Ors Vidya Varuti v. Balusami, [1921] UKPC 78

10.

Ram Kali v. Ram Ratan

(1977) DLT 250

11.

Tagore v. Tagore

(1869) 4 B.L.R. O.C. 103

12.

Kacha Kant Seva Samity v. Kacha Kant Devi

2003(3) SCR 99

13.

Radha Chandra Madan Gopal Ji Maharaj

(1985) 2 SCC 524]

14.

Anath Bandhu Dey v. Krishnalal Das

AIR 1979 Cal 168,

15.

77 Ind Cas 783

16.

Manohar Mukherji v. Bhupendra Nath Mukherji Hanuman Prasad Pandey v. Mst Babooee

(1897) ILR 19

17.

Jogendra Nath v. Official Receiver

AIR 1975 Cal 389

18.

Vishwanath v. Sri Thakur Radhaballablta Ji

1967 AIR 1044

19.

Smt. Shakuntala Devi Dalmia & Anr v. W.P. No. 9660 ( W ) of 2006. Howrah Municipal Corporation Bawa Magniram Sitaram V. Kasturbhai (1922) 24 BOMLR 584 Manibhai Chockalingam Pillai v. Mayandi Chettiar (1896) ILR 19 Mad 485.

4.

20. 21. 22.

Hari Shanker Son of Shri Amir Chand v. Shri Lala Ram Alias Shiam Sunder

Appellate Jurisdiction Civil Appeal Nos. 243-247 Of 2003

3

.

4

INTRODUCTION From the earliest times Hindus have been dedicating property for religious and charitable purposes. This has been mainly under two heads: Ishta and Pushta. The former indicates the Vedic sacrifices and rites and gifts associated with such sacrifices. The latter stands for all other religious and charitable acts and purposes unconnected with the vedic sacrifices. The Ishta –Pushta have been considered as means for going to heaven. Various types of gifts were emphasised, but merely by making gifts or performing sacrifices, a charitable or religious endowment doesn’t come into existence. It will come into existence only when some property or fund is dedicated for a religious or charitable purpose or object.1 It is to be noted that definition of the phrase “charitable purpose” is inclusive and it covers a wider field than the field covered by the words “religious purpose”. Further, in some cases, even a religious activity by a particular sect would be a charitable activity; for some, supply of fodder to animals and cattle is a religious object, while to others it may be a charitable purpose, according to Hindu religious activity. Similarly, Khairat under the Mohamedan law would be considered to be a religious activity. The said activities may be for a charitable purpose to some. Hence, in many cases, both the purposes may be overlapping. The purposes may have both the elements, charity as well as religious.2 While dealing with what is “religious” or “charitable purpose” it is observed by the Supreme Court in the case of Ramchandra Shukla v. Shree Mahadeoji,3 that “there is 1 T.L.V. Ayyar, The Law of Hindu Religious and Charitable Trusts (Kamal Law House, Calcutta, 1st ed., 1952). 2 P.B. Mukherjee, the Law of Hindu Religious and Charitable Trusts,( Wadhawa, Nagpur, 3rd ed. 1962). 3 AIR 1970 SC 458

5

no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion.” While discussing this aspect, the Supreme Court has further observed as under: “Hindu piety found expression in gifts to idols to religious institutions and for all purposes considered meritorious in the Hindu social and religious system. Therefore, although courts in India have for a long time 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 Elizabeth, and, therefore, all purposes which according to English law are charitable will be charitable under Hindu law, the Hindu concept of charity is so comprehensive that there are other purposes in addition which are recognised as charitable purposes. Hence, what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to Hindu notions and Hindu law.” There is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion, for, gifts both for religious and charitable purposes are impelled by the desire to acquire religious merit. 4 According to Pandit Prannath Saraswati, these fell under two heads, Istha and Purta. The former meant sacrifices, and sacrificial gifts and the latter meant charities. Among the Istha acts are Vedic sacrifices, gifts to the priests at the time of such sacrifices, preservations of vedas, religious austerity, rectitude, vaisvadev sacrifices and hospitality. Among the Purta acts are construction and maintenance of temples, tanks, wells, planting of groves, gifts of food, dharamshalas, places for drinking water, relief of the sick, and 4 Mukherjea Hindu Law and Religious and Charitable Trusts, 11 (Allahabad Law Agency, Second edn.)

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promotion of education and learning.5 Istha and Purta are in fact regarded as the common duties of the twice born class.6”

Essential of a valid endowments are 1. The dedication must be complete, 2. The subject matter must be specific, 3. The object must be definite, 4. The settler must have the capacity to make the endowment.

5 Pandit Prannath Saraswati, ‘Hindu Law of Endowments, 1897,’ pages 26-27 6 Id.

7

DEDICATION Dedication of property is essential for the creation of an endowment. A dedication consists of the following two elements.7  Sankalpa or the formula of resolve, or an intention to dedicate properties.  Utsarga or renunciation. The ceremonies of dedication begin with the sankalpa, i.e. the intention to dedicate, manifested by performing certain ceremonies, which include the recitation of time, date and year of dedication, and of the object the founder has in his mind. The utsarga completes the gift. It implies the renunciation of the ownership by the giver in the thing given. According to Kamlakara, gift can be made by the usual libation of water, but if there is no particular recipient, such as when a Math is to be used by ascetics in general and not by the head of any particular sect or class, the offering of water is thrown into a pot. According to Kalka purana, all Maths are required to be dedicated to Shankara.8 For the consecration of a temple and installation of a deity the Smiritikars have prescribed elaborate rituals. In the case of temples and idols, the Sankalpa may be of two types; if the founder has any particular object, for the accomplishment of that object, and the other is for love of GOD. 9 The distinction between dedication to deity and temple and to other objects is that, in the former case, the deity is the recipient of the gift, while in the latter, there may not be any specific person who is the recipient of 7 Roy Burman, B.K., & Misra, K.K., Buddhadeb Choudhuri and Subhdra, (ed.), Encyclopedia of India, Tribes and Castes, Vol.1, Cosmo Publications, New Delhi, 2004. 8 W.M.H. Allen &Co, London,The Asiatic Journal and Monthly Register, Vol.XXII, 1837. 9 Mohan M. Mathews, India Facts and Figures, (Sterling Publishers Private Limited, Delhi, 2001)

8

the gift. Thus in the case of dedication to a temple, the ceremonies of sankalpa and utsarga mean that the ownership in the properties and funds is divested from the founder and is invested in the deity.10 It was observed by our Supreme Court in the case of Deoki Nandan v Murlidhar11 “The ceremonies relating to dedication are sankalpa, utsarga and prathista. Sankalpa means determination, and is really formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it”. It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. Utsarga has be performed only for charitable endowments, like construction of tanks, rearing of groves of garden and the like, and for religious foundations: prathistha takes the place of utsarga in dedication of temples. Where prathista, i.e., formal installation of the deity, is proved, the dedication is complete and valid, notwithstanding that utsarga has not been performed. Judicial discourse reveals a great deal about the question of dedication in debutter property. The concept of dedication and its characterisation is explained in the case of Maharani Hemanth Kumar Debi and Others v. Gauri Shankar Tewari12. In this case there was a dispute over the usage of a religious ghat which led to the question whether Maharani Hemanth Kumari (who had claimed obstruction of the ghat) was the owner of the ghat itself or the hereditary superintendent of a religious endowment. 10 Supra, 9. 11 AIR 1957 SC 133. 12 AIR 1941 PC 38

9

In this case it was held that dedication involves divesting property completely of human ownership and vesting the property in the institution or object. In Rita Shaw And Ors. V. Dipendra Lal Shaw And Anr,13 it has been held that: “On the question as to whether the property is debutter or not, the following passage from the authoritative text to which I have referred to in the earlier part of this judgment may be referred to: As regards the first question, I have stated already that in order that there may be a real dedication to a deity, it is necessary to show that the grantor intended to divest and did divest himself completely of every part of the property which was the subject-matter of the grant, and the dedication was not a mere colourable device to tie up the property for the benefit of the donor’s heirs or other relations.” In this respect, the two decisions of the Hon’ble Supreme Court in the cases of Badrinath and Prafulla Chorone Requitte v. Satya Charonne Requite14 are for the proposition that shebaitship is not merely an office but is property as well, and hence subject to the rules of devolution of property. Dedication may be absolute or partial A dedication for an endowment may be absolute or partial. It is an absolute dedication when the donor divests himself of all beneficial interest in the property dedicated to the endowment. The dedication is partial when only a charge for an endowment is created on the property.15

13 2006 (4) CHN 414 14 1979 SCC (3) 409 15 Sharma, D.S, “What is Hinduism?” The Madras Law Journal Press, Madras, 1945.

10

Subject Matter must be specified The second essential of valid endowment is that property dedicated must be specific. The words of gift used by the testator must be unambiguous and that the subject matter of the gift must be well defined and certain. Any uncertainty about the subject matter of the dedication will be fatal to the creation of endowment. Thus, where the testator gave direction in the will that the money should be spent for a certain charity, but did not specify the amount, it was held that no valid endowment came into existence.16 Object must be definite What are purely religious purposes and what charitable purposes will be charitable, must be entirely decided according to Hindu Law and Hindu notions. In the case of Manorama v. Kalicharan17, testator directed his executors, inter alia, to set apart a sum not exceeding Rs.25,000 for distribution “among his poor relation, dependents and servants”. As to who would be entitled to the benefit was left to the discretion of the executor. The court held the bequest to be valid. Settlor must have the capacity to settle the endowment The fourth requirement for the validity of an endowment is that the settler must be of sound mind and a major and he should not suffer from any legal disqualification. Under the dayabhaga school, the father as well as a coparcener has the absolute power over all properties, self acquired or inherited. So, a father or a coparcener under the Dayabhaga School have full power of creating endowments. Karta or any other

16 Ibid. 17 (1902) ILR 24 All 256.

11

Mitakshara coparcener has no power of making gift or otherwise alienating the joint family property. Save with the consent of other coparceners.18

18 Supra, 15.

12

DEBUTTER An endowment for a temple or an idol does not come into existence by establishment of the deity or by consecration of the idol. The debutter comes into existence when some property is dedicated to it. It is a fundamental rule of Hindu Law that whatever idol may be installed in a temple, or whatever deity or GOD a Hindu may worship, the idol represents the Supreme GOD and none else. This implies that the dedication of property is not to image that is installed in a temple, but to the Almighty. In Hindu law when dedication is made to an idol, the property vests in the idol itself as a juristic person.19 The nature of the property, therefore, is debuttar, that is, belonging to the deities. It would be proper at this stage to notice the distinction between the properties dedicated to temples and that to Maths. When the dedication is to a temple, the property is held by the idols, but the possession and its management must, in the nature of things be entrusted to some person as shebait or manager who is a human ministrant of the deity to conduct worship, A math like an idol in Hindu Law is a juridical person capable of acquiring, holding and vindicating legal rights, but the position of the Mahant, however, is that the property of a Math is held by him as the spiritual head of the institution.20 In the conception of Mahanthship, as in shebaitship, both the elements of office and property are blended together and neither can be detached from the other, but a

19 Balasubramaniam, M., Laws of Charitable and Hindu Religious Institutions Endowments, New India Publication, Hydrabad, 1974. 20 Bhaskara Rao, V.K., “Organisational and Financial Management of Religious Institutions with special reference to Tirumala Tirupathi Devasthanam,” Sri Venkataswara University, Tirupathi, 1992.

13

Mahanth, in addition to his duties, has a personal interest of a beneficial character which is much larger than that of a shebait in a debuttar property.21 Public and Private Debutter It is competent for Hindu to create a public or a private debutter. In the case of Deoki v Murlidhar22, the Supreme Court observed: “The distinction between public and private trust is that whereas in the former the beneficiaries are specific individual, in the latter case they constitute a body which is incapable of ascertainment. Apart from the restrictions laid down for ensuring good order and decency of worship, to regulate the time of public visits and to prevent overcrowing., the right of wordship in the public temples is a free right”. The distinction between public and private endowment has assumed added importance as the State statutes regulate the public debutter and the private debutters are not within their purview. In State of Bihar v. Mahant Shri Biseshwar,23 it was held by the Supreme Cour that: “……. unless the Asthal (Math) itself is a public endowment, properties appurtaining thereto would not be properties of public endowment. Installation of an idol permanently on a pedestal and the fact that the temple is constructedon grounds separate from residential quarters of Mahant are not conclusive proof that temple is a public temple. “

21 Supra, 20. 22 AIR 1957 SC 133. 23 1971 1 SCC 574.

14

If the public is allowed freely to enter the temple and has been worshipping there for a long period of time, it may be a good evidence to indicate that temple is a public temple, but it is not conclusive. Similarly the feeding of Sadhus and giving hospitality to wayfarers is not by itself indicative of the public character of the temple. Real and Nominal Debutter The dedication of the property should be real and not a colourable device to tie up the property for the benefit of the founder and his decendents. If the dedication is complete and the founder has completely divested himself from the dedicated properties, the debutter is real, otherwise it is partial. In determining whether a debutter is real or nominal, the manner in which the properties are held and enjoyed is the most important. The burden is very heavy on the person who alleges that a document solemnly executed is fictitious.24

24 Fergusson James, History of India, and Eastern Architecture' Fredarich, A, Freeger, The Hindu World:

15

SHEBAIT The person in whom the management of the debutter is vested is known by various names: the terms Shebait is commonly used in Bengal; he is called the Dharmakarta in Tamil Nadu and Andhra Pradesh; and Panchayatdar in Tanjore and Malabar. In English the term manager is used for him, but as it fails to depict his real position and powers. It is only in a very broad sense that he is like a manager. As regards the endowed properties, he is more like trustee, as regard his functions and duties towards the temple in spiritual sense, he is a holder of an office of dignity. A Shebait is one who serves and sustains the deity in the capacity of a manager of the debuttar property (property vested with the deity).25 The property of the temple is regarded as vesting with the deity. However, it is in an ideal sense that the dedicated property vests in an idol, and in the nature of things, the possession and management of it must be entrusted to some person as Shebait or manager. The Shebait is considered to be a human ministrant of the deity. He is the person entitled to speak on behalf of the deity on earth and is endowed with authority to deal with all its temporal affairs. The personal interest of the Shebait cannot be detached from the duties, such a transfer of Shebaitship would mean delegation of the duties of the transferor, which would not only be contrary to the express intentions of the founder, but would also contravene the very policy of law. Right of uraima or Shebaitship is considered by Hindu law as inalienable as the personal interest of Urallens / Shebaits cannot be detached from their duties.26 25 Hicfcs and Guilett. The Management of Organisation, (McGraw Hill International Book Company, Paris, 1981). 26 B. K. Mukherjea , The Hindu Law of Religious and Charitable Trusts (Allahabad Law Agency, Second edn.)<...