Judgement

JAGADISAN, J. :- Venkatarama Iyengar, Kasturi Iyengar and Ranga lyengar, three residents of the village of Kariamanikam, Lalgudi taluk, Tiruchirapalli Dt., of pious nature with enterprising spirit, conceived the idea of establishing a feeding charity years ago. The famous shrine of Sri Prasanna Venkatachala-pathiswami at Gunaseelam village was only one and half miles away from their village. The sanctity of the shrine is so high and the devotion of its worshippers from far and near is so great that large concourse of pilgrims resort to it in all seasons of the year, particularly during the Brahmotsavam festival in the month of Purattasi.

These pious individuals collected subscriptions and donations from the people in the locality, added their own contributions to the collected fund and began to feed brahmins who came to Gunaseelam during the annual festival. Besides this feeding at Gunaseelam they also fed brahmins of a Vanabhojanam in Kariamanikam village itself in the month of Karthigai. In course of time these feeding charities became popular and a large number of brahmins were fed and considerable amounts were received as contributions from benevolent people interested in such feeding. 7 acres of wet lands were purchased between the years 1936 and 1940 for a total sum of Rs. 10,800 to constitute a permanent source of income for the performance of these charities. These three founders agreed amongst themselves that they should function as hereditary trustees for the feeding charity, and that at the death of any one of them his place should be taken up by his eldest son. Rama Iyengar died sometime in 3943 leaving behind Lakshiminarayana Iyengar, his eldest son. Kasturi Iyengar died sometime in 1940 leaving behind his only son Narayana Iyengar.

2. The President of the Hindu Religious Endowments Board, Madras in exercise of his powers under S. 69 of Madras Act II of 1927 called upon the trustees of the aforesaid charity, styled as Sri Gunaseelam Prasanna Venkatachalapathi Perumal Purattasi Rathothsava Samarathanai, to pay contributions in respect of the said charity for the fasli years 1351 to 1354. The trustees objected to such levy and filed O. P. No. 297 of 1947 on the file of the District Court of Tiruchirapalli under S. 84(1) of the Act for the cancellation of the order levying contribution.

By order dated 11-3-1947 the learned District Judge allowed the petition holding that the charity was not a "specific endowment" within the meaning of Madras Act II of 1927. The President, Hindu Religious and Charitable Endowments Board, Madras preferred an appeal to this court, A. A. O. No. 540 of 1949 but the appeal was dismissed. The decision of the Division Bench of this court dismissing the appeal is reported in the President, Hindu Religions and Charitable Endowments, Madras v. Venkatarama, 1953-2 Mad LJ 357 (AIR 1954 Mad 65).

3. Madras Act XIX of 1951 repealed Madras Act II of 1927, and for the first time a definition of "religious charity" was introduced1 under S. 6(13) of the Act. The Deputy Commissioner, Hindu Religious and Charitable Endowments, started proceedings under S. 57 clause (d) of the new Act in O. A. No. 295 of 1953 on his file. After a summary enquiry he held that this "Samarathanai kattalai" is a religious charity as defined under S. 6(13) of the Act. To this proceeding Venkatarama Iyengar, one of the original founders, Narayana Iyengar, the son of Kasturi Iyengar were impeded as parties. These trustees preferred an appeal before the Commissioner of the Hindu Religious and Charitable Endowments, Madras in App. No. 22 of 1954 on his file.

The appeal was, however, dismissed by order No. 619 dated 22-3-1954. Thereupon, the present! suit O. S. No. 81 of 1954 on the file of the court of the subordinate Judge of Tiruchirapalli was filed by Venkatarama Iyengar and Narayana Iyengar, impleading the Commissioner of the Madras Hindu Religious and Charitable Endowments as the first defendant and Lakshminarayana Iyengar, the son of Ranga Iyengar as the second defendant, he being away at Calcutta in service unable to joint them as plaintiffs. During the pendency of the suit Venkatarama Iyengar died and Narayana Iyengar and Ramaswami Iyengar were impleaded as his legal representatives.

4. The learned! Subordinate Judge who tried the suit held that S. 6(13) of Madras Act XIX of 1951 would cover the feeding charity and accordingly he dismissed the suit with costs of the first defendant. This appeal has, therefore, been preferred by the trustees challenging the correctness of the said judgment and order.

5. There is no dispute about the mode in which the feeding charity is being conducted. During the Rathothsavam festival of Sri Prasanna Venkatachalapathi swami temple at Gunaseelam brahmins are fed at a place called Justice Seshagiri Iyers choultry situated within 100 yards of the Gunaseelam temple. Originally the feeding was being done on the car festival day, and on the day previous to it. But for the past 20 years the feeding is being doner on all the tea days of the festival. This is the evidence of P.W. 1, the village munsif of Amoor.

He also deposed that feeding is not done in any other period in the year except the ten days of the car festival. Occasionally it was done on two days earlier and two days later than the festival itself. P.W. 2 a resident of Gunaseelam definitely stated that there is no connection between the feeding charity and the temple. Food cooked for the purpose of" feeding the Brahmins is not taken to the deity at the shrine for neivethyam. He also deposed to the conducting of Vanabhojanam in Kartikai month in Kariamanickam village.

6. P.W. 3 is a resident of Tiruchirapalli town. He deposed that the feeding charity was conducted by the trustees in the month of Purattasi every year in Seshagiri Iyers choultry. P.W. 4 is the second plaintiff himself. He gave evidence stating that for the last 25 years the feeding was being done at Seshagiri Iyers choultry and all brahmins coming to choultry were fed there irrespective of the fact that they came to the temple or not.

On a consideration of this evidence the learned Subordinate Judge came to the following conclusion :

"The charity in question is a feeding charity conducted during the ten days of the Eathothsava in the Prasanna Venkatachalapathiswami temple in Gunaseelam in the month of Purattasi. Only brahmins are fed and not other community people. There are similar feeding charities for the different communities conducted by the respective community people. The charity in question has no connection with the Gunaseelam temple in the sense that the food prepared is not offered to the deity, and feeding is done not in the temple premises but at a separate place originally in a specially erected pandal and now in Seshagiri Iyers choultry. The other communities are not fed at this charity

The temple authorities have no voice in the conduct of the feeding."

We agree that this is the proper inference from the proved facts in this case.

7. The question that has now to be considered is whether on the facts so found the charity is one within S. 6(13) of Madras Act XIX of 1951. That section is as follows :

"Religious charity means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with math or temple or not."

It is not necessary to refer to the definition of religious endowment as embodied in S. 6(14) and a specific endowment as embodied in S. 6(16) of the Act, as it is common ground that unless thin samarathanai charity is "religious charity" under S. 6(13), it cannot be a "religious endowment" or "specific endowment". To constitute a religious charity within the meaning of S. 6(13) of the Act, there must be a public charity, and that charity must be associated with a Hindu festival or observance of a religious character. The charity may or may not be connected with a math or temple.

8. There was some discussion is the court below whether this samarathanai charity is a public charity or not. It was contended on behalf of the trustees in the court below that the charity was not a public charity as the beneficiaries are only brahmins who form a part of the general public. But this argument is obviously untenable. In Deoki Nandan v. Muralidhar, 1956 SCR 756 : ((S) AIR 1937 SC 133), Venkatarama Aiyar, J. delivering the judgment of the Bench observed thus at page 759 (of SCR); (at p. 136 of AIR) :

"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, 15th Edn. pp. 15-16; By public must be understood such, as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in. one or more individuals who are, or within a certain time may be, definitely ascertained."

In a subsequent decision of the Supreme Court in Venkataramana Devaru v. State of Mysore, 1958 SCR 895 : (AIR 1958 SC 255), it was held that the expression "religious institution" of a public character occurring in Art. 25(2)(b) of the Constitution constitutes not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof and includes denominational temples as well. At page 912 (of SCR) : (at p. 265 of AIR) Venkatarama Aiyar, J. observed us follows :

"The word public includes in its ordinary acceptation, any section of the public, and. ....."

We are clearly of opinion that this Samarathanai charity is a public charity within the meaning of S. 6(13) of the Act.

9. We have now to construe the words "associated with a Hindu festival or observance of a religious character" occurring in Sec. 6(13) of the Act. The learned counsel for the respondent contended that a Samarathanai charity is itself of a religious character and for this position he relied upon the decision in Ramaswami v. Aiyusami, AIR 1960 Mad 467. Ramaswami, J. after referring to several lexicons and dictionaries for the proper interpretation of the word Samarathanai,. observed thus at page 473 :

"The information culled out from these lexicons shows nothing more than that the Dharmam of feeding was one of the means of serving, worship, adoration and propitiation of the deity and that generally speaking the people who were fed were poor Brahmins."

We are unable to see how from the observation referred to above it can be said that a feeding charity as such acquires a religious character or is caught within the definition of religious charity under S. 8(13) of the Act. Under the Hindu law the distinction between a religious and a charitable endowment is no doubt an innovation and a modern development caused by legislation and the exercise of governmental control over public trusts. The endowment of a Hindu to do charity or to make a charitable gilt is only to acquire religious merit. As observed by Dr. Bijan Kumar Mukherjee in his Tagore Law Lectures, on the Hindu Law of Religions and Charitable Trust at page 14 :

"In the Hindu system there is no line of demarcation between religion and charity. On the other hand charity is regarded as part of religion. The Hindu religion recognises the existence of a life after death, and it believes in the law of Karma according to which the good or bad deeds of a man produce corresponding results in the life to come. All the Hindu sages concur in holding that charitable gifts are pious acts par excellence, which bring appropriate rewards to the donor, and the seer in the Rigveda says in clear accents that Ho who gives alms goes to the highest place in heaven."

Whatever affinity there may be between religious and charitable endowments under the Hindu law in view of the fact that the ultimate object of making these endowments is one prompted by religious motive, it cannot be a factor that can be taken into account in interpreting a statute.

10. Learned counsel for the respondents then relied upon a decision of a Division Bench of this court in Radhakrishna Chettiar v. Commissioner, Hindu Religious and Charitable Endowments, 1960-1; Mad LJ 494. That was a case in which the question of the applicability of S. 6(13) of the Act came to be considered with regard to a feeding charity conducted by the Arya Vysya community at Gunaseelam in the month of Purattasi. By a deed of trust dated 26-11-1942 a chathram was founded for the benefit of the members of the Arya Vysya community who visit Gunaseelam for the purpose of participating in the religious festivals in the month of Purattasi.

There was a deed subsequent to it which provided for the performance of puja and neivedhyam in the temple. The question for consideration before the Division Bench was whether this endowment : constituted religious - charity within the meaning of S. 6(13) of the Act. Anantanarayanan, J. delivering the judgment of the Bench observed thus ad page 494 :

"It is not now necessary to consider whether the learned Subordinate Judge was justified in his finding that the puja and neivedhyam had to be performed at the temple during the Rathothsavam, when there is no specific mention of the place of puja in the second document. Ex. B. 2. But presumably the puja and neivedhyam had to be performed at the temple, as this is in consonance with the usual religious practice. This apart, we are unable to subscribe to the inference that the performance of this religious ritual was not one of the objects of the trust. For, it is perfectly probable and possible that all the objects of the trust might not have been enumerated in the very first document and a legitimate object of the trust might be enumerated in a later document. Consequently, it cannot be said that the performance of puja and neivedyam are not objects of the trust; and, since admittedly they are performances of a religious character, the property would be a "religious charity" within the meaning of S. 6, Sub-Sec. (13) of the Act."

This finding recorded by the Division Bench was certainly sufficient to dispose of the appeal. Their Lordships, however, observed further thus at page 495 :

"Even apart from this, and upon a wider ground the contentions of the learned counsel are unsustainable ...... Since, the admitted facts of the present case are that this charitable institution was intended to feed Arya Vysya pilgrims to these religious festivals, upon the stated occasions this endowment would be a religious charity, even apart from the performance of puja and neivedyam. Those latter objects indisputably determine its character as religious charity and specific endowment, to which the provisions of the Act are applicable."

We are of opinion that this latter observation of Anantanarayanan, J. is clear in the nature of obiter dictum not necessary for the disposal of the appeal. The trust forming the subject-matter of construction in that appeal was a composite one involving not merely a feeding charity but also an endowment for the puja and neivedyam of the deity in Sri Venkatachalapathiswami temple at Gunaseelam.

The trust with which We are concerned in this appeal is not of such a character as it is solely a charitable endowment for the purpose of feeding brahmins in the month of Purattasi at Gunaseelam and in the month of Karthigai at Kariamanickam. We, therefore, do not feel bound by the obiter dictum referred to above in deciding the present case the subject matter of which relates to a trust of a character entirely different from that which was before their Lordships in the Division Bench case referred to above.

11. The important word which has to be construed in S. 6(13) of the Act before it can he held that the feeding charity in the case is a religious charity or not is the word "associated." We have already held that the charity is a public charity and it cannot be disputed that the Rathothsava festival in the month of Purattasi of Sri Venkatachalapathiswami of Gunaseelam temple is a Hindu festival or observance of a religious character. The Oxford Concise dictionary gives the meaning of the word "associate" as follows :

"Join (persons, things or one with, another), combine for common purpose."

(In Websters New Interpretation Dictionary the word "associate" is assigned the following meaning :

"To unite in company, to unite in action, to join for a common purpose,"

In "Words and Phrases", Permanent Edn. Vol. IV page 559 under the caption "Associate" the following observations occur :

"In ordinary nomenclature, the word associate signifies to connect closely or join with others in a common purpose, activity, or responsibility, to partake or share in a common design and implies-participation by each, of the individuals so united in the achievement of a common purpose. In its general and ordinary sense associate signifies confederacy or union for a particular purpose, good or ill. To organise is to arrange individual elements interdependently, each individual having a special relationship with respect to the whole."

The Samarathanai charity which happens to be conducted; during the Rathothsavam festival of Sri Venkatachalapthiswami of Gunascelam shrine cannot be said to be associated with the Rathothsavam festival itself. The trustees of the shrine conducting the festival have no manner of check, control or supervision over this feeding charity. They cannot insist upon the feeding being done during the festival Cessation or discontinuance of the feeding by the trustees of the feeding charity may constitute a breach of trust on their part but cannot in the least affect the due performance of the Rathothsavam festival itself.

Plainly and simply the Rathothsavam festival and the feeding charity have nothing to do with each other. The mere fact that the founders of the feeding charity thought that it will be meritorious to feed brahmins on an important festival occasion which is a sacred occasion cannot establish any link or connection, between the occasion and the charity itself. As there is no unity of purpose or a common object or a common endeavour between the festival and the charity there is no association between the two within the language of the enactment.

12. We are, therefore, clearly of opinion that this Samarathanai charity is not a religious charity under the Act, and that the decision to the contrary of the Deputy Commissioner, Hindu Religious and Charitable Endowments, and that of the Commissioner are erroneous in law and unsustainable.

13. The appeal is, therefore, allowed, and there will be a decree in favour of the plaintiffs setting aside the order dated 22-3-1954 passed by the first defendant in App. No. 22 of 1954 on his file with costs throughout.

Appeal allowed.