Allowed

Pt. Ram Chandra Shukla v. Shree Mahadeoji, Mahabirji and Hazrat Ali Kanpur & Ors.

Supreme Court15 Oct 19691969 INSC 283 · [1970] 2 S.C.R. 8091969 INSC 283

Case brief

AI extract

What is this about?

Dedication of a groveland for maintaining an Akhara (wrestling ground) with idols installed merely to attract wrestlers was held not a valid religious or charitable trust under Hindu law, the dominant object being the Akhara. Appeal allowed, High Court decree set aside, no order as to costs.

What did the court decide?

Appeal allowed; judgment and decree of the Allahabad High Court set aside; no order as to costs; Collector free to recover court fees from plaintiffs' next friend.

What the court decided

Pt. Ram Chandra Shukla versus Shree Mahadeoji… — Succession and Inheritance | Supreme Court (1970)

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809

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PT. RAM CHANDRA SHUKLA

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SHREE MAHADEOJI, MAHABIRJI AND HAZRAT ALI KANPUR & ORS.

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October 15, 1969

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[J. M. SHELAT, C. A. VAIDIALINGAM AND J. D. DUA, JJ.]

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Hindu Law-Propert<J dedicated for promotion of the sport of wrestli11g whether constitutes a valid trust under Hindu Law--Such property along with C'ther 1 property acquired under Land Acquisition Act., 1894-- Coinpromise during reference proceediiigs-Endowed property purchased C by manager and price adjusted against total compensation-Whether on . ,·ucli purchast! property loses i'ts chara::ter as trust property.

¶9

One Mani Ram, a wrestler, owned certain properties including a groveland. In the groveland he maintained an Akhara or wrestling ground. He spent the income from the groveland as well as his other income for the promotion of wrestling. On the archiate of the Akhara was installed an idol of mahabirji and over a small room nearlJy a Shiv Lingam was in!talD led. In order to attract Muslim wrestlers a tasweer of Hazrat Ali was also placed in the Akhara. In 1830 Mani Ram partitioned his properties. He took a one eighth share including the said groveland for himself and wife. In the partition deed the said groveland was described as a wakf. Mtcr Mani Ram··s death his wife entered into possession of bis property and continued to maintain the Akhara out of the income of the groveland. In 1862 she made a will wherein she described the groveland having the Asthan of Mahabirji and Mahadeoji as having been dedicated by her husband. She E enjoined her son Mangli Prasad to continue to maintain the Akhara 'as heretofore,' and empowered him to appoint his successors in management from among the descendants of Mani Ram. Mangli Prasad was succeeded in management by his widow. After the latter's death there was litigation between her legatee and Mangli Prasad's daughter Sheodei Kaur. The Court declared the said groveland and Akhara to be endowed property and held that Sheodei Kaur was entitled to the possession thereof as manager. F The property canie into the possession of Ishwar Narain, the son of Sheodei Kaur, in 1906. He built. a cinema house on a part of the said gro-;eland in 1914-15. In 1937 the Improvement Trust of Kanpur acquired the groveland, the structures on it, as well as the surrounding property. In reference proceedings regarding compensation a compromise was arrived at whereby the Improvement Trust agreed to sell to lshwar Narain the porti'?D of the acquired property corresponding to the endowed property along with the structures thereon for Rs. 25,000 which amount was adjusted G against the total compensation payable to him for the acquired property. ~ Ishw~ Narain's death in 1948 the propeny which was described in his will ~ h1~ personal property passed to his sister's sons who were enjoined to mamtam the Akhara and the Asthan. The respondents through their next friend instituted a suit in which they challenged tlie bequest on the ound that the Akhara and the groveland constituted trust property. The trial court eld that the possession of the property in question by Mani Ram and ht sccessors. was that of managers or trustees, it further held H that the dedication was 1n favour of the Manager or trustee tor the maintenance of the Akhara. The High Court held that the dedication was in favour of the idols of Mahabirji and Mahadeoji. In appeal to this Court by certificate the main question for consideration \vas \Vhether there was

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(1970]2 S.C.R.

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810

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SUPREME COURT REPORTS

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a valid trust under Hindu law in favour of the respondents. ·The appellant also urged that what was dedicated was not the groveland but the grove, and that after the purchase by Ishwarlal of the groveland and the structures thereon from the Improvement Tru<;t that property could no longer be treated u a trust.

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HELD: (i) (a) The doouments on record as also the evidence as to the conduct of Mani Ram and those who held the property after him clearly •howed that Mani Ram dedicated the groveland and not merely the treeo standing thereon. [816 CJ

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(b) The purchase of part of the said property a'fter its acquisition was from out of the compensation received by Ishwar Narain and not out of his personal funds, so that if the trust was in law a valid one, the property purch>Sed by him out of the trmt funds would be stamped with the trust and he would in that event be holding that property as a trustee or manager c and no as an owner. [816 DJ

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(ii) However the trwl could not in the present case be held to be a valid one under Hindu law. [822 B-C]

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A dedication of property for a religious or a charitable purpose can, according to Hindu law, be validly made orally and no writing is necessary to create an endowment except when it is created by a will. An D appropriation of property 'for specific religious or charitable purposes is all that is n~sary for a valid dedication. Hindu piety found expression in gift> to idols lo religious institutions and for all purposes considered meritorious in the Hindu social and religious system. There is no I!-1e of demarcation in the Hindu system between religion and charity : gifts both for religious and charitable purposes are impelled by the desire to acquire religious merit. They may take the form of lstha (sacrifices and sacrificial gifts) or Purta (charities such as 1naintenance of temples. tanks, we''s E etc.). But the terms Istha and Purta themselves are elastic and admit of no rigid definition. .As times.· advanced more and more categoriei; of acts considered to be beneficial ·to the public would be recognised <lepc.1ding on the needs and beliefs of the time. [819 C-G, 820 B-C]

¶19

But tl.ero is nothing to show that the promotion of a particular game either for entertainment of the -public or as encouragement to those who F take part in it has ever been recognised as a charitable trus~ according to Hindu law. Neither Pandit Prannath Saraswati, nor Mukherjea, · nor Mayne suggests in his treatise that a dedication for the promotion of a particular game or sport is a charitable trust under Hindu law. [820 F-0] The English law of trusts as found in the Statute of Elizabeth or the law relating to Superstitious Uses is not applicable to India. But even in G English cases dedication for promotion of games, except as a part di education, has not been treated as a charitable trust. [820 H; 82 l El A3 held by d:his Court in Saraswathi A.11tmal's case, in determining the validity of a trust under Hindu law it is the dominant purpose of the trust which io; relevant. In the present ca..jc the purpose of installing the tv..•o idols and the tasweer clearly wa:l to enable the wrestlers_ to pay their homa~e and salutations to the patron d;!ities of the game before entering H into the wrestling arena. On the fac:S it must be held that the dominant object of the dedication was the Akhara and the said idols and the tasweer were ino;talled only to attract persons of both the communities to the Akhara and to provide for them there the facility for invoking the divine benediction before they participated in wrestling. [818 E-0]

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R. c. SHUKLA v. MAHADEOJI (She/at, J.)

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811

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A That being the position it was impo:.sib!e, in the absence of any authority textual or by way of a precedent, to hold that the dedication in question was for either a religious or charitable purpose recognised by HinJu law. [822 B.C]

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The appeal must accordingly be allowed.

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Sar.:JSwathi Ammal & APr. v. Rajagopal Ainmal, [l 954] S.C.R. 277. B M•Mkuru Dasaratharami R'1J.di v. Duddukuru Subba Rao, [19571 S.C.R. l 122 at 1128 and Vidyavaruchi v. Balusami Ayyar, (1921) 48 I.A. 302 at 311, relied on.

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Co1n.ntissioners for special Purposes of the Income-tax v. Pemsel, [18911 A.G. 581 at 5&3, In re Notag•, Jon., v. Palmer, [18951 Ch. 649, In re Hadden, Public Trust" v. More, [1931] I Ch. 133, In re Marietta, Mmiette v. Governing Body of Aldml1am School, [19151 2 Ch. 284, In c re Dal•y v. Llays Bank Ltd. [1945] 114 L.J. Ch. I, Trust«S of tlie Tribune Presr v. Commissio1ter of Inco1ne-'1:x, 66 I.A. 241, At! India Spifl· "'''"Association v. Commissioner of Income-tax, I.L.R. [19451 Born. 153 and Cricket Association, Bengal v. Conunission.er of lncome~tax, Calcutta, A.l.R. 1959 Cal. 296. referred to. '

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Mayne's Hindu law I Ith Ed. p. 192, Mukh<"jea's Hi'1du law a1td l~.eligiDus and Charitabl~ Trust 2nd Ed. P. 11, and Pandit Prannath Saran· swati'• Hindu Law of Endowments, 1897, pp. 26-27, relied on.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1393 of 1967.

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Appeal from the ju:lgment and decree dated August 5, 1965 of the Allahabad High Court in First Appeal No. 187 of 1957. E C. B. Agarwala, Ravinder Ba11a and 0. P. Rana, for the appellant.

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I. P. Goyal and P. N. Tiwari, for respondent No. 1 (I).

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Yo~~shwar Prasad and M. Veerappa, for respondent No. 1 (II I.

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The Judgment of the Court was deliverecl by

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. Shelat, J. This appeal, by certificate, is directed against th·~ Judgment and decree of the High Court of Allahabad dated Augu>t 5, 1965 a!J.d reates to a piece of land together with buildings !heeupon.1ncludmg an Akhara (wrestling ground). The property ~s situate m Kanpur and bears at present Municipal No 26/7' G its original No. being 26/30. · · -·

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. mtime prior to 1830, one Mani RDm, wdi-known during his hfe-tune as a wrestler, purchased a grove]and with trees standmg t_hreon. Whether he purchased one such groveland and divided it mt? two, or purchased two such grovelands and amalgamated them mto one is not quite .certa. Along with this land he was possessed of oher J?roperlies adjacent to the said groveland. It apears that being hunse_lf a wrestler and fond of that sport Mam Ram purchased the said groveland for setting up and main-

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[1970] 2 S.C.R.

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SUPREME COURT REPORTS

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812

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taining an A khara where wrestlers of both Hindu and Muslim communities could come for wrestling. Besides the income from the said groveland, Mani Ram spent large amounts for promoting wrestling and to that end made a number of disciples.

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He had by his first wife six sons and a seventh son, Mangali Prasad, a wrestler of repute, from his second wife, Raha'.l Kaur. By a deed of partition dated June 23, 1830 he divided ali his . properties into eight shares giving one share to each of his seven sons and retained the 8th share for himself and the said Rahas Kaur. This 8th share included the said groveland on which stood the said Akhara as also certain other structures. The Akhara ground was bounded by a compound wali with an archgate to enter into. It appears that with the object of attracting wrestlers he installed on the archgate an idol of Mahabirji, a Shiv Lingam over a small room which stood next to the said gate, and a tasweer of Hazrat Ali. The two idols and the Ta.weer were obviously intended to give a religious bias to the Akhara, the first two to attract Hindu wrestlers and the third to attract Muslim wrestlers. The said deed of partition stated with regard to the said l/8th share and the said groveland that none of his seven sons would ha'e any interest or right in them as the "one eight (I/8th) share and the grove, which is a waqf property and which I, the executant, have taken for myself I, the executant and my second wedded wife shall remain owner thereof till our life time." It would thus appear that even before 1830 Mani Ram had already dedicated the said grciveland for the purposes of the said Akhara and that was why he referred to it as waqf property. Mani Rai,, managed the said grovel and i.n the aforesaid manner using the income thereof for the said A khara. On bs death the property came under the management of his widow, the said Rahas Kaur. On May 12, 1862 Rahas Kaur made a will in w.1ich after reciting the partition deed of 1830 she stated as follows :

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"He (Mani Ram) dedicated two grooves-'situate in Philkhana Bazar, which has Asthan of Mahadeoji and Mahabir and Akhara and Taswir of H&zrat Ali-The Akhara and Asthan-up to this day are continuing as theretofore, and Mangli Prasad, my son, is unparaJlel in wrestling. In order that it may continue-I execute a will that (paper torn) shall be spent over it as mentioned in the will of my husband. The Akhara and Asthan shali continue as heretofore.';

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The will then provided that the management of the A khara and the Asthan should remain with Mangli Prasad and authorised Mangli Prasad to appoint managers after him from the issues of Mani Ram and thus the management should go on from generation to gen~ration.

H^-

(Shelat, J.) 813

R. c. SHUKLA v. MAHADEOJI

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From a deed of lease dated June 28, 1862, executed by one Mst. Tejia, it appears that the said groveland was given on lease to her at the annual rent of Rs. 23 by Mangli Prasad. The deed of lease also uescribed the said groveland as havi~g "Asthan of Mahadeoji and Mnh,ibir and Akhara and Taswir of Hazrat Ali" and as having been dedicated to them.

In 1862, one Bansgopal filed suit No. 490 of 1862 against Mangli Prasad and otb~rs for partition and for 1/3rd share in the said groveland. Ma,ngli Prasad filed a written statement therein explaining how the groveland was purchased by Mani Ram from 0ut ot his own funds and how he had dedicated it and referred to the said partition between Mani Ram and his sons. He also described how after Mani Ram's death in 1849, the property was administered first by Rahas Kaur and after her death under the· directions of her said will by him. Mangli Prasad in this written statement denied that the plaintiff in that suit had any right or interest in the said groveland, the same having been dedicated by Mani Ram for the purposes aforesaid.

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It appears that after Mangli Prasad's death his widow, Ja.nki Kaur, entered into possession of the said property. From the judgment in First Appeal No. 279 of 1901 of the High Court of Allahabad dated December 23, 1903 it would appear that Janki Kaur left a will in favour of one K.ishan Sarup and on the fatter E claiming the prope1ty Mangli Prasad's daughter. Sheodai Kaur, filed a suit for a declaration of her right of possession to the said property. That judgment has some bearing on the question as to the nature of the property in this appeal as it clearly stated that the groveland in question was an endowed property, and that herefore, Sheodei Kaur could not claim that property by inheritance, but was entitled to the possession thereof as the manager F 'ince Mangli Prasad had not 3ppointed any one as such manager. By this judgment the High Court declared that "as regards the two· grovelands and A khara-we declare that the plaintiff is entitled to be the manager of the said property". From the description m the decree of the property declar 'd by the High Court as the endowed property there can remain no room for doubt that the G endoed property consisted of the two grovelands :md the enclosure· known as Buag-A khara.

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The property came into possession of Ishwar Narain the son of the sid hodi Kaur, in .106. In 1914 he -applid to the Kanpur Mumc1pahty for perm1ss10n to build a theatre in a part of the Buag-A khara and }n September 1915 he executed a mortgage to secure repayment C< a loan of Rs. 6,000/- he had borrowed to com~lete the said theatre. Though the A khara and the Asthan contmued to be maintained by him, it appears that he treated the·

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[1970] 2 S.C.R.

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814

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SUPREME COURT REPORTS

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endowed property as belonging to him.. In or about 1937 the Improvement Trust of Kanpur acquired the whole of the property which consisted of the said two grove lands, Buag-A khara and the structures standing thereon and the property lying outside and .around them. The award of the Collector dated February 19, 1937 shows that for the entire property compensation was calculated at Rs. 94,934/-. lshwar Narain, thereafter, filed a reference under s. 18 of the Land Acquisition Act. Pending the reference, .a compromise was entered into between the Improvemlmt Trust .and Ishwar Narain under which in consideration of the latter not pressing the reference the Improvement Trust agreed to sell to him the portion corresponding to the said endowed property for Rs. 25,000/•. 1n accordance with this compromise, the said land together with the A khara, the Asthan, the said theatre and certain other structures were conveyed to Ishwar Narain who was paid Rs. 94,934/- less Rs. 25,000/- as compensation for the rest of the acquired properly. Ishwar Narain died in 1948 having prior thereto made his will dated November 11, 194 7 claiming therein that on the death of his· monther, the said Sheodei Kaur, h·~ had become the absolute owner of the said property and bequeathed 1he said property to Balaji and Ram Chandra, the sons of his sister, Narayani Devi, with directions to them to maintain the said Akhara and the Asthan.

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The principal question which was .igitated before the Trial •Court was as to the existence of a valid trust and the nature of possession of Mani Ram during his life time and his successors thereafter. To the latter part of. the question, the answer of the Trial Court was that possession of the property in question by Mani Ram and those who came into possession after him was that of managers or trustees. As to the first part of the question, the Trial Court held :

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"The next part of the issue is about the endowment being valid-It is true that Mani Ram Pande was not competent to make a dedication in favour of Hazrat Ali but he had not done so in this case. The various documents referred above do not prove that the dedication was made in favour of Hazrat Ali or even Mahadeoji and Mah;;birji. Wherever there is an allegation of the dedication it is mentioned that the Ahata in question is a dedicated property and there are "Asthana" of Mahadevji ·and Taswir of Hazrat Ali and also an A khara. Jt mans that the dedication was not made in favour of any juristic person such as Mahdev Ji or Mahabir Ji or ·even to the Akhara or Hazrat Ali. No dedication even in favour of Akhara could have been made as the Akhara was also not a juristic person. The intention of Mani

R. c. SHUKLA v. MAHADEOJI (She/at, J.)

81 s

Ram Pande, as appears from the partition deed, Ex. 6, was· that the dedication was in favour of a trustee or manager, the objects of which was to maintain the Akhara a:nd the worshipping of Mahabirji and Hazrat Ali by the wrestlers of the two communities, Hindus and Muslims. The main purpose "f dedication was the maintenance of the Akhara which meant for the wrestlers of both the communities."

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In this view the Trial Cuurt decreed the suit and directed the appellants to hand over possession and pay Rs. 23,000/- as mesne profits in addition to Rs. 1100 a month as further mesne profits for the period pending the suit.

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In appeal against the judgment and decree of the Trial Court, the High Court took the view that though there was no deed of dedication available, the evidence on record was clear that Mani Ram had dedicated the said property, that he and those who ~uc ceeded him right upto Ishwar Narain held the properties as trustees D or managers, that the said judgment of the High Court of Allahabad of 1903 also held that the said Sheodei Kuar was to hold the property in the capacity cf a manager, a:nd lastly, that the dedication was in favour of the two idols of Shri Mahadeoji and Mahabirji. In this connection the High Court expressed itself in the following terms:

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E· "It may be that establishing an Akhara is not a religious or a charitable purpose. But this was not the only object of the trust now in question. There was an Asthan in addition to the Akhara. Dedication of property for the benefit of an idol is recognized in Hindu law as a religious objeci. Mr. V. P. Misra further contended that Mani Ram was not competent to create a trust for the benefit oi. Hazrat Ali. On this point, the lea;ned Civil Judge observed that Mani Ram was not competent to make dedication· in Hazrat Ali's favour. But Hazrat Ali is not the sole plaintiff in this case. Sri Mahabirji, Sri Mahadeoji and Hazrat Ali have come to Court as co-plaintiffs. If •he dedication in Hazrat Ali's

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G favour cannot be recognised, there should be no difficulty in treating the endowment as a trust for the benefit of .Mahadeoji and Mahabirji. The decree passed by the Tnal Court can well be trc:ated as a decree in favour of Sri Maharleoji arid Sri Mahabirji only."

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H In disputing the correctness of the High Court's judgment and dec~ee, Dr. Agarwala for the appellants raised the following contentrons : ( 1) that the endowment was in respect Qf the grove and not the ~veland, i.e., only of the income from the trees which

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[1970] 2 S.C.R.

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816

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SUPREME COURT REPORTS

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existed during Mani Ram's life Cme; (2).that on acquisition of the entire property including the A khara-buag by the lmprovement Trust, the trust, in any event, was extinguished and the purchase by Ishwar Narain after the acquisition from the Improvement Trust did not and could not revive the trust; (3) that the trust was invalid by reason of one of its objects being the image or tasweer of Hazrat Ali; and ( 4) that the dominant object of the trust was to establish and maintain in perpetuity the said A khara, which object in Hindu Law is neither religious nor charitable, and therefore, the trust was not a valid trust.

¶92

So far as the first and the second contentions are concerned, we have no difficulty in rejecting them. The documents on record as also the evidence as to the conduct of l:ani Ram and those who held the property after him clearly show that Mani Ram dedicated the groveland and not merely the trees standing thereon. The purchase of part of the said property after its acquisition was from out of the compensation received by Ishwar Narain and not out of his personal funds, so that if the trust was in law a valid one, :he property purchased by him out of the trust funds would be ;tamped with the trust and he would in that event be holding that property as a trustee or manager and not as an owner ..

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The question, therefore, on which the result of this appeal would turn is whether the trust created by Mani Ram and which he referred to in the said deed of partition was a valid trust recognised in Hindu law as religious and/ or charitable. The principle of law applicable to trusts made by Hindus is succinctly stated by this Court in Saraswathi Ammal & Anr. v. Rajagopal Amma/(¹ ). A Hindu widow there settled certain properties for !he following trusts, ( 1) expenses in connection with the daily pooja of the samadhi where her husband's bDdy was entombed in accordance with his 1 ast wishes and the salary of the person conducting the said pooja; (2) Gurupooja and annadhanam to be performed annually at the samadhi on the anniversary day of his death; and ( 3) any balance left over after meeting the above expenses to be spent for matters connected with education. The contention was that though the first object was not a religious object, the performance of Gurupooja and the feeding at the annual shradha and the utilisation of the balance, if any, for educational purposes were the main destination of income, and therefore, the mailll object of the settlement and that ·accordingly the dedication was valid. This contention was negatived and it was held that notwithstanding that the major portion of the income may hav~ to be spent for Gurupooja and annadhanam in connection with the annual shradha, the dominant purpose of tlle dedication was the samadhi kainkar:vam,

(!) (19541 S.C.R. 277.

¶104

R. c. SHUKLA v. MAHADEOJI (She/at, J.)

¶105

81 7

¶106

A i.e., the worship of and at the tomb. The validity or otherwise of the dedication, therefore, had to be determined on that footing and not as though it was dedication for the performance of the annual shradha on a substantial scale or for annadhanam as such. It was held that it did not make any difference that the surplus was to be utilised .for educational purposes. That surplus was contiJngent, B indefinite as well as dependent on the uncontrolled discretion of the manager as to the scale on which he chose to perform the services at the samadhi. The dominant purpose of the settlement thus being the pooja of and at the samadhi, the validity of the settleme1nt had to be decided on that footing, namely, whether such trust was recognised in Hindu Jaw. On that question the Court c relied on a passage from Mayne's Hindu Law, (11th ed.) at p. 192, which srates that what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu law and Hindu notions. The Court observed that in finding out such purposes, the insistence of English Jaw on the element of actual or assumed public benefit would not be the determining factor, but the Hindu notions of what a religious J) or a charitable purpose is. The Court further held that to the extent that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though Jackirog in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. To the argument that new religious practices and beliefs may have since then grown up and obtained E recognition, the Court answered that if they are to be accepted as being sufficient for valid perpetual dedication they should have obtained wide re~ognition and constituted the religious practice of_ a subsrantially large class of persons and that the heads of religio\is purposes determined by belief in acquisition of religious merit cannot be allowed to be widely ~larged consistently with public F policy and the needs of modem society. In the result, the Court confirmed the High Court's view that the settlement was invalid.

¶107

. Thi:re being no deed .of endoent, the intention of M8(lli Ram 10 settling the property m question has to be principally gathered from the said deed of partition and the said will of Rahas Kaur, th rest of the documents executed by Mangli Prasad aind others G ~emg useful only in :lid of the interpretation of that deed of partit10n .and the sa.1d will. 'I_'here can be no doubt whatsoever that Mani Ram, bemg. an emment wrestler a.nd fond al that game, purcha.sed out of his own money the said groveland for the purpose of settmg up an. A khara thereon. The question then would be whether he settled that property upon trust and if so for what H trust. ' '

¶108

As already seen: M8(lli ~am recorded in the said partition deed the fact of his havmg partitioned the property into eight shares,

¶109

818

¶110

[1970] 2 S.C.R.

¶111

SUPREME COURT REPORTS

¶112

his having given one share to each Of his seven SOUS and having retained the eighth share for himself and his second wife and the said grove land as waqf property. The deed, however, does not set out 'the purpose or purposes for which the ·said groveland was regarded by him as waqf property. But it does show that he regarded that property as already dedicated. The purposes for which the groveland was so dedicated. are to be found in the said will of Rahas Kaur, wherein she has in clear terms stated that Mani Ram had dedicated the groveland "which has Asthan of Mahadeo Ji and Mahabir Ji and Akhara and tasweer of Hazrat Ali'', that the Akhara and the Asthan were upto that date maintained and that they should continue as heretofore. The will thus prqvides a key to the rnind of Mani Ram who, as aforesaid, had purchased the said property and set up thereon the said wrestling arena. Obviously, he was anxious that wrestlers of both Hindu and Muslim communities should take part in that Akhara. lt is equally obvious that to attract wrestlers from both the communities he installed in that Akhara the tasweer of Hazrat Ali and the idols ofShri Mahadeo and Mahabir, the two patrcill deities of wrestling. Once these idols were put up in the A.khara, their worship bad to be provided for, for, it is well-known amongst Hindus that it is irreligious to let such idols remain unworshipped. It is not possible to know from the evidence as to where Hazrat Ali's tasweer was installed, but it is clear from the evidence that the idol of Mahabir Ji was located at the top of the archgate which ltd into the A khara and the Shiva Liifigam was installed over a small room built next to the gate. Clearly, the pu.rpose cf installing the two idols and the tasweer was to enable the wrestlers to pay their homage and salutation to the patron deities of the g~me before entering into the wrestling areua. The dominqnt object of the dedicatiqn was thus the A khara and the Asthan of God Shiva and Mahabir; spoken of in the will of Rahas Kaur, was only an adjunct to the A khara. Then> is evidence, no doubt, to show that pooja and shringar of the two idols were performed. But that apparently was because the idols once installed could not be left unworshipped. On these facts we are inc!iined to take the view that the dominant object of the dedication was the Akhara and the said idols and the tasweer were installed only to attract persons of both the communities to the Akhara and to provide for them the facility for invok ing the divine benediction before they participatei;l in wrestling. As laid down in Saraswathi Ammal's case('), it is on thls footing that the validity or otherwise of the trust has to be considered.

It must be made clear at very outset that although the will of Rahas Kaur provided that persons who are to manage the trust were to be in the first instance her son, M~gli Prasad, and later (1) [1954] S.C.R. 277.

¶121

¶122

R. c. SHUKLA v. MAHADEOJI (She/at, J.)

¶123

819

¶124

A on those appointed by him from amongst the issues of Mani Ram, the trust was obviously not a private but a public trust in the sense that it was for the benefit of those who are devoted to the sport of wrestling irrespective of whether they are Hindus or Muslims. But the contention was that in spite of the trust being a public trust, it was not one recognised by Hindu law as being a religious and/ or

¶125

B a charitable one. As stated earlier, the fact that the Akhara ground had the two idols installed in it makes no difference. as the dominant object of the dedication was the A khara and not the worship of the idols or the tasweer of Hazrat Ali.

¶126

A dedication of property for a religious or a charitable purpose can, according to Hindu law, be validly made orally and no c writing is necessary to create an eindowment except where it is created by a will. (cf. Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao('). It can be made by a gift inter vivos or by a bequest or by a ceremonial or relinquishment. An appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication. As stated by the Privy D Council in Vidyavaruthi v. Balusami Ayyar(² ), a trust in the sense in which it is understood in English law is unknown in the Hindu system. Hindu piety found expression in gifts to idols, to religious institutiOjilS 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 E England have placed upon the term 'charity' in the Statute of Elizabeth, and therefore, all purposes which accordiln!g 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 F will be charitable purposes must be decided according to Hindu notions and Himdu law.

¶127

As observed by Mukherjea in Hindu Law and Religious and haritable Trust (2nd ed.), p. 11, there is no line of demarcation n the Hindu system between religion and charity. Indeed, charity G 1s re.garded as part of religion, for, gifts both for religious and chatable purp?5es are inlp.elled by the desire to acquire religious merit. Accordmg to Pandit Prannath Saraswati these fell 1•nder two heads, Istha and Purta. The former meant sacrifices and sacrificial gifs and .the lattr meant chties. Among the Istha acts. are V ed1c sacrifices, gifts to the pnests at the time of such sac~ifices, prese.rvations of Vedas, religious austerity, rectitude, H Va1SVadev sacrifices and hospitality. Among the Purta acts are construction and maimtenance of temples, tanks, wells, planting of

¶128

(I) [19571 S.C.R. 1122 at 1128. (2) (1921) (48) I.A. 302 at 311. LSSup.CI-7

¶129

(1970] 2 S.C.R.

¶130

SUPREME COURT REPORTS

¶131

820

¶132

groves, gifts of food, dharamshalas, places for drinking water, relief of the sick, and promotion of education and learning. (cf. Pandit Prannath Saraswati's Hindu Law of Endowments, 1897, pp. 26-27) Istha aind Purta are in fact regarded as the common duties of the twice born class. (ci. Pandit Saraswati, p. 27)

¶133

Though Pandit Saraswati sought to enumerate from different texts various acts which would fall under either of the two categories of Ishta and Purta, no exhaustive list of charitable purposes can be possible as the expressions 'lshta' and 'Purta' themselves are elastic and admit no rigid definition. As times advance, more and more categories of .acts considered to be beneficial to the public would be recognised depending on the needs and beliefs of the time. (cf. Mukherjea, p. 7 4). Neither the Statute of Elizabeth nor the Law relating to Superstitious Uses was applied at any time to India. Consequently, the English decisions based on one or the other of these statutes would not be applicable nor can they be commensurate with the conditions prevailing in India, though those decisions might undoubtedly be of some guidaince.

¶134

Is then the trust for the maintenance and up-keep of a wrestling ground a valid charitable trust ? The evidence shows that Mani Ram, being personally fond of wrestling had a number of disciples aind attracted several wrestlers to the Akhara. But that, according to Rahas Kaur's will, he did out of his own love for this parti- · cular sport and by spending large amounts out of his own moneys. The only thing which seems to have been done by his successors was to hold wrestling tournaments and award prizes to the successful CJilles out of the income of the property and to maintain the Akhara. It may be that people might have come to mese tournaments and even practised wrestling but there is no evidence whatsoever that wrestling was taught or its know! idge was imparted to those wi~hing to know it. At best, ·therefore, it can be said that by maintaining the Akhara and holdiiltg therein the tournaments wrestling was sought to be encouraged or fostered. But there is nothing to show that the promotion of a particular game either for entertainment of the public or as encouragement to those who take part in it has ever been recognised as a charitable trust according to Hindu Jaw. Neither Pandit Prannath Saraswati, nor Mulrherjea, nor Mayne suggests in his treatise that a dedicationfor the promotion of a particular game or sport is a charitable· trust under the Hindu Jaw.

¶135

In Englajlld it is held not to be so, of course within the scope of the. statute of Elizabeth as interpreted in Commissioners for Special Purposes of the Income Tax v. Pemsel('). Thus, In re Notage., Jones v. Palmer("), a gift for encouraging the sport of

(2) [1895] Ch. 649

(I) [1891] A.C.

R. c. SHUKLA v. MAHADEOJI (Shelat, !.)

¶147

821

¶148

A yatch-racing was not upheld as a charitable trust, though . as Lindley, L.J., remarked every healthy sport is ood for the natl?n. In re Hadden, Public Trustee v. More('), while acknowledgmg the principle laid down in In re Notage(2), the court held that a trust providing for recreation grounds and parks for the benefit of working classes was valid on the ground, however, that sch

¶149

B uses were intended for the health and welfare of the workiing classes. So too, in In re Marietta, Mariettd v. Goven;ing Body of Aldenham School('), where bequests for building squash racket courts or some similar purpose within the school premises and for a prize to the winner in the school athletics were held valid on the ground of its being essqitial in a school of learning that there

¶150

c should be organised games as part of the daily routine. It is clear from the judgment of Eve, J., that he upheld the bequest on the ground not of promoting athletic games but on the ground that ~e object of the charity was education in the school and that trainmg in such games would be part of the educatiqnal activities of the school. There is, however, one decision of a marginal nature. if we may say so, namely, in In re Daley v. Lloyds Bank Ltd.('),

¶151

D where a gift for holding an annual chess tournament limited to boys and youngmqi under the age of 21 years residing in a particular locality was upheld. But that was done after a good deal of hesitation and only by basing it on the ground that training of youth in a game of skill which also required concentration was part of their education.

¶152

¶153

Coming to the cases i1n India, the decisions in the Trustees of che Tribune Press v. Commissioner of Income-tax('), All India Spinners Association v. C01'1missioner of Income-tax(') and the Cricket Association, Bengal v. Commissioner of Income-tax Calcwta(') were all cases under s. 4(3) (i) of the Income-tax Act: 1922 and therefore would have no relevance to the present case F arising under the Hindu Law.

¶154

The decisions above referred to thus lay down a distinction between cases where the object of the dedication was the promotion of games as part of the education 0f those who participate in them and cases where the .object was promotion of games simplicitor, G the fo~er only havmg bee;i upheld qn the ground that such promot10n or enc?uragement is part of the educational training and the latter not haVIng been upheld. In the case of Cricket Association, Bengal('), though arrangements of cricket tournaments of both domestic and foreign teams were said to promote and foster love for a healthy game, s. 4(3) (i) was held not to be applicable.

¶155

H (I) [1932] (I) Ch. 133. (2)[1895] Ch. 649. (3) [1915] (2) Ch. 284. (4) (1945) 114 L.J. Ch. 1. (5) 66 I.A. 241. (6) l.L.R. [1945] Boin. 153. (7) A.I.R. 1959 Cal. 296.

¶156

[1970] 2 S.C.R.

¶157

822

¶158

SUPREME COURT REPORTS

¶159

On a reading of the relevant documents on record and the oral testimony lid by the parties we are not in ·a position to agree with the High Court that the trust created by M~ Ram was a religious trust in favour of the . two idols of Lord Shiva and Mahabir Ji. As aforesaid, our conclusion is that the dominant intention of .the settlor was to set up and maintain an Akhara, the said two idols as also the tasweer of Hazrat Ali having been installed there only to attract wrestlers of the two comm11111ities. That being the position, reluctant though we are, particularly in view of the fact that the said Akhara has been maintained for nearly a century, we find it extremely difficult, in the absence of any authority, textual or by way Di a precedent, to hold that the dedication in questiD!Il was for either a religious or charitable purpose as recognised by Hindu Law. For the reasons aforesaid we are constrained to allow the appeal and set aside the judgment and decree passed by the High Court. In the circumstances of the case, however, we consider it just that there should be no order as to costs. Collector will be at liberty to recover the Court fees payable in the plaint from the next friend of the pla~tiffs.

G.C.

Appeal allowed.

Pt. Ram Chandra Shukla v. Shree Mahadeoji, Mahabirji and Hazrat Ali Kanpur & Ors.

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Pt. Ram Chandra Shukla v. Shree Mahadeoji, Mahabirji and Hazrat Ali Kanpur & Ors.

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