# A""nachallam CM.tti v. V enkata C/uitapathi GuruBUlamigal

- **Citation:** [1963] Supp. 2 S.C.R. 302
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-nachallam-cm-tti-v-v-enkata-c-uitapathi-gurubulamigal-2771
- **Pages:** 26

## Headnote

1962
302 SUPREME COURT REPORTS [1963] SUPP.
H. H. SUDHUNDRA THIRTHA SWAMIAR
fl.
COMMISSIONER FOR HINDU RELIGIOUS
& CHARITABLE ENDOWMENTS, MYSORE
1B. P. SINHA., c. ]., P. B. G4JENDRA.GADKAR.
K. N. WANOHOO, K.C. DAS GUPTA and
]. C. SHAH, JJ.)
Hindu ReUgiom
Endowmen18-Ma1"8-0ommi84ioner's
power to bring a •uil for removal of 17'U8tees-Wlatthtr infringes
fundamtntal right-Patkaltamka given to tM Mahant as head of
Muth given puBOMlly to the Math-Only the former need be
UBed for Math-Annual conJrib'Uiion-Levy of-Whe!Mr tax or
fee-&trOBputive Legillalion-Power of · State LegislaturtOomtitvlion of India, Arl. 19(/) 25, 26, 27-Beventh Schedule,
/Mt II, Items 28, 47~Jlat?.ra. Religious Endowment. Act, 1951
(Madras XIX of 1951), as afM'/lded by Act XXVII of 1953,
88. 62(1)(/), 55, 16(1) and (2), 80, 81, 82.
.
At Udipi in the South Kanara District there are eight
Maths. Each Math is presided over by a Mathadhepathi or
Swamcc. There is a nineth Math the administration of which
had been traditionally carried on by each of the SwamiB · of the
other eight Maths in turn. There is a tenth Math which is
presided over by Shri Shankaracharya Swami gal.
The Swami of Shirur Math, one of the eight Maths had
challenged the vires of the Hindu Religious Endowments Act
1951 (Act XIX} in the High Court of Madras and in the appeal
therefrom this Court had declared certain sections of the Act
UUra !tires inasmuCh as they infringed Article 19(l)(f}, 25, 26
and 27 of the Consiitution. Subsequently by Act XXVII of
1954 the Madras Legislature omitted or amended the sections
declared by this Court 'Ultra vires. Petitions were filed in the
High Court challenging various section.< of the ame11ded Act.
The High Court dcclarcd ultra vires sections 21, 30(2}, 31
and 76(5).and Rule 10 framed under section 100(2), and upheld the validity of sections 5l(l}(f), 55, 76(1) and (2), 80, 81
and 82. The Mahant appealed to this Court with Certificate
granted by the High Court.
Hdd, that a Mahant is not a mere manager or i:ustodian.
ji:vcn tboua'h he is nnt • '""""" in the strict ICDIC, be ia by
·-
2 S.C.R.
SUPREME COURT REPORTS
303
virtue .of his office under an obligation to discharge the duties
of his office as a trustee and is answerable as such for the property. The property is attached to the office and the Mahant cannot
incur eitpenditure for personal luxury or objects incongruous
with his position as Mahant. The right of a Mahant over
the property of the Math is undoubtedly property and unreasonable restrictions placed upon his rights which are not in the
interest of the general public would by virtue of Art.
19(1)(£)
read with cl. (5) be void.
A""nachallam CM.tti v. V enkata C/uitapathi GuruBUlamigal,
(1919) L.R. 46 I.A. 204, V«lyavaruthi Thirtha v. Baluawami
Ayyar, (1921) L.R. 48 I.A. 302, Commi.<Sioner Hindu R•ligiO'Ull
Endowme?llB, .\(adras v. La"8hmi Tirtha Swamiar of Si""r Math,
[1954] S.C.R. 1005, followed.
Held, that s. 52(l)(f) does not in effect seek to cut down
the authority of the Mahant which is traditionally recognized.
It on.ly implies that by virtue of his position and the limited
characttr of his powers, he cannot waste the property of the
Math or utilise it for his personal enjoyment or luxury or for
objects incongruous with his position or for purposes wholly
unconnected with the Math. Such a restriction on ·his power
is in the interest of general public and cannot be said to be
unrea&onablc.
Section 55 as amended will not apply to PathakanikaB
which are proved to be gifts personal to the Mahant
and it applies only to PathokarikaB gifted to him as the head
of the Math.
:
The annual contributions levied under the amended
s. 76(1) go into a separate fund and not the consolidated fund
of the state and arc earmarked for defraying the eitpenses for
rendering services : they are noi even payable to the Government but arc p•yable to the Commissioner and they are levied
not as a tax but only as fee.
A fee does not cease to be of that
character merely because

## Text

_Characters 0–39,812 of 50,742. This is a partial read: ask again with offset=39812 for what follows._

1962
302 SUPREME COURT REPORTS [1963] SUPP.
H. H. SUDHUNDRA THIRTHA SWAMIAR
fl.
COMMISSIONER FOR HINDU RELIGIOUS
& CHARITABLE ENDOWMENTS, MYSORE
1B. P. SINHA., c. ]., P. B. G4JENDRA.GADKAR.
K. N. WANOHOO, K.C. DAS GUPTA and
]. C. SHAH, JJ.)
Hindu ReUgiom
Endowmen18-Ma1"8-0ommi84ioner's
power to bring a •uil for removal of 17'U8tees-Wlatthtr infringes
fundamtntal right-Patkaltamka given to tM Mahant as head of
Muth given puBOMlly to the Math-Only the former need be
UBed for Math-Annual conJrib'Uiion-Levy of-Whe!Mr tax or
fee-&trOBputive Legillalion-Power of · State LegislaturtOomtitvlion of India, Arl. 19(/) 25, 26, 27-Beventh Schedule,
/Mt II, Items 28, 47~Jlat?.ra. Religious Endowment. Act, 1951
(Madras XIX of 1951), as afM'/lded by Act XXVII of 1953,
88. 62(1)(/), 55, 16(1) and (2), 80, 81, 82.
.
At Udipi in the South Kanara District there are eight
Maths. Each Math is presided over by a Mathadhepathi or
Swamcc. There is a nineth Math the administration of which
had been traditionally carried on by each of the SwamiB · of the
other eight Maths in turn. There is a tenth Math which is
presided over by Shri Shankaracharya Swami gal.
The Swami of Shirur Math, one of the eight Maths had
challenged the vires of the Hindu Religious Endowments Act
1951 (Act XIX} in the High Court of Madras and in the appeal
therefrom this Court had declared certain sections of the Act
UUra !tires inasmuCh as they infringed Article 19(l)(f}, 25, 26
and 27 of the Consiitution. Subsequently by Act XXVII of
1954 the Madras Legislature omitted or amended the sections
declared by this Court 'Ultra vires. Petitions were filed in the
High Court challenging various section.< of the ame11ded Act.
The High Court dcclarcd ultra vires sections 21, 30(2}, 31
and 76(5).and Rule 10 framed under section 100(2), and upheld the validity of sections 5l(l}(f), 55, 76(1) and (2), 80, 81
and 82. The Mahant appealed to this Court with Certificate
granted by the High Court.
Hdd, that a Mahant is not a mere manager or i:ustodian.
ji:vcn tboua'h he is nnt • '""""" in the strict ICDIC, be ia by
·-
2 S.C.R.
SUPREME COURT REPORTS
303
virtue .of his office under an obligation to discharge the duties
of his office as a trustee and is answerable as such for the property. The property is attached to the office and the Mahant cannot
incur eitpenditure for personal luxury or objects incongruous
with his position as Mahant. The right of a Mahant over
the property of the Math is undoubtedly property and unreasonable restrictions placed upon his rights which are not in the
interest of the general public would by virtue of Art.
19(1)(£)
read with cl. (5) be void.
A""nachallam CM.tti v. V enkata C/uitapathi GuruBUlamigal,
(1919) L.R. 46 I.A. 204, V«lyavaruthi Thirtha v. Baluawami
Ayyar, (1921) L.R. 48 I.A. 302, Commi.<Sioner Hindu R•ligiO'Ull
Endowme?llB, .\(adras v. La"8hmi Tirtha Swamiar of Si""r Math,
[1954] S.C.R. 1005, followed.
Held, that s. 52(l)(f) does not in effect seek to cut down
the authority of the Mahant which is traditionally recognized.
It on.ly implies that by virtue of his position and the limited
characttr of his powers, he cannot waste the property of the
Math or utilise it for his personal enjoyment or luxury or for
objects incongruous with his position or for purposes wholly
unconnected with the Math. Such a restriction on ·his power
is in the interest of general public and cannot be said to be
unrea&onablc.
Section 55 as amended will not apply to PathakanikaB
which are proved to be gifts personal to the Mahant
and it applies only to PathokarikaB gifted to him as the head
of the Math.
:
The annual contributions levied under the amended
s. 76(1) go into a separate fund and not the consolidated fund
of the state and arc earmarked for defraying the eitpenses for
rendering services : they are noi even payable to the Government but arc p•yable to the Commissioner and they are levied
not as a tax but only as fee.
A fee does not cease to be of that
character merely because there is an element of compulsion in
it, nor is it a postulate of a fee that it must have direct relation
to the actual service rendered. Absence of uniformity is not
a criterion on which alone it.can be said that the levy is of
the nature of a tax. The Legislature has power to enact
appropriate retrospective legislation declaring these levies as
fees by denuding them of the characteristics of tax.
M/s. J. K. Jute Mills Oo. Llil. v. State of Uttar Praduh,
{1962] 2 S.C.R. 1, followed.
The State Legislature has power to levy a fee u11der tl)e
Seventh SchedllJe, list II, ~icm 28 ~
with itet:I! 47,
1162
H.H. S..U...tll•
nirlM SUIMiar
••
c-un-rfK
Hind• Rllipus IY
Clrarilabl• &ulumMU, Mysor1
1962
H.H. Su-dra
TltirlAa Swamw
y.
Co~i.tliqn11 /01
Hi"'*' :R11i1iou! &
O/Niilobl' Endow-
'm1111s, M;1s011
S/Jah, J.
304 SUPREME COURT REPORTS[l963]SUPP.
CIVIL APPELLATEjUJUSDIOTION: Civil Appeals
Nos. 551 to 560 of 1961.
Appeals from the judgment and order dated
December 9, 1955 of the Madras High Court in
Writ Petitions Nos. 323, 324, 351 to 357 and 359 of
1955.
Purshottam Trikumdas, R. Ganapathy Iyer and
G. Gopalakrishnan, for the appellants (in C. As. Nos.
551-559/61).
A. V. Viswanatha Sastri and M. S. K. Sastri,
for the appellant (in C. A. No. 560/61 ).
G. 8. Pathak, B. R. L. Iyengar and P. D.
Menon, for the respondent No. 1 (in C. A; No.
551/61) and for the respondents in (C. As. Nos. 552 to
559 of 1961).
A. Ranganadham Ohetty and A. V. Rangam,
for the respondents (in C. A. No. 560/61 ).
1962, November 20. The Judgment of the
Court was delivered by.
SHAH, J.-In this group of appeals certified by
the High Court of Madras under Art.132 (1) of the
constitution the validity of ss.52(l)(f), 55, 76(1) & (2),
80, 81 and 82 of the Madras Hindu Religious
Endowments Act XIX of 1951 asamended by Act
XXVII of 1954 is impugned.
At Udipi in the South Kanara District there are
eight Matha which are reputed to be founded by
Shree Madhvacharya, an exponent of the dualistic
philosophy. . Each of these Matha is presided over
by a Mathadhipati or Swami who is invariably a
Brahmin Sanyasin. There exists another Math known
as Bhri Krishna
Deroru.
Math of which the
administration is carried on according to long-standing
usage by the Swamis of tb.e eight .MatNI in turn,
I
' -
2 S.C.R.
SUPREME COURT REPORTS
305
each Swami administering for two years. There is
also the Sri Kanchi Kamakoti Pee tam 11fath of which
Shree Sankaracharya Swamigal is the presiding head.
These ten appeals are directed against ord<:rs
passed by the High Court of Madras refusing to
declare the provisions aforesaid ultra vires the State
Legislature.
In order to ensure proper management of
Hindu religious endowments, the Provincial Legislature of Madras enacted the Hindu Religious Endowments Act. II of 1927. The Act made divers provisions for enforcing supervision over the management
of Hindu endowments; and a Board was constituted
for that purpose. In exercise of the authority under
the Act several restrictions were placed upon the
powers of the trustees of religious endowments,
schemes were framed . for administration thereof and
executive officers were appointed to administer Maths
and other religious endowments.
An enquiry was
commenced before the Hindu Religious Endowments
Board for ascertaining whether in the interests of the
Shirur llfath (one of the eight maths at Udipi) a
scheme for the administration of the Math he framed,
it being alleged that the affairs of the Math were
mismanaged by the Swami.
The Board being
satisfied that a case for settling a scheme was made
out served upon the Swami of the Math a draft
scheme and called upon him to file hisobje ctions
thereto.
The Swami filed a petition in the High
Court of Madras challenging the vire.~ of Act II of
1927, and especially the provisions under which the
scheme was sought to be framed.
During the
pendency of that petition, Act II of 1927 was
repealed by the Madras Legialature and
was
substituted by Act XIX of 1951, enacting diverse
provisions relating to the governance, management
and adminis1ration of Hindu Religious Endowments.
The Swami of Shirur Math obtained leave to amend
1962
H.H . .Sudhundra
TJ.irtlla Swamiar
••
Cammisrion·,, for
Hindu R1litious &
Chalilable Endoui.-
mmts. Mysor1
Slu!Ji, J.
1962
H.H. SuiAwliTa
nirtM SuJ•i•'
To
Commiuioon for
Hiaiu &litillu fl
C/tarildll &Uwm1t1ts, M:110r1
Sh•h, 1.
306 SUPREME COURT REPORTS (1963] SUPP.
the petition and challenged the validity of Act XIX
of 1951 on the ground that the provisions thereof
infringed his fundamental rights and that in any
event certain provisions were beyond the legislative
competence of the State Legislature.
The High Court of Madras declared several
provisions of the Act ultra vires, as infringing Arts.
19 ( 1) ( f), 25, 26 and 27 of the Constitution. The
Court also declared s. 76 ( l) ultra vires because the
State Legislature had thereby assumed powers to
legislate for levy of a tax on the income of religious endowments which the State Legislature was
incompetent to exercise. The State of Madras
appealed against the order of the High Court. This
Court declared invalid s. 21 (provision authorising
the Commissioner and his subordinates to enter
premises of religious endowments or places of worship
in the exercise of powers conferred or duties imposed
by or under the Act), s. 30 (2) (requiring the swamis
to be guided by the instructions of the Commissioner
or the Area Committee in the matter of incurring
expenditure). s. 31 (relating to expenditure of surplus
income with the sanction of the Commissioner), s. 55
(dealing with Mahant'11 powers over pathakanikaspersonal gifts), s. 55 (dealing with Commissioner's
authority to require the trustees of the Endowments to
appoint a Manager) and ss. 63 to 69 (relating to notification ofreligious institutions· and invoking thereby
certain penal consequences.) This Court also held that
s. 76 (1) which authorised levy of contributions at
the rate not
exceeding
five per cent
of the
income of the endowments was beyond the power of
the State Legislature to enact. The judgment of
this Court in that case is reported as : The Commissioner, Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt(').
The Madras Legislature amended Act XXVII
of 1954 which recciveq tQ.e President's sanction on
Ill [l!IH) •• c. & ...
I
2 S.C.R.
SUPREME COURT REPORTS
307
September 22, 1954, and thereby provisions which
were declared by this Court ultra vires, were altered
or omitted and some new provisions were enacted
with a view to make the enactment consistent with
the law declared by this Court. Petitions were then
filed by the
appellants-heads of ten mathschallenging the validity of diverse provisions of the
amend~d Act. The High Court by its order dated
April 25, 1955 declared ss. 21, 30 (2), 31 and 76 (5),
and Rule IO framed under s. 100(2) invalid. The
High
Court, however, upheld the
validity of
ss. 52 (1) (f), 55, 76 (1) & (2), 80, 81 and 82. In
these appeals the Swamis of the maths contend that
the provisions declared valid by the High Court
infringe the fundamental rights of the SwamiB or
are beyond the authority of the State Legislature.
It may be observed initially that we are deal·
ing with the validity of the impugned provisions. in
their application to maths and not to religious institutions such as temples or other endowment.s.
It may also be observed that Act XIX of 1951 has
been repealed by the Madras State Legislature and ·
has been substituted by Act XXII of 1959, but we
. are not called upon to adjudicate upon the validity
of the provisions of tbc new Act because the territory
in which these math.• are situated has, by the provisions of the States Reorganisation Act, I 956 been
integrated with
the State of Mysore 2s from
November l, Hl5G and by virtue of s. 11!1 of the
States Reorganisation Act these
nu~ths continue to
be governed by Act XIX of 1951 till that Act is
modified or repealed by the Mysore State Legisture.
vides:
Section 52 (l) of the Act as amended pro·
"The Commissioner or any two or more per·
soμs having interesi ~nd having obtained the
""
If.II. Sn'1lwitlra
Dirth• Swa.Ni r
v.
C.-iu""" /,,
Hi•iu R.t;,imu
CMrit•6l• Eruiow-
... ,,, M.wr1
Str.li,J.
t96Z
H;H. Sudhrnulra
Thirlho Swomlar
...
CommiUimo,. Ju
Hiadu R1li11..,.111
lAatiWI• &UwmaU; MJI0'1'
Shah, J.
308 SUPREME COURT REPORTS [1963] SUPP.
consent in writing of the Commissioner, may
institute a suit in the Court to obtain a decree
for removing the trustee of a Math or a specific endowment attached to a Math for any
one or more of the following reasons, namely :-
(a)
th.~ trustee being of unsound mind;
(b)
his suffering from any physical or
mental defect or infirmity which
renders him unfit to be a trustee ;
(c)
(d)
(e)
(f)
(g)
(h)
(i)
his having
ceased to profess the
Hindu religion or the tenets of the
math;
his conviction for any offence involving moral turpitude ;
breach by him of any trust created
in respect of any of the properties of
the Religious institutions ;
waste of the funds or properties of
the institution or the appJication of
such funds or properties for purposes
unconnected with the institution ;
the adoption of devices to convert
the income of the insti1ution or the
funds or properties thereof
into
'pathakanikas' ;
leading an immoral life or otherwise
leading a life which is likely to bring
the office of the head of the math
into contempt ;
persistent and wilful default by him
in di<charging his duties or functions
ut.der this Act or any other law."
2 S.C.R.
SUPREME COURT REPORTS
309
This section authorises the Commissioner or two
or more persons interested . in the endowment with
the consent of the Commissioner to institute a suit
for a decree for removal of the trustee of a Math or
a specific endowment attached to a Math on any of
the grounds mentioned therein• The section is similar
to s. 92 of the Code of Civil Procedure though somewhat restricted in its operation as to the reliefs which
may be claimed : it merely enumerates the grounds
on which the Court may, in a suit instituted thereunder, remove the trilstee of a Math or of a specific
endowment, if the Conrt is satisfied that the grounds
set up exist and also that it is in the interest of the
institution to remove the trustee. Grounds (a), (b),
(c), (d) and (h) are grounds of personal infirmity of
the trustee; grounds (e), (f), (g) and (i) deal with
conduct inconsistent with the exercise of the duties
of a trustee. Clauses (f), (g) and (h) were inserted
by Madras Act XXVII of 1954.
Apart from cl. (e)
which regards breach of trust as entailing liability
for removal, clsl (f), (g), and (i) have been enacted
by the Legislature with a view to entail such liability
when the trustee of a math is guilty of improper
conduct qua property of the math notwithstandmg
his special rights in that property.
It is urge~ by counsel for the appellants that
s. 52(l)(f) which enables a suit to be filed on the score
of waste of funds or properties of the institution or
application of such funds or properties for purposes
unconnected with the institution, infringes the fundamental right of the Matkadkipati under Art. 19{l)(f)
of the Constitution. In order to ascertain the true
scope of s. 52(l)(f) it is necessary to state the position
of a Mathadhipati, 1Jt1a the property of the math.
In Arunaokallam Oketty v. Venkataokalapatki GuruBUJamigal (') dealing with the title which a Makant
of a math has in the property of the math, the
Judicial Committee of the Privy Council observed :
."two propositions may be cited a8 now express·
ing the general state of the law with regard to
Ill (1919) L. R. 46 I. A. 204, 22f,
1962
11.H. S.dhtWl•a
nirtha &oontiar
y,
Comnd.uionor fsr
Hind# &ti10us l!I
Cl11mtd!• Bod°"'"
mnlJ, Mys1r1
Shah1 J.
1162
H.H. SuJ/wnd.a
Thirlha Swmni•r
v.
CommUsicm1r for
Hin.iu Rllilins
Chori1abl1 IJM,.,,..
mmts, M.Jsor1
Shah, J.
310 SUPREME COURTlU:l>ORTS [1963) SUPP.
these institutions. In the first place, the nature
of the ownership is an ownership in trust for the
institution itself. Secondly, while it may no
doub~ be. true that. t!te own~rship in t~c tlen~al
case 1s with the sp1ntual head of the mstitution,
still to use the language of Sir Charles Tumver
in Sammanatka Pandara v. Sellapa Ohetti
(l.L.R. 2 Madras 179) 'We do not, of course,
mean to lay it down that ............ the property
may not in some cases be held on different conditions and subject to different incidents.' As
pointed out in Ram Parkash DaB v. Anand Das
there are varieties of circumstances and tenure,
and in respect to these the usage and custom
of the math fall to be determined. Once that
usage and custom are clear they form the law
of the math.
In Vidya Varuthi Thirtha v. Balusarni Ayyar (1) the
Judicial C'Jmmittee dealing with the application of
Arts. 134 and 141 to suits for recovery of p['('perty
alienated by a former Matkadhipati observed :
"It is alsG to be remembered that a 'trust' in the
sense in which the expression is used in English
law, is unknown in the Hindu System, pure and
simple. Hindu piety found expression in gifts
to idols and ima~es consecrated and installed in
temples, to religious institutions of every kind,
and for all purposes considered meritorious in
the Hindu social and religious system; to
brahmans, goswamis, sanyasis, etc. When the
gift was to a holy person, it carried with it in
terms or by usage and custom certain obligations.
x
x
x
x
x
In many
cases in Southern India, especially where the
diffusion of Aryan Brahmanism was essential
for bringing the Dravidian peoples, under the
religioug rule of the Hindu system, colleges and
monasteries under the names of math wore
(I) (1921) L, ll. 48 I, lw SO'l,
2 S.C.R.
SUPRE:ME COURT REPORTS
311
founded under spiritual teachers of recognised
sanctity. These inen had and have ample
discretion in the application of the funds of the
institution, but always subject to certain obligations and duties, equally govemed by custom
and usage."
In The Commissioner, Hindu Religi!YUB Endowments,
Madras v. Sri Lalcshmindra Thirtha Swamiar of Sri
Shirur Mutt (') (to which we have already referred
in setting out the history of this case) Mukherjea,J.,
speaking for the Court, observed :
"He is certainly not a trusteee in the strict
sense.
He may be as the Privy Council says,
a man~er or custodian of the institution who
has to discharge the duties of a trustee and is
answerable as such; but he is not a mere
manager and it would not be right to describe
Mahantship as a mere office. A superior of a
Math h~ not only duties to discharge in
connection with the endowment but he has a
personal interest of a beneficial character which
is sanctioned by custom and is much larger than
that of a Shebait in the debutter property.
xx xx xx
x
xx
Thus in the conception of Mahantship, as in
Shebaitship, both the elements of the office and
property, or duties and personal interest are
blended together and neither can be detached
from I he other. The personal or beneficial
interest of the Mahant in the endowments
attached to an institution is manifested in l}is
large powers of disposal and administration and
his right to create derivative tenures in respect
to endowed proP.erties; and these and other
rights of a similar character of proprietary
right which, though anomalous to some extent,
is still a genuine Tega! right."
A Mahant is not a mere manager or custodian, nor
is he trustee in the strict sense: holding the office of
(I) (l!IM] S. C. ll. 1005,
1962
H. H. 7/UJ!huura
Thirtha Suwmidr
...
Commiuinlr fir
lfinJu Rlli1ious &
Chorita611 End.w111111111 MJst111
Shon, J.
1962
H.TI. Sudlwnd"
Thirtha ~wam;or
v.
Coinmi sion1r for
Hindu R1iigious l!I
Charit11bl1 E11dowments, }.fjsor1
S\ah. J,
312 SUPREME COURT REPORTS [1963] SUPP.
a Mahant by custom and usage of the institution he
has beside large p >wers of management and disposal
certain proprietary rights over the property of the
Math.
But he is by virtue of his office under an
obligation to discharge the duties as a trustee and is
answerable as such. The Afahant of a Math is
generally a Sanyasin who has renounced worldly
affairs: he has no family ties either . by blood or by
marriage, and in a theoretical sense he has taken a
vow of not owning any property. He has undoub·
tedly,
for
the
benefit of the institution
of
which he is the head, large powers : he has to incur
expenditure for the maths i. e. for carrying on the
religious worship, for the desciples and for maintain·
ing the dignity of his office.
But the property is
attached to the office, and is devoted to the endow·
ment. He cannot therefore iucur expenditure for
personal luxury or objects incongruous with his position as a Mahant.
Power to waste the property or
the income of the institution is therefore not claimed
by the appellants and rightly so.
But counsel for the appellants says that over
the income, the Mahant has absolute powers of
disposal, ands. 52 (1) (f) which authories his removal
on the ground that he has applied the funds or
properties of the institution for purposes unconnected
with the institution places an unreasonable restriction upon the right of property vested in the Mahant.
In the Commiss-ioner, Hindu Endownents, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt (I) Mukherjea, J., observed at p. 1019:
"There is no reason why the word 'property'
as used in article 19 (1) (f) of the constitution,
should not be given a liberal and wide connotation and should not be extended to those well
recognized types of interest which have the
insignia or characteristics of· proprietary right."
The right of a Maluint over property of the
math is, therefore,
undoubtedly 'property'
and
(I) (!9S4] S. C.R. 1005.
'
I
I .. .
/ .... .
2 S.C.R.
SUPREME COURT REPORTS
313
unreasonable restrictions placed upon right of the
Mahant which is not in the interest of the general
public would, by virtue of Art. 19 ( l) ( f) read with
cl. (5) be void.
Reasonableness of the restrictions which may be
placed upon that right must be adjudged in the light
of the character and the extent of that right, and
the general interest of the public which may be
served by the restrictions. In Arunachallam Ghetty
v. Venkatachalapathi Guruswamigal (1)
the Judicial
Committee of the Privy Council observed that the
Mahant is under an obligation not to utilise the
surplus income after defraying the expenses of the
math for personal enjoyment but is bound to add
the same to the capital of the estate administered.
At p. 226 the Judicial Committee dealing with the
accummulated income in the hands of the receiver
who had been appointed during the pendency of a
suit observed :
"Under the decree quoted the gunikkal would
be entitled to instant possession and entire
beneficial enjoyment of that sum. If the
present purposes of the math did not consume
it, he could employ it for his personal use
quite apart from the dignity of his office. It
is plain to their Lordships that this would be
not only a subversion of the usage and custom
of the math, but would be a violation of the
Law applicable to such institutions.
A. fair
test to be applied in such cases is tD demand
what is the true principle or nature of the
administration. of surplus income. ]t is, of
course, the duty of a trustee to retrain from the
personal enjoyment of such surplus and to add
the same to the ·capital of the estate to be
administered ; and this Law also applied to
the property of a math or asthaJ, and that
whether the title to the same is in the gurukkal
(I) (1919) L. R. 46 I.A. 204, 224.
1962
H.H. Sruih .. tlr•
Thirtha Sw1miar
••
CommiSJion'r for
Hindu Rtlijiout&
Clrari-t1bt1 E.1rd'Jw··
mtnts, M.Jsor•
Shah, J.
1962
H.H. SudhunJra
Thirtha Swami<11
v.
Cemmiuilnlr for
Hill du Rlli1ious I!/
Charild/1 Endowments, M,:ysor1
Shch, J.
314 SUPREME COURT REPORTS [1963] SUPP.
as spiritual head of the institution-which is an
ordinary case-or is in trustees like the Chettys
according to the usage and custom of the
institution as in the present case."
The power of the Mahant over the income does
not therefore differ in quality from the power he
has over the property of the Math. The property
and the income belong to the math, and must therefore be applied for the purposes of the math, and consistently with the usage and custom of the endowment. By s. 52 (1) (f) application of funds or properties for purposes unconnected with the institution,
i. e. purposes for which the custom of the institution
does not warrant application, is a ground for removal. It cannot be said that by enacting a provision
which enables a Court, in an appropriate case, to
remove a Mahant if it be found that.he has applied
the funds or the properties of the irntitution for purposes unconnected with the institution, any unreasonable restriction is sought to be placed. This provision does not in effect seek to cut down the authority of the Mahant which is traditionally recognised.
It merely implies that by virtue of his position and
the limited character of his powers he may not waste
the property of the Math or utilise the property for
personal enjoyment or luxury or for objects incongruous with his position or for purposes wholly unconnected with the Math : if he does so, he may by order
of the Court be liable to be removed. Such a re·
striction on the power is in the interest of the general
public, and cannot be said to be unreasonable.
We may, however, say that the observations
made by the learned .Judges of the High Court that
it was decided by this Court in the Gommiasicmer,
Hindu Endowments, Madras v. Sri l.GkBhmindra
Thirtha Swarniar of Sri Shirur Mutt (') that "the
real limitations on the Mathadhipathi are that he
should not spend any of the monies of the Math for
&tl [19MJ s.c.11.. 1005.
2 s.c.R.
SUPREME COURT REPORTS 315
wicked or immoral purposes" does not seem to be
warranted by anything contained in the judgment
of this Court.
The observation is founded on a
dictum of the High Court in the judgment under
appeal in that case, but there is no indication that
this Court approved that view. This Court has
instead pointed out that the Mahant has to discharge
the duties of a trustee qua the institution and is
answerable as such. We deem it necessary also to
state that having regard to the large powers which the
Mahant has over the application of the funds not
only for the maintenance of the dignity of his office,
and expenses for the maintenance of the math but
also for such purposes religious or charitable as are
not inconsistent with the usage and custom of the
endowment, application of the funds for personal
enjoyment or luxury by the Mathadhipati or for
purposes wholly unconnected with the institution,
would alone be c·overed by the second part of
s. 52 ( l) ( f). In our view the provision which
authorises the institution of a suit for removal of a
Mahant where he is found to have wasted the funds
or properties of the institution or has applied such
funds or properties for purposes wholly unconnected
with the institution does not amount to an unreasonable restriction upon the fundamental right of the
Mahant in the property under his management.
Section 55, before it was amended, was cha! -
lenged in the earlier proceeding as being invalid on
the ground that it sought to place an unreasonable
restriction upon the powers of the Mahant over gifts
personal to him. It was provided by s. 55 (l) as
originally enacted by Act XIX of 1951 that:
"The trustee of a Math shall be entitled to
spend at his discretion, for purposes connected
with the Math any 'Pathakanika' that is to say
any gift or property or money made as a
personal gift to him as the head of the Math."
1962
H.H. Sud!umdra
Thirlha Swamiar
v.
<AmmWion1r for
Hindu &lip.., &
Charila/Jll EntlowMenll~ Mysor1
Shu, J.
1962
H. H SudhwiJra
Thirtha Swamiar
••
CommiJsiontr Jo•
HindU Religiou1 ·&
Charitob/1 Erubw·
metl fs, Mysore
316 SUPREME COURT REPORTS [1963]SUPP.
By sub-section (2) the trustee had to maintain regular
accounts of receipts and disburs(ments of the nature
referred to in sub·section (1). The Mahant was
therefore enjoined by the Act to spend 'Pathakanika'
for the purposes of the Math, and that amounted in
the view of the Court as an unwarranted restriction
of the property right of the Mahant. Pathakanikas
are as expressly stated in sub-section ( 1) personal
gifts to the Mahant, and normally such gifts would be
at the disposal.of the Mahant. It was observed by this
Court in the earlier case :
"It may be that according to customs prevailing
in a particular institution, such personal gifts
are regarded as gifts to the institution itself and
the Mahant receives them only as the representative of the institution: but the general rule is
otherwise.
As section 55 (1) does not say that
this rule will apply only when there is a custom
of that nature in a particular institution, we
must say that the provision in this unrestricted
form is an unrea~onable encroachment upon the
fundamental right of the Mahant. The same
objection can be raised against clause (2) of the
section; for if the Pathakanikas constitute the
property of a Mahant. There is no justification
for compelling him to keep accounts of the
receipts and expenditure of such personal gifts.
As said already, if the Mahaot dies without
disposing of these personal gifts, they may form
part of the assets of the Math, but that is no
reason for restricting the powers of the Mahant
over these gifts so long as he is alive."
The Legislature of the Madras State thereafter
repealed both the sub-sections of s. 55, and has reenacted a new clause :
"The trustee of a math shall keep regular
accounts of receipts of 'pathakanika' that is to
2 S.C.R. SUPREME COURT REPORTS
317
say, any gift of property made to him as the
head of the math· and shall be entitled to spend
the said 'pathakanika' in accordance with the
customs and usages of the institution."
By express enactment the expression 'pathakanikas' for
the purpose of s. 55 as amended, means gifts of pro·
perty made to a Mahant as the head of the Math.
By that section, the
Mahant is required to keep
regular accounts of receipts of such gifts and is
entitled to spend the same in accordance with the
customs
and
usages of the institution, for such
pathnkanikas received b¥ the Mahant are gifts to the
Jlah·mt as the head of theMath and therefore, in truth
gifts to the Math.
Obligations imposed upon the
M ahant to maintain regular accounts of the receipts
of p(', thakanikas of the character defined in s. 55 and
to utilise the same in accordance with the customs
and usages of the institution cannot be regarded as an
unreasonable restriction upon the fundamental right
of the ,If ahant. A M ahant being bound to discharge
the duties of a trustee and being answerable as such,
a provision requiring him to maintain accounts of
such pathakanikas would conduce to the effective
exercise of the control over him and imposing an
obligation to spend the same in accordance with the
customs a11d usages of the institution is not inconsistent with his position a~ a Mnhan t even though he
ha~ a beneficial interest therein.
Section 55 as
amended will not apply to pathakanikas which are
proved to be gifts personal to the .1.Wahant.
Our attention was invited by counsel for the
appellants to cl. (g) of s. 52 (I) in which adoption of
devices to convert the income of the institution or of
the fund; or properties thereof into pathakanika i~
one of the grounds on which a suit for removal of a
Mahant may lie. But the expression 'pathakanika' as
used in s. 52 (l) (g) appears to have the larger
meaning in which that expression is traditionally
19112
H.H. ,f:udhundra
Thirlha Swan.iar
v.
Commissioner jc;r
Hindu Religio1u &
Charitable Endo1t•-
me11ts, lvlysore
Shah, J.
/962 -
R.H. Sudhundra
Thirlho Sw.miar
v.
c.tnmission1r for
Hindo Rlli1ious Ill
C hm'itab/1 &dow·
mmts, Mysore
Shah, J.
318 SUPREME COURT REPORTS [1963] SUPP.
I
unaerstoocl. In the context of s. 52 (1) (g), 'pathakanika' would mean personal gifts to the Mahant.
If the M~hant resorts to devices to convert the income
of the institution or of the funds or properties thereof
into personal gifts made
to him that would be
improper conduct for which he would be liable to be
removed in a suit under s. 52. But under s. 55 the
Legislature has expressly restricted the meaning of the
expression 'pa_thakanika' by using the words, 'that
is to say, any gift of property made to him as the
head of the math.' We are therefore unable to hold
that the expression 'pathakanika' in s. 55 means
personal gifts and the Legislature by enacting that
section was attempting to re-enact s. 55 as it originally stood in a different garb.
The next section challenged is s. 76 (1). The
section, as it originally stood before it was amended,
provided:
"76 (1) In respect of the services rendered by
the Government and their officers, every religious institution shall, from the income derived
by it, pay to the Government annually such
contribution not exceeding five per centum of
its income as may be prescribed.
(2) Every religious institution, the annual
income of which for the fasli year immediately
preceding as calculated for the purposes of the
levy of contribution under sub-section (1), is
not less than one thousand rupees, shall pay to
the Government annually, for meeting the cost
of auditing its accounts, such further sum not
exceeding one and a half per centum of its
income as the Commissioner may determine.
(3) The annual payments referred in subsections (1) and (2) shall be made, notwithstanding anything to the contrary contained in
-
2 S.C.R.
SUPREME COURT REPORTS
319
any scheme settled or deemed to be settled
1962
under this Act for the religious
institution
H H. SuJhund••
concerned.
Thfrtho sw-i••
(4) The Government shall pay the salaries,
allowances, pensions and other beneficial remu·
neration of the Commissioner, Deputy Commissioners, Assistant Commissioners and other
officers and servants (other than executive
officers of religious institutions) employed for
the purposes of this Act and the other expenses
incurred for such purposes, including
the
expenses of Area Committees and the cost of
auditing the accounts of religious institutions.''
The Court in the earlier case pointed out that the
levy of an annual contribution permitted bys. 76(1)
on a religious institution was in the nature of a tax.
The Court observed that in so far ass. 76 spoke
of the contribution being levied in respect of the
services, it had the appearance of a fee, but the contribution levied was made dependent upon the capa·
city of the payer and not upon the quantum of benefit
that was supposed to be conferred on any particular
religious institution, that the institutions which came
under the lower income group and had income
less than Rs. 1,000/· annually were excluded from
liability to pay the additional charges under cl. (2)
of the section lending thereby to it one of the
characteristics of a tax which bore a close analogy
to income-tax, and that the amount "raised by the
levy of the contribution was not ear-marked or
specified for defraying expenses that the Government
had to incur in performing the services". All the
collections went into the Consolidated Fund of the
State and
all
the
expenses had to be met not
out of those collections but out of the general
revenues by a proper method
of
appropriation
as was
done
in
case
of other
Government
expenses.
There was again a total absence of any
co-relation between the expenses incUJTc4 by the
v.
Comnaiuicnlfr far
HiUu ReliiiDus &
Charilabll Endow·
minis, M '3ore
Sh.A, J.
l962
H:H. Sudhrntdra
Tlairtba .SWamiar
v.
Cc111missi1.n1r Jnr
Hi11a'u Rtlitfow l!I
Charitable Enrlowmtnt.f, Mysor1
320 SUPREME COURT REPORTS [1963) SUPP.
Government and the amount raised by the levy of
contribution and therefore the theory of a return
or quid pro quo could not have any possible appli ·
cation. The Court accordingly held that the contribution levied under s. 76 was a tax and not a fee
and such a tax it was beyond the power of the State
Legislature to levy.
The Legislature has by Act XXVII of 1954
altered the scheme of s. 76. The Madras High
Court has declared the newly enacted cl. (fi) ultra
vires and that part of the decision of the Court is not
challenged before us.
By the impugned cl. ( l) the
defects in the original section have been remedied by
the Legislature. Contributions arc now payable to
the Commissioner and not to the Government, and
they are to be levied expressly in respect of services
rendered by the Government and their officers, and
for defraying the expenses incurred on account of
such services. By sub-section (2) every religious
institution, the annual income of which is not kss
than one thousand rupees, has to pay to the Commissioner annually, for meeting the cost of auditing its
accounts, such further sum not exceeding one and a
half per centum of its income as the Commissioner
may determine. By sub-section (4) the Government
is required to pay the salaries, allowances, pensions
and other 'beneficial remuneration' of the Commissioner, Deputy Commissioner,
Assistant Commissioners and other Officers and servants employed for
the purposes of the Act and also to defray the
other expenses incurred for such purposes, including
the expenses of Area Committees and the cost of
auditing the accounts ofreligious institutions. The section manifestly provides for levy of contribution at
a rate not exceeding five per cent of its income
from all religious institutions, and audit fee from
religious
institutions
of which the income is
Rs. 1,000/- or more, but all the amounts collected
under els: (1) and (2) ·have to be spent for meeting
'
2 S.C.R. SUPREME COURT REPORTS
321
the expenses in connection with the performance of
the duties rendered to the religious institutions and
for no other purposes. By section 81 (1) a separate
Fund
called
"The Madras
Hindu Religious
and Charitable Endowments Administration Fund"
is constituted and that Fund vests in the Commissioner, and by cl. (2) of that section the contributions
payable under s. 76 (I) and the audit fee payable
under s. 76 (2) when realized are credited
in
the said Fund.
The two principal objections
against the levy of the contributicn under s. 76
before it was amended were (1) that the money
raised by levy of the contribution was not earmarked
or specified for defraying the expenses that the
Government had to incur in performing services. All
the collections went to the Consolidated Fund of
the State and all the expenses were not met out of
the collections but out of the general revenues by a
proper method of appropriation as is done in case
of other Government expenses, and (2) that there
was a total absence of any co-relation between the
expenses incurred by the Government and the
amount raised by contribution under the provision
of s. 76.
The Legislature has by the amendment
ofs. 76 (I) and (4) and the constitution of a separate
Fund under s. 81 rectified both these defects. The
amounts raised are specifically
ear· marked for
defraying
expenses for rendering services : they
do not go into the Consolidated Fund of the State,
but are included in a separate Fund. Th¢ Contributions are not even payable to the Govot:nment :
they are payable to the Commissioner.
It was urged that there was no co-relation
between the expenses h1curred and the amounts collected as contributions, but there is no reliable eVidence on the record in support of this plea. Our attention was invit.ed to Ex. 'A' referred to in paragraph-2
of the supplemental counter-affidavit of , the State
of Madras in Writ Petition No. 323 of 1955, in which
1962
HH • .$Mdh .. dro
Thirtho Swamiar
v.
<:.mmiuimur for
Hinh lhlitioru &
CAt1ritabl1 Er1dow-
•111ts. M.710r1
Slid J.
1962
H.H.