# KA.KINA.DA ANNADA.NA SAMA.JAM ETC v. COMMISSIONER OF HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, HYDERABAD & ORS

- **Citation:** [1971] 2 S.C.R. 878
- **Court:** Supreme Court of India
- **Decided:** 1970-12-02
- **Bench:** J. C. Shah, G. K. Mitter, K. S. Hegde, A. N. Grover, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ka-kina-da-annada-na-sama-jam-etc-v-commissioner-of-hindu-religious-charitable-5143
- **Pages:** 12

## Headnote

Her~di·tGry trustee-Office of-If 'property' lvithin the n1ea11ing of
A rt. 19· of the Constitution .
A
B
. Andhra Pradesh Charitablt and Hindu Religi()f(S Institutions and EnC
dowments Act (17 of 1966), ss. 15, 17, 27. 36 and 97-lf violarive of
1Art. · 19 of th.e Constitution.
The appellants were hereditary trustees of religious and charitable
institutions and endowments. · They claimed the right to manage and
administer the secular estate of the ·institution or endowment of which
tl.ey were hereditary trustees but never claimed proprietary or beneficial
·interest either in the corpus or in the usufruct of the estate. They cha!-
D
lenged the validity of s. 15 read with ss. 17, 27, 36 and 97 of the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments
Act, 1966, on the ground that they are violative of Art. 19 of the Constitution. The High Court held that the office of hereditary trustee was
property but that the restrictions imposed by the various provisions of
the Act are reasonable and are in the interests of the public.
In appeal to this Cour.I,
E
HELD : ( 1) The position of a hereditary t'rustee wh<' claims a bare
right to manage and administer the secular .estate, is the ·same as. that
of a Dharmakarta or a mere manager 01 custodian of an in1titution except
that the hereditary trustee 1ucceed1 to the office as of riaht :nd in accord"'
ance with the ruin aovernin& 1ucce11lori.
He' cannot be equated to
a 1h1balt, ma•thadhlpathl or a mahant in whose case, I.he ln1redient1 of
both office and property, of dutie1 and personal lntereit and rlght1 are
11
blended to~ether. Hence the office of iuch ~ hereditary trustee is not
propelrty within the meaning of Art. 19.
The observation in Sambuda·
murthi Mudaliar v. State of Madro:i, [1970] 2 S.C.R. 424 that the office
of a hereditary trustee is in the nature of proprety is obiter.
The pronouncement of the Privy Council in Gnanasambanda /'andara Sannadhi
v. Velu Pamlaram, 27 I.A. 69, Ganesh Chander Dhur v, Lal Behary
Dhur, (1936) 71 M.L.J. 740 (P.C.) and Bhaba Tarini Debi v. Asha
Lata Debi, I.LR. [1943] Z. Cal. 137 (P.C.) that the rule in the Tagore
G
case, (1872) 9 B.L.R. 377 applies to succes5ion of hereditary trustees
does not afford any assistance in deciding whether an office holder; who
has .a bai'e..lrikht of management, can claim ... to. have a right or intere·st in the
nature of p\"operty .within the meaning of Art. 19( I) (fh
[886 B-D; 887 F-H]
Tilkayat Shri Govindlalji Mahcraj v. State of Rajasthan [1964]: 1 S.C.R.
561 and Raja BiYakiihore v. Orissa, 11964) 7 S.C.R. 32, followed.
H
(2) Even if the right constituted property the restrictions which have
been imposed by the provisions of the Act on the hereditary trustees are
reasonable and are in the interest of 'lhe general public. [888 Bl
K. >I.. SAMAJAM v. COMMR. H.R. & C.E. (Grover, J.) 879
A
The statute has been enacted because, a high. powered body, namely
the Hindu Religious Endowment Commission, had reported that there
was mismanagement invariably of the endowment property by the trustees.
The power to appoint non-he~editary trustees or executive officers under
ss. 15 and 27, even where there is already a hereditary trustee or trustees,
notwithstanding that there is no mismanagement, is only for the purpose
of ensuring better and efficient administration and management of the
institution or endowment.
Under s. 17, the hereditary trustee is not
B
removed but is to be the chairman of the Board of Trustees, and if there
are more than one hereditary trustee, one of them is to be chairman by
rotation.
Instead of managma the institution alon,e he has to adminis·
ter it in collaboration with other trustees who .are non-hereditary; but it
is only the secular aspect-and not matters of religion-that is touched.
[883 D; 888 B-G]
C
[Questions whether some of the institutions were private or were
religious denominations within Art.. 26, left open for determination by
the appropriate forum.] [889 DJ
D
E
F
CIVIL

## Text

878
KA.KINA.DA ANNADA.NA SAMA.JAM ETC.
v.
;COMMISSIONER OF HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS, HYDERABAD & ORS.
December 2, 1970
[J. C. SHAH, G. K. MITTER, K. S. HEGDE, A. N. GROVER
AND A. N. RAY, JJ.]
Her~di·tGry trustee-Office of-If 'property' lvithin the n1ea11ing of
A rt. 19· of the Constitution .
A
B
. Andhra Pradesh Charitablt and Hindu Religi()f(S Institutions and EnC
dowments Act (17 of 1966), ss. 15, 17, 27. 36 and 97-lf violarive of
1Art. · 19 of th.e Constitution.
The appellants were hereditary trustees of religious and charitable
institutions and endowments. · They claimed the right to manage and
administer the secular estate of the ·institution or endowment of which
tl.ey were hereditary trustees but never claimed proprietary or beneficial
·interest either in the corpus or in the usufruct of the estate. They cha!-
D
lenged the validity of s. 15 read with ss. 17, 27, 36 and 97 of the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments
Act, 1966, on the ground that they are violative of Art. 19 of the Constitution. The High Court held that the office of hereditary trustee was
property but that the restrictions imposed by the various provisions of
the Act are reasonable and are in the interests of the public.
In appeal to this Cour.I,
E
HELD : ( 1) The position of a hereditary t'rustee wh<' claims a bare
right to manage and administer the secular .estate, is the ·same as. that
of a Dharmakarta or a mere manager 01 custodian of an in1titution except
that the hereditary trustee 1ucceed1 to the office as of riaht :nd in accord"'
ance with the ruin aovernin& 1ucce11lori.
He' cannot be equated to
a 1h1balt, ma•thadhlpathl or a mahant in whose case, I.he ln1redient1 of
both office and property, of dutie1 and personal lntereit and rlght1 are
11
blended to~ether. Hence the office of iuch ~ hereditary trustee is not
propelrty within the meaning of Art. 19.
The observation in Sambuda·
murthi Mudaliar v. State of Madro:i, [1970] 2 S.C.R. 424 that the office
of a hereditary trustee is in the nature of proprety is obiter.
The pronouncement of the Privy Council in Gnanasambanda /'andara Sannadhi
v. Velu Pamlaram, 27 I.A. 69, Ganesh Chander Dhur v, Lal Behary
Dhur, (1936) 71 M.L.J. 740 (P.C.) and Bhaba Tarini Debi v. Asha
Lata Debi, I.LR. [1943] Z. Cal. 137 (P.C.) that the rule in the Tagore
G
case, (1872) 9 B.L.R. 377 applies to succes5ion of hereditary trustees
does not afford any assistance in deciding whether an office holder; who
has .a bai'e..lrikht of management, can claim ... to. have a right or intere·st in the
nature of p\"operty .within the meaning of Art. 19( I) (fh
[886 B-D; 887 F-H]
Tilkayat Shri Govindlalji Mahcraj v. State of Rajasthan [1964]: 1 S.C.R.
561 and Raja BiYakiihore v. Orissa, 11964) 7 S.C.R. 32, followed.
H
(2) Even if the right constituted property the restrictions which have
been imposed by the provisions of the Act on the hereditary trustees are
reasonable and are in the interest of 'lhe general public. [888 Bl
K. >I.. SAMAJAM v. COMMR. H.R. & C.E. (Grover, J.) 879
A
The statute has been enacted because, a high. powered body, namely
the Hindu Religious Endowment Commission, had reported that there
was mismanagement invariably of the endowment property by the trustees.
The power to appoint non-he~editary trustees or executive officers under
ss. 15 and 27, even where there is already a hereditary trustee or trustees,
notwithstanding that there is no mismanagement, is only for the purpose
of ensuring better and efficient administration and management of the
institution or endowment.
Under s. 17, the hereditary trustee is not
B
removed but is to be the chairman of the Board of Trustees, and if there
are more than one hereditary trustee, one of them is to be chairman by
rotation.
Instead of managma the institution alon,e he has to adminis·
ter it in collaboration with other trustees who .are non-hereditary; but it
is only the secular aspect-and not matters of religion-that is touched.
[883 D; 888 B-G]
C
[Questions whether some of the institutions were private or were
religious denominations within Art.. 26, left open for determination by
the appropriate forum.] [889 DJ
D
E
F
CIVIL APPELLATE JlJRISDICTION : Civil Appeals Nos. 1249
to 1251, 1271, 1358, 1350, 1381, 1382, 1521, 1522, 1544, 1612,
1668, 1669, 1879, 1880, 1912, 197'3 and 1974 of 1970.
Appeals from the judgment and order dated December 31,
1969 of the Andhra Pradesh High Court in Writ Petitions Nos.
2871 of 1968 etc. etc.
M. Natesan and A. Subba Rao, for the appellants (in C.As.
Nos. 1249 to 1251. 1360, 1382, 1521 and 1522 of 1970).
A. Subba Rao, for the ai:;pellants· (in C.As. Nos. 1381, 1544,
1879, 1880, 1912, 1973 and 1974 of 1970).
Shyama/a Pappu, Balapilrameshwari Rao and· Vineet Kumar,
for the appellant (in C.A. No. 1271 of 1970).
M. Netesan and A. V. V. Nair, for the appellant (in C.A. No.
1358 of 1970).
K. Jayaram; for the appeliant (in C.A. No. 1663 of 1970).
M. Naresan and K. Jayaram, for the appellant (in C.A. No.
1669 of 1970).
G
A. V. Rangaln, for the appellant (in C.A. No. 1612 o.f 1970).
A. K. Sen, Venugopa/a Reddy and Parameswara Rao, for th~
respondents Nos. 1 to4 (in C.A. No. 1522 of 1970) respondents
Nos. 1 and 2 (in C.A. No. 1669 of 1970) and the respondents
in other appeals.
H
p, Ba.oi Reddy and G. Narayana Rao, for respondent No. 6
(in C.A. No. 1669 of 1970).
K. Rajendra Chowdhary, for the 1ntervener.
880
SUPREME COURT REPORTS.
[1971] 2 s.c:&.
The Judgment of the Court was delivered by
A
Grover, J.
These appeals by certificate are from a common
judgment of the Andhra Pradesh High Court and involve
the
question of the constitutionality of certain provisions of the
Andhra Pradesh Charitable and Hi!lldu Religions Institutions and
Endowments Act, 1966 (Act 17 of 1966), hereinafter called the
B
'Act'.
A numbe~ of petitions under Art. 226 of the Constitution were
filed before the High Court on behalf of the institutions or endow·
ments some of which were public and some private in· character.
A few institutions wtre societies regi.stered under !he Societies · c
Registration Act while. others claimed to be religious endowments
or public bodies like municipalities which were managin11: the
institutions.
We might, for the sake of convenience, state the
facts in Civil Appeal No. 1360 of 1970. In the affidavit of
Na!am Ramalingaiah it is stated that he is the hereditary trustee
of the Nalam Choultry and Vyasya Seva Sadanam which are pri·
vate trusts.
They were founded by his ancestor in the year 1879
and 1920 respectively. He had beC!ll the managing trustee from
1943.
The Choultry was endowed with immoveable property
comprising an area of 453 acres of land which by careful manage·
ment was now fetching an income of Rs.
40,000/·. Besides
feeding the poor and affording free lodging facilities to pilgrims
scholarships were being given to deserving studen·ts.
The Seva·
sadanam was endowed with huge properties whi"h were fetching
Rs. 18,000/- as income.
The objects of this charity were, (!)
to impart education and training in handicraft to women; (2)
to feed poor girls, ( 3) provide free shelter to women students and
( 4) run women's Sanskrit School.
At no time there had been
any complaint about mismanagement of the aforesaid trust.
A
number of other Choultries were also mentioned which were being
managed by the hereditary trustee or trustees.
Some of them
were providing food and shelter to students and travellers of all
castes and creeds including Muslims and Christians. Among the
objects of some of the Choultries was included the performing of
pu]as in temples.
These Choultries were founded in the !~st
century and ever since their inception the members qf the family
of the founder or founders had been managing them. At no time
there had been any complaint of any kind against the management.
On the contrary the hereditary trustees ~ad impro".e~. the endowment properties and added several chantable act1V1tres to the
existing objects.
The validity of the main provisions of the,Act was challenged
on the crround that the office of the hereditary trusteeship was
property within the meaning of Art. 19 (1 )( f) and that these
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K. A, SAMA.JAM v. COMMR. H.R. & C.E. (Grover, J.)
SSI
provisions were ultra vires and void as violative of that Article as
also of Art. 14, 25, 26 and 31 of the Constitution. On behalf
of the respondents the position taken up was that all the institutions in que~tion were public and none of them 'Nas private in
character; that they were religious and charitable institutions and
endowments within the meaning of the Act. It was denied that
the office of hereditary trustee was property within the meaning of
Art. 19( 1) (f) or .that there was infringement of any of the fundamental rights mentioned in the various petitions.
It was maintained that the hereditary trustees etc. had only a bare right tt>
manage the affairs of the institution and the secular matters which
could not be regarded as property within the meaning of the aforesaid Article.
The High Court formulated five questions for decision but it
iii unnecessary to mention or go' into all of them as the matters
in controversy before us relate to two of these questions. These
are, ( 1) whether on the facts and in the circumstances the office
of hereditary trusteeship is or is not property within the meaning
of Art. 19(l)(f) and Art. 31 and (2) whether all or any of the
material provisions of the Act are hit by Arts. 14, 19(1) (f), 25,
26 or 31. The High Court was of the view that the office of
hereditary trustee was property within the meaning of Art. 19 (1 )
( f). It was, however, held that the impugned provisions only
imposed reasonable restrictions on the exercise of the right of the
trustees, in the interest of general public and good administration
of the public institutions. It was further found that none of the
impugned provisions were violative of Arts. 14, 19 (1 ) ( f), 25.
26 and 31 of the Constitution. According to the High Court the
material provisions of the Act were only intended to regulate and
ensnre proper, efficient and better administration and management of the institution.
All the writ petitions were dismissed.
The learned counsel for the appellants has invited our attention to the various sections of the Act but has
confined his
challenge mainly to the provisions contained in s. 15 read with
ss. 17, 27, 97 and 36 of the Act. We may advert to the main
provisions and the. general scheme of the Act. According to the
G
preamble the Act has been enacted to consolidate and amend the
law relating to the administration and governance of charitable
and Hindu religious charitable institutions and endowments in the
State of Andhra Pradesh.
It applies to all
public
charitable
institutions and endowments other· than wakfs governed bv the
nrovisions of the Wakf Act 1954. According to. the exnlmiation
H
to s. 1(3 )(a) the expression "charitable irntitutions and endowments" shall include everv charitable institution or endowment
the administration of which is, for the time being, ve,ted in nnv
department of Government or civil court. Zila Parishad or other
14-LSqlSup.Cl/71
882
SUPREME COURT REPORTS
[1971] 2 S.C.R.
local authority or any company, society, organisation, institution
or other person. The Act also applies to all Hindu public religious institutions and endowments. "Charitable endowment" has
been defined by s. ,2 ( 3) to mean all property given or endowed
for any charitable purpose.
"Charitable institution" has
been
<lefined by s. 2( 4) to mean any establishment, undertaking,, organisation or association formed for a cl,.iritable purpose . and
includes a specific. endowment. Various sub-clauses of s. 2 define
"charitable purpose",
"Commissioner",
";Executive Officer",
"Hereditary Office-holder",
"Hereditary
Trustee",
"Religious
charity", "religious endowment'', "specific endowment" etc. The
definition of "hereditary trustee" contained in sub-clause 15 and a
"'trustee" in sub-clause 28 may be reproduced :
" 'Hereditary trustee' means the trustee of a charitable or religious institution or endowment the succession of whose office devolves according to the rule of
succession !aid down by the founder or according to
usage or custom applicable to the institution or endowment or according to the law of succession for the time
being in force, as .the case may be".
" 'Trustee' means any person whether known
as
mathadhipati, mohant, dhann<1karta, mutwalli, muntazim, or by any other name, in 'whom either alone or in
association with any other persot1, the administ~ation and
management of a charitable ori religious institution or
endowment are vested; and
includes
a Board of
Trustees."
<::hapter II deals with the anpointm~nt of Commissioner,
Joint
Commissioners etc. and theit powe
and functions.
Section 6
provides for preparation and publica ion of list of charitable and
religious institutions and endowments on the basis of income. By
'Section 7 the Commissioner is to be a corporation sole having a
perpetual succession and common seal.
Section 8 provides that
subject to other provisions of the Act the administration of all
£haritable and Hindu religious institutions and endowments shall
be under the general superintendence and control of the Commissioner and such superintendence and . control shall include the
power to pass any order which might be deemed necessary to
ensure that such institutions and endowments are properly administered and their income is duly appropriated for the purpose for
which they are founded or exist. Section 12 empowers the Commissioner to enter and inspect institutions
and
endowments.
Chapter III relates to administration and management of charitable and Hindu religious institutions and endowments.
Section
14 declares that all properties belonging to or given or endowed
to a charital:>le or religious institution or endowment shall vest in
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K. A. SAMAJAM v. COMMR. H.R. & C.E. (Grover, J.)
883
the charitable or religious institution or endowment as the case
may be. ltc is unnecessary to set out s. 15 in extenso. It provides
for the constitution of a Board of Trustees, whose r.umber has
been specified, in respect of charitable or religious , institution or
endowments of the various categories mentioned in the section.
The power to constitute ,the Board has been conferred on the
Government, Commissioner, Deputy 'Commissioner or the Assistant Commissioner, as the case may be. It is discretionary where
there is a ~reditary trustee but a Board must be constituted in
every other case. , In making the appointment of trustees it has
been enjoined that due regard should be given to the , religious
denomination or other section thereof to which the institution
belongs or the endowment is made and wishes of the founder.
All properties belonging to the institution or endowment shall
stand transferred to such Board of trustees or trustee, as the case
may be.
Section 16 gives the disqualifications for trusteeship.
Section 17 deals with the appointment of a Chairman of the
Board of trustees. It has been provided, inter a/ia, that where
there is only one hereditary trustee he shall be the Chairman.
Whe_re there are more than one the Government etc. may n01ninate by rotation one of them to be the Chairman.
Section 22
gives the duties of the trustee.
He is bound to produce books, ..
accounts, returns .......... relating to !he administration of the
institution or e~dowment for inspection by the Commissioner and
other functionaries whenever required to do so .. Section 27 provides for the appointment of the Executive Officer by the Government and the Commissioner respectively.
It also lays down the
duties of t!\e &ecutive Officer. It is declared that the Executive
Officer shall be the employee of the Government who shall determin.: the conditions of his service.
Section 31 lays down how
the· vacancies amongst the office-holders or servants of charitable
or religious institution or endowment have to be filled . up, by the
trustees.
Section 32 deals with the punishment of office-holders
and servants.
The general control vests in the trustee who can
take disciplinary actioc. in accordance with the prescribed procedure for the various matters mentioned in sub-s. ( 1 ) . In case
of an institution or endowment whose annual income exceeds two
lakhs the power to imp(Jse any penalty has been conferred on the
Execntive Officer. Section 35 gives power to the Executive Officer not to implement orders or resolution of the trustee or Board
of Trustees in certain cases.
Section 36 gives overriding effect
to the provisions of Chapter III over the existing corresponding
provisions.
Chapter IV deals with registration of charitablfl and
religious institutions and endowments; Chapter V with muths and
endowments attached thereto; Chapter VII with budget, accounts,
and audit; Chapter VTII with finance; Chapter X with alienation
of im1'.1ov~abl~ property a,i~ resumotio~ of Inam lands; ChJlj'.jler
XII with mqumes and Chapter XIII with appeals, revision~ and
884
SUPREME COURT REPORTS
[1971] 2 S.C.R.
review etc.
Section 95 empowers the Government to dissolve
the Board of Trustees in certain cases and s. 97 enables . it to
;appoint a specific authority ~re the Board Qf $steeii has
ceased to function or has been dissolved. Section 102 is in the
following terms.:
"Nothing in this ·Act shall-
( a) save as otherwise expressly provided fa this
Act or the rules made thereunder, affect any honour,
()molument or perquisite to which an~ person is entitled
by custom or otherwi~e in ainy charitable or religious
institution or endowment; or its established usage in
regard to any other matter, or
(b) authorise any interference w!th the religious 01
spiritual functions of the head of a math including those
relating to the imparting of religious instruction or the
rendering of spiritual service.''
Under s. 110, ss. 92 and 93 of the Code of Civil Procedure 1908
can no longer be applicable to charitable institutions and Hindu
religious institutions and endowments to which the Act applies.
The main stress, on behalf of the appellants, has been laid
on the effect of the provisions of .the f..ct and in particular s: 15
read with the other sections mentioned· before on the office of the
hereditary trustee. It has been contended that a hereditary trustee
has to manage the institution or the endowment in accordance
with the directions of the founder. It was his duty and responsibility, to appoint the staff and take disciplinary action when_ever
necessary and to regulate the expenditure and carry 0•1t generally
.the• objects of the charitable institution or endowment. By the
appointment of a Board of trustees the hereditary trustee can no
longer manage and exerdse control over the institution alone or
in association with other hereditary trustees. -He has to share the
management and responsibility with other members of the Board
who may be drawn from the section or faction which may be
politically motivated and may be hostile to him.
The appointment of the Board, it is pointed out, rests with the Government,
!lie Commissioner or the Deputy Commissioner, as the case may
be and although hereditary trustee or trustees have to be included
in the Board, the entire administrative power is vested in the
· Executive Officer.
This Officer is a · permanent Government
servant and the Board or the trustee cannot either remove him or
take any disciplinary action against him which' means that the
Board or the trustee canink>t exercise any effective control over him.
The Executive Officer can in certain eventualities even refuse
to ,implement orders of the Board.
The hereditary trustee has
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K.· A; SAMAJAM v. COMMR. H.R. & C.E. (Grover, J.)
885
thus been left only with what may be called the "husk of t!J.e
title" and his right to hold property has been seriously interfered
with.
The first and the main question is whether the office of a
hereditary trustee is . "property" within the meaning of Art. 19
(l)(f). For the reasons, which will be presently stated, we are
unable to agree with the High Court that the office of herediiary
trustee is "property" within that Article.
The view that the office of hereditary trustee was itself "property" within Art. i9(1) (f) even if no emoluments were attached
to it found favour with many Hi~ Courts. We need refer only
to the leading judgment of a .DiVlsion Bench of the Madras High
Co1111 in Kidangazhi Manakkal Narayan11n Nambudripad &
Others v. The State of Madras & Anr.(1)
The line of reasoning
which p~ailedi . was that the office of hereditary
trusteeship
descended like partible property on the heirs of a trustee and '
even females were entitled to the office if they happened to succeed as heirs. The rule in the Tagore(') case has been applied
to the devolution of t!J.e office of hereditary trustee as if it was
property; [vide Ganesh Chunder Dhur v. Lal Behary Dhur(8 )
and Bhaba Tarini Debi.v. Asha Lala Debi(4)-both decisions of
the Priyy .Council]. Support was also sought from the observations. in Angurbala Mullick v. Debabrata Mul/ick(G) relating to
the office of a Shebait which was held to be property. Another
reason given was that "property" in Art. 19(1 )(f) was of wide
import and was of sufficient amplitude to take in hereditary
trusteeship.
The High Court in the judgment under appeal delved into the
history and· the background in which hereditary office had been
equated to property in Hindu Law.
Starting from Krishnabh</li
Hiragagne v. Kapabhat Mahalabhat et al(") most of the later
decisions of the Priyy Council aad the High Courts were discussed. We need refer only to Gnanasembdnda Pandara Sannadhi v.
Velu Pandaram (') in which their Lordships pointed out that the
rule in Tagore case(') that all estates of iit:iheritance created by
gift or will so far as they were inconsistent' with the general law
of inheritance were void was applicable "to an hereditary office
and endowment as well as the other immovable property"
In cases in which the office of hereditary trusteeship has been
held to be proJ?Crl>'. within the meaning of Art. 19 (1 ) ( f) the true
character and incidents of that office do not appear to have been
(I) I.L.R. [1955] Mad. >56.
(3). [1936] 71 M.L.J. 740.
(5) [1951] S.C.R. 1125.
(7) 27 I.A. 69.
(2) [1872] 9 B.L.R. 377.
(4) 1.L.R. [1943] 2 Cal. 137.
(6) (1869) 6 Bom. H.C.R. 137.
886
SUPREME COURT REPORTS
(1971] 2 S.C.R.
fully kept in view. It was common ground before the High Court
and has not been disputed before us that the hereditary trustees
of the institutions with which we are concerned have only claimed
a b<)re right to manage and administer the secular estate of the
institution or the endowment and in no case any hereditary trustee
has claimed proprietary or beneJiciary interest either in the corpus
or i11 the usufruct .of the estate. The position of a hereditary
trustee does not appear to be in any way different from that of a
Dharamkartha or a mere manager or custodian of an institution
or endowment.
There is one exception only.
The hereditary
trustee succeeds to the office as of right and in accordance with
the rules goveriling; succession.
But in all other , respects
his
duties and obligatidns are the same as that of Dharamkartha. No
one has ever suggested that a hereditary trustee can be equated
to a Shebait of a religious institution or a Mathadlzipati or the
Mdhant. , The ingredients of both office and property, of duties
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and personal interest are blended together in the rights of
a
Malzant as also a Slzebait and a Mathadlzipati. The position of
Dlzaramakart/za, on the other band, is not that of a Shebait of a
religious institution or of the· head of a math. These functionaD
ries have a much higher right with larger power of disposal and
administration and they have a personal interest of beneficial
character; [See Srinivasa Chariar v. Evalappa Mudaliar(' H
There would thus be no justification for holding· that since tile
office of th.e aforesaid functionaries has been consistently held
by this Court to be property the office of a hereditary trustee is
also property within Art. 19 ( 1) (f).
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In Ti/kayat Shri Govindlalji Maharaj v. The State of Rajasthan & Others(2) the distinction between the office of mahant
·and that of the J'ilkayat of Nathdwara temple was clearly enunIi'
ciated. It was pointed out that the mahant or Shebiat was entitled
to be maintained out of the property of the math or the temple.
The Tilkayat never used any income from the property of the
temple for his personal needs or private purposes nor did he
· claim any proprietary interest therein;
What he claimed was
merely the right to manage the property, to create leases in respect
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of it in a reasonable manner and the right to alie.n.ate it for the
· purposes of the temple. These rights were exercised by him under
the absolute· and direct supervision of the Durbar of Udaipur.
It was lai.d down by this Court that the aforesaid rights could not
be equated with the totality of the powers generally possessed by
the mahant or the Shebait. In our judgment the hereditary trustee
cannot in any way claim any higher rights of managing . the
properties of the institution or the endowment than the Tilkayat.
(I) 49 I.A. 237 251.
(2) [1964] I S.C.R. 561.
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K •. A. SAMA.JAM v. COMMR. H.R. & C.E. (Grover, J.)
887
His rights fall far short of those of the Mahant and the Shebait.
It may be that in the case of the Tilkayat his rights were governed by the firman issued by the Durbar which had the force of
law but the ratio of the decision essentially is that a bare right to
manage an institution or an endowment cannot be treated a~ prope1ty within Art. 19(1) and Art. 31.
In Raja Biraldshore v.
The State of Orissa(1) the constitutionality of Shri Jagannath
Temple Act r954 (Act 2 of 1955) was challenged.
The attack
was based mainly on the ground that the Act took away the per~
quisites of Raja of Puri which· had been found to bejong to him
in the record of rights.
The Raja had two fold connectior, with
the temple.
In the first place he was the Adyasevak i.e. the chief
servant of the temple and in· that capacity he had certain rights
and privileges. He was also the sole superintel\dent of the temple
and was incharge of the management of the secular affairs of the
temple.
After reviewing the provisions of Act 2 of 1955 this
Court observed that it provided for the management of the &ecular
affairs ·of the temple and did no( interfere with the religiouio
affairs thereof.
The rights which the Raja possessed had been
exercised by the predecessor also but because he had been deprived only of the right of management which carried no beneficial
interest in the property the attack based on the provisions of
Arts. 19(l)(f) and 31(2) could not be sustained.
One of the
features c0mmon to that case and the prese.nt one is that the
manageme11t had been transferred from the sole control of. the
Raja to tl:je control of a committee.
This was regarded as a
purely secular fUl)ction which did not carry with it any right to
property and could not be hit by Art. 19(1)(f).
It is true that in the latest decision of this Court in Sambudamurthl Mudallar v. State of Madras &: Anr.( 1), It was taken to ·
be well established that the office of a hereditary trustee is In the
nature of "property" and this is so whether the trustee has beneficial int~rest of some sort or .not.
This observation, we apprehend, was not necessary for a decision of that case. · There the
question was whether the appellant was a hereditary trustee within the meaning of s. 6 ( 9) of the Madras Act 195 l and there was
no· discussion or determination of the point that the office of a
hereditary trustee was property within Art. 19(1)(f)-0r any other
Article.
Nor do we consider that the various pronouncements
of the Privy Council that the rule in the Tagore(') case applies
to succession of hereditary trustees can afford much assistance
in deciding whether an office holder who has . a bare right of
management can claim to have any right or interest ·in the nature
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or property within the meaning of Art. 19 ( 1 )(f). Following
the principles laid down in the Tilkayat(') and Raja Bira-
(1) [1964] 7 S.C.R. 3,2.
(3) [1872] 9 B.L.R. 377.
(2) [1970] 2 S.C.R. 424.
(4) [1%4] I S.C.R. 561.
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SUPREME COURT REPORTS
(1971] 2 S.C.R.
kishore(') cases we are unable to endorse the view that the office - A
of hereditary trusteeship is property within Art. 19(1)(f) or any
other Article of the Constitution.
We may add that even if it was held that the rights in question
constituted "property" their regulation by the relevant provisions
of the Act would undoubtedly be protected by Art. 19(5). We
have no hesitation in concurring with the deci~ion of the High
8
Court that restrictions which have been imposed by the provisions
of the Act on the hereditary trustees are reasonable and are in the
interest of the general public.
The power to appoint non-hereditary trustees or Executive Officers where there is already a
.hereditary trustee or trustees notwithstanding there is no misma,nlagement, is only for the purpose of ensuring better and efficient
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.administration and management of the institution or endowment.
Non-hereditary trustees have been associated with the hereditary
trustee who has not been removed from his office. As a matter
of fact complete safeguards have been provided for ensuring that
he retains his office.
He or one of the hereditary trustees has to
he the Chairmal? of the Board.
He has various powers under D
the provisions of the Act already noticed·,
All that can be said
is that instead of managing the institution alone he has to administer it in collaboration with other trustees who are non-hereditary.
In matters of religion such as puja, dittam, rituals etc.
there can be no interference.
It has been pro\'.ided in categorical
terms that the same must be continued to be performed according
to Agamasastras or usage or custom prevalent in the institution. It E
is only the secular aspect that has been touched and there can be
no manner of doubt that the same has been done, in the interest of
better and efficient administration. It must be remembered that
the legislation relating to public and charitable institutions or
endowments has taken place as a result of careful deliberation by
high F<JWered bodies.
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In the report of the Hindu ·Religious Endowment Commission
presided over by Dr. C. P. Ramaswamilyer which was appointed
in March 1.960 it has been pointed out. that legislation relating to
endowments became necessary in the States as a result of the almost invariable mismanagement of the endowment properties of G
temples by the trustees, misappropriation of the funds of the
endowment for purposes unconnected with the original aims and
·objects of such endowments, utilisation of funds of the endowment by the trustees or managers for their personal purposes etc.
All this fully supports the decision of the High Court that the
restrictions which have been placed on the hereditary trustees as
also on others in whom the management of the institution in
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question vests are reasonable and in the public interest.
Thus
(I) [1994] 7 S.C.R. 32.
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K. A. SAMAJAM v. COMMR. H.R. & C.E. (Grover, J.)
889
the· appellants cannot succeed on the principal point which has
been argued before us.
A faint attempt was made to sustain the attack under Arts.
14 and 26(d) of the Constitution but'finally hardly any arguments were addressed worth noticing on these points. It is unnecessary to deal with individual appeals some of which were
filed by societies registered under the Societies Registration Act
i.e. Civil Appeal No. 1249 of 1970.
C.A. No. 1271 of 1970 by
the Municipal Council,· Visakhapatnam, related to the Turners
Choultry which, according to the Municipal Council, was its private property. So far as the validity of the impugned provisions
is concerned the same must be sustained· in these cases on the
same reasoning as in the case relating to the hereditary trustee.
The High Court has rightly left open the question whether the
Turner's choultry . is a private or a public charitable institution.
This the. Municipal Cou.TM:il is entitled to agitate before the
Deputy Commissioner under s. 77 of the Act.
Before the lligh
Court some of the writ petitioners had claimed that their institu-.
tions were religious denominations w,ithin Art. 26 and were there·
fore entitled to the protection guaranteed by that Article.
The
High Court has, quite rightly, observed that these matters should
be agitated in a proper forum and they have been left open for
detel1I'ination if ana when so desired.
This indisputably was the
correct course to follow.
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The appeals fail and are dismissed with costs.
One set of
hearing fee.
V.P.S.
Appeals dismissed.