# M. RADHAKRISHNA GADE RAO SAWB v. STATE OF MADRAS

- **Citation:** [1966] 1 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1965-08-21
- **Bench:** A. K. Sarkar, Raghubar Dayal, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-radhakrishna-gade-rao-sawb-v-state-of-madras-3550
- **Pages:** 8

## Headnote

Hindu Religious & Charitable Endowment~Part of the income of
properties set apart for charities-If specific Endowment.
The appellants' predecessors by an instrument
provided that out of
the income of the propertie• a specified sum was to be set apart for certain
charitie1, and the balance of the income was to be taken by the members of the family.
The
Commissioner
of
Religious
Endowments
declared that part of the income set apart for charities, as a specific endowment. 'Thereupon the appellant filed a swt under s. 62(11) of ~e Act
for cancellation of this order.
The Trial Court decreed the swt, but
on appeal by the Commissioner the High Court, set
aside the Trial
Court's decree. In appeal to this Court,
HELD : (By Full Court) A specific endowment was created by the
instrument.
Per Sarkar and Dayal, JJ.
The proprietors had divested themselves
of that part of the income to be spent on charities.
By providing that
their fobility to pay the amount would be a charge on the properties,
the settlors emphasised that they were divesting themselves of the right
to the income and the right to deal with the property as if it was
unencumbered.
By creating the charge they provided a security for the
due performance by them of the liability they undertook.
Further s. 32
of the Act provides that where a specific endowment to a temple consists
merely of a charge on property, the trustees of the temple might require
the person in possession of the properties charged to pay the expenses in
respect of which the charge was created.
This section
undoubtedly
shows that the Act contemplates a charge as an endowment. [645 F646 Al
It cannot be said that a charge would be an endowment only where
it had first been created in favour of a person who made an endowment
in respect of it, that i& to say, transferred his rights under the charge in
favour of the charities. [ 646 BJ
Per Ramaswami, J. In Hindu Law a dedication may be either absolute or partial. In the former case, the property is given out and out
to an idol or to a religious or charitable institution and the donor divests
himself of all beneficial interest in the prope-rty comprised in the endowment.
When the dedication is partial, a charge is created on the property or there is a trust to receive and apply a portion of the income
for religious or charitable purposes.
In
such a
case,
the
property
descends and is alienable and l!artible in the
ordinary way, the only
difference being that it passes with the charge upon it. The expression
"religious endowment" as defined in s. 6(14) and "specific endowment"
as defined in s. 6( 16) of the Act must be construed so as to include both
absolute and partial dedication of the property.
This view is supported
by s. 32(1) of the Act, which contemplates thrut "specific endowment"
attached to a math or temple may consist merely of a charge on property. (649 F-650 DJ
ii44
SUPRBMB COURT REPORTS
( 1966] I S.C.R..

## Text

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643
M. RADHAKRISHNA GADE RAO SAWB
v.
STATE OF MADRAS
August 21, 1965
[A. K. SARKAR, RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.]
Hindu Religious & Charitable Endowment~Part of the income of
properties set apart for charities-If specific Endowment.
The appellants' predecessors by an instrument
provided that out of
the income of the propertie• a specified sum was to be set apart for certain
charitie1, and the balance of the income was to be taken by the members of the family.
The
Commissioner
of
Religious
Endowments
declared that part of the income set apart for charities, as a specific endowment. 'Thereupon the appellant filed a swt under s. 62(11) of ~e Act
for cancellation of this order.
The Trial Court decreed the swt, but
on appeal by the Commissioner the High Court, set
aside the Trial
Court's decree. In appeal to this Court,
HELD : (By Full Court) A specific endowment was created by the
instrument.
Per Sarkar and Dayal, JJ.
The proprietors had divested themselves
of that part of the income to be spent on charities.
By providing that
their fobility to pay the amount would be a charge on the properties,
the settlors emphasised that they were divesting themselves of the right
to the income and the right to deal with the property as if it was
unencumbered.
By creating the charge they provided a security for the
due performance by them of the liability they undertook.
Further s. 32
of the Act provides that where a specific endowment to a temple consists
merely of a charge on property, the trustees of the temple might require
the person in possession of the properties charged to pay the expenses in
respect of which the charge was created.
This section
undoubtedly
shows that the Act contemplates a charge as an endowment. [645 F646 Al
It cannot be said that a charge would be an endowment only where
it had first been created in favour of a person who made an endowment
in respect of it, that i& to say, transferred his rights under the charge in
favour of the charities. [ 646 BJ
Per Ramaswami, J. In Hindu Law a dedication may be either absolute or partial. In the former case, the property is given out and out
to an idol or to a religious or charitable institution and the donor divests
himself of all beneficial interest in the prope-rty comprised in the endowment.
When the dedication is partial, a charge is created on the property or there is a trust to receive and apply a portion of the income
for religious or charitable purposes.
In
such a
case,
the
property
descends and is alienable and l!artible in the
ordinary way, the only
difference being that it passes with the charge upon it. The expression
"religious endowment" as defined in s. 6(14) and "specific endowment"
as defined in s. 6( 16) of the Act must be construed so as to include both
absolute and partial dedication of the property.
This view is supported
by s. 32(1) of the Act, which contemplates thrut "specific endowment"
attached to a math or temple may consist merely of a charge on property. (649 F-650 DJ
ii44
SUPRBMB COURT REPORTS
( 1966] I S.C.R..
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 444 of
A
1963.
Appeal from the judgment and decree dated March 26, 1958
of the Madras High Court in Appeal Suit No. 3~5 of 1955.
M. S. K. Sastri and M. S. Narasimhan, for the appellant.
A. Ranga11atllzam Clzetry and A. V. Ra11gam, for the respondent.
The Judgment of Sarkar and Raghubar Dayal JJ. was delivered by Sarkar J. Ramaswami, J. delivered a separate Opinion.
Sarkar, J. On January 10, 1914, the appellant\ predecessors-in-interest executed an instrument which has been described
in these proceedings as a deed of settlement.
There is some dispute as to the interpretation of this instrument but this much is
not in controversy that it provided that the properties set out in
Schedule A to it would be responsible for meeting the expenses
of the charities specified in Schedule B.
Schedule B set out 17
different charities and the amount to be spent on each.
The
total of the amounts mentioned came to Rs. 4,311 ·0-0 and the instrument provided that "in respect of the sum of Rs. 4,311-0-0
which has been set apart for the expenses of the aforesaid dharmams we have created a 'charge' on the entire properties mentioned in the A Schedule herein." That the properties were charged
with the payment of the amount is not disputed. It is unnecessary
to refer to the other provisions in this instrument in detail and it
will be sufficient to state that they provided that the balance of
the income of the properties in Schedule A left after meeting the
expenses of the charities was to be taken by the male members
of the family after payment of certain maintenance, marriage and
other expenses to various females.
On November 10, 1953, the Commissioner for Hindu Religious and Charitable Endowments, Madras, an officer appointed
under the Madras Hindu Religious and Charitable Endowments
Act, 1951, made, in exercise of the powers conferred on him by
the Act, an order declaring that 21 per cent of the income of the
properties in Schedule A would be deemed to form
a specific
endowment within the meaning of the Act. Thereupon the appellant filed a suit under s. 62(ii) of the Act against the Commissioner for cancellation of this order.
The trial Court decreed
the suit, but on appeal by the Commissioner to the High Court at
Madras it was declared that a specific endowment was created by
the instrument of 15.9 per cent of the income for the time being
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GADE RAO v. STATE (Sarkar, J.)
645
A received from the properties mentioned in Schedule A.
The
appellant challenges that decision in the present appeal. The
Commissioner is represented by the State of Madras.
The appellant contends that no specific endowment had been
created by the instrument.
His contention is that all that was
B done was to create a charge on the properties to meet the expenses
of certain charities but the settlors never divested themselves of
those properties or any interest therein. It was said that the mere
provision for meeting the expenses of the charities out of the income of the properties and the creation of the charge would not
amount to the making of any endowment, for thereby the settlors
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could not be said to have divested themselves of anything. The
main question in this appeal is whether this contention is right.
There is no dispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself
0
of the property endowed. To create an endowment he must give
it and if he has given it, he of course has not retained it; he has
then divested himself of it. Did the settlors thoo divest themselves of anything? We think they did. By the instrument the
settlors certainly divested themselves of the right to receive a
certain part of the income derived from the properties in question.
s They deprived themselves of the right to deal with the properties
free of the charge as absolute owners which they previously were.
The instrument was a binding instrument. This indeed is not in
dispute.
The ri~hts created by it were, therefore, enforceable in
law. The charities could compel the payment to them of the
amount provided in Schedule B, and, if necessary for that purpose,
I' enforce the charge. This, of course, could not be if the proprietors had retained the right to the amount or remained full owners
of the property as before the creation of the charge. It must,
therefore, be held that the proprietors had divested themselves of
that part of the income of the properties which is mentioned in
Schedule B. By providing that their liability to pay the amount
G would be a charge on the properties, the settlors emphasised that
they were divesting themselves of the right to the income and
the right to deal with the property as if it was unencumbered.
By creating the charge they provided a security for the due performance by them of the liability which they undertook.
Further
s. 32 of the Act provides that where a specific endowment to a
H temple consists merely of a charge on property, the trustees of
the temple might require the person in possession of the properties
charged to pay the expenses in respect of which the charge was
646
SUPRBMB COURT REPORTS
[1966] l S.C.R.
created.
This section undoubtedly shows that the Act contemA
plates a charge as an endowment.
Mr. Sastri for the appellant said that a charge would be an
endowment only where it had first been created in favour of a
person who made an endowment in respect of it, that is to say,
transferred his rights under the charge in favour of the charities.
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We see no reason for holding that an endowment was contemplated
as consisting of a charge only in cases like that. We, therefore.
think that the High Court was right in its view that the instrument
had created a specific endowment.
As we have earlier stated, Schedule B to the instrument set c
out 17 different kinds of charities on which different amounts
were to be spent.
The High Court held that six of these were
not charities within the meaning of the Act because they were
of a secular nature, and as the Act dealt only with charities of
religious nature the disposition made for the purpose of those six
charities could not form an endowment within the meaning of the
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Act.
This is not disputed by the respondent.
The dispute before
us concerned the remaining eleven charities.
We have agreed
with the High Court for the reasons earlier stated that what was
given in respect of these eleven charities formed an endowment.
But there still remains a dispute as to the quantum of what
was given in respect of them.
It was found that the total of
the amounts specified in the instrument in respect of these eleven
items came to Rs. 1,590. It was however pointed out to the Hi~h
Court that since 1914 when the instrument was
executed,
the
income of the properties had gone up and the expenses of the
charities directed to be performed had also gone up.
This is not
disputed.
The High Court found that the sum of Rs. 1,590/ •
was 15.9 per cent of Rs. 10.000/- which was mentioned in the
instrument as the current total income of the properties.
In view
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of the increase in the income and expenditure the Hi£h Court
held that the in;trument created an endowment of 15. 9 per cent
of the income of the properties whatever it mi!(ht be at any
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particular time and not of the fixed sum of Rs. 1,590/-. Learned
counsel for the respondent also said that under Schedule B tho
amount had in many cases been stated as approximate.
He fur.
ther pointed out that in one case 60 kalams of paddy had been
directed to he provided. the arproximatc cost of which was mentioned as Rs. 125/·.
It was contended that all these showed that
what was given was a percentage of the total income and not a
fixed sum. We are unable to accept this view.
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GADE RAO v. STATE (Ramaswami, /.)
647
The fact that the expenses were stated to be approximate does
not show that a percentage of the total income formed the subjectmatter of the endowment. What was given under each head was
more or less a fixed sum. If the expenses had not gone up, then
on the present argument, the charities could not claim more than
what was stated in the instrument. The instrument cannot bear
a different interpretation because of subsequent events which
might or might not have happened. The word "approximate"
which we may point out, does not occur in every item of the
charities. only shows that the persons responsible for paying
money~ for the charities had a discretion to vary the amount
mentioned slightly.
That may have been because the charities
were not very clearly defined and because the acts constituting
them were not rigidly fixed.
In any case, we do not see that the
word "approximate" created a right in the charities to a propor·
tion of the income.
We are, therefore, unable to agree with the
High Court that an endowment had been created of 15.9 per cent
of the income of the properties.
We hold that an endowment
had been created in respect 01 .1 right to receive out of the income
of the properties a sum of Rs. 1,590-00 only, leaving it to the
proprietors who were the owners of the properties and were entitled to their management, in the exercise of their honest discretion to increase or decrease the amounts slightly as they thought
E the occasion required.
The declaration made by the High Court
that an endowment had been created in respect of 15.9 per cent of
the income of the properties is set asid@eand substituted by a declaration that an endowment of the right to receive Rs. 1,590/-
out of the income of the properties had been created subject to
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the discretionary power of the owners of the properties to make
a slight variation in the amounts mentioned.
In the result, we dismiss the appeal subject to the variation
earlier mentioned.
There will be no order for costs.
Ramaswami, J. I agree with the order proposed by my
learned brother Sarkar, J. but I prefer to rely on rather different
r~asons.
The endowment known as Gade Rao Sahib Endowment attached to Sri Pushpavaneeswarar temple was created by one Sri Gopal
Rao Gade Rao Sahib by the execution of a Settlement deed Ex.
A. 1 dated January 10, 1914. Seventeen items of charities were
mentioned in detail in Sch. 'B' to Ex. A.1 and the amount to be
H spent was Rs. 4,311 /- every year from out of the net income of
the properties mentioned in the document.
The Deputy Commissioner, Hindu Religious and Charitable Endowments, Thanjavur,
L?Sup./65-13
648
SUPllBMJI COUllT JU!POR.TS
[ 1966] I S.C.ll.
by his order dated February 25, 1953 held that the endowment
known as Gade Rao Sahib Endowment attached to Sri Pushpavaneeswarar temple was a "specific endowment" as defined in the
Madras Hindu Religious and Charitable Endowments Act, 1951
(XIX of 1951) (hereinafter referred to as the Act). Thereupon,
the appellant took the matter in appeal to the Commissioner. The
Commissioner, by his order dated November I 0, 1953 in Appeal
no. 46 of 1953 while confirming the order of the Deputy Commissioner that the endowment in question was a "specific endowment", held that out of the charities mentioned in Sch. 'B' to Ex.
A. I, items I, 4, 10, 11, & 12 were secular charities.
The
appellant then filed a suit under s. 62 ( I )(ii) of the Act for cancellation of the order of the Commissioner. It is contended on behalf
of the appellant that none of the charities constituted a "specific
endowment" within the meaning of the Act and, in any event, all
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the charities are private family charities.
The contention of the
appellant was accepted by the Subordinate Judge who granted a
decree in his favour. Against the order of the Subordinate Judge
the defendant-respondent filed First Appeal A.S. 355 of 1955 in
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the Madras High Coun which allowed the appeal and restored the
order of the Commissioner except with regard to item 17 which
was treated as secular charity and not falling within the purview
of the Act. The present appeal is brought on behalf of the plaintiff against judgment and decree of the High Court of Madras
dated March 26, 1958 in the appeal.
The question presented for determination in this case is wh~
ther the 11 items of charities mentioned in Sch. 'B' to Ex. A. I
which have been held to be of religious nature are "specific endowments" within the meaning of s. 6(16) of the Act which states:
"6. In this Act, unless there is anything repugnant
in the subject or context-
( 16) 'specific endowment' means any property or
money endowed for the performance of any specific
service or charity in a math or temple, or for the performance of any other religious charity, but does not
include an inam of the nature dcscnbed in Explanation
(I ) to clause ( 14) ;
Section 6( 14) of the Act defines "religious endowment" or
"endowment" to mean :
"all property belonging to or given or endowed for
the support of maths or temples, or given or endowed
for the performance of any service or charity of a public
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GADE RAO v. STATE (Ramaswami, J.)
nature connected therewith or of any other religious
charity; and includes the institution concerned and also
the premises thereof, but does not include gifts of property made
as personal gifts to the archaka, serviceholder or other employee of a religious institution;
"
649
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On behalf of the appellant it was contended that in order to
attract the operation of s. 6 ( 16) of the Act there must be a
transfer or divesting of the ownership and there must be vesting
of the title in the charity itself or the trustees. It was submitted
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by Mr. Sastri on behalf of the appellant that in the Settlement
deed, Ex. A.1 there was only a direction to the trustees to perform
certain religious charities from out of the income of the family
properties.
It was conceded by learned Counsel that the endowment was created in respect of the amount to be spent for the
performance of the charities and a charge was imposed on the
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immovable properties mentioned in Sch. 'A'.
The
argument
was stressed on behalf of the appellant that there was merely a
charge on the properties and there was no divesting of the title
of the properties or vesting of such title in any body of trustees
or in the temple itself.
It was, therefore, submitted that there
is no religious endowment within the meaning of s. 6 ( 14) of the
E Act and consequently there is no "specific endowment" within the
meaning of s. 6 ( 16) of the Act and the finding of the High
Court on this question was defective in law.
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I am unable to accept thls argument as correct.
In Hindu
Law a dedication of property may be either absolute or partial.
Iswari Bhubaneshwari v. Brojo Nath Dey('). In the former case,
the property is given out and out to an idol or to a religious or
charitable institution and the donor divests himself of all beneficial interest in the property comprised in the endowment. Where
the dedication is partial, a charge is created on the property or
there is a trust to receive and apply a portion of the income for
the religious or charitable purpose. In such a case, the property
descends and is alienable and partible in the ordinary way, the
only difference being that it passes with the charge upon it.
(Mayne's Hindu Law, Eleventh Edition, p. 923). In my opinion, the expression "religious endowment" as defined ins. 6(14)
and "specific endowment" as defined in s. 6 ( 16) of the Act must
be construed so as to include both absolute and partial dedicatio11
(l) 64 I.A. 203.
650
SUPUMB CO'UIT
11.EPOl.TS
(1966] 1 S.C.R
of property.
This view is supported by reference to s. 32( I) of
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the Act which states :
"32. (1) Where a specific endowment attached to
a math or temple consists merely of a charge on property
and there is failure in the due performance of the service
or charity, the trustee of the math or temple concerned
may require the person in possession of the property on
which the endowment is a charge, to pay the expenses
incurred or likely to be incurred in causing the service
or charity to be performed otherwise.
In default of
suclt person making payment as required, the Deputy
Commissioner may. on the application of the trustee and
after giving the person in possession a reasonable
opportunity of stating his objections in regard thereto,
by order, determine the amount payable to the trustee."
This section. therefore contemplates that "specific endowment"
attached to a math or temple may consist merely of a charge
on property.
It is, therefore. not possible to accept the argument
on behalf of the appellant that in order to constitute a "specific
endowment" within the meaning of the Act there must be a transfer of title or divestment of title to the property.
In my opinion.
Mr. Sastri is, therefore, unable to make good his argument on
this aspect of the case.
For these reasons I agree to the order proposed by my learned
brother Sarkar, J.
.Appeal dismissed and decree modified.
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