# SUPREME COUR'f REPORTS SAHASW ATHI AMMAL AND ANOTHER v. H,AJAGOPAL AMMAL

- **Citation:** [1954] 1 S.C.R. 277
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Case number:** Civil Appeal No. 200 of 1952
- **Bench:** Mehr Chand Mahajan, MuKHERJEA, Jagannadha Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-cour-f-reports-sahasw-athi-ammal-and-another-v-h-ajagopal-ammal-264
- **Pages:** 13

## Headnote

277
Hind1t law-Religious endowments-Dedication for worship
nt tomb-Validity-Public policy.
A perpetual endowment of properties for the pnrpose of
samadhi kainkaryain, i.e., worship of and at the samadhi (tomb) of
a person, is not valid under Hindu law.
To the extent that any purpose is claimed to be a valid one
for perpetual dedication on the ground of religious merit though
lacking in public benefit, it must be shown to have a Shastraic
basis so far as Hindus are concerned.
The heads of religious purposes determined by belief in acquisition of religious merit cannot •
be allowed to be widely enlarged consistently with public policy
and needs of modern society.
K1mha1nittty v. T. Ahmad, JJJ.usaliar and Others (I.L.R. 58 Mad.
204),
A. Dravias1tndarar1; Pillai v.
N. S1tbrahmanya Pillai
(I.L.R. 1945 Mad. 854), Velnswami Goundan v. Da1idapani ( [1946]
1 M:.L.J. 354) approved.
1\1. K. A. Rarncmathan Ohettiar v. Vada
Levvai ]forakayar and Others (I.L.R. 34 l\Iad. 12) and Board of
Commissioners for Religions Endowments v. Pid1igu Narasimham
'and Others ( [1939J 1 M.L.J. 134) distinguished.
Fatma Bibi v.
Advocate-General of Bombay and Another (I.L.R. 6 Bori:t. 42),
Dwaraka1iath Bysack cmd Another v. Burroda Persaud Bysack
(I.L.R. 4 Cal. 443), Rnpct Jagashet v. Krishnaji (I.L.R. 9 Bom.
169) and Pcirthasarathi v. Tir1tvc-ngcida Pillai and Others (I.L.R.
30 l\Iad. 340) referred to.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 200 of 1952.
Appeal from the Judgment and Decree dated the
15th day of July, 1949, of the High Court of Judicature
at Madras (Rajamannar C. J. and AyyarJ.) in Appeals
Nos. 625 of 1945 in 0. S. No. 35 of 1944 of the Court
of the Subordinate Judge, Tinnevelly.
·
R. Ganapathy Iyer and K. Vaitheeswaran for the
appellants.
Rarnachandra Iyer for the respondent.
1953. October 20. The Judgment of the Court was
delivered by JAGANNADHA DAS J.
1953
Oct. 20.
1953
Saraswathi
Ammal
and Another
v.
Rajagopal
Ammal.
J agannadhadas
.T.
278
SUPREME COURT REPORTS
[i954j
JAGANNADHADAS J.-This appeal arises out of a
suit for partition. The plaintiff and the 1st defendant
are daughters of one Kanakasabapathi Pillai. The
2nd defendant is the husband of the 1st defendant.
Kanakasabapathi was a self-made man and built up
a flourishing motor bus service and also acquired substantial properties, movable and immovable. He died
on the 24th August, 1942, without any male issue and
left him surviving a widow, Gomathi Ammal, and two
daughters, the plaintiff and the 1st defendant.
His
widow continued the motor service and managed the
other properties with the help of the 2nd defendant as
her manager and died on the 7th March, 1940. The
1st defendant and her husband were throughout living
with her mother. On her mother's death they both
got into possession of all the properties including the
motor service. The plaintiff accordingly brought the
present suit originally as one for administration but
later amended it as one for partition and separate
possession of her half share in the properties. Both
the courts below have decreed partition with ancillary
reliefs.
There are some minor variations in the decree
of the High Court from that of the Subordinate Judge,
details of which it is not necessary to notice.
The
defendants are the appellants before us.
Shortly before her death, the widow, Gomathi
Ammal, executed two documents both on the same day,
namely the 4th November, 1940, (1) a sale deed by
which she conveyed the entire bus service as a going
concern to the 2nd defendant for consideration of
Rs. 80,0QO (vide Exhibit D-6); and (2) a settlement
deed by which she dedicated some immovable properties worth about Rs. 27,000, for the performance of
certain services purporting to be of a religious and
charitable character (vide Exhibit D-8). The main dispute between the parties was as to the validity of these
two deeds, apart from certain minor contest as to
whether some of the suit properties were part of
Kanakasabapathi's estate and liable for parti

## Text

......
S.C.R.
SUPREME COUR'f REPORTS
SAHASW ATHI AMMAL AND ANOTHER
v.
H,AJAGOPAL AMMAL.
[MEHR CHAND MAHAJAN, MuKHERJEA
and JAGANNADHA DAS JJ.]
277
Hind1t law-Religious endowments-Dedication for worship
nt tomb-Validity-Public policy.
A perpetual endowment of properties for the pnrpose of
samadhi kainkaryain, i.e., worship of and at the samadhi (tomb) of
a person, is not valid under Hindu law.
To the extent that any purpose is claimed to be a valid one
for perpetual dedication on the ground of religious merit though
lacking in public benefit, it must be shown to have a Shastraic
basis so far as Hindus are concerned.
The heads of religious purposes determined by belief in acquisition of religious merit cannot •
be allowed to be widely enlarged consistently with public policy
and needs of modern society.
K1mha1nittty v. T. Ahmad, JJJ.usaliar and Others (I.L.R. 58 Mad.
204),
A. Dravias1tndarar1; Pillai v.
N. S1tbrahmanya Pillai
(I.L.R. 1945 Mad. 854), Velnswami Goundan v. Da1idapani ( [1946]
1 M:.L.J. 354) approved.
1\1. K. A. Rarncmathan Ohettiar v. Vada
Levvai ]forakayar and Others (I.L.R. 34 l\Iad. 12) and Board of
Commissioners for Religions Endowments v. Pid1igu Narasimham
'and Others ( [1939J 1 M.L.J. 134) distinguished.
Fatma Bibi v.
Advocate-General of Bombay and Another (I.L.R. 6 Bori:t. 42),
Dwaraka1iath Bysack cmd Another v. Burroda Persaud Bysack
(I.L.R. 4 Cal. 443), Rnpct Jagashet v. Krishnaji (I.L.R. 9 Bom.
169) and Pcirthasarathi v. Tir1tvc-ngcida Pillai and Others (I.L.R.
30 l\Iad. 340) referred to.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 200 of 1952.
Appeal from the Judgment and Decree dated the
15th day of July, 1949, of the High Court of Judicature
at Madras (Rajamannar C. J. and AyyarJ.) in Appeals
Nos. 625 of 1945 in 0. S. No. 35 of 1944 of the Court
of the Subordinate Judge, Tinnevelly.
·
R. Ganapathy Iyer and K. Vaitheeswaran for the
appellants.
Rarnachandra Iyer for the respondent.
1953. October 20. The Judgment of the Court was
delivered by JAGANNADHA DAS J.
1953
Oct. 20.
1953
Saraswathi
Ammal
and Another
v.
Rajagopal
Ammal.
J agannadhadas
.T.
278
SUPREME COURT REPORTS
[i954j
JAGANNADHADAS J.-This appeal arises out of a
suit for partition. The plaintiff and the 1st defendant
are daughters of one Kanakasabapathi Pillai. The
2nd defendant is the husband of the 1st defendant.
Kanakasabapathi was a self-made man and built up
a flourishing motor bus service and also acquired substantial properties, movable and immovable. He died
on the 24th August, 1942, without any male issue and
left him surviving a widow, Gomathi Ammal, and two
daughters, the plaintiff and the 1st defendant.
His
widow continued the motor service and managed the
other properties with the help of the 2nd defendant as
her manager and died on the 7th March, 1940. The
1st defendant and her husband were throughout living
with her mother. On her mother's death they both
got into possession of all the properties including the
motor service. The plaintiff accordingly brought the
present suit originally as one for administration but
later amended it as one for partition and separate
possession of her half share in the properties. Both
the courts below have decreed partition with ancillary
reliefs.
There are some minor variations in the decree
of the High Court from that of the Subordinate Judge,
details of which it is not necessary to notice.
The
defendants are the appellants before us.
Shortly before her death, the widow, Gomathi
Ammal, executed two documents both on the same day,
namely the 4th November, 1940, (1) a sale deed by
which she conveyed the entire bus service as a going
concern to the 2nd defendant for consideration of
Rs. 80,0QO (vide Exhibit D-6); and (2) a settlement
deed by which she dedicated some immovable properties worth about Rs. 27,000, for the performance of
certain services purporting to be of a religious and
charitable character (vide Exhibit D-8). The main dispute between the parties was as to the validity of these
two deeds, apart from certain minor contest as to
whether some of the suit properties were part of
Kanakasabapathi's estate and liable for partition. As
regards the sale deed (Exhibit D-6) both the courts
below have concurrently found that it was executed
for grossly inadequate consideration and brought about
...
S.C.R.
SUPREME COURT REPORTS
279
by undue influence and fraud of the 2nd defendant.
1963
The sale deed was accordingly set aside. With reference
Saraswathi
to the dispute as regards the individual items of pro-.
Ammal
perty, the Subordinate Judge found that item 25 of
and Another
Schedule II, item 6 of Schedule III-0 and item 5 of
v.
Schedule IV did not form part of the estate of KanakaRajagopal
sabapathi and that all the other items belonged to the
A~t.
said estate. This finding also has been confirmed by Jagannadhadas
the High Court. There is no further appeal to this
J.
court as regards these matters.
· The only questions before us are those arising out of
the settlement deed (Exhibit D-8) and relate to the
properties comprised in Schedules I and II attached
thereto. They form Schedule II of the plaint. For a
proper appreciation of the points that arise on this
appeal, it is desirable to set out the settlement deed
(Exhibit D-8) executed by · Gomathi Ammal which
reads as follows :-
" T!ie properties described in schedule I herein are
the properties which belong to the estate of my
husband the late T. G. Kanakasabapathi Pillai Avargal
aforesaid. They were purchased by him in his name
and after his death, they belong to me and are in my
possession and enjoyment. All the properties described
in schedule 2 herein are my private properties which
were purchased in my name from out of my own funds
and which are in my possession and enjoyment. My
husband aforesaid who had been sick for about two
months prior to 24th August, 1942, died on 24th August
1942.
My husband, while he was so sick, expressed to
me his wish that if perchance he should die, he should
be entombed in the property forming the first item
property of schedule I herein, that the vacant lands
forming items 2 to 6 of the said schedule I should be
annexed to the first item property of the said schedule
I as part and parcel thereof utilised for the benefit of
and free access to the said tomb that the incomes
derived from the properties forming items 7 to 17 of
the said schedule I should be utilised for the kainkariyam (services) expenses relating to the samadhi (tomb)
that the said first schedule properties should be managed
and enjoyed and the kainkariyam relating to the said
2so
SUPREME COURT REPORTS
[l954]
1953
samadhi performed by me during my lifetime and
Sarcuwathi
after me, by the persons who may be appointed· by me
Ammal
according to my discretion, that the said properties
and Another should be charged solely with the said kainkariyam
v.
(services) in the manner stated above and that no one
Rajagopal
else should have any right or interest therein, that no
Ammat.
one should alienate the said properties in any manner,
Jagar:adhadas that all necessary interest should be taken in improvJ.
ing the said properties and that I should make a settlement in writing, mentioning the above particulars, and
within a few days thereafter, my husband passed away.
As desired by him, he has been entombed in the pro-.
perty forming the first item of schedule 1 herein.
A
person was appointed for (doing) pooja in respect of
the said samadhi and daily pooja as well as special
Gnrupooja and annadhanam (charity of feeding}, etc.
in Avani (August-September) of the first year in Tiruvona Nakshatram when he died, have been conducted.
In having so conducted them, a sum of Rs. 200 has
been spent in connection with the expenses of daily
pooja and for the salary of the person and a sum of
Rs. 1,000 for Gurupooja and annadhanam, etc. in the
aforesaid one year.
The properties forming items 7 to
"16 of Schedule 1 fetch only an income of Rs. 400 per
year.
Since it is not sufficient for conducting the said
kainkariyams (services) and as I intend that the said
kainkariyams shall be regularly and decently conducted by contributing the amount required for the expenditure over and above the said income, that the said
acts shall be hereditarily and permanently performed for
ever and that necessary arrangements must be made
therefor, I have, with a view to discharge my duties
which I have towards my husband and also realising the
necessity of utilising also the income derived from my
private properties described in schedule 2 herein for
the expenses in connection with the kainkariyam of
the said. samadhi, executed this settlement deed including also my private properties mentioned above.
I
have therefore charged all the properties mentioned in
schedules 1 and 2 herein solely with my husband's
samadhi kainkariyam. I have decided that out of the
incomes derived from the aforesaid properties, the
.,
' '
s.c.R ..
SUPREME COURT REPORTS
281
Revenue Union and other theervas payable in respect
of the aforesaid properties and the expenses in connection with repairs and improvement shall be , deducted,
that, from out of the balance income, the expenses in
connection with the daily pooja of the said samadhi,
the expenses in respect of the salary of the person
conducting the said daily pooja and the expenses in
connection with Gurupooja and annadhanam, etc.,
performed on the day of Thiruvona Nakshathram in
the mon~h of Avani of every year shall be regularly
met and the said kainkariyams decently performed,
that after deducting the expenses incnrred in the
manner stated above the surplus that may be left over
shall be spent for matters connected with education
and that the properties described in schedules 1 and 2
herein shall be enjoyed and all the acts performed in
the manner stated above with the income derived
therefrom during my lifetime and after my death by
K. Ramaswami Doss Avargal, my junior son-in-law,
who has married my younger daughter, son of Krishna
Konar Avargal, Yadhava, Vaishnavite, manager of my
motor service, since I fully believe that only the said
K. Ramaswami Doss Avargal is the fit and proper
person to perform all the above acts truly, regularly
and efficiently after my lifetime, and after him his
male descendants in hereditary succession as hukdars
and I have executed this settlement. Koilpatti, where
the properties described in schedules 1 and 2 herein,
being a place growing in importance from day to day,
the vacant land in the properties described in schedules 1 and 2 herein may be sold if and when they can
fetch suitably and profitably high price and for the
amounts realised by such sale, other substantial properties capable of yielding income may be purchased.
Except under such circumstances, no one has the right
to make any other alienations whatever. Should any
such alienations be made, it shall not be valid. No
one has the right to cancel this settlement or make
alterations therein.''
As appears from the above, Kanakasabapathi was
entombed after his death and the question is as to the
validity of the dedication made therefor, It will be
1953
Saraswathi
Ammal
<ind AnothFT
v.
Rajagopal
Ammal.
J agannadhada s
J.
1953
Saraswathi
Ammal
and Another
v.
Rajagapal
Ammal.
Jagannadhadas
./.
282
SUPREME COURT REPORTS
[1954]
seen that the settlement deed proceeds on the footing
that the dedication was made in pursuance of the
desire of the husband and that the items in schedule 2
thereto which are items 18 to 24 of Schedule II attached to the plaint in this suit are the widow's own pro- .
perty and not part of the estate of Kanakasabapathi.
The courts below have found both these assertions not
to be true. But no question has been raised before
the courts below or before us that the settlement, even
if otherwise valid, was beyond the powers of the
limited owner, Gomathi Ammal. The courts below in
coming to the conclusion that the dedication was
invalid (partially as held by the Subordinate Judge.
and wholly as held by the High Court) relied on
Kunhamu.tty · v. 'Phondiklcodan Ahmad Mu8a.liar and
two others(') and other cases following it. Learped
counsel for the defendants-appellants contested the
correctness of this line of decisions and also urged that
the dedication in the present case was substantially
one for religious and charitable purposes like, Gurupooja, annadhanam and education and that, therefore,
this does not come within the scope of these cases.
It will be convenient to consider this latter contention
first.
.
From the recitals 'in the settlement deed set out
above, it will be seen that items 1 to 6 are vacant sites,
and that the samadhi is in item 1, while items 2 to
6 have been set apart along with item 1 for the benefit
of and free access to the samadhi. All the other
items 7 to 25 have been dedicated in order that the
income thereof may be utilised for the following ser,
vices.
( 1) Expenses in connection with the daily
pooja of the said samadhi and the salary of the person
conducting the daily pooja; (2) Gurupooja and annadhanam to be performed annually at the samadhi on
Thiruvona Nakshathram day·in Avani when he died,
that is, the day of the annual sradh of late Kanakasabapathi; and (3) any balance left over after meeting
the above expenses to be spent for matters connected with education.
Learned counsel for the appellants points out that the recitals in the deed show that
(r) J.L.R, 58 l\!•c!. 204,
S.C.R.
SUPREME COURT REPORTS
283
only a sum of Rs. 200 had been spent by the widow in
connection with the expenses of daily pooja and that
as much as Rs. 1,000 had been spent for Gurupooja
and annadhanam on the day of annual sradh, and that
it was to enable the Gurupooja and annual sradh to
be performed regularly on more or less the same scale
that items 7 to 25 of Schedule II to the plaint with
their income has been dedicated. It is urged, therefore, that the performance of the pooja and the feeding
at the annual sradh on a substantial scale and the
utilisation of the balance, if any, for educational purposes, were the main destination of the income and
hence the main object of the settlement and that
accordingly the dedication is valid. We are unable to
accede to this contention. There is no evidence in
the case as to what "Gurupooja" contemplated in the
deed consists of and whether it is not merely worship
of the deceased entombed in the samadhi. Though
the word "Guru" ordinarily refers to a preceptor, it is
not inapplicable to an ancestor considered as Guru.
However that may be there is enough in the settlement
deed to show what the dominant motive of the dedication is.
A careful perusal of the document shows
that Cl-urupooja and annadhanam on the sradh day
were contemplated as being parts of the worship at the
tomb. There can be no doubt about it at least so far
as items 1 to 10 are concerned which fetch only a
small income. The inspiration and motive for the
dedication therefor is the alleged desire of the husband
that the properties and their income are to be utilised
for the kainkariyam (services) expenses relating to the
said samadhi. The dedication of additional items 11
to 25 is only in pursuance of the same impulse. It is
recited that during the first year after her husband's
death she herself got the daily pooja as well as Gurupooja and annadhanam on the sradh day conducted
and spent for the same. Her spending as much as
Rs. 1,000 for Gurupooja and annadhanam on the day
of sradh was clearly as part of the samadhi kainkariyam which she had undertaken.
It is for the
continuance of the samadhi kainkariyam on the same
scale that she endowed a~ditional propertie$ over l!<ni;l
3~
1953
S a.rasioathi
Aninial
and Another
v.
Rajagopal
Ammal.
Jagannadhadas f
J.
284
SUPREME COURT REPORTS
(1954]
1953
above what was said to have been endowed at the
Sara•wathi
desire of her husband. It is clear, therefore, that all
Annnal
these .various items of expenses are contemplated as
and Another
expenses for the samadhi kainkariyam and not for any
v.
other kind of religious or charitable purpose as such.
Rajagopal
That the dedication was meant not for the annual
Anunal,
dh
d
t•
h b
1
f
dh
sra
ore uca ion as sue
ut on y as part o sama
i
• Jagannadhadas kainkariyam is clinched by the term in the deed,
J.
Exhibit D-8, which runs as follows :-
"I have, therefore, charged all the propertie8 mentioned in schedules 1 and 2 herein (Schedule II of the
plaint) solely with my husband's 8a.madhi kainkariya1n."
Hence notwithstanding that the major portion of the
income may have to be spent for Gurupooja and annadhanam in connection with the annual sradh, it is
clear that the dominant purpose of this dedication was
the samadhi kainkariyam, that is to say, that worship
of and at the samadhi (tomb). The validity or otherwise, therefore, of the dedication must be determined
on that footing and not as though it was a dedication
for the performance of the annual sradh on a substantial scale or for annadhanam as such.
Nor does it
make any difference in this case that the surplus is
contemplated to be utilised for educational purposes.
That surplus is contingent and indefinite as well as
dependant on the uncontrolled discretion of the 2nd
defendant as to the scale on which he chooses to perform the samadhi kainkariyam.
The validity, therefore, of such a dedication as was
made under Exhibit D-8 for the worship primarily
connected with the tomb of a deceased person falls to
be considered. As already ·stated the Madras High
Court has pronounced against it in a number of cases,
viz., Kunhamuttyv. Thondikkodan Ahmad Musaliarand
two others('); A. Draiviasundram Pillai v. N. Subramania Pillai(') and. Veluswami Goundan v. Dandapani('). It has been brought to our notice that the said
High Court in a case which came up for its consideration subsequent to the judgment in the present case
(I) I.L.R. 58 l\Iad. 204 at 2II.
•
(2) l.L.R. 1945 Mad. 8.\4,
\3) [1946] I M,L.J. 354·
...
''
.
S.C.R.
SUPREME COURT REPORTS
285
felt that the above line of cases require re-considerac
1953
tion and referred the question for the consideration of
a Full Bench. But we are informed that the Full Bench
Saraswathi
Amina!
reference did not materialise on account of the subjectand Another
matter therein having been compromised.
v.
It was held in the Madras decisions above noticed
Rajagopal
that the building of a samadhi or a tomb over the reA~l.
mains of a person and the making of provision for the Jagrmnadhadas
purpose of Gurupooja and other ceremonies in connecJ.
tion with the same cannot be recognised as charitable
or religious purpose according to Hindu law.
This is
not on the ground that such a dedication is for a superstitious use and hence invalid. Indeed the law of
superstitious uses as such has no application to India.
The ground of the Madras decisions is that a trust of
the kind can claim exemption from the rule against
perpetuity only if it is for a religious and charitable
purpose recognised as such by Hindu law and that
Hindu law does not recognise dedication fora tomb as
a religious or charitable purpose. It is, however,
strenuously argued by the learned counsel for the
appellants that the perpetual dedication of property in
the present case, as.in the Madras cases above referred
to, must be taken to have been made under the belief
that it is productive of spiritual benefit to the deceased
and as being somewhat analogous to worship of ancestors
at a sradh. It is urged, therefore, that they are for
religious purposes and hence valid. The following passage in Mayne's Hindu Law, 11th Edition, at page 192,
is relied on to show that
"What are purely religious- purposes and what
religious purposes will be charitable must be entirely
decided according to Hindu law and Hindu notions."
It is urged that whether or not such worship was
originally part of Hindu religion, this practice has now
grown up and with it the belief in the spiritual efficacy
thereof and that courts cannot refuse to accord recognition to the same or embark on an enquiry
as to the truth of any such religious belief, provided it
is not contrary to law or morality. It is further urged
that unlike in English law, the element of actual or
assumed public benefit is not the determining factor
' .
286
SUPREME COURT REPORTS
'
[1954]
1963
as to what is a religious purpose under the Hindu law.
Saraswathi
Now, it is correct to say that what is a religious purpose
Arnmal
under the Hindu law must be determined according to
and Another Hindu notions. This has been recognised by courts from
v.
very early times.
[Vide Fatma Bibi v. AdvocateRajagapal
General of Bombay and another(')]. It cannot also be
Am·mal.
h
h
_
disputed t at under t e Hindu law religious or charitable
Jagannadhadas purposes are not confined to purposes which are product·
J.
ive of actual or assumed public benefit. The acquisition of religious merit is also an important criterion.
This is illustrated by the series of cases which recognise
the validity of perpetual endowment for the maintenance and worship of family idols or for the continued
performance of annual sradhs of an individual and his
ancestors. See Dwarkanath Bysack and another v.
Burroda Persand Bysack(2 ) and Rupa Jagashet v.
Krishnaji( 3).
So far as the textual Hindu law is concerned what acts conduce to religious merit and justify
a perpetual dedication of property therefor is fairly
definite.
As stated by the learned author Prananath
Saraswathi on the Hindu Law of Endowments at
page 18-
" From very ancient times the sacred writings of the
Hindus divided works productive ofreligious merit into
two divisions named ishta and purtta, a classification
which has come down to our own times. So much so
that the entire object of Hindu endowments will be
found included within the enumeration of i$hta and
purtta."
The learned author enumerates what are ishta works
at pages 20 and 21 and what are purtta works at page
27.
This has been adopted by later learned authors
on the law of Hindu Religious Endowments and accepted by Justice Subrahmania Ayyar in his judgment in
Parthasarathy Pillai and another v. Thiruvengada Pilkii
and others(').
These lists are no doubt not exhaustive
but they indicate that what conduces to religious merit
in Hindu law is primarily a matter of Shastraicinjunction.
To the extent, therefore, that any purpose is
(I) I.LR. 6 Born. 42.
(2) I.L.R. 4 Cal. 443,
(3) I.L.R: 9 Born. I69.
( 4) I.L.R. 30 Mad, 340 at 342,
•
../ ...
S.C.R.
SUPREME COURT REPORTS
287
1953
claimed to be a valid one for perpetual dedication on
the ground of religious merit
though
Saraswathi
lacking in public benefit, it must be shown to
Ammal
have a
Shastraic
basis
so
far
as
Hindus
and Another
are concerned. No doubt since then other religious
v.
practices and beliefs may have grown up and obtain~d
Rajagopal
recognition from certain classes, as constituting purA~l.
poses conducive to religious merit. If such beliefs are Jagrmnadhadas
to be accepted by courts as being sufficient for valid
J.
·
perpetual dedication of property therefor without the
element of actual or presumed public benefit it must at
least be shown that they have obtained wide recognition and constitute the religious practice of a substantial
and large class of persons. That is a question which
does not arise for direct decision in this case.
But it
cannot be maintained that the belief in this behalf of
one or more individuals is sufficient to enable them to
make a valid settlement permanently tying up property. The heads of Teligious purposes determined by
belief in acquisition ofreligious merit cannot be allowed
to he widely enlarged consistently with public policy
and needs of modern society.
The learned Judges of the Madras High Court appear
to have made the Full Bench reference above noticed
on an argument before them that erection of tombs for
deceased persons and endowment of properties for the
upkeep thereof and for the performance of worship
thereat were common amongst Hindus of certain communities and that it is believed by them to redound to
their spiritual benefit, and that the validity of such
endowments have been ·recognised by the courts. But
the case that they referred to is .Zlfuthu Kana Ana
Ramanatham Ohettiar v. Vada Levvai Marakayar and
Others('), which relates to Muslims and it may well be
that the position is, as stated therein, amongst Muslims.
We have been referred to a statement at page 223 of
P.R. Ganapathiiyer'sHinduand MohamedanEndow- ·
me~ts, 2nd Edition, wherein it is stated-
" Gifts for the maintenance of tombs or samadhies
of private persons have been regarded as valid under
the Hindu law."
·
(1) I.L.R, 34 i\lad. Io•
288
SUPREM~ COURT REPORTS
[1954)
1963
We have been unable to find on what authority this
Saraswathi
statement was based. There is only a·solitary passage
in the case reported as the 111. ost Reverend Joseph Colgan
and .4noth" v. Administrator-General of Madras(') wherein it appears
v.
as follows :-
./;
'
R;:,:;,~:z~l
"Dedication of property in perpetuity for the performance .of religious ceremonies, maintenance of tombs
Jayannadhadas and other purposes not allowed by English law to be
J.
charitable, have always been held lawful amongst
Hindus and Muhammadans."
In so far as this statement relates to tombs of
Hindus, we are unable to find any support from our
knowledge and experience. There have been no doubt
instances of Hindu saints having been deified and
wor~hipped but very few, if at all, have been entombed
and we are not aware of any practice of dedication of
property for such tombs amongst Hindus.
Such cases,
if they arise, may conceivably stand on a different
footing from the case of an ordinary private individual
who is entombed and worshipped thereat.
The case
reported as The Board of Commissioners for Hindu
Religious Endowments, Madras v. Pidiigu Narasimham
and others(') has also been referred to. It is a somewhat curious case furnishing an instance where images
of as many as 66 heroes who were said to have been
killed in a war between two neighbouring kingdoms in
the 13th century were installed in a regular temple and
systematically worshipped by the public for several
centuries and inam grants therefor made during the
Moghul period. With reference to the facts of that
case, the learned Judges were inclined to hold that
the worship was religious.
This, however, is a case of
a grant from a sovereign authority and in any case is
not an endowment for worship of a tomb. In the three
Madras cases in which it was held that the perpetual
dedication of property by a Hindu for performance of
worship at a tomb was not valid, there was no suggestion that there was any widely accepted practice ofraising tombs and worshipping thereat and making endowments therefor in the belief as to the religious merit
acquired thereby. In the present case also, no question
(1) I.L.R. 15 Mad. 424 at 446,
(2) [1939] l M.L.J. 134,
' '
J
'1
S.C.R.
SUPREME COURT REPORTS
289
has been raised that in the community to which the
parties belong there was any such well recognised
practice or belief.
The defendants in the written
statement make no assertion about it. But on the
other hand, the plaintiff in paragraph 12 of his plaint
asserts that the--
" Institution of samadhi and ceremonies connected
1953
Saraswathi
Ammal
and Another
v,
Rajagapal
Ammal.
with it are not usual in the community to which the Jagannadhada•
parties belong ".
J.
Indeed it may be assumed that such a practice is
not likely to grow up amongst Hindus where cremation and not burial of the dead is the normal practice,
except probably as regards sannyasis and in certain
dissident communities. We see no reason to think
that the Madras decisions are erroneous in holding that
perpetual dedication of property for worship at a tomh
it; not valid amongst Hindus.
We accordingly affirm the judgment of the High
Court and dismiss the appeal but in the circumstances
without costs.
Appeal dismissed.
Agent for the appellant: S. Subramanian.
Agent for the respondent: M. S. I~. Aiyangar .
.,
COMMISSIONER OF INCOME-TAX,
BOMBAY CITY
v.
ROYAL WESTERN INDIA TURF CLUB LTD.
[PATANJALI SASTRI C.J., s. R. DAS, VIVIAN BOSE,
GHULAM HASAN and BHAGWATI JJ.]
Income-tax Act (XI of 1922), s. 10(1), s: 10(6)-Race coitrse
company-Receipts fron• members-Whether receipts from bnsiness
-Assessability-Applicability of rule in Styles' case-Difference
between mutital insitrance societies and clitbs, and race coitrse companies-"Trade association", mean.inf} of.
196J
Oct. 26.