CENTRE FOR ACADEMIC LEGAL RESEARCH | JOURNAL OF APPLICABLE LAW &

JURISPRUDENCE

Volume 1 | Issue 1

“CRITICALLY UNDERSTANDING AND ANALYZING THE STATUS QUO OF

RELIGIOUS ENDOWMENTS UNDER HINDU LAW”

By: Atharva Nikam (Maharashtra National Law University, Mumbai)

& Yashi Singh (Maharashtra National Law University, Mumbai)

The following research/scholar work is under Centre for Study of Contemporary Legal Issues. The copyrightover
this material is held by CALR as per the CALR Policy 2020.
Note: We would like to extend our gratitude to Prof. Karuna Malviya for her constant guidance and
support during this article.

ABSTRACT

Down the years, the interpretation of the concept of ‘religious endowments’ has had a sea change.
Embarking upon from the donations made by the kings and queens to the temples to being a regularly
followed process in the Indian society, the scope of ‘religious endowments’ has broadened widely. In
this paper, the authors would take the reader through a journey, where the concept of religious
endowments would be narratively explained in detail. The former part of the paper would revolve
around: The essentials for a making a valid religious endowment, the specific differences between
religious endowments and charitable endowments and the role of ‘Maths’ in religious endowments.

Whereas in the latter part of the paper, an analysis is made on the constitutional validity of religious
endowments. Analysing the concept of religious endowments through the lens of Article 14 and Article
26 of the Indian Constitution, the importance of ‘Shirur’ case and how the apex court held Hindu
Religious and Charitable Endowments Act, 1951 as unconstitutional would be the topics discussed
in the latter part of the project. Further, the author’s opinion in what future actions could be taken
in order to alter the status quo are also stated in the concluding part of the paper.

Keywords: Religious endowments, Dedication, Article 26, Secular, Unconstitutional, Maths.

INTRODUCTION

Religious endowments have been taking place in the Hindu culture, since the earliest of the times.
This type of endowment was always considered as a special and philanthropic act, towards the
betterment of the society in general. Endowments are generally of two types. One is a charitable
endowment and the another being the religious endowment. Endowment generally means a gift of
money or of property to any particular institution with an aim to provide it with a specific amount of
income.

Charitable endowments has been precisely defined in the Hindu Religious and Charitable
endowments Act as follow: “Charitable endowments means all property given or endowed for the
benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the
support or maintenance of objects of utility to the said community or section, such as rest-houses,
choultries, patasalas, schools and colleges, houses for feeding the poor and institutions for the
advancement of education, medical relief and public health or other objects of a like nature; and
includes the institution concerned”1.

We can observe in this definition, the widened scope of charitable endowments. It is not just an
endowment made for charitable purposes, it now has broader notations, such as feeding the poor and
advancement of education and medical relief. Thus, we can observe that the scope and purpose of
charitable endowments have widened tremendously over the years.

This paper will specifically focus on the second type of endowment i.e., Religious Endowments.
Religious endowments as the title suggests are endowments made for religious purposes. It has been
defined briefly in the Hindu Religious and Charitable endowments Act as follow: “Religious
endowments means 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 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, service
holder or other employee of a religious institution”2.

This is just a basic definition of religious endowments, we will study it in great detail, once the main
chapter commences. This act clearly implies that there is stark difference between religious charity
and religious endowments. The latter one is a much broader concept than the former one. According
to the Act, religious charity is just a public charity associated with a Hindu festival.

1
Section 6(5) of The Hindu Religious and Charitable Endowments Act, 1959.
2
Section 6(17) of The Hindu Religious and Charitable Endowments Act, 1959.
It would be safe to contend that religious charity comes under the ambit of religious endowments.
The main contention of this paper is to acquaint the readers with the concept of religious endowments.
Thus, the main chapters of this paper will describe about the essentials of a valid endowment and the
role of maths in the process of endowments and then the latter half of the paper will analyse the
validity of religious endowments.

Research Questions

1. What are the essentials of a valid religious endowment under Hindu law?
2. Whether the religious endowments are constitutionally valid?

Objectives of the study

I. To understand the religious endowments under Hindu law in great detail.

II. To know about various essential pre-requisites for a valid endowment and the role of
maths in this process.
III. To analyse the validity of religious endowments under Hindu law.

UNDERSTANDING RELEGIOUS ENDOWMENTS UNDER HINDU LAW

Endowment is generally a term with wide scope of interpretation. It basically means dedication of
property (of any kind – movable or immovable) for particular purposes. The purpose can be religious,
charitable or even for advancement of education, health or any other purpose beneficial to the society
in large. As stated earlier too, the paper will specifically focus on religious endowments. Various
topics of endowments will be discussed, such as essentials of a valid endowment and the role of maths
in the process of endowment.

As per the definition of religious endowments under Section 6(17) of The Hindu Religious and
Endowments Act, 1959 we can observe that religious endowments are endowments made for support
of maths or temples or for purposes of public or religious charity. Now the act has provided two
exceptions to this definition. The first one being, “Any inam granted to an archaka, service holder or
other employee of a religious institution for the performance of any service or charity in or connected
with a religious institution shall not be deemed to be a personal gift to the archaka, service holder or
employee but shall be deemed to be a religious endowment”3. The ‘inam’ mentioned above means
any type of gift, which is granted or given to ‘archaka’ which means a priest of the religious
institution. So, this explanation means that any gift granted to any employee of a religious institution
for performance of any service will come under the ambit of religious endowment.

ESSENTIALS OF A VALID ENDOWMENT

If endowments are to be made under Hindu law, then there are certain essential pre-requisites which
have to be met. These essentials are essentially drawn up from the age-old Hindu customs and
practices. There are four essential requirements, which should be met in order to create a valid
endowment. Those are:

1. The dedication must be complete and absolute

2. The subject matter should be specific
3. The object must be definite
4. The person setting the endowment (settler) must have the capacity to make the endowment.

Dedication:

Dedication means dedicating one’s ownership over a property to another person or institution. In the
process of endowments, the dedication must be made absolutely for religious purposes. Under Hindu
law, a dedication mainly comprises of two things: Sankalpa and Utsarga. Sankalpa basically means
the intention of the settler to dedicate his property. This is done by performing certain rituals such as

3
Explanation (1) of Section 6(17) of The Hindu Religious and Charitable Endowments Act, 1959.
recitation of time and date, and also the object the settler has in his mind. Utsarga is the second part
of dedication which commences once the Sankalpa is over. Utsarga means renunciation i.e.,
renunciation of the ownership over property (endowed) by the donor4. It was held in the case of Deoki
Nandan vs. Murlidhar that, “The ceremonies relating to dedication are Sankalpa, Utsarga and
Prathista. Sankalpa means determination, and is really formal declaration by the settlor of his
intention to dedicate the property.

Utsarga is the formal renunciation by the founder of his ownership in the property, the result whereof
being that it becomes impressed with the trust for which he dedicates it”5. The ceremony of Utsarga
is usually performed when a charitable endowment is to be made, but it is still a pre-requisite to
complete a dedication. A dedication can be mainly of two types: Absolute and Partial. When a
dedication is made, wherein the donor divests himself of all the beneficial or profitable interests in
the property, then such a dedication is called as an absolute dedication. On the other hand, if a
dedication is made with a view of obtaining beneficiary interests, then it is known as partial
dedication. It is a well-accepted and mandatory custom that the dedication must be absolute.

It was further held in the case of Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao that,
“Whether or not dedication is complete would naturally be a question of fact to be determined in each
case in the light of the material terms used in the document. In such cases it is always a matter of
ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a
fair and reasonable construction of the document considered as a whole” 6.

Subject matter should be specific:

The second essential requirement to create a valid endowment is that the subject matter should be
specific. Subject matter means that the terms of delivering the ownership over the property must be
specific. If endowment is done by the way of gift or by the way of will, then the terms of such gift or
will must be specific (that is to mean that they should be unambiguous and clear). If the subject-
matter is not specific, then there is sheer uncertainty over the validity of the endowment made.

Object must be definite:

The third essential requirement to create a valid endowment is that the object of dedication must be
definite. The object of dedication means the exact purpose of dedicating the property. The religious
purposes or the charitable purposes behind the dedication will be entirely decided according to the

4
Dr. Diwan P., Allahabad law Agency, Family law.
5
Deoki Nandan vs. Murlidhar, AIR 1957 SC 133.
6
Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao, 1957 SCR 1122.
Hindu customs and practices. In terms of religious purposes, more specification is generally required,
like for which deity the dedication is made.

It is noted from various decision of the court that a Samadhi is not recognized as charitable or even
religious purpose under Hindu Law. It was held in the case of Saraswathi Anmol v. Rajagopal Ammal
that, “If such beliefs (Samadhi in the present case) are to be accepted by courts as being sufficient for
valid perpetual dedication of property therefore without the element of actual or presumed public
benefit (charitable purpose) 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”7. Thus, it can be noticed
that the religious purpose should not be personal (like building a Samadhi) but the religious purpose
should be well recognized and well established, as per the Hindu customs.

The settlor must be competent to make endowment:

The fourth and the final requirement to create a valid endowment is that the settler must have the
capacity to make an endowment. Some of the very basic qualifications to be a settler is that he should
be a major and should be of a sound mind. There are certain differences between Dayabhaga and
Mitakshara school of thoughts, about whom can dedicate the property. Under the Dayabhaga school,
the father and all the coparceners have the right to dedicate all the types of properties (Self-acquired
or inherited). Under the Mitakshara school, Karta or any other coparcener has no right to dedicate the
joint family property, unless all the coparceners have consented to it.

7
Saraswathi Anmol v. Rajagopal Ammal, AIR 1953 SC 491
 ANALYZING THE CONSTITUTIONAL VALIDITY OF RELIGIOUS
ENDOWMENTS UNDER HINDU LAW

The constitutional validity of religious endowments under Hindu law has been under question since
several decades. Hindu law is a general term with vague scope, so what does Hindu law comprise of
in the present mentioned analysis? Hindu law for the meaning of this analysis refers to the legislations
passed by various states over the administration of religious endowments (according to Hindu
customs and traditions). While analysing, I will firstly state the background as to why and from when
does the administration of religious endowments started to take place. Then I will be presenting some
of the main arguments as to why the administration of religious endowments are viewed as
constitutionally invalid. Reasoning behind making those arguments and whether the arguments have
any merit or not will be discussed in a detailed manner.

BACKGROUND:

A major population of our country follows the Hindu religion, as per the Census of 2011. The customs
and traditions followed under the Hindu religion varies from state to state. Religious endowment is
an age-old custom in the Hindu culture. It started quite ago when the kings and queens used to donate
/ dedicate immensely to the temples and sometimes particularly to the priests. As the years passed
this custom grew and thus as a consequence mismanagement among the endowments made started to
take place. The British Government back then thought of administrating the endowments made to the
temples, in order to minimize the mismanagement. Thus, they gave administration of some temples
to prominent maths of Tamil Nadu, which was a successful move as they were administered
efficiently.

Now, there were thousands of other temples which were handed to other trustees and which were not
administered efficiently8. Finally, a legislation was passed in 1925 known as the Madras Hindu
Religious Endowments Act. This act was challenged and was replaced by the Hindu Religious and
Charitable Endowments Act,1951. Further, this Act too was repealed as it was held unconstitutional.
After careful consideration Hindu Religious and Charitable Endowments Act, 1959 was enacted.

8
An article titled, “CONSTITUTIONAL VALIDITY OF HINDU RELIGIOUS & CHARITABLE ENDOWNMENTS
(HR&CE) ACT” published in the International Journal for advanced legal research. URL:
https://www.ijalr.in/2020/09/constitutional-validity-of-hindu.html.
ARGUMENTS:

India is a secular country by the virtue of 42nd Constitutional Amendment, 1976. Secularism in Indian
context means that all religions will be equally-respected by the state. It also means that the state will
follow a policy of non-interference in the religious matters of the citizens. If we see the Hindu
Religious and Charitable Endowments Act, 1959 (Hereinafter referred as HR&CE Act) through this
lens we can argue that this Act is violating the secular values of our country as it is directly
administrating the financials and property of one specific religion. Another argument which was
raised on similar ground is that the HR&CE Act violates Article 14 of the Indian Constitution.

Part III of the Indian Constitution deals with Fundamental Rights. Fundamental rights are some of
the very basic human rights which are granted to citizens of India by their very birth. Violation of
fundamental rights is treated at a very high pedestal as it is considered that the basic human rights are
violated. It is argued that HR&CE Act violates Article 14 (Right to equality) of the Indian
Constitution as it treats affairs of Hindu religion different than that of any other religion.

It is to be noted here that the above-mentioned argument can be easily refuted. If we take a look at
Article 25 (2) we will come to know that the State has the power to regulate the economic and
financial activity associated with religious practices. Article 25(2) reads as follow: “Nothing in this
article shall affect the operation of any existing law or prevent the State from making any law— (a)
regulating or restricting any economic, financial, political or other secular activity which may be
associated with religious practice; (b) providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes and sections of Hindus” 9. The
mentioned article provides the state with the power of making any law for the purposes of regulating
any economic activity associated with religious practices. Thus, majorly weakening the above-made
arguments that the HR & CE Act violates Article 14 and secular values of the Indian Constitution.

A strong argument against the constitutionality of HR & CE Act is that, the mentioned act violates
Article 26 of the Indian Constitution. Clauses c and d of Article 26 states that:

“Subject to public order, morality and health, every religious denomination or any section thereof
shall have the right—

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law” 10.

9
Article 25(2) of The Constitution of India, 1949.
10
Article 26 of The Constitution of India, 1949.
So as per this section, every religious denomination shall have the right to own and acquire any type
of property and the right to administer the owned property. The simple interpretation of this section
draws a question over the applicability of this act. If the religious denomination has the right to
administer the property, then why is there a separate legislation to govern it? It was held in the case
of Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of
Shirur Mutt, that, “As Art 26 contemplated not merely a religious denomination but also a section
thereof, the Math can legitimately come within the purview of this Article” 11.

This case is famously known as the ‘Shirur case’ as it held the Hindu Religious and Charitable
Endowments Act,1951 as unconstitutional and thus the act was subsequently repealed. It was also
held in the case of Ratilal Panachand Gandhi v. State of Bombay, that, “The Government cannot in
the guise of better administration takeover even the best administered temple for the purpose of
managing the temple without justification. That would be certainly, a rightly argued, in violation of
Article 26(b) of the Constitution” 12. Thus, it is very important to note that legislations on
administrating the endowments have been held unconstitutional in the past and there is no surety that
it won’t happen in the future.

11
Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR
1954 SC 282
12
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
 CONCLUSION

Religious endowments have been happening in the Hindu culture since earliest of the times. The
importance and significance they possess is incomparable. As we had already seen in the preceding
chapter that the Maths and the Mahant (Head of Maths) were considered in very high regard by the
Kings and also by the society in large. Thus, due to their high regard they were awarded with gifts,
so as to preserve and promote the religion. Coming to the present-day scenario, anybody can give
gifts to the maths, but they have to follow a certain procedure as laid down by the Hindu Religious
and Charitable Endowments Act, 1959.

The main and primary objective of enacting this act was to ensure that there shouldn’t be any
mismanagement in terms of donations made to the Maths. The objective of the law-makers was right
and genuine while enacting the legislations. In order to minimize the mismanagement, this legislation
took away the right to administer the endowed property from the Maths. Maths falls under the ambit
of religious denominations and thus taking away this right somewhere violated Article 26(2) of the
Indian Constitution. This argument should be taken into consideration seriously as the temples should
have the right to administer the endowed property. Some of the suggestions are provided below which
can clear our sight over the constitutionality of religious endowments in India.

Suggestions:

1. There should be a central legislation to deal with the religious endowments under Hindu law,
or there should be no legislation at all. There are 11 different state legislations which deal with
the religious endowments in different states of India. The author argues that there should
uniformity in the process of endowment and not chaos as it is now.

2. The scope of Article 25 should be defined in terms of religious endowments. Article 25(2)
states that the State has the power to make laws which can regulate and restrict any economic
or financial activity associated with religious practice. Can the practive and process of
religious endowment fall under the ambit of Article 25 should be discussed upon.

3. If Maths fall under the definition of religious denomination, then why do they do not posses
the right to administer an endowed property? Clarity in this regard is of utmost importance as
 in the status quo, it seems that the Hindu Religious and Charitable Endowments Act, 1959 is
violating article 26(2) of the Constitution of India.

BIBLIOGRAPHY

I. Books and Journals

 Halsbury's Laws of India (Trust & Charities, Vol 37), 2nd Edn.

 Dhawan, R., & Dhavan, R. (1978). THE SUPREME COURT AND HINDU RELIGIOUS
ENDOWMENTS 1950-1975. Journal of the Indian Law Institute, 20(1), 52-102. Retrieved April
20, 2021, from http://www.jstor.org/stable/43927436.

 SITHARAMAN, S. (2012). Secularisation and the Establishment of "Dharmika Parishats" in

Karnataka. Economic and Political Weekly, 47(24), 20-23. Retrieved April 20, 2021, from
http://www.jstor.org/stable/23214891.

 The Tamil Nadu Hindu Religious and Charitable Endowment Act, A Need for A Re-
Appraisal 2008 2 MLJ 170.

II. List of Cases

 Deoki Nandan vs. Murlidhar, AIR 1957 SC 133.

 Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao, 1957 SCR 1122.

 Saraswathi Anmol v. Rajagopal Ammal, AIR 1953 SC 491.

 Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Thirtha Swamiar
of Shirur Mutt, AIR 1954 SC 282.

 Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.