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The Code Of Civil Procedure (Amendment) Act, 1956
The Societies Registration Act, 1860
Section 6 in The Societies Registration Act, 1860
the Charitable Endowments Act, 1890
The Indian Trusts Act, 1882

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Madras High Court
Ramanasramam By Its Secretary G. ... vs The Commissioner For Hindu ... on 12 December, 1959
Equivalent citations: AIR 1961 Mad 265, (1960) 2 MLJ 121
Author: Ramaswami
Bench: Ramaswami, Anantanarayanan



JUDGMENT


 

Ramaswami,  J.

1. This appeal is directed against the decree and judgment of the learned Subordinate Judge, Vel-lore, in O.S. No. 69 of 1954.

2. It is a statutory suit filed under Section 62 of the Madras Hindu Religions and Charitable Endow ments Act (hereinafter referred to as the Act) by the persons aggrieved who consist of Sri Ramanas-

ramam, by its Secretary G. Sambasiva Rao, T. N.

Venkataraman, A. W. Chadwick, S. S. Cohen, Framji Dorabji, A. Devaraja Mudaliar and C. Somasunda-

ram Pillai. The defendant is the Commissioner for Hindu Religious and Charitable Endowments, Madras.

The question for consideration is whether the component part of Sri Ramanasramam, by name Sri Mathrubhutheswaraswanai temple, an institution registered under the Societies Registration Act, (Ex. A. 23 dated 11-9-1950) is a temple as contemplatetd by Section 6(17) of the Act, as has been held by the learned Sulwrdinate Judge or a public religious trust as has been contended by the plaintiffs, with the following objects, viz., to carry out the provisions in the will of Sri Bhagwan, to administer Sri Ramanasramam, Sri Mathrubhutheswaraswami temple, the Samadhi of Sri Bhagwan Ramana Maharshi with the properties and assets attached thereto and for propagating the sayings of the Bhagwan.

3. Section 6(17) of the Act defines a temple as, "a place by whatever designation known, used as a place of public religious worship, and dedicated to or for the benefit of or use as of right by the Hindu community or any section thereof, as a place of public religious worship".

4. In regard to what constitutes a public religious trust in Hindu law, we have three authoritative works of Pandit Pran Nath Saraswati's Hindu Law of Endowments (T.L.L.) 1892, P. R. Ganapati Aiyar's Hindu and Muhammadan Endowments, 2nd Edn. (1918), and B. K. Mukherjee's (late Chief Justice of India) Hindu Law of Religious and Charitable Trust, T.L.L. (1952), and the following infor-mation can be gathered therefrom.

5. In the Hindu system there is no line of demarcation between religion and charity. On the other hand, charity is regarded as part of religion. This is because the Hindu Religion recognises the existence of a life after death, and it believes in the Law of Karma according to which the good or bad deeds of a man produce corresponding results in the life to come. Therefore, all the Hindu sages concur in holding that charitable gifts are pious acts par excellence which bring appropriate rewards to the donor.

6. Hindu religious and charitable acts have been from the earliest times classified under the two heeds viz., Istha and Purtta. The two words are often used conjointly and they are as old as the Rigveda. The compound word Ishta-purtta has been retained in the writings of all Brahminicat sages and commentators down to modern days, and although the connotation of these two expressions was extended to some extent in course of time, the fundamental ideas involved in them remain practically the same, By Ishtha is meant Vedic sacrifice, and riles and gifts in connection with the same; Purtta on the other hand, means and signifies other pious and charitable acts which are unconnected with any Sruauta or Vedic sacrifices. The meaning of these two expressions has been discussed elaborately by Pandit Pran Nath Saraswati, in the Tagore Law Lectures on the Hindu Law of Endowments.

7 Following a text of Sankha quoted by Hemadri, Pandit Pran Nath Saraswati makes the following enumeration of Ishtha works, viz., (1) Vedic Sacrifices, etc. (2) Gifts offered to priests at the same, (3) Preserving the Vedas, (4) Religious austerity, (5) Rectitude, (6) Vaiswadeva Sacrifices and (7) Hospitality. The Purtta works not only signified such works of public utility as excavation of tank, wells, etc., but included all acts which either conferred some kind of benefit on those who were in need of it, or were regarded as meritorious from the spiritual or religious point of view. From the numerous Smriti texts bearing on the point, Pandit Pran Nath Saraswati has compiled a list of Purtta works which are generally recognised as such by Brahminical writers.

These are : (1) gifts offered outside the sacrificial ground, (2) gifts on the occasion of an eclipse, solstice and other special occasions, (3) the construe tion of works for the storage of water, as wells, tanks, etc., (4) the construction of temple for the Gods, (5) the establishment of procession for the honour of the Gods, (6) the gift of food and (7) the relief of the sick. This list is by no means exhaustive. One other form of religious and charitable endowments which is popular with the Hindus is to create places where hospitality can be combined with disseminiation of religious knowledge and facilities for meditation.

Charitable trusts are of two kinds--public and private. The Hindu law itself knows no distinction between public and private religious or charitable trusts : Rupa v. Krishnaji, ILR 9 Bom 169. Hence it was that West J. remarked in general terms in Manohar v. Laxmiram, ILR 12 Bom 247 that a trust for Hindu idol and temple is to be regarded in India as one created for public charitable purposes within the meaning of Section 539 of the Civil Procedure Code, 1882, corresponding to Section 92 of the present Code.

Still that distinction is not without its meaning in Hindu law as now administered. It is, therefore necessary to show here where the distinction lies. In English law the terms "public" and "private" are thus defined: By "Public" must be understood as such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. The essential elements of a public charity are that it is not confined to privileged individuals but it is open to the indefinite public, or some portion thereof or upon an indefinite class of persons.

It is this unrestricted quality that gives it its public character : 19 American Jurisprudence, 588. The lines of distinction between purpose of a public nature and of private nature is fine and practically incapable of definition. 4 Halsbury 3rd Edn. page 211. See also Ram Saroop v. S. P. Sahi, (a case under Bihar Hindu Religious Trusts Act) and also Moti Das v. S. P. Sahi, .

To this class "public" belong all trusts for charitable purposes and indeed "puldic" trusts and "charitable" trusts may be considered in general as synonymous expressions. In "Private" trusts the beneficial interest is vested absolutely, in one or more individuals who are or within a certain time may be, definitely ascertained and to whom therefore collectively, unless under some legal disability, it is, or within the allowed time will be, competent to control, modify, or determine the trust.

A public or charitable trust on the other hand has for its object the members of an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement upon a private trust; Lewin on Trusts, page 18. The saint distinction has been expressed in a simpler language by Mr. G. S. Shastri in his Hindu law at page 491.

He says that when property is dedicated to charitable, educational or religious uses for the benefit of an indeterminate body of persons, the endowment is a public one and when property is set apart for the worship of a deity of a particular family in which no outsider is interested, the endowment is a private one. It seems that it was with this distinction in view that the Privy Council held in a Calcutta, case that in the case of a family idol the consensus, of the whole family might give the estate another direction: Konwur Doorganath Roy v. Ramchunder Sen, ILR 2 Cal 341 (PC). This decision appears to have been followed in another case which went up to that High Court and approved in a somewhat analogous case by the Bombay High Court: Gobinda Kumar v. Debendra Kumar, 12 Ca,l WN 98, Khetter Chunder v. Hari Das, JLR 17 Cal 557, Rajaram v. Ganesh, ILR 23 Bom 131. These decisions are obviously based on the belief that the endowment in each case was a private one.

Mr, Shastri has, in view of the decisions gone so. far as to assert that if all the members of the family to which an endowment belongs renounce Hinduism and choose to throw the family idol into the water of the Ganges and themselves enjoy its property, no outsider can raise any objection to that course: Shastri's Hindu law, page 491. The Allahabad High Court had, on the other hand, occasion to define what a public endowment was in the case of Puran Atal v. Darshan Das, ILR 34 All 468. Therein Chamfer J. remarked :

"It seems beyond doubt that in order that a trust may be a trust for a public purpose it is not. necessary that it should be a trust for the benefit of the public at large. It is sufficient to show that it is a trust for the benefit of a section of the public" It seems it was with some such definition of a "public trust" in view that, where a Hindu provided for. the creation and maintenance of a religious endowment in favour of the sect known as the Bhagavatas, appointing managers and directing the manner in which the profits of the endowment properties were to be spent, the Calcutta High Court held that there was a public religious endowment within the meaning of Section 539 C.P.C. 1882 : Kanhaya Lal v. Salig Ram, 1894 All WN 159.

8. In regard to abuses relating to public and private trusts and the powers of the Civil Court to give relief like the framing of schemes of management etc., in the case of public trusts, the powers are regulated by Section 92 C.P.C. and in the case of private trusts, by a long series of decisions. It is enough to refer here to the following decisions : In Narayanaswami Naidu v. Balasundaram Naidu, , it was held that, "even in the case of a private trust, it is open to any member of the founder's family wherein his rights are impugned to seek redress in courts of law .....The Court cannot refuse to frame a scheme in the matter of a private trust So far as the members of the family are concerned, who are interested in the trust, if the trustee for the time being mismanages or acts in breach of trust, it is a civil right which is infringed and under Section 9 C.P.C., they are entitled to seek redress in court for the purpose of remedying the mischief".

In Chellam Pillai v. Chatham Pillai, AIR 1953 Trav-Co 198, it has been he1d that "though Section 92 C.P.C. in terms does not apply because it relates to Specifically and definitely to the case of public trusts, in the ease of a private family trust the court has got jurisdiction to frame a scheme for the management of the trust", In Vaithinatha Aiyar v. Thyagaraja Aiyar, 41 Mad LJ 20 : (AIR 1921 Mad 583), two plaintiffs instituted the suit under Section 92 C.P.C, as the descendants of the founder of the charity, a chatram. On the question of their right to institute the suit, it was he'd that "the fact that the plaintiffs belong to the family of the founder would naturally give them an interest in the family charity so as to enable them to bring a suit under Section 92 C.P.C."

In addition, the powers of the civil court in the case of private trusts to frame a scheme have been affirmed in a Bench decision of this court in A. S. No. 221 of 1951, to which one of us was a party.

9. Bearing these principles in mind, let us examine the facts of this case and find out whether the institution under consideration is a temple within the meaning of Section 6(17) of the Act, or is a public religious trust as. contended for by the appellants before us,

10. In order to find out whether this institution falls within the scope of the Act, we must first of all determine the connotation of a temple which consists of the following component parts, viz, firstly, that it must be an exclusively Hindu institution and, secondly, that it must be exclusively a place of Hindu public religious worship.

11. In regard to the first point, in Seshachalam Chettiar Charities, Tiruchirapalli v. State of Madras, W. P. No. 1034 of 1957, Balakrishna Aiyar, J. has construed the long title and preamble to the Act which runs as follows:-

"An Act to provide for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras. Whereas it is expedient to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras, it is hereby enacted as follows:"

The learned Judge observed:-

"I would draw attention to the words 'Hindu Religious and Charitable Institutions and Endowments" occurring in both the long title and the preamble. The Act is intended to apply to (1) Hindu Religious Institutions and Endowments, and (2) Hindu Charitable Institutions and Endowments. It seems to me to be manifest that the word "Hindu" is not used in one sense in relation to religious institutions and endowment and in another sene in relation, to charitable institutions and endowments, The word "Hindu" must he given the same connotation whether it is read in connection with religious institution and endowments or whether it is read in connection with the charitable institutions and endowments. Now. we can have a Hindu religious institution or a Christian religious institution or ft Muslim religious institution. But, I do not see how we can have a religious institution which is at one and the same time partly Hindu and partly Christian or partly Muslim. I am not aware that any religious institution exists In the State which bears such a composite character. There can be no doubt whatever that so far as religious institutions are concerned, the Act is intended to apply to only religious institutions and endowments which are exclusively Hindu in character. The omission of the word "exclusively" on which Mr. Srinivasan laid stress, is of no consequence.' In fact, the introduction of such a qualifying word was entirely unnecessary and would only have led to confusion and controversy in other places in the Act. The expression "Hindu temple" is plain enough. By saying "exclusively Hindu temple" we are not making the meaning plainer; we are only introducing a degree of annoyance. "..... Section 9 of the Act enjoins that the Commissioner, every Deputy Commissioner, every Assistant Commissioner and every, other officer or servant appointed to carry out the purpose of the Act, by whomsoever appointed, shall be a Hindu. The section also enacts that should a person so appointed cease to be a Hindu, he shall also cease to hold office. Likewise, Section 22 requires that no person shall be appointed to be a trustee of a religious institution ...... unless he is a Hindu. Provision of this kind would be appropriate only in respect of intitutions which are exclusively Hindu. The legislature could hardly have intended that provisions of this kind should apply to what may be called mixed or composite institutions that is to say, institutions which are only partly Hindu and partly non-Hindus. That would amount to dis-crimination based on religion. It would also probably be correct to say ..... that the Act would apply to institutions which, are exclusively Hindu In character."

The evidence in the instant case shows that this institution is a composite institution and it is only in accordance with Sri Ramana Maharishi's universal outlook making his Asramam open to devotees of all religions; vide B-16 pages 74, and 284; Ex. A-27 page 201 and Ex. A-30 page 13. The contributions came also largely from non-Hindus; See Exs. A-38 to A-47 and the account books of the Asramam (Ex. A-17 and Ex. A-14). It stands to common sense also that no exclusively Hindu shrine would be an appendage of a cosmopolitan Asramam, and which would have been totally inconsistent with Sri Ramana Maharishi's teachings and life.

This is not the place for further dealing with the life and teachings of Sri Ramana Maharshi which would amply bear out this conclusion, because they are not in dispute. It would be enough to refer here to a valuable publication of the life and teachings of Sri Ramana Maharshi by the late Sri B.V. Narasimhaswami, a distinguished lawyer and legislator of this State, of which the 5th Edn. has been revised by Mr. S. S. Cohen, one of the appellants before us.

12. The oral evidence has established beyond doubt that person's of other religions were consistently paying homage to the shrine, see Ex. A50 and the deposition of Dr. Syed. In other words, the evidence in this case clearly shows that the first requirement, viz. that it must he a place exclusively dedicated to the Hindus and is an exclusively religious place, does not stand made out.

13. Then we have to define the religious worship of Hindus. The term "religion" whatever its best definition, clearly refers to certain characteristic types of data (beliefs, practices, feelings, moods, attitudes etc). It primarily involves some immediate consciousness of transcendent realities of supreme personal worth vitally influencing life and thought, expressing themselves in forms which are conditioned by the entire stage of development reached by the individual and his environments and tending to become more explicit and static in mythologies, theologies, philosophies and scientific doctrines.

14. The lexicographers' definition of "religion" can be gathered from the Shorter Oxford English Dictionary, Funk and Wagnall's New dictionary of the English language, Webster's International Dictionary of the English language, Murray's New English Dictionary and Earl Jowit's (former Lord Chancellor of England) Law Dictionary, 1.959.

(i) Action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise of practice of rites or observances implying this.

(it) Some system of faith and practice, resting on the idea of the existence of one God, the Crea* tor and Ruler to whom his creatures owe obedience and love. As to conditions as to religion, see Re Allen, Faith v. Alien, 1953 Ch 810, Re Wolffe Shapley v. Wolffe, 1953-1 WLR 1211, Re Alien, Faith v. Alien, (No. 2), 1954 Ch 259.

(iii) A belief in an invisible superhuman power (or powers) conceived of after the analogy of the human spirit, on which (or whom) man regards himself as dependent, and to which (or whom) ho thinks himself in some degree responsible, together with the feelings and practices which naturally flow from such a belief.

(iv) The outward act or form by which men indicate their recognition of the existence of a God or of Gods having power over their destiny, to whom obedience, service, and honour are due. the feeling or expression of human love, fear, or awe of some superhuman and overruling power, whether by profession or belief, by observances of rites and ceremonies, or by the conduct of life; a system of faith and worship; a manifestation of piety; as, ethical religions, monotheistic religions; natural religion: revealed religion, the religion of idol worshippers.

Religion (as distinguished from theology) is subjective, designating the feelings and acts of men which relate to God. As distinguished from morality, religion denotes the influences and motives to human duty which are found in the character and will of God while morality described the duties to man, to which true religion always influences.

15. Religions, by which are meant the modes of divine worship proper to different tribes, nations, or communities, and based on the belief held in common by the members of them severally. There is no living religion without something like a doctrine.

16. What is worship? The word itself is English and almost untranslatable into other languages. Originally it implied acts prompted by veneration, but with stress of time and weight of usage, it has come to be applied to the whole range of religious behaviour, so that one might well say that worship is the active side of religion (Hastings Encyclopedia of Religion and Ethics, Vol. 12 page 752, and foll.)

17. The lexicographer's definition of worship can, be gathered from Balicntine Law Dictionary, Webster's International Dictionary of the English Language, Murray New English Dictionary, Funk and Wagnall's New Dictionary ot the English Language, Shorter Oxford English Dictionary as follows: Worship is the act of paying honour to the Supreme Being; religious reverence and homage; adoration paid to God or a Being viewed as God with appropriate acts, rites or ceremonies: See Hansher v. Hansher, 132 Illionis 273 : 8 LRA 556.

18. So far as the Hindus are concerned, worship includes the place of worship, and forms in which this active behaviour and veneration should be expressed and those are all regulated by Agama Sastras. In Saraswathi Ammal v. Rajagopal Ammal, it has been held by the Supreme Court that in the case of Hindus the institution must be shown to have a Shastraic basis. This Shastraic basis is not only provided for by the Agama Sastras, but it has also got an equivalent when particular practices have obtained recognition as constituting long religious practice and usage of a substantially large class of persons.

Thus in South India several places of public-worship not governed by the Agama Sastras have grown up, on account of the super imposition of the Aryan culture over the Dravidian native culture. (See Kanakasabhai Pillai, Tamil Eighteen Hundred Years ago (reprint by the South Indian Saiva Sidhanta Works, Tirunelveli) Ch. XV, P. 22S and foll.). One illustration may be given. In Commissioners Hindu Religious Endowments, Madras v. Narasimham, 1939-1 Mad LJ 134 : (AIR 1939 Mad 134) the curious temple consisted of the 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, and they were-systematically worshipped.

Similarly, cave temples, and the village deities-like Poleri Amman, Mariamman, Ellai Amman etc., which have no roof over their heads may not conform to the Agama Sastras. But on account of the long worship by the Hindu public they have in course of time come to be classed as temples. In other words a temple must Conform to Agama Sastras or by immemorial public usage must have come to be regarded as place of public religious worship notwithstanding its non-conformance with the Agama Sastras.

It is as against this background we have got to examine whether the Mathrubhutheswara temple in the Ramanasramam is Samadhi only or has evoived into a public temple. In Elumalai Chetty v. Commr., Hindu Religious and Charitable Endowments, Madras, 68 Mad LW 260 (2) one of us has set out the origin and development of temples in Southern India. In India during the Vedic period there were no temples on account of the domestio character of Vedic worship (Saraswati, Tagore Law Lectures p. 34). No traces of temples built in the pre-Buddhist period is known.

But the Ramayana and Mababharata mention Chaityas in several places. Originally, Chaitya seems to have been a tree planted on the grave. Tree planted on the Chiti became Chatiya. Later shrines pro-bably of wood were erected. It is even possible that they had upper storeys. For the Ramayana in one place (Book I) compares the upper parts of the places in Ayodhya to the Vimanas of the Shidhas, a species of Gods.

Although the Arthasastra of Kautilya does not describe anywhere a temple, it mentions Chailyas and gives in book 2, 3, a description of the temple of Kumari the Goddess of War. Kautilya agrees with Megasthenes that the temples were under the control of Government and there was a special department to govern religious institutions and its head was known as the superintendent of religious institutions. Religious edifices are certainly known for the first time in Buddhism.

Hindu temples doubtless owe much in their inception to Buddhism and proliferated into a great variety in structure, size and ornamentation. Temple buildings reached fresh heights in the Gupta period. The Agama Sastras naturally came into existence to formalise and regularise temples and worship in temples.

18a. So far as Southern India is concerned, in course of time by the 7th Century A.D. substantial temples in stones came to be constructed. The earliest well known Hindu temples in South India are those of Mahabalipuram in the Chingleput District.

The inscriptions show that they were hewn out of the living rock by the Pallavas in the 7th Century A.D. There has subsequently been a ceaseless building of temples by the warrior kings and nobie-men and men and women of piety of all castes. It is enough to mention here that one type of shrines was built at graves. The connection with the graves is seen not only in the case of the temple of the village deities but in that of temples of certain Gods like Siva-Smasaneswara.

Shrines over and near the burial grounds called Palli-Padai are recorded in the inscription of the 9th Century A.D. at Selapuram in North Arcot Dt. recording that the Chola king Rasaditya caused a Siva temple to be built on the spot, where his father had been buried. Similar Inscriptions relate to Tondamanad in Chittoor Dt. and Cheleswara tem-ple in Melpadi. We have already referred to the shrine of the 66 heroes who fell in battle. In South Arcot Dt. there are shrines in existence called Veerakkala commemorating the fallen village horses grappling with marauding tigers.

Over the tombs of saints shrines have also been built and Guru Poojas performed. It is quite true that notwithstanding the non-conformity with the Agama Sastras, by reason of long public worship they have become temples. But it has now become settled law so far as this State is concerned that a Samadhi by itself and not treated as a fitting object of public Hindu religious worship for Over a long period does not evolve into a temple. Otherwise all of us can deify ourselves.

In Ratnavelu Mudaliar v. Commr. for Hindu Religious and Charitable Endowments, , a Bench of this Court had to consider whether an institution known as Apparswami Pagoda situate in Mylapore, is a temple. It is reputed to be the samadhi or tomb of one ApparSwamj. It attracted a concourse of worshippers and the building has got all the normal features of a temple in that it has got a Prakaram, Dhwajasthambam, Balipeetam and Nandikeswara, and there are shrines for Bhairavar, Kasi Visalaki, Chandikeswarar and other deities.

It has a 16 pillar mandapam and there are Go-purams all over the shrines. Festivals are being: performed and the deity is taken in procession and Archanas are performed by the worshippers. The Bench held that on account of the fact that this institution for over a century at least had been regarded as a place of religious worship by the pub-lic entitled thereof as a matter of right, though the institution had its reputed origin in a Samadhi and continued to retain traces of its origin and Guru-pooja was performed in the precincts, the institutions would be a temple.

Reference was made in the judgment to the decision of Viswanatha Sastri J. in Ramaswami Servai v. Board of Commrs. for Hindu Religious Endowments, Madras, , where on account of the long public reli-gious worship what were originally memorials for heroes or martyrs had subsequently developed info-temples and came to he recognised as temples. In Bodendraswami Mutt v. President of Board of Commrs. for Hindu Religious Endowments , it was held that a Samadhi of a holy man and a saint cannot ordinarily evolve into a temple for public religious worship and that the mere presence of idols of Gods, and recognised deities in the Matam round the Samadhi and the festivals which have grown up1 round such Samadhi inevitable in the case of all tombs of saints and great men in this country, would not bring it within the definition of a temple and that a Samadhi is not a temple.

We have already referred to the Supreme Court decision in , in which it was held that the dedication of property for worship at a tomb is not sanctioned by Shastraic practices and is not valid amongst Hindus. A number of decisions of this court were referred to with approval, viz, Kunhamutty v. Ahmad Musaliar, 68 Mad LJ 107 : (AIR 1935 Mad 28), A. Draiviasundaram Pillai v. Subramania Filial, 1945-1 Mad LJ 328 : (AIR 1945 Mad 217), Veluswami Goundan v. Dandapani, 1946-1 Mad LJ 354 : (AIR 1946 Mad 485), for the position that the building of a Samadhi or tomb over the remains of a per son and the making of the provision for the performance of Gurupoojas and Other ceremonies in connection with the same, cannot be recognised as charitable or religious purposes according to Hindi-law.

18b. That the institution in question called. Ma-thrubhutheswaraswami is only a Samadhi and not a temple is established by the facts of tilts case. It is admittedly the Samadhi of a Hindu Brahmin widow viz., the mother of Sri Ramana Maharshi. iT is elementary that a South Indian Hindu brahmin widow is not entitled to Sanyasam. If support is required see Ex. A 28 and the deposition of P.W. 6.

If that lady who was the Baktha of her own son was not entitled to Sanyasam, she is certainly not entitled to Samadhi, since our Hindu Sastras require that she should be cremated. In fact the classical instance of the mother of the greatest Adi Sankaracharya can be remembered. That lady was a widow when her son wanted to become at very early age a Sanyasi and she would not give her consent which was necessary before a Brahmin can become ae Sanyasi repudiating his obligations.

It is said that one day while bathing a crocodile caught hold of the young Sankaracharya and his mother when she begged piteously from the shores of the river for the freeing of her son, she was told by him that the crocodile would free him only if she allowed him to become a Bala Sanyasi. The mother agreed on one condition viz., that on her death her son should perform her last obsequies and cremate her and not leave her to the tender mercies of the hostile Nambudiri reversioners.

It is said that Sri Sankaracharya when the moment of his mother's death came to be known to him by his foresight, he managed to be at the spot and the cremation of the mother was done by him which normally he could not, having renounced the world, but for the promise made to his mother. So even Sri Ramana Maharshi could not confer Sanyasam on his deceased mother, in fact it must be said that he never thought of it even.

Such a Samadhi cannot be consecrated and Prana Prathishta done, which is essential for the installation of the idol. Otherwise, the Lingam would be a mere piece of stone and nothing else. It is only Prana Prathishta which makes it a living God a juristic entity, entitling it to be an object of gift. Then there is another provision in the will for the installation of a statue or image or symbol of Sri Ramana Maharshi himself and certainly it would be idle to contend that this would evolve into a publie temple. It is also seen that along with this Brahmin widow laid to rest, a cow by name Lakshmi, a dog and a monkey also He buried there.

From the point of view of the Maharshi, who saw Divinity in every thing this is not a bizarre, but certainly it would be outrageous to say that the burial place of the bipeds and quadrupeds would evolve into a public temple. In fact so far as Hindus are concerned, entering Rudra Bhumi causes pollution and has to be expiated by a bath and it need not be pointed out also that a burial place for tows, dogs and monkeys would certainly be considered by Hindus as being sacrileges adjunct to the tempie. In fact even if deaths are to occur incidentally inside the premises there can be no worship until Samprokshanam is performed. Then only orship will be presumed.

19. In the circumstances of this case it can-inot also be said that there has been a dedication exclusively to the Hindu public or a section thereof. In fact contrary to the notions of Hindus, Sri Ramanamaharshi, who was above all rules and restrictions and practices governing the lives of Hindus in the matter of religious worship, considered that! the death of his mother did not cause any pollution. Similarly, the Bhagvan, universal in his outlook, threw open his Asramam to devotees of all religions.

This Asramam itself, as mentioned before, has been built by contributions given largely by non-Hindus. The oral evidence shows that persons of other religions came to pay homages at the shrines. It stands to common sense that there would not have been an exclusively Hindu shrine in the cosmopolitan Asramam, inconsistent with Sri Ramana Ma-harshi's teaclu'ngs and life.

So, if there was a dedication, that dedication must have been to persons of all castes and creeds and not to the Hindus only or to any definite section thereof only. In fact, Ex. A. 12, the site plan of the Asramam, shows that the frontage is Sri Ramana's hall. This place was the magnet that attracted all the persons seeking self-realisation. It was in search of Bhagwan and the solace of peace that his presence gave that the devotees belonging to all castes and creeds came from all over the world.

It is significant that for the celebrations within the Asramam invitations were not sent to all and sundry. But a list of invitees was kept, who were the devotees of the Asramam, This is bome out by Ex A. 4, the deposition of Sri Ramana Maliarshi (Ex. A. 18), the deposition of Mr. K. Sundaram Chettiar (Ex. A., 37), Ex. B. 16 (pages 1 and 284), Ex. A. 29 (page 152)and Ex. A. 32 (pages 28 and 29) and the admission of Mouni, the contestant in the proceedings, and the other witnesses in the earlier case.

20. To sum up, the Samadhi described as Mathrubhutheswara Swami is an adjunct to the Asramam and is certainly not the core around which the Asramam grew.

21. This can be tested from another angle also. The properties have been acquired only personally by Sri Ramana Maharshi according to them, himself and his institution "Ramanashramam" are one entity; vide Exs. A. 1, A. 3 and A. 6, documents relating to the acquisition of property and also the admission of D.W. 4. The Asramam accounts show that the monies were brought into the Bhagwan's accounts and then disbursed. Ex. A. 4 recognises that the Bhagwan held properties as his own. The Bhagwan's will Ex. A. 5 came into effect on his Siddhi. Nothing transpired on his Siddhi or thereafter to convert these private properties into public properties excepting by being registered under the Societies Registration Act.

22. In fact, what has really happened is absolutely clear. The origin of the Shrine is a matter of yesterday's history. In this case we are fortunately in possession of information showing the circumstances under which the Samadhi came into existence and the other appanages were built around it from the Bhagwan's own mouth as well as of persons present at the foundation and construction. The remains of Sri Ramana Maharsbi's mother instead of being cremated were, by the devotees of Sri Ramana Maharshi, his brother and others, buried in a grave and a structure has been erected thereon and a Lingam, which has made available was installed thereon.

This is in accordance with the practice of honouring the dead prevalent among several sections of the people in Southern India and to which a more detailed reference will be made when we come to deal with the learned Government Pleader's arguments. As pious and charitable people contributed funds for the glorification of this Samadhi, more and more appanages were built around. This Samadhi however continues to be a part of the various other places which have been erected within the Asramam compound and the frontage of the shrines, as mentioned before, is the hall of the Bhagwan with a dais for him to sit upon.

Naturally, legends have grown up regarding what happened to the mother and her demise. These theological and philosophical aspects of what happened after the mother died, do not constitute any solid basis for discussion especially in view of Sri Ramana Maharshi's own deposition Ex. A. 18 where there is no reference to any apothesis of his mother. In Southern India it is the commonest thing that in announcing the death of elderly persons, it is generally stated that he or she has reached Sivapadam, or attained Mukthi or had become one with the divine.

In fact all the Brahmin ceremonies beginning from the tenth day and ending with the annual shra-dha are all directed towards the soul merging in the divine. But stripped of all these embellishments, the body of the deceased practically illiterate Brahmin widow whose only claim to fame was devoted service to her ati-ashramite son was nothing more than a simple corpse buried there and in fact the pooja is stated to be only for the Annai or mother, All the Ashramam publications inclusive of the Kumbabisheka Patrika, emphasise that the so-called temple enshrines the remains of the mother only.

23. In this connection we may refer to the following publications : Ex. B. 16 (1944 Edn) Self-realisation; Ex. A. 29 (1931) Edn. Self-realisation; Ex. B. 2 Kumbabisheka Patrika; Ex, A. 5 Sri Ramana Maharshl; Ex. B. 14 (1951) Tamil History of Sri Ramanashramam, Ex. A, 49 (1939) Sri Ma-harshi, Ex. A. 52 (1947) Sri Ramana Maharshi; and Ex. B. 15 (1951) Book on Sri Maharshi, in English,. We may also refer to the oral evidence of persons present, viz, P.W. 4, Raju Sastri (whose deposition before the Deputy Commissioner is marked as Ex. A 28) and Sri Ramana Maharshi himself (Ex. A. 18).

24. The learned Government Pleader wants to get over this fact that the sanctum sanctorum enshrines only the mortal remains of Sri Ramana Ma-harshi's mother and constitutes nothing more than a Samadhi of recent origin and it could not certainly be stated to have evolved into a temple by three arguments, viz, (a) the extract from the Judgment or Varadachariar J., 1939-1 Mad LJ 134 : (AIR 1939 "Mad 134); (b) the Samadhi contained all the indicia of a temple; and (c) the public worship is to the Sivalingam installed on the Samadhi, which is the deity and not to the Samadhi.

25. The following is that extract from the judgment of Varadachariar J. relied upon by the learned Government Pleader :

That what the evidence in this case describes as taking place in connection with the institution is public worship can admit of no doubt. We think it is also religious. The test is not whether it conforms to any particular school of Agama Sastras; we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship, they are making themselves the object of the bounty of some super-human power, it must be regarded as a religious worship".

26. In regard to the indicia of a public temple, he relies upon the decision of this court set out in Paragraphs 33 to 45 of the decision in 68 Mad LW 260 (2) and add to these decisions the subsequent decisions in Ramanatha Iyer v. Board of Commrs. Hindu Religious Endowments, Madras, , Mahadeva Gurukkaly. Commissioner to the Board of Hindu Religious Endowments, Madras, 1956-1 Mad LJ 309 : (AIR 1956 Mad 522), Commissioner of H. R. and C. E. v. Kal-yanasundaram Mudaliar, 1957-2 Mad LJ 463, and Deoki Nandan v. Murlidhar, (S) .

(26a) We have already discussed the scope of the observations of Varadachariar J. about the possibility of having temples not governed by the Agama Sastras. But this does not mean that when according to the learned Government Pleader a public temple was constructed as per Agama Sastras, viz, with a Dwajasthamba, Prakaram, Balipeetam etc., we can consider as irrelevant the established Shastraio injunction against constructing a temple over the tomb of a Brahmin window not entitled to Sanya-sam.

We cannot invoke the Agama Sastras for one purpose and ignore it for another purpose, in the teeth of the decisions of this court. Gopala Moop-panar v., Subramania Aiyar, 27 Mad LJ 253 : (AIR 1915 Mad 363) has laid down that Agama Sastraa regulate the temple rituals etc. In 1946-1 Mad LJ 354: (AIR 1946 Mad 485) it was held that where a temple is only an adjunct to the tomb, a dedication of property for daily worship, Gurupooja and annual Annadhanam even though there is provision also for worship three times a day with offerings of Neived-yam etc. and a Sivalingam was kept and worshipped there, will be wholly unlawful and the gift invalid and it would not make it a temple and the Lingam would be regarded as an adjunct to the tomb. It is unnecessary to multiply other instances to show that such a Samadhi cannot evolve into a temple notwithstanding the rituals and appanages betokening the character of a temple.

27. The learned advocate Mr. T. M. Krishna-swami Aiyar points out: Sivalingam is an emblem of the omniscient and all-pervading God Entity, It is a matter of common faith that God lives in every human being and God living in the limitations oil the human body is described as the Jivatma. It is ordained according to the Sastras and the aphorisms of the great sages that the object of every worthy life must be to bring about the unification of the Jivatma, the human life, with the Paramatma, the Universal life.

On the background of this faith, the achievement of a pure and purposed life is understood to be the union of the Jivatma and the Paramatma. Hence when a man dies, the remains of the body, wherever it is buried, are associated with the habitation of Jivatma which when it deserts the body is supposed to have coalesced with the Universal Paramatma, which is signified in the form of a Linga, which is being placed on the grave.

The graves of religious-minded Hindus of the Saivite class are found to be mounted with Sivalinga, The indication is that a Jiva whose physical body lies buried has attained its Mukthi or union with the God of the universe which is represented in the word of form and names and matter as Sivalinga. The installations of a Sivalinga on the graves of religious minded persons are not by themselves intended as dedications for worship of the Universal God Siva as He is described.

They are not constructions of temples to God but are resting places, of a Soul which by its own goodness, the mercy of God and the pious good wishes of relatives and friends interested in its attainment of Heaven reach sayujyam. It means no more than this "Here lies the remains of one whose life has united with the Lord". In fact, one has only to travel along the highway from Madras to Conjeevaram to see innumerable saliyar tanks with Sivalinga placed therein reverently tended with flowers, lamps etc., on either side of the road.

Similarly on the road side of the Nandavanam of Nadars around Virudhunagar. In the case of Vaishnavite, more often than not, a Tulasi plant is nurtured over the grave. In the case of pious Christians the Cross or the figure of the Virgin or some patron saint or a symbol of the deceased is placed on the grave or tomb. The magnificent public cemeteries in Geneva, Florence and the tombs in the Church of Saint Peter at Rome are a few of the daces where such symbols adorn the graves and are often the handiwork of the great Italian sculptors like Canoova, Michael Angele etc. They do not become churches notwithstanding the saying of prayers over the tombs by the pious Catholics or daily services like placing flowers, lighting lamps etc.

28. The use and purpose of the symbol is twofold : (1) to set forth in visible or audible likeness what cannot really or fully expressed to the physical eye or ear, or even clearly conceived by the limited faculties of the human mind. All language is in the last resort symbolic, and religious language in an especial degree, for it endeavours to present a mystery, a reality too deep for words. The Hindu faith had at its service a language of the utmost delicacy and flexibility, with a vigorous and fertile growth and an almost unlimited vocabulary and found itself in a world of tropical luxuriance, with a tropical wealth of beauty and suggestiveness.

It was not to be wondered at that it became profuse in type and symbol and laid under contribution all the facts and phenomena of nature to serve its religious and priestly ends. All the great Gods had their resemblances, animal or material forms, in which they presented themselves embodied to human sight, which served to recall to the worshipper the deity, those mind and character they more or less inadequately reflected. Other more rare and refined symbols were presentative of qualities or attributes, a3 the Lotus, the emblem of spotless purity preserved under the most unfriendly conditions. All idols, totems fetishes are symbols. The wise man does not worship the symbol, the shape in clay or wood or stone, but is thereby reminded of the invisible substance or reality which they each represent.

(2) The image or symbol serves the purpose also of providing in material and suitable form a convenient object of reverence, to meet the religious need of those whose minds, through darkness and ignorance, are unable to grasp the conception of an unseen formless deity. Such men, if left without a visible object to which their reverence and fear may attach themselves, will wander an a maze of doubt, disquiet and unbelief. It is better that they would worship erroneously, worship a thing, than that they should not worship at all. There is much. that might be urged an favour of the Hindu view that regards the worship of the external symbol as a stepping-stone to higher, clearer forms of belief; it is a view unacknowledged perhaps but not unknown to other faiths. And in Hinduism, whatever may be said of or claimed by the wise and instructed thinker, the puja of the multitude to the image of the God is reverent and sincere. In some respect also and within definite limits the Indian contention has justified itself that the symbol has proved a signpost and a guide to better, higher thoughts and to a truer worship of Him whom no form can express or language describe. See Hastings, Encyclopedia of Religion and Ethics, Vol. 12, p. 142).

29. For an exposition of the symbolism of Sivalinga, see pages 710 of Vol. 4 of Kalaikalanjiam published by the Tamizh Valarchi Kazhagham Sen-nai.

30. Therefore, as repeatedly decided in the decisions of this court, the Sivaligam is only art adjunct to a tomb and it will not evolve the tomb* into a temple.

31. The third point has already been discussed above and the mere fact that there are the appanages of a temple plus the front hall of Sri Ramana-Maharshi, would not make this institution fall within the ambit of the cases set out above. A Samadhi of a Brahmin widow who died recently is a Samadhi and all the decisions of this court cannot make it into a Hindu temple wherein Hindus can congregate for the public religious worship as prescribed in the Sastras.

32. The net result of this analysis is that the institution under consideration is not a temple but is a religious public trust of a cosmopolitan character.

33. On that conclusion it follows that the issues have to be found as follows : under issue I that the Sri Mathrubhutheswarar shrine is not a temple within the meaning of Act XIX of 1951 and is only an adjunct of the Sri Ramanasramam, a public religious trust; under issue 2 that the orders in O. A. No. 58 of 1952 and App., No. 36 of 1953 are illegal and have to be set aside; and under issue 3 that it does not aviso for consideration.

34. The decree and judgment of the learned Subordinate Judge are set aside and the suit is decreed for plaintiffs to the above extent. There will be no order for party and party costs in the circumstances of the case. The . plaintiff will take their costs out of the estate.

35. Having come to the conclusion that the suit institution is a public religious trust and not a temple, we are also of the opinion that this is an eminently fit case where a scheme should be framed under Section 92 of the Civil Procedure Code. The learned Advocate T. M. Krishnaswami Aiyar for the appellants unhesitatingly shares our view. In fact the learned Advocate General who appeared in Court at our instances was also agreeable to the framing of a scheme provided we came to the conclusion that this is a public religious trust and, secondly, indicated our view as to the necessity for the framing of a scheme.

That if we came to the conclusion that the in-stitution is not a temple as strenuously contended for by him but only a public religious trust, a scheme for the better management of the institution would be essential was not denied by the learned Government Pleader. Therefore, we direct that a copy of this judgment be forwarded to the learned Advocate General for his taking the requisite action at an early date in the light of the observations made above.

Anantanarayanan, J

36. I find myself in entire agreement with the conclusions of my learned brother in the judgment just delivered, which I had the advantage of study. I think that the question whether the suit institution is a "temple" within the scope and definition of Section 6(17) of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951), which is the crucial issue before us, is one that cannot be satisfactorily determined if we are to leave out of account, particularly when we remember that the foundation or dedication is so recent, the life and ideas of the founder himself, and the unique circumtsances of the Case, as evident in the record.

As for the definition in Section 6(17) itself, 1 am unable to see how it can be construed and applied apart from the entire purpose of the legislation, or the scheme of the Act. I am in respectful agreement with the dictum of Balakrishna Aiyar J. in (W.P. No. 1054 of 1957 (Mad) ) that the Act itself is intended to apply only to religious institutions and endowments which are exclusively Hindu in character.

It is with this broad perspective that we must approach the individual question of fact. In such a view, the words "used .....by the Hindu community or a section thereof, as a place of public religious worship" would be all important, in the definition. Clearly, we are not concerned here with a shrine, a place of worship, or by whatever other designation the place is known, which transcends Hindu credal categories altogether, or is non-Hindu in character.

37. When this is borne in mind, I do not think that the case law presents any peculiar difficulties. A Samadhi over one who comes to be regarded as of the illuminati, or even the tombs of heroes may evolve in course of time as a shrine of Hindu public religious worship. 1939-1 Mad LJ 134 : (AIR 1939 Mad 134) and relates to such instances. Nor is the existence or consecration of an idol, a orerequisite. Sea . But in all such cases, what must be essentially regarded, and never lost sight of, is the character of Hindu public religious worship evinced at such shrines, whether this has grown through the decades and attached itself to the institution, or whether it was the full-fledged purpose at the birth of the shrine. Where this is present and undeniable, it will not matter that the origin is unsastraic, that the temple evolved from a samadhi, though ordinarily this conception is not in harmony with Hindu concepts, as emphasised in or if the Agama Sastras had been adhered to or not, In my view it is with this background that we should comprehend and appreciate the dicta of Varadachariar J. in 1939-1 Mad LJ 134 : (AIR 1939 Mad 134) to the effect that the test was not whether the foundation conformed to any particular school of Agama Sastras, or of Viswanatha Sastri J. in that it was sufficient that the worshippers considered themselves likely to be the recipients of the bounty or blessings of a Divine presence, which they believed to exist at the place. Divorced from their contexts, such observations ought not to be interpreted as supporting a theory or thesis which would be opposed to the very purpose and scheme of the Hindu Religious and Charitable Endowments Act.

38. But though Hinduism is a pervasive creed, with a genius for the assimilation of protestant movements which sprang up from its own field, where such movements still retain their individuality and character, they ought not to be confused with it. Thus, I do not think that it could be seriously maintained that a Jain or Buddhist temple is a "Hindu temple", though the founders of these creeds were Hindus conscious perhaps of a puriti-catory evangelism, but not of a mission to desfroy the background of religion that gave them birth.

Equally I do not think that it could be Justifiably argued that a meditation hall of a Theosophi-cal Society, or the Durga of a Muslim Saint with characteristic appanages (Firs) is a "Hindu temple" within the scope of the definition, merely because the Hindus also worship there in public on cer-tain occasions. We must remember that the core of Hinduism is tolerance of all creeds, and a tendency to bow the knee at the shrines of all faiths. Surely, the legislature never intended that shrines or places of congregation and prayer or meditation, essentially non-Hindu in purpose and spirit, should be assimilated to Hinduism, or to Hindu religious institution by a kind of legal fiction. That is not the purport of the Act at all.

39. Particularly in the case of this institution where the life and teachings of the founder are so recent, and still vividly available to us, it will be a great mistake to ignore these aspects, and to assume that this shrine was ever intended to be a Hindu temple by its founder, or that it has already evolved into this, because of certain insignia, or of ritualistic worship, or installation of a Sivalinga over the mortal remains of the mother of the Maharshi.

My learned brother has already referred to, and discussed, these facts which so startingly belie the interpretation that this shrine was ever intended to be a place of Hindu public religious worship, or that it could be permitted to evolve into a Hindu temple, without desecration of the universal principles and of realisation tianscending all creeds including Hinduism, for which the Maharshi stood: and which he expressed in his life. Certainly, these aspects which are delinitely repugnant to Hindu notions of installation and worship ought not to be ignored, and this is no mere question of adherence to the Agama Sastras or perhaps unintentional and unknowing departures therefrom.

The Samadhi of a Brahmin widow, even if she was a most worthy and excellent person who gave birth to one who was surely among the Illuminati, cannot be consecrated ground according to the Sastras. Without Prana Pratishta, which spiritual descent cannot be invoked at such a place, there can be no idol; and the Linga installed can only be symbolic of a union (Sayujya), like the cross erected over a Christian tomb, as a symbol of redemption. The record is definitely against the interpretation that the Maharshi authorised the worship of his mother, as one who had attained realisation, a Mukta.

Certain words used by him support the interpretation on the contrary, that he considered all as Muktas, and even included the dumb creatures within the scope of his vast acceptance and affection. My learned brother has already referred to these facts which, if interpreted in the same mode, would authorise Hindu temple worship at the tomb of a cow or a pet monkey, which have equally found burial within the Ashram premises.

40. The Maharshi described himself as an Atiyasrami, literally one who has transcended the four Asramam of Hinduism, like Sukha or Jada Ba-ratha. Thus, as he could not even be described as a Sanyasi. His teaching was a method of introspection into the Centre of the self within each and all of us, the meditation "who am I"? carried on with ceaseless vigilance until the dawn of a perfect awareness obliterating the limited age.

Such a teaching had its exemplary origin in the silence of Avatar Dakshinamurthi, rather than even the most refined metaphysics of Advaita Vedanta. Everything else appears to have been a concession to human frailties round him, which he did not care to meet with opposition. The record shows that the Maharshi could not be described as having devotees, for he gave no Diksha (Initiation) and acknowledged none as a disciple.

He came away to Tiruvannamalai in his seventeenth year, penniless and friendless, and never accumulated wealth, personally speaking. He never married and had no family; even the provisions in his will relating to the continued management of the Shrine and Ashram after him by his Sanyasi brother Niranjanaudaswami (Sarvadhikari), and that line of descent, were clearly prompted by a concern to retain his abode at Tiruvannamalai as a spiritual centre, not for self-glorification or the security of dependants.

Are we to seriously accept the hypothesis that such a person desired to exclude a Muslim, European or Parsee attracted to his teachings, from his shrine? The Maharshi was perfectly aware of tha normal postulates of Hinduism. He must have been aware that such a shrine of him over the Sa-madhi of his mother, with a statue of himself as another symbol of adoration in the same hall, could be no Hindu temple. He was no.t an iconoclast, intent on a revolutionary transformation of Hindu creeds or practices.

The probabilities are overwhelming that, as far as the founder's message, intentions and outlook are concerned, the Mathrubhuteswar shrine was not founded as a Hindu temple, but essentially as a public religious shrine or institution of a universal character. The evidence on record clearly establishes further that it is not a place of Hindu public religious worship, though the forms of puja or archana might be similar to those adopted in Hindu temples, but that it is a shrine in which all who are drawn to the Maharshi's teachings, whether Hindu, Christian, Parsee or Muslim, have equal rights of access and to the acquisition of spiritual benefit by prayer or meditation.

41. For these reasons, I concur in the judgment of my learned brother, and further fully endorsed his view that it is most desirable in the interests of the wide public that a scheme should be framed under Section 92 of the Civil Procedure Code for the better management of the shrine and the public trust or endowments relating thereto, conserving the universal spirit and character of this foundation so clearly expressed in the life and teachings of the founder. I agree that this appeal should be allowed.