Religious & Charitable Endowments- Concept, Creation & Types

What is Endowment- An endowment is generally a dedication of property of any

kind for particular purposes, particularly charitable purposes. One may say that it is
the dedication of property for a well defined religious or charitable purpose or for
the benefit of the public or some section of the public in the advancement of
religion, knowledge, commerce, health, safety or any other object beneficial to
mankind.
The legal literature on this subject is very scanty. The reason seems to be that
religious endowments were regulated by their own customs. Law on this subject is
mostly judge-made law.
Gifts for religious or charitable purposes had their source in charity and a desire to
acquire religious merit. They fall into two divisions: Ishta and Purtta: the former
meant sacrifices and sacrificial gifts and the latter meant charities. The former led
to heaven while the latter to emancipation or Moksha. This shows that charity is
placed on a higher footing than religious ceremonies and sacrifices.
Temples and processions for deities. It must be noted, were considered as
charitable acts (I.e. Purtta), while hospitality was considered as a sacrificial gift
(i.e. Ishta).
Endowment is dedication of property for purposes of religion or charity, having
both the subject and object certain and capable of ascertainment. A trust in the
sense in which the expression is used in English Law is unknown in the hindu
system, pure and simple. Human piety found expression in gifts to idols and
images consecrated and installed in temples, to religious institutions of every kind
and for all purposes considered meritorious in the Hindu social and religious
system. The hindu law recognises dedication for establishment of the image of a
deity and for maintenance and worship thereof. The property so dedicated to a
pious purpose is placed extra commercium and is entitled to special protection at
the hands of the sovereign whose duty is to intervene to prevent fraud and waste in
dealing with religious endowments.
Creation of Endowments
A Hindu who is of sound mind, and not a minor, may dispose of his property by
gift or by will for religious and charitable purposes such as the establishment and
worship of an idol, feeding Brahmins and the poor, performance of religious
ceremonies like Shraddha, durga puja and lakshmi puja, and the endowments of a
university or an hospital. No list of what conduces to religious merit in Hindu law
can be exhaustive. But when 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 Shastric basis.

Endowments for religious purposes may be made under the Hindu law, cither by
executing s trust in the technical sense, that is to say, as understood in the english
law, by transferring properties to trustees in a trust for a deity, or there may be a
dedication, which means the transfer of property to a deity according to the Hindu
Custom whereby the dedicator divests himself of his property for religious
purposes in favour of a deity or for other religious or charitable purposes. Having
regard to the true nature of the act of dedication of property to a Hindu deity, no
acceptance is required, or can possibly be required, of the deity in order to
complete the dedication .
No writing is necessary is create an endowment unless the endowment is to be
created by a will. It is also not necessary that a trust be created for that purpose.
No religious ceremony such as Sankalp or Samarpan is necessary. All that is
essential is that firstly, property in respect of which the endowment is made must
be designated with precision. Secondly, the object or purpose of dedication should
he clearly indicated and thirdly, the founder must effectively divests himself of all
beneficial interest in the endowed property. Before it can he determined whether an
endowment has been created it is necessary to ascertain whether the properly has
been set apart or appropriated by, or at the instance of the founder of the
endowment. One of the tests for determining whether this is so in the abandonment
by the founder of this right to deal with the property. This calls for investigation
into facts. Although no gift could be made to a deity, there could be an endowment
in favour of the idol.
Distinction between Private & Public Endowments-
The essential distinction is that in a public trust the beneficial interest is vested in
an uncertain and fluctuating body of persons, either the public at large or some
considerable portion of it answering a particular description; in a private trust the
beneficiaries are definite and ascertained individuals or who within a definite time
can be definitely ascertained. The fact that the uncertain and fluctuating body of
persons is a section of the public following a particular religious faith or is only a
sect of persons of a certain religious persuasion would not make any difference in
the matter and would not make the trust a private trust.
Where the beneficiaries of a trust or charity are limited to a finite group of
identifiable individuals, the trust or charity is of a private character. However,
where the beneficiaries are either the public at large or an amorphous and
fluctuating body of persons incapable of being specifically identifiable, the trust or
charity is of a public character.
Essentials of a valid religious or charitable Endowment
In order that a proper and legally enforceable endowment may be created, it is
essential that it must fulfill all the essential requirements.
(I) Object- object for creating the endowment must be a valid religious or
charitable object. The object must be in consonance with the provisions
of Hindu Law. It must be definite.
(II) Dedication must be unambiguous and bonafide.
(III) Capacity of the Founder - The founder or settler should be capable under
Hindu Law of creating an endowment in respect of the particular purpose
which is the subject matter of endowment.
(IV) Purpose must be clearly Indicated- The settler should indicate with
sufficient precision the purpose of the endowment and the property in
respect of which it is made, and the endowment must comply with the
requirements of law as regards the form in which it is to be made.
(V) Endowment must not infringe the provisions of any other law- The
endowment must not be opposed to the provisions of any law for the time
being in force, an infringement of which makes it void or voidable in
law.
(VI) Dedication of property must be complete.
 Position, qualifications, powers, duties & Removal of Shebait

Position of Shebait
The manager of the Devasthan is known as Shebait in Northern
India and as Dharmkarta in the South. Shebait is that person who serves the deity,
consecrated in the temple as a Devata. Shebaitship represents two parts—
Maintenance of deity and management thereof. It is not only an office simply but is
also accompanied by certain rights.
Although his rights and duties to some extent resemble those of trustee, he is not a
trustee in the true legal sense of the term, in as much as the property of the estate is
not vested in him. In spite of the fact that the position of Shebait is not like the
English trustee yet his duties are similar to that of the trustee. Shebait owes the
duty like the manager of a religious endowment, as per the traditions towards the
diety of maintaining and preserving the idol and property.
The Supreme Court has held in Prafulla Charan v. Satya Charan, that the
property dedicated to an idol vest in it, is an ideal sense only; ex-necessities, the
possession and management has to be entrusted to some human agent, called
Shebait in the North. The legal character of Shebait cannot be defined with
precision and exactituted. Broadly described he is the human ministrant and
custodian of the idol as its earthly spokesman, its authorised representative entitled
to deal with all its temporal affairs and manage its property.
A Shebait as manager of the property has the ownership and possession of the
property and he can file a suit for the protection and profits of the diety’s property.
He can incur debts for the worship of the temple, for the repair of temple or for the
protection of the belongings of the temple or for contesting the suit or saving the
property from being sold for the execution of the decree. Debt can be incurred
according to the needs.
The Shebait is the custodian of the idol. In this capacity he has to perform some
spiritual duties such as carrying on worship of the idol in the traditional manner,
prayers and invocations in appropriate manner. In addition, he is also expected to
perform temporal functions such as taking charge of the temple and managing its
properties in the best interests of the deity. For performing these duties connected
with the idol, he is entitled to such remuneration as is allowed by usage and
permitted by the trust. The legal title to the endowed properties does not vest in the
Shebait, but as an administrator of the property attached to the temple, he has the
right to institute a suit on behalf of the idol.
Office of Shebaitship is not heritable as per the rules of Hindu succession Act.
Right of Shebaits to repeat worship is an immovable property which can only be
transferred by a registered will. The office of Shebait is hereditary unless otherwise
stipulated or written by the creator of endowment. In the office of Shebait, there is
a mixture of office and estate, of personal interest and obligations. One cannot be
separated from the other under Hindu law. The Shebaitship has been treated as
immovable property in the Hindu texts and commentaries.
The Calcutta High Court has laid down in its decision in the case, Jagannath
Devraj v. Byomkesh Rai, that he may manage the property of the deity as a
reasonable man as per his own wishes. Shebaitship is the mixture of rights and
duties over the properties of Matha over which the Hindu law of succession applies
and which devolves according to the Hindu Succession Act.

Devolution of Shebaits office:

According to the decisions of the Supreme Court “the office of Shebait is a
property. It is heritable property and therefore subject of devolution. If in the
endowment the right of devolution of Shebaitship has not been properly described,
then in the absence of any customs or usages it devolves among the heirs of the
founder.
A Shebait cannot nominate successor by will unless there be a usage justifying a
nomination by will.”
In S. Duthinam alias Kuppam Utha & others v. L.S. Mariappan & others, the
Court upheld that shebaitship can be the subject-matter of Will and such will be
valid, that will not be barred by Transfer of Property Act and it does not apply in
Hindu Law.
In Kacha Kant Seva Samity v. Kacha Kant Devi, a plaintiff has claimed that
deity in temple was gifted to their ancestor by the King, so it is their private deity
and they are the shebaits. He shows the ancient documents for showing
appointments of fore-father as Deshmukhya, local persons, testifying that since
long plaintiff were performing the puja and offering other services made to
Goddess by the devotees. The Supreme Court observed that, due to long
possession and services of the temple, he is entitled to be declared as de facto
Shebaits.
In Shambu Charan Shukla v. Sri Thakur Ladli Radha Chandra Madan Gopal
Ji Maharaj, the Supreme Court held that “Shebaitship is in nature of immovable
property heritable by the widow of the last male holder unless there is a usage or
custom of a different nature in case where the founder has not disposed of the
Shebait’s right in the endowment created by him”.
Again the Calcutta High Court in Bhutnath Mandal v. Kalipad Mandal, held
that where the founder’s disposition in the deeds of endowment was that after the
death of the son of his brother to whom the Shebaitship was bequeathed, his male
descendants would become Shebaits one after another excluding the female heirs
or their descendants and only after the failure of determination of these previous
series of estates the nearest descendant of the founder’s brothers or the senior most
among them if there be more than one of the same class, would become Shebait,
the incapacity of the legatee’s line to succeed because of the illegality of such
disposition contrary to the Hindu law of inheritance would not entitle any of three
nephews of the founder who were alive at the time of deeds of endowment to any
benefit under those deeds.
Earlier in an another case Smt. Hiranbala Devi v. Vishnu Pad Bhattacharya, the
Calcutta High Court had observed that the executor of a will, who dedicates his
property in the name of the deity cannot direct any such order of succession to the
office of Shebait which is in violation of general rules of succession.
Where the founder of a religious endowment through a Will appoints A and В on
the post of Shebait after the death of his wife and further adds a clause in it that in
case of death of A and B, his male descendant in order of seniority would become
Shebait, the court held that such a direction would be void.
The aforesaid view has been endorsed by the court in Anath Bandhu Dey v.
Krishnalal Das, where the court observed that if the founder of debutter had laid
down any mode of devolution of the office of Shebait, the office would devolve
according to that mode. In its absence, the office would devolve in accordance with
the Hindu Law of Succession i.e., the office of Shebait would be hereditary one. In
this case the founder had willed that the existing Shebait was to appoint his
immediate successor.
The Shebait appointed his four sons one after another and thereafter created a line
of succession contrary to the mode laid down by the founder. It was held that
except for the appointment of the Shebait’s eldest son, the other appointments and
the line of succession prescribed were invalid. The office held reverted to the heirs
of the founder and the sole heir (only son) of the last nominated Shebait could not
lay claim to the office since there was no independent gift of the office in his
favour.
There can be cases where the succession fails as laid down in the deed or the
Shebait has no right to appoint his successor or Shebait dies before appointing a
successor as has been stipulated in the deed. In such cases the right to appoint the
Shebait, or the office of Shebait reverts back to the more profound of the Matha or
his heirs whether he may be a male or female. If she is a female, shall get the
religious acts to be performed through male coparceners.
It was observed by our Supreme Court in the case of Deoki Nandan v Murlidhar
“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. Uthsarga is the formal renunciation by the
founder of his own in the property, the result whereof being that it becomes
impressed with the trust for which he dedicates it”.
It would, therefore, follow that if Uthsarga is proved to have been performed, the
dedication must be held to have been to the public. Utsarga has to be performed
only for charitable endowments, like the construction of tanks, rearing of groves of
the garden and the like, and for religious foundations: prathistha takes the place of
utsarga in the dedication of temples. Where prathista, i.e., formal installation of the
deity, is proved, the dedication is complete and valid, notwithstanding that utsarga
has not been performed.
The object must be definite
What are purely religious purposes and what charitable purposes will be charitable,
must be entirely decided according to Hindu Law and Hindu notions. In the case of
Manorama v Kalicharan, testator directed his executors, inter alia, to set apart a
sum not exceeding Rs.25,000 for distribution “among his poor relation, dependents
and servants”. As to who would be entitled to the benefit was left to the discretion
of the executor. The court held the bequest to be valid.
Position, Rights and Powers of Shebait
The rights and powers of a Shebait have been well recognised in the legal
provisions and the decisions given by the courts.
1} A Shebait cannot sell the debutter property and it may be considered as a breach
of trust if the sale is not justified by a compelling necessity.
2) A Shebait cannot acquire adverse title against the idol and its properties by
adverse possession. In Shri Iswar Sridhar Jew V. Susheela Balsi the Supreme
Court points out that if a Shebait acting contrary to the terns of appointment, or in
breach of his duty as such could claim adverse possession of the dedicated property
against the idol, it would be putting a premium on dishonesty and breach of duty
on his part and no property which Is dedicated to an Idol would ever be safe.
3) An Important element of the office of the Shebait is his power to borrow on
behalf of the idol and alienate the properties of the idol. This power, however, is to
be exercised only in cases of compelling necessity end that too for the benefit of
the idol or the institution. The Courts have held that each case will have to be
decided on its own merits and this general test to decide whether a particular
alienation is beneficial to the institution or not is whether the transaction concerned
is one in which a prudent owner would enter in the ordinary course of management
in order to benefit the institution, The endowed property can be sold in execution
of the decree only when the Court is satisfied that the sale was Justifiable and
inevitable in the interests of the institution. But the sale of the very temple in
payment of money borrowed is totally rejected by the Courts on the ground that the
temple has a special sanctity distinct from other endowed property. To alienate the
temple itself is to cut at the root of the very existence of the idol in the habitation
intended by the founder. Hindu sentiment views the alienation of temple as a
sacrilere.
In view of the importance of this problem of alienation of the endowed properties
by the Shebait, the recent legislative enactments passed by the State governments
in India regarding religious endowments have provided for an additional safeguard
by asking it obligatory for the trustee or the manager to obtain the sanction of the
Commissioner for endowments for such alienation.
4) What is said about shebait’s power of alienation is equally applicable to his
power of lease. By and large, the Courts have held that the Shebait cannot grant a
permanent lease of the debutter lands except in case of unavoidable necessity. The
validity of each transaction shall be decided in each case on its own merits by the
Court and the prudent behaviour of the Shebait will have to be judged on the basis
of the facts presented in the case.
5) The Courts have accepted the power of the Shebait for creating derivative
tenures and estates conformable to usage. In recent years the laws enacted by the
State governments have prevented the Shebaits from granting leases for more than
five years without the prior sanction of the commissioner of endowments or any
such authority contemplated by the Act itseIf. In a case, Athmenathawami
Devasthanam v. K.Gopalswami, the Supreme Court upheld the grant of the lease
on the ground that the same was in conformity with the power of the Shebait to
create derivative tenures conformable to usage.

Removal of Shebait
The position of a Shebait is like that of a trustee and as such he is expected to
perform his functions in accordance with accepted principles of law and social and
religious customs. In the event of failure to do so on the part of the Shebait he is
likely to be removed and the removal is valid.
A primary duty of the Shebait is to maintain true and correct accounts because he
is responsible for the due application of trust funds. These accounts are to be kept
in the manner prevailing in a particular institution. The Privy Council mentions in
Gulsari Lal v. Collector of Etah, this duty of a Shebait in clear terms as follows:
"the standard of rectitude and accuracy expected from every trustee of charitable
funds is one of the highest and that standard must, in all circumstances be
maintained by the court if the safety of property held upon such trust is not to be
imperiled throughout British India.
If a Shebait who is guilty of misconduct or breach of trust, who misappropriates
the trust funds, who treats the trust property as his personal property and who falls
to perform his functions and discharge his duties faithfully can be removed by the
Court. In this connection the position of a Shebait la distinguished from that of an
ordinary trustee. While Shebaitship is according to Hindu Law, a species of
heritable property, the ordinary trusteeship is not. The grounds for the removal,
therefore, of the Shebait and the trustee are not identical. Secondly, the duties and
personal rights of the office are very delicately mixed in the office of the Shebait
and therefore the removal is considered justifiable only when the Court finds that
the Shebait cannot discharge the duties implied in the office without this being
detrimental to the endowment itself.