V.BALAKRISHNA ERADI,J. -
(1.) THIS Civil Revision Petition arises out of an application filed by the petitioner herein before the Land Board for the grant of annuity under sections 65 and 66 of the Kerala Land Reforms Act,1963(Act 1 of 1964 ).The Land Board rejected the application on the ground that the Mankara Satram Brahmaswam of which the petitioner is the managing trustee is not a religious or charitable institution of a public nature.It is contended by the revision petitioner that the view so taken by the Land Board is incorrect and untenable in law.
(2.) THE institution known as Mankara Satram Brahmaswam came into being as the result of an endowment created in Mithunam 1102 by one Krishna Pattor Kariakkar who was the managing member of an affluent Brahmin family belonging to Chathapuram Village of Palghat.As per the said endowment certain items of properties were exclusively set apart for charitable purposes,such as feeding of Brahmin way -farers in the Satram,conduct of certain festivals,Poojas etc.in the Chathapuram Maha Ganapathy temple and the Kalpathy Viswanathaswami temple and the offering of Nivedyam in another temple at Panankutti Kalam,etc.It was specifically stipulated in a document executed by all the then members of the family that none of the family members would have the right to sell,mortgage or otherwise deal with the properties so endowed or to appropriate any portion of the income derived from the said properties for any purpose other than for the conduct of the specified charities.Ever since the date of the endowment the income from the properties has been utilised for the conduct of the charities alone.It is seen from the order of the Land Board that the Board was satisfied on an investigation of facts that the charities and religious ceremonies mentioned in the endowment have been regularly continued to be performed up till now.Nevertheless,the Land Board took the view that the subsequent conduct of the members of the Kariakar family in relation to a partition suit O.S.No.35 of 1896 of the Subordinate Judge 's Court,Calicut and a compromise entered into in a later suit O.S.No.61 of 1931 of the Subordinate Judge 's Court,Palghat,has been such as to indicate clearly that they were treating the properties covered by the endowment as their family properties and if at all they recognised any obligation of accountability it was only to the other members of the family.On the basis of the said reasoning the Land Board has recorded its conclusion in these terms:" Thus,the weight of the evidence points to the properties,no doubt,dedicated for charitable purposes,but still retaining its essential character as a private trust ;.. However,whatever might have been the terms of the original endowment(which incidentally makes no mention of the method of its management ),the conduct of all the members of the family from as early as 1045 M.E.i.e .,for the past 100 years and more,has been to treat the properties as family properties to be managed in accordance with the private arrangement made by themselves.Even if the original endowment could be treated as of a public nature,which I doubt,it has by long usage,custom and sanction of courts become private in nature.
In the circumstances of the case,I hold that the Brahmaswom is not an institution of a public nature.
The endowment in question was created in the year 1021 M.E.It is the finding of the Land Board that,ever since then,the income of the properties forming the subject -matter of the endowment has been used for the performance of the specified Poojas and other beneficial acts which the Land Board itself has described as charities ;.In addition to the properties which were originally endowed by Krishna Pattor Kariakkar,some additional items were also subsequently acquired by utilising the surplus funds left in the hands of the Manager of the Brahmaswam after defraying the expenses incurred for the performance of the charities and it is significant that these additional items were acquired not in the name of the family but in the name of the Mankara Satram Brahmaswam.The purposes of the endowment have been already referred to in brief and they are the feeding of Brahmin way -farers in the Satram,the running of a 'thannerpandal ™during the summer season,the conduct of Poojas and festivals in the Maha Ganapathi temple at Chathapuram and in the Viswanathaswami temple at Kalpathy,Palghat,the offering of Nivedyam in the temple at Panankutti Kalam,etc.There is no doubt that the aforesaid purposes of the endowment fully fall within the category of religious and charitable objects.
It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private,and then to examine,in the light of those principles,the facts found or established in the present case.The distinction between a 'private 'and a 'public 'trust is that whereas in the former the beneficiaries are specific individuals,in the latter they are the general public or a class thereof.While in the former the beneficiaries are persons who are ascertained or capable of being ascertained,in the latter they constitute a body which is incapable of ascertainment.The position is thus stated in lewin on Trusts,15th edition,pages 15 and 16:" By ˜public 'must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description.To this class belong all trusts for charitable purposes,and indeed public 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.
Applying this principle,a religious endowment must be held to be private or public,according as the beneficiaries thereunder are specific persons or the general public or sections thereof.In the present case the benefit arising out of the performance of the various acts stipulated to be carried out by utilising the income of the properties accrues not in favour of any specified or ascertainable persons but to an indefinite set of persons,namely,the way -farers who get the advantage of the 'thannerpandal 'and also of being served free food at the Satram,and the Hindu public worshipping in the two public temples at Chathapuram and Kalpathy wherein the Poojas and festivals are to be conducted.The purposes of the endowment being religious and charitable and its beneficiaries being not the members of the family or any other specified or ascertainable individuals but the public at large or a considerable section thereof,it must be held to be a public trust.
(3.) IT is well established that where the intention to dedicate is clear and the divestiture is contemporaneous,the subsequent acts and conduct of the donor are irrelevant and cannot reinvest the property in him;a valid endowment,once created,can never be revoked.See Singh Sanatan v. Singh Rajput ,65 I.A.106 and Gokuldoss Jamnadoss and Co. v. Lakshminarasimhalu Chetti (1940)2 M.L.J.400.From the facts established in this case it is abundantly clear that in the year 1021 M.E.Sri Krishna Pattor Kariakkar acting on behalf of all the members of his joint family had effected an appropriation of the items of properties comprised in endowment for religious and charitable purposes.It has been also found by the Land Board that the entirety of the income derived from the aforesaid properties had been applied only for meeting the expenses of the charities and for the acquisition of further items in the name of the Mankara Satram Brahmaswam itself.It must,therefore,be held that there was a valid and complete dedication of the properties by way of public trust in 1021 M.E.itself and that no change could be brought about,in law,in regard to the character of those properties by reason of any subsequent conduct of the members of the family of the founder either in relation to the partition suit of 1896 or the still later suit of 1931.The contrary assumption made by the Land Board is based on a misconception of law.;