The Hindu Law of Religious and Charitable Trusts: Tagore Law Lectures

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TAGORE LAW LECTURES delivered by the late Dr. Bijan Kumar Mukherjea, Ex-Chief Justice of the Supreme Court of India require no introduction. They have been published in the form of a comprehensive text-book under the caption "The Hindu Law of Religious and Charitable Trusts." These lectures were actually delivered in August, 1951 though Dr. Mukherjea was invited by the Calcutta University to deliver them several years before.

Two other eminent scholars, Saraswati and Ghosh delivered Tagore Law Lectures on Hindu Religious and Charitable Endowments-Saraswati in 1897 and Ghosh in 1923. Necessity was felt for having a fresh course of Lectures on that subject with the progress of law on this subject. Hence Dr. Mukherjea was invited to deal with the subject in the light of subsequent developments in this branch of Hindu law. Dr. Mukherjea has presented to the readers a complete and comprehensive view of the law on this subject as it stood in the middle of this century. He primarily confined himself to the principles enunciated by the eminent judges of India and of the Privy Council but he, whenever necessary, compared and contrasted those principles with those developed in ancient Rome and under the common law of England. His profound knowledge of Sanskrit enabled him to study the subject in depth in a spirit of reverence.

His difficulty was enhanced by the fact that the original Hindu authorities on this branch of law were practically nil. It was his profound learning and analytical mind that enabled him to rationalise the law on this subject from the earliest times down to the modern era. At about the time when these lectures were delivered the law that was applied by our courts in dealing with religious and charitable trusts of the Hindus was to a large extent judge-made law, which was based on principles of English equity and customs and usages of our country. There were a few legislative enactments also, providing for the enforcement of religious and charitable trusts. In short, the materials at the disposal of a lawyer dealing with this branch of law were very meagre and insufficient. Dr. Mukherjea naturally had to depend largely on the principles evolved by the Privy Council and the different High Courts of India in preparing his Tagore Law Lectures on religious and charitable trusts of the Hindus. His primary task was to systematise the judge-made law on the subject and he did it so efficiently that it at once attracted the attention of the legal profession and members of the Bench. "What I have attempted to do," said Dr. Mukherjea in the preface to the first edition of the book, "in these lectures is to discuss the basic principles that lie at the root of the different rules of law as they have been formulated and shaped by judicial pronouncements, and have compared them whenever possible with similar rules in the English and the Roman systems of law." He endeavoured to make a critical study of the existing laws on the subject. He obtained assistance from the two previous sets of Tagore Law Lectures on the same subject. The first set associated with Pandit Prana Nath Saraswati, having been published in 1897 was of little practical value. When Justice Mukherjea delivered his lectures in 1951 it was a most erudite work on the subject. The Tagore Law Lectures of Sri Jogendra Chandra Ghosh delivered in 1923 contained many valuable suggestions which were admittedly of great assistance to Justice Mukherjea.

The Tagore Law Lectures were delivered by Justice Mukherjea in August 1951 after his appointment as a Judge of the Supreme Court. At first he was appointed as a Judge of the Federal Court of India in 1948 and thereafter he became a Judge of the Supreme Court in 1951 on the abolition of the Federal Court. He subsequently became the Chief Justice of the Supreme Court in December 1954; but he had to resign on the first of February, 1956 on the ground of illness and he died soon thereafter. During his stay in the Supreme Court from 1951 to the beginning of 1956 he delivered several important judgments on the Hindu Law of Religious and Charitable Endowments. Three of the judgments deserve special mention. In Angurbala v Debabrata, reported in AIR 1951 SC at p. 293 he clearly enunciated the proposition that property includes Shebaitship. He gave proof of his profound learning and deep religious sentiment in Nar Hari Shastri v Badrinath Temple Committee reported in AIR 1952 SC 245. His vivid description of the inner sanctuary of the Badrinath Temple held in great reverence by the Hindus all over India in inimitable language is sure to impress anyone reading the said judgment. His judgment in Commissioner, Hindu Religious Endowments v LT. Swamiar reported in AIR 1954 SC 282 deserves special mention for various reasons. It has clarified the position of the Mahant as the head of a Math. It has laid down that the right of a Mahant to enjoy the endowed property is itself property within the meaning of Art. 19 (1) () of the Constitution since deleted. This judgment is an authority for the proposition that in the conception of Mahantship as in Shebaitship, both the elements of office and property of duties and personal interest are blended together and that neither can be detached from the other. We learn from this judgment that the guarantee under the Constitution of India not only protects the freedom of religious opinion but also acts done in pursuance of a religion, that is to say, the practice of religion as contemplated by Art. 25 of the Constitution. It has indicated in clearest terms what constitutes the essential part of a religion. It prescribes the limit to the right of entry in public temples or religious institutions. Thus from different points of view this judgment may be regarded as a guideline for the courts in India.