History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v3.c44.73
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v3.c44.73
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In *Girijanund Datta Jha v. Sailajanund Datta Jha* 23 Cal. 645 it is observed as follows (at p. 653) 'notwithstanding the existence of numerous richly endowed Hindu shrines all over India from the earliest times, the Hindu Law strictly so called is, as Sir T. Strange complains (see his Hindu Law, Ed. of 1839, vol. 1, p. 32) meagre in its provisions relating to religious endowments, a fact which may perhaps be accounted for on the supposition that the high reputation for piety and purity of character justly enjoyed for the most part by the priestly classes of ancient India who had the management of the shrines was deemed a sufficient safeguard against breach of duty, so as to render detailed rules of law to regulate their conduct unnecessary'. In the following some of the meagre material that can be gathered from Dharmaśāstra works and analogous writings is set out. Manu (XI. 26) first appeals to the religious sentiments of people by declaring that the wicked man who from greed seizes the property of gods or of brāhmaṇas feeds in another world on the leavings of the food of vultures. Śabara remarks (on Jaimini²¹⁰³ IX. 1.9) that when it is said that a village or field belongs to a god, that is not a literal expression but used only in a secondary sense. That is said to be owned by a person which one can use as one likes; a field or a village can-not be used by a deity; but the attendants on the god (or temple) are maintained out of what is donated to a temple or god.
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From this it follows that all those rules that apply to a gift to a human being do not apply to a property dedicated to an idol. Medhātithi²¹⁰⁴ (on Manu XI. 26 and II. 189) points out that images cannot be said to be owners in the literal sense, but only in a secondary or ideal sense, since the idol in a shrine cannot use the property at its will nor can it safeguard it and ownership consists in being able to use the thing owned as one desires and in being able to preserve it. In modern times courts in India have laid down that an idol is a juridical person capable of holding property, though from the vary nature of the case the possession and management of the property rests with a manager or a trustee. A maṭha is in the same position as an idol. The rights of the idol or of the maṭha can be safeguarded and vindicated in a court of law only by the manager or trustee of the temple or by the head (called mohunt) of the maṭha.²¹⁰⁵ Vide *Bhupati Nath v. Ram Lal* 37 Cal. 128 (F. B.) at pp. 145–153 where Mr. Justice Mukerji examines at length passages of Śabara, Medhātithi, the Dāyabhāga and its commentators to explain what is meant by a gift to an idol according to the notions of the Hindu writers. Manu and other smṛtikāras lay down that it is part of the king's duty to prosecute and fine persons interfering with or destroying the property of temples. Yāj. II.
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228 prescribes a fine of 40, 80 or 160 *paṇas* respectively for cutting off the twigs, principal branches of trees or the entire trees themselves that grow on built up platforms or in cemeteries or on boundaries or in holy places or near temples. Yāj. (II. 240 and 295) prescribes the highest ammercement for fabricating a false edict or for tampering with royal edicts by inserting more or less than what is intended to be granted by the king. The Mit. on Yāj. II. 186 says that the king should sedulously safeguard all rules made about the pastures for cows (in a village) or about the preservation of tanks and temples. Manu IX. 280 requires the king to pronounce the death sentence on those who break into a royal storehouse or an armoury or a temple and prescribes that the breaker of an image shall repair the whole damage and also pay a fine of five hundred paṇas. Kauṭ. III. 9 prescribes punishment for encroachment on temples. From the Kauṭilya²¹⁰⁶ we know that kings appointed an officer called ‘devatādhyakṣa’ (Superintendent of temples) and that when the king’s treasury became empty it was part of the duty of that officer to bring together all the wealth of the temples in the forts and other parts of the country and the king could in an emergency use that wealth (and probably used to return it later when financial stringency ceased).
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Among matters called prakīrṇaka (miscellaneous) of which the king was to take cognisance *suo motu* without anybody’s complaint, Nārada includes (in verse 3) ‘abstraction of gifts’ and ‘gifts of villages and towns to brāhmaṇas’ (verse 2). According to the Sm. C. among the topics called *chalas*²¹⁰⁷ were two viz. the destruction of a reservoir of drinking water and of a temple. Kātyāyana states that mere wrongful possession for any length of time of women, of state property and of temple property would not confer ownership on anybody. These texts indicated that the Government of the day protected temple properties, tanks, wells and the like that were dedicated to the public and exercised powers of superintendence and correction in matters affecting them. Yāj. II. 191 says that those who look after the business of guilds etc. in which many are interested should be students of the Veda, men of rectitude and free from greed. They are styled *kāryacintaka* by him. Bṛhaspati²¹⁰⁸ quoted by Aparārka says (p. 796) that these kāryacintakas (committee) should consist of two, three or five persons and that if there be disagreement between the larger bodies and the committee the king should decide that dispute and should bring round to the proper path whoever might be in the wrong. It appears that from very ancient times (3rd or 2nd century B. C.) the committee in charge of religious foundations was called goṣṭhī and the members goṣṭhika²¹⁰⁹.
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In some inscriptions the superintendent of a temple is called *sthānapati* (vide Śrīraṅgam plates of Devarāya II dated śake 1356 in E. I. vol. 18, p. 138). In the Sirpur Stone Inscription of Mahāśivagupta (about 8th or 9th century A. D.) of Mahākosala provision is made for a portion of the property granted being heritable by the sons and grandsons of the donees only if they were worthy, kept up agnihotra, studied the six aṅgas and had clean mouths and did not engage in service and further that if the heir did not possess these qualities or died without leaving a son &c., then another person, a relative with the requisite qualifications, could be made the recipient of that share, and he was to be elderly and learned and was to be chosen by mutual agreement and the king's express order was not to be necessary for his selection.²¹¹⁰ Paiṭhīnasi quoted by Aparārka p. 746 ordains that the king should not deprive temples and corporations of their properties. A record from Malabar of the 11th century A. D. gives the details of temple administration in Kerala, that was in the hands of Yogam (corporation) wielding independent power (E. I. vol. 18 p. 340). The Peshwa's Government at Poona often interfered when disputes arose about properties dedicated to shrines and tombs of saints between the managers of the temples or among the heirs of the saint to whom lands had been originally donated. For example, the Peshwa made an award in 1744 A. D.
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about the principal religious and charitable institution in the Deccan, viz. the Chinchvad Samsthan, whereby he set apart one half of all properties bestowed on the shrine at that place for purely religious and charitable purposes and distributed the other half between the manager and his kinsmen who were all descendants of the original founder, Shri Moraya Gosavi (vide *Chintaman v. Dhondo* 15 Bom. 612 at p. 615). A similar award was made by the Peshwa in 1777-78 A. D. about the Brahmanal Samsthan in the Satara District (*vide Annaji v. Narayana* 21 Bom. 536). This privilege of ancient rulers to redress grievances and correct abuses in the management of religious and charitable endowments devolved upon the British Government as laid down by the Privy Council in *Rajah Muthu Ramlinga v. Perianayagum Pillai*, L. R 1 I. A. 209 at p. 232 'It is evident...that the British Government, by virtue of its sovereign power, asserted as the former rulers of the country had done, the right to visit endowments of this kind and to prevent and redress abuses in their management'. The Indian Central and Provincial Legislatures have placed on the Statute book many Acts regulating religious and charitable endowments. A list of the most important of these enactments is given below.²¹¹¹