His Holiness Sri-La-Sri Shanmugha Desika Gnanasambanda Paramacharya Swamigal vs Controller of Estate Duty

Ramanujam, J.—The following question has been referred to this Court at the instance of the accountable person for its opinion u/s 64(1) of

the Estate Duty Act, 1953 (''the Act''):

Whether on the facts and in the circumstances of the case, the deceased was not under an obligation to maintain his mother after he became a

sanyasi and, consequently, the settlement deed executed by him in favour of his mother on 21-1-1970 was not supported by consideration in

money or money''s worth and, hence, operated as a gift?

The circumstances under which the above reference came to be made, may briefly be stated:

His Holiness Sri-la-Sri Subramania Desika Gnanasambanda Paramacharya Swamigal, (''the deceased''), who was the head of Dharmapuram

Adhinam, one of the famous mutts in South India, which has been established for the propagation of Saiva Sidhantha philosophy and the literature

relating thereto, was a non-dwija (Sudra) before he became a sanyasi. While he was the head of the said Adhinam, he executed on 21-1-1970 a

deed of settlement in favour of his mother, registered as document No. 631 of 1970 by and under which he settled upon her 13 acres and 63 cents

of nanja lands situate in Mayuram taluk in Tanjore District of the value of Rs. 54,456 to be taken and enjoyed by her absolutely. Later, he died on

10-11-1971. On his death, His Holiness Sri-la-Sri Shanmugha Desika Gnanasambanda Paramacharya Swamigal succeeded as the head of the

Dharmapuram Adhinam. He filed an account regarding the estate of the deceased, claiming that according to the custom he had become entitled to

the personal properties of the deceased. In the said account, he had included Rs. 54,456 being the value of the lands settled by the deceased on

his mother under the aforesaid deed, but, however, contended before the Assistant Controller that no estate duty was leviable for the reason that

there was no passing of the property on the death of the deceased and that the accountable person was only holder of the office. The Assistant

Controller rejected the said contention and included the sum of Rs. 54,456 in the principal value of the estate, which was determined at Rs.

7,02,268.

The accountable person preferred an appeal to the Appellate Controller wherein it was not disputed that the personal properties of the

deceased had passed on his death and that by reason of the accountable person having succeeded to the properties, the present head of the mutt

was the accountable person. However, it was contended in the appeal that the properties settled by the deceased on his mother could not be

deemed to have passed on his death u/s 9 of the Act and, consequently, the inclusion of their value, namely, Rs. 54,456 in the assessment was not

proper. It was urged that the settlement had been made by the deceased in discharge of his obligation to maintain his mother, and, consequently,

the same could not be considered as a gift falling under the purview of section 9. The stand taken by the revenue before the Appellate Controller

was that when the deceased became a sanyasi, the same operated as civil death, that as a result thereof, the relationship of son and mother

between him and the settlee came to an end and the deceased thereafter had no obligation to maintain the settlee and, consequently, the settlement

deed could be considered only as a gift and that the conveyance of the lands thereunder not having been made for any consideration in money or

money''s worth and such a conveyance having been made within two years prior to his death, the properties should be deemed to have passed u/s

The Appellate Controller, however, accepted the contention of the accountable person and held that since the deceased was a non-dwija, he

continued to be under an obligation to maintain his mother notwithstanding his having become a sanyasi. In that view, he directed the deletion of

Rs. 54,456 from the principal value of the estate by his order dated 5-11-1974.

The revenue took the matter in appeal to the Tribunal contending that the settlement in question was a gift and the same having been made within

two years before death, the properties so settled should be deemed to have passed u/s 9, that since the deceased had become a sanyasi, the

relation ship between him and his mother came to an end, that consequently the deceased ceased to be under an obligation to maintain his mother

and that, therefore, the settlement in question was only a gift made within two years prior to his death and as such, it will come within the mischief

of section 9.

Before the Tribunal, the accountable person, on the other hand, contended that since the deceased was a non-dwija (sudra), there was no

question of his becoming a sanyasi and, therefore, he continued to be under an obligation to maintain his mother and that since the settlement in

question was made by the deceased in discharge of such obligation, the same could not be considered as a gift.

On a due consideration of the rival contentions, the Tribunal held that the deceased, after becoming a sanyasi was not under an obligation to

maintain his mother, that, consequently, the settlement made by him of his agricultural lands on his mother under the deed dated 21-1-1970 was

not supported by consideration either in money or money''s worth, that as such it should be treated only as a gift which has been made within two

years prior to his death and that, therefore, it fell within the mischief of section 9. Thus, the Tribunal directed the inclusion of the said sum of Rs.

54,456 in the principal value of the estate. The Tribunal, thus, set aside the order of the Appellate Controller and restored the order of the

Assistant Controller on this aspect. Aggrieved by the order of the Tribunal, the accountable person has sought and obtained a reference on the

question set out above.

In this case, there is no dispute about the valuation adopted in respect of the properties covered by the settlement deed executed by the

deceased on 21-1-1970. That the deceased was a non-dwija, before he became a sanyasi, is also not in dispute. Therefore, the question that

arises for consideration is whether the deceased, who was admittedly a sudra, could become a sanyasi so as to result in his civil death on becoming

a sanyasi, and whether on his becoming a sanyasi, he ceases to have any obligation to maintain his mother.

Mayne''s Hindu Law, 11th edn., page 675, paragraph No. 561, sets out the special rules of succession to the property of an ascetic. It is

pointed out therein that according to Yajnavalkya, the heirs who take the wealth of an ascetic are in their order, the preceptor, the virtuous pupil

and one who is a supposed brother and belonging to the same order and that according to Mitakshara, a spiritual brother belonging to the same

hermitage takes the goods of the hermit and a virtuous pupil takes the property of an ascetic and that on the failure of the above, anyone belonging

to the same order or hermitage takes the property, even though sons and other natural heirs of the ascetic exist. The author has set out the legal

effect of one entering into a religious order that-

One who enters into a religious order severs his connection with the members of the natural family. He is accordingly excluded from inheritance.

Neither he nor his natural relative can succeed to each other''s properties. The persons who are excluded on this ground came under three heads,

viz., the Vanaprastha or hermit; the Sanyasi or Yati ascetic; and the Brahmachari, or perpetual religious student. In order to bring a person under

these heads, it is necessary to show an absolute abandonment by him of all secular property, and a complete and final withdrawal from earthly

affairs. The mere fact that a person calls himself a Byragi, or religious mendicant, or indeed that he is such, does not of itself disentitle him to

succeed to property. Nor does any sudra come under this disqualification, unless by usage. This civil death does not prevent the person who enters

into an order from acquiring and holding private property which will devolve not of course upon his natural relations, but according to special rules

of inheritance. But it would be otherwise if there is no civil death in the eye of the law, but only the holding by a man of certain religious opinions or

professions-"" (p. 721)

In Mulla''s Hindu Law, 15th edn., page 183, the position of a person who enters into a religious order with reference to his natural family is set out

thus:

Where a person enters into a religious order renouncing all wordly affairs, his action is tantamount to civil death, and it excludes him altogether from

inheritance and from a share on partition.

All property which belongs to such a person at the time of renunciation passes immediately on his renunciation to his heirs, but property acquired

by him subsequent to the renunciation passes to his spiritual heirs. A person does not become sanyasi by merely declaring himself a sanyasi or by

wearing clothes ordinarily worn by sanyasi. He must perform the ceremonies necessary for entering the class of sanyasis; without such ceremonies,

he cannot become dead to the world.

Sudras- According to the orthodox Smriti writers a sudra cannot legitimately enter into a religious order. Although the strict view does not sanction

or tolerate ascetic life of the sudras, it cannot be denied that the existing practice all over India is quite contrary to such orthodox view and any

such usage would be given effect to.

In Giyana Sambadha Pandara Sannadhi v. Kandasami Tambiran ILR 10 Mad. 375, a Division Bench of this Court has referred to the notion of

a spiritual family, as embodied in the Mitakshara law, and to the special rule of succession applicable to the individual property of an ascetic. While

tracing the history of the mutts in Tamil Nadu, the learned Judges have observed as follows:

If an ascetic or a hermit is a brahmin, he is called a yati or sanyasi; if a sudra, he is called a pardesi, and if the sudra is attached to an adhinam, he is

called a tambiran, and if he is at the head of the adhinam, he is called the pandara sannadhi.

In its original sense, the term ''mutt'' signified the residence of an ascetic or sanyasi or a pardesi. Though normally in ancient days a sanyasi or

pardesi had no fixed residence and moved from village to village, accepting such lodgings and food as were provided for him by pious laymen who

were in their turn enjoined by the shastras to honour and support him; things changed when Sankarachariyar, the founder of the Advaita or non-

dualistic school of philosophy, established some mutts in order to maintain and strengthen the doctrine and the system of religious philosophy he

taught and sanyasis were placed at the head of those institutions. After Sankarachariyar, the founders of Vaishnava, Madhva and other schools of

religious philosophy in this Presidency established mutts for a similar purpose. Thus, a class of endowed mutts came into existence in the nature of

monastic institutions, presided over by ascetics or sanyasis who had renounced the world. Thus, an ascetic who originally owned little or no

property, came to own the mutam under his charge and its endowment, in trust for the maintenance of the mutt and for the purpose of religious and

other charities in connection therewith.

In Kondal Row v. Iswara Sanyasi 33 MLJ 63, a Division Bench of this Court has set out the essentials of sanyasa and its incidents according to

the Hindu law. The Court observed that sanyasam after learning the duties of sanyasi should first perform his death ceremonies-this, however, is by

some not considered necessary-and the eight sradhas, the last of which is own sradha. He has to then perform Prajapathveshti or Agneshti and the

Viraja homain which are sacrifices in file and are purificatory ceremonies and finally relinquish all property and abandon all worldly concerns, down

to even a desire for them and that relinquishment need not be in favour of any particular person but it may be a simple abandonment of his property

and that the more adoption of the external symbols of sanyasam as wearing of coloured cloth or the shaving of the head is not enough. In

Somasundaram Chettiar v. Vaithialinga Mudaliar TLR 40 Mad. 846 another Division Bench of this Court has laid down that according to the

Hindu law tests, the rules as to disinheritance applicable to a sanyasi do not apply to sudra ascetics or tambiran unless a usage to this effect is

established, and in support of the said view the Bench has referred to two earlier decisions in Dharmapuram Pandara Sannadhi v. Virapandiyan

Pillai TLR 22 Mad. 302 and Harish Chandra Roy. v. Air Mohamed TLR 40 Cal. 545, wherein it has been held that a sudra cannot enter the order

of sanyasi and as such a sudra ascetic was not excluded from inheritance to his family estate unless some usage is proved to the contrary.

In Krishna Singh v. Mathura Ahir AIR 1980 SC 707, the question as to whether a sudra could become a sanyasi and whether the rule of

disinheritance applicable to sanyasis could apply to a sudra ascetic, came up for consideration. The Supreme Court expressed the opinion that

according to the orthodox smriti writers a sudra cannot legitimately enter into a religious order, that although the strict view does not sanction or

tolerate ascetic life of the sudras, it cannot be denied that the existing practice all over India is quite contrary to such orthodox view, and that in

cases, therefore, where the usage is established, according to which a sudra can enter into a religious order in the same way as in the case of the

twice born classes, such usage should be given effect to. The Supreme Court also ruled in that case that in order to prove that a person has

adopted the life of a sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire

for them or that such ceremonies were performed which indicate the severance of his natural family and his secular life. It must also be proved, in

case of orthodox sanyasis, that necessary ceremonies have been performed, such as Pindadans or Birajahoma or Prajapathyeshti, without which

the renunciation will not be complete. According to the Supreme Court, the question whether a person has become a sanyasi or not has to be

determined not according to the orthodox view but according to the usage and custom of the particular sect or fraternity.

Thus, according to Dharmasastras, a sudra cannot become a sanyasi or ascetic. Although the orthodox view does not sanction or tolerate

ascetic life of the sudras, the existing practice ail over India seem to indicate that with reluctance the right to ascetic life was extended to the sudras

and in due recognition of their status, they were treated as Hindu sanyasis. Thus, as on date there is no distinction or barrier and any one may

become an ascetic. In this case, the head of the Dharmapuram Adhinam, by custom has all along been treated as a Hindu sanyasi. A Hindu when

he takes up to sanyasa becomes civilly dead, cannot be disputed. After such a civil death, the individual''s relationship with his family comes to an

end and there is complete severance from his secular life.

The settlement in this case had been exerted by the deceased after he became a sanyasi and long after he ceased to have any connection with

his family. The learned counsel for the accountable person would, however, point out that even after the deceased became a sanyasi, he continues

to be a Hindu and according to the personal law of Hindus every Hindu is bound to maintain his mother. In support of the proposition that a Hindu

is bound to maintain his mother, whether he is possessed of property or not, the learned counsel for the accountable person refers to the decisions

in Subbarayana v. Subbakka TLR 8 Mad. 236 and Chebolu Satyanarayanamurthy Vs. Chebolu Ram Subbamma and Another, . In the first case,

a Division Bench of this Court expressed the view that according to the Hindu law, the son is bound to support his mother, whether or not he has

inherited property from his father. In the second case, Chandra Reddy, C.J., speaking for the Bench, had held that the proposition that under

Hindu law the maintenance of the mother by her sons is a matter of personal obligation arising out of the existence of the relationship between them

irrespective of their possession of ancestral or self-acquired property, is indisputable and that such an obligation is a legal and an imperative one

and not merely moral and optional It is no doubt true, a Hindu under his personal law is bound to maintain his mother, whether he possesses or not

any ancestral or self-acquired property. But the question is whether that well-established principle will apply to a Hindu who has become an

ascetic by undergoing a civil death. Once the law assumes a civil death on the basis of becoming a sanyasi, then he ceases to have any right or

obligation with reference to the members of the natural family. The learned counsel for the accountable person then contends that once a person

becomes a sanyasi, he relinquishes his rights of inheritance but he cannot unilaterally relieve himself of any obligation which he is bound to perform

either under his personal law or under a contract. The learned counsel refers to section 4 of the Hindu Adoptions and Maintenance Act, 1956, and

contends that it has got an overriding effect and, therefore, the son''s obligation to maintain the mother continues even after the deceased became a

sanyasi. It is not possible for us to accept the said contention. The rule of Hindu law that when a Hindu enters into a religious order his connection

with the members of his natural family stands severed, cannot be said to have been abrogated by the provisions of the Hindu Adoptions and

Maintenance Act. This is became that rule is not one which is inconsistent with any of the provisions of the Hindu Adoptions and Maintenance Act,

nor is there any provision in the said Act touching the above question. Therefore, the overriding effect of section 4 does not come into play.

Further, the provisions of the said Act cannot be applied to persons who are civilly dead.

It is no doubt true, becoming a sanyasi is renunciation of one''s worldly life and possessions and neither the ancient texts nor the judicial

precedents refer to the concept of obligations. However, having regard to the fact that on becoming a sanyasi the person suffers a civil death, it has

to be taken that after attaining sanyasa, he must be taken to have a re-birth and as such all his earlier rights and obligations should be taken to have

come to an end. In this view of the matter, we are inclined to agree with the view taken by the Tribunal that the settlement deed was not supported

by consideration in money or money''s worth and, therefore, it should be taken as a gift. The question is, therefore, answered in the affirmative and

against the accountable person. The revenue will have its costs from the accountable person. The counsel''s fee Rs. 500.