Shanmugha Desika Gnanasambanda Paramacharya Swamigal, Dharmapuram 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 under s.

64(1) of the E.D. Act, 1953, hereinafter referred to as the Act :

Whether, on the facts and 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 January 21, 1970, was not support 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 Sir-la-Sri Subramania Desika Gananasambanda Paramacharya Swamigal (hereinafter referred to as ""the deceased""), who as the head

of Dharmapuram Adhinam, one of the famous mutts in South India, which has been established for the propagation of Saiva Sidhanth Philosophy

and the literature relating thereto, was a non-dwija (Sudra) before the became a sanyasi. While he was the head of the said adhinam, he executed

on January 21, 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 Taulk in Tanjore District of the value of Rs. 54,456 to be taken and enjoyed by her

absolutely. Later he died on November 10, 1971. On his death, His Holiness Sri-la-Sri Subramania Desika Gananasambanda Paramacharya

Swamigal succeeded as the head of the Dharamapuram 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 of Estate

Duty that no estate duty was leviable for te reason that there was no passing of the property on the death of the deceased and that the accountable

person was only the holder of an 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 under 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 purview of s. 9 of the Act. 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 under s. 9. 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 November 5, 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 under s. 9, that since the deceased had become a

sanyasi, the relationship 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 s. 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 January 21, 1970,

was not supported by consideration either in money or moneys 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 s. 9 of the Act. 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 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 January 21, 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 became 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, eleventh edition, page 675, paragraph 561, sets out the special rules of succession to the property of an ascetic. It is

pointed out therein that according to Yanjnavalkya, 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. At page 721, 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 come under three heads,

viz., the Vanaprastha, or hermit; the Sanyasi or Yati or 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.

In Mulla''s Hindu Law, 15the edition, 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 a sanyasi by merely declaring himself a sanyasi or by

wearing clothes ordinarily worn by a 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 give effect to.

In Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiram ILR [1887] 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 (p. 385) :

If an ascetic or a hermit is a Brahmin, he is called a Yati or Sanyasi; if a Sudra, he is called a paradesi, 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 in Pandara Sannadhi.

In its original sense, the term ""Mutt"" signified the residence of an ascetic or sanyasi or a paradesi. Though normally in ancient days a sanyasi or

paradesi 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 Sankarachariya, 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

property came to own the matam 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 [1911] 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 a sanyasi after learning the duties of a sanyasi should first perform his death ceremonies - this,

however, is by some not considered necessary - and the eight sradhas, the last of which is his own sradha. He has to then perform Prajapathiyesthi

or Agneshti and the Viraja homam which are sacrifices in fire and are purificatory ceremonies and finally relinquish all property and abandon all

wordly 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 mere adoption of the external symbols of sanyasam as wearing of coloured cloth or the shaving of the

head is not enough. In Samasundaram Chettiar. v. Vaithilinga Mudaliar ILR [1916] Mad 846, another Division Bench of this court has laid down

that according to the Hindu law texts, the rules as to disinheritance applicable to a sanyasi do not apply to Sudra ascetics or Tambirans 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. Virapandiyam Pillai ILR [1898] Mad 302 and Harish Chandra Roy v. Atir Mohmud [1913] ILR 40 Cal 545, wherein it has been held

that a Sudra cannot enter the order the sanyasis and as such a sudra ascetic was not excluded from inheritance to his family estate unless come

usage is proved to the contrary.

In Shri Krishna Singh Vs. Mathura Ahir and Others, , 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 for 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 he

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 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 Prajapathiyesthi 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, Sudra cannot become a sanyasi or ascetic. Although the orthodox view does not sanction or tolerate

ascetic life of the Sudras, the existing practice all over India seems to indicate that with reluctance the right to ascetic life was extended to 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 Adheenam, by customs has all along been treated as a Hindu sanyasi. That 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 executed 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 ILR [1884] 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 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 the

Hindu law the maintenance of the mother by her sons in 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 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 one becoming a sanyasi, 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 obligations which he is bound to perform either under his

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

is because 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 on the above question. Therefore, the overall effect of s. 4 of the Hindu Adoption and Maintenance Act 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 moneys 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. Counsel''s fee Rs. 500.