Bihar State Board of Religious Trust Vs.
Palat Lall & ANR [1970] INSC 219 (16 October 1970)
16/10/1970 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) RAY, A.N.
CITATION: 1972 AIR 57 1971 SCR (2) 650 1971
SCC (1) 7
ACT:
Bihar Hindu Religious Trusts Act, 1950-Public
and Private Trusts-Distinction between--Requirements before endowment can be
regarded as public.
HEADNOTE:
An uncle of the two respondents made a will
in December, 1908 by which certain properties were endowed by him in favour of
an idol which certain properties were endowed by him in favour of an idol will
that he had two wives and no son had been born to either of them. He nominated
his two wives and his sister as "Mutawallies, managers and
executives" to administer the endowment during their lifetime and also
provided that in consultation with his Guru they should appoint a successor to
themselves. Upon the coming into force of the Bihar Hindu Religious Trusts Act,
1950, a notice was sent to the respondents by the Board constituted under the
Act calling upon them to file certain particulars as required under the
provisions of the Act on the view that the properties constituted a Public
Hindu Religious Trust. The respondents thereafter filed a suit against the
Board for a declaration that the said properties were not subject to the Act
and were private endowments.
After considering substantial oral and
documentary evidence, the Trial Court held that the endowment was private to
which the Act was not applicable. An appeal to the High Court was dismissed.
In the appeal to this Court it was contended
that it could easily be inferred from the facts and circumstances that the
endowment was a public one. The testator was childless and, therefore, there
was no need for. him to preserve the property for his family; that he had
dedicated large properties for the upkeep of the idol, and the largeness of the
properties indicated that it must have been for the benefit of the worshippers
drawn from the public and not from the family; that on the extinction of the
line of she baits consisting of the two wives and the sister of the testator,
the she bait ship was to go to a person of a different community ,on the advice
of a stranger and that there was no mention in any of the ,deeds that the
public were not to be admitted to the worship of the idol.
HELD: Dismissing the appeal, (i) On the
facts, it was clear that the idol had been in the family for a number of years
and only the family was doing its regular worship; there was nothing to show
that the public ever looked after this idol or were allowed a share in the
worship as of right. Nor did the author of the dedication by his will make it
clear that the public were to be admitted as of right. The whole arrangement
showed that the further looking after of the idol was to be the concern of the
family, and it was only under the nomination of the family that a particular
person of the Vaishavnava belief was to be in-charge after the demise of the
members of the family who were to become mutawallis after the death of the
testator., It was ,obvious that in this family as there was no male issue and,
therefore,, there was nobody to carry on worship and make arrangements for the
seba-puja 651 of the idol, as had been done in the family for a long time, some
other kind of arrangement had to be made and this arrangement was made by the
will. No more can be read into it than what was said there. [654 C] (ii) There
was no force in the contention that merely because an exemption was claimed in
regard to the income of the endowment as being for charitable and religious
purposes, this would make the endowment a public one. What a person does with a
view to claiming exemption from income tax or agricultural income-tax, is not
decisive of the nature of the endowment. The nature of the endowment is to be
discovered only from the tenor of the document by which the endowment is
created, the dealings of the public and the conduct and habits of the people
who visit such a temple or Thakur Dwara. The claim to exemption was with a view
to saving some income of the endowed property. It might have been motivated
from other considerations and not that it was a public endowment. [655 A-C]
Babu Bhagwan Din and others v. Gir Har Saroop and others, referred to.
Deoki Nandan v. Murlidhar [1961] 3 S.C.R.
220; Sivami Saligrama. charya v. Raghavacharya and others, Civil Appeal 645 of
1964 decided on 4-11-65; distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 800 of 1967.
Appeal from the judgment and decree dated
January 15, 1964 of the Patna High Court in Appeal from Original Decree No 321
of 1959.
D. Goburdhun and R. Goburdhun, for the
appellant.
R. C. Prasad, for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This is an appeal against the judgment of the High Court at
Patna, dated January 15, 1964, affirming the decision of the court of first
instance. The case arose in the,following circumstances One Chaudhary Lal
Behari Sinha, who was the uncle of the two plaintiffs (respondents in this
appeal), made an endowment by a will executed by him on December2, 1908, by
which certain properties were endowed in favour of an Idol called 'Ram
Janakiji' also known as Shri Thakurji, installed in the family house of the
testator. The testator said that his parents had installed this idol inside
their house and they used to perform the puja and he had also been performing
the puja since the time he had attained the age of discretion.
The testator went on to say that he had
married two wives but no son had been born to him from either of them, although
he had a daughter and there was also a daughter's daughter.When he made the
will, he had his two wives living, two sister's sons, Babu Uma Kant Prasad and
Babu Gauri Kant Prasad, and a daughter's daughter Giriraj Nandini Kuari. By the
will, he ar6 5 2 ranged for the seba-puja, ragbhog, samaiya, utsava of
Thakurji, and for the festivals and expenses of the sadabart of the visitors,
to be carried on, just as he had been doing. He nominated his two wives and his
sister Ram Sakhi Kuari widow of Babu Gudar Sahai, as 'mutwallie, managers and
executives' so long as they remained alive. He ordained that they should look
after the management of the estate of Shri Thakurji with unanimous opinion, as
had been done since long, that after their death, a son of a Srivastava
Kayastha and Visnu upasak (worshipper of Lord Visnu) should be appointed
'Mutawalli, manager and executive' of the estate of Shri Thakurji, and that his
wives and sister should appoint him during their life-time with the advice of
and in consultation with a certain Shri Jawharikh, resident of Baikunthpur, who
was his guru. He divided the house into two parts. The inner apartment of the
house was to remain in the possession of his wives and sister during their lifetime
and the entire outer house together with the house situated at Sitamarhi, was
to belong to the estate of Shri Thakurji. All money in cash and the movable
properties belonging to him would remain in the custody of his wives.
To the will was appended a schedule which
showed the details of the properties. That included four villages in sixteen
annas share, three villages in eight annas share, and one village in twelve
annas share. The will also made certain bequests in favour of some of his other
relations, but with, them we are not concerned. They are minor as compared with
the properties dedicated for the upkeep, of Shri Thakurji.
When the Bihar Hindu Religious Trusts Act,
1950, came to be passed, a notice was sent to the plaintiffs by the Board constituted
under that Act, calling upon them to file certain particulars on the basis of
the Act, in view, as the notice said, of the properties constituting a public
Hindu Religious trust. The present suit out of which this appeal arises was
thereupon filed by the plaintiffs after serving a notice under s. 78 of the Act
upon the Board, for a declaration that the suit properties were not subject to
the Bihar Religious Trusts Act, and were private endowments.
Vast oral evidence was tendered in the case
on behalf of the plaintiffs, and certain documents were filed. On the basis of
the evidence in the case, which was accepted by the learned trial judge, it was
decided that the endowment was private to which the Act was not applicable.
Before the learned trial judge, reference was made to a decision of this Court,
reported in Deoki Nandan v. Murlidhar(1). To that case, we shall come
presently. The learned trial judge distinguished that case and held that
endowment in the present case could not be held to be a public trust, because
it was in favour of a family deity.
1[1961] 3 S. C. R. 220.
653 An appeal was unsuccessful in the High
Court. The High Court agreed with the learned trial judge that the endowment
created a private and not a public trust. The High Court did not consider the
evidence in the case, which, according to the leamed Judges, had been
adequately summed up by the trial judge and whose conclusion was accepted.
Before the High Court also, the same case of this court was cited. But it was
also again distinguished on the grounds. that this idolwas a family idol and
had not changed its character since the endowment or at the time of the
endowment.
In this appeal, the only question that has
been raised is whether the trust is a public trust, to which the Bihar Hindu
Religious Trusts Act attaches, or is a private trust which does not come within
the purview of that Act. Mr.
Goburdhun, who argued the case, pointed out a
number of circumstances from which, he said, it could be easily inferred that
the endowment was a public one and that the Act applied. 'According to him, the
testator was childless and, therefore, there was no need for him to preserve
the property for his family, that he had dedicated large properties for the
upkeep of the idol, and the largeness of the properties indicated that it must
have been for the benefit of the worshippers drawn from the public and not from
the family, that on the extinction of the line of shebaits consisting of the
two wives and the sister of the testator, the shebaitship was to go to a person
of a different community on the advice of a stranger and that there was no
mention in any of the deeds that the public were not to be admitted to the
worship of Thakurji. He also relied upon the same case to which we have referred,
and also upon a decision of this Court in Swami Saligramacharya v.
Raghavacharya and others(1).
As early as (Babu Bhagwan Din and others v.
Gir Har Saroop and others) (2), the Privy Council distinguished between public
and private endowments of religious institutions, particularly, temples and
idols, and Sir George Rankin laid down certain principles to which attention
may be drawn, because they were referred to in that Supreme Court ruling on
which Mr. Goburdhun strongly relies. Sir George Rankin said that the dedication
to the public was not to be readily inferred when it was known that a temple
property was acquired by grant to an individual or family. He also observed
that the fact that the worshippers from the public were admitted to the temple
was not a decisive fact, because worshippers would not be turned away as they
brought in offerings, and the popularity of the idol among the public was not
indicative of the fact that the dedication of the properties was for public.
This ruling was referred to in the case on which Mr. Goburdhunrelies.
(1) CA. No. 645 of 1964 decided on 4-11-15.
(2) 67 I.A 1.
654 In that case, emphasis was laid on two
matters and they are decis ive of the case-we have here. The first no doubt was
that the dedicator in that case had no male issue, and that it would be unusual
for a person to tie up the property for the use of a diety with.out creating a
public trust, but the second was that a ceremony or pratishtha (installation of
the idol), which was equivalent to utsarg (dedication), was performed and,
therefore, the idol itself became; a _public idol after the ceremonies. This is
not the case here where an idol had existed from before as a family idol. In
the earlier case ,of this Court the installation of the idol and the dedication
were ,both done at the same time, and the installation was public. This, in our
opinion, was a very cardinal fact in that case. This) was emphasized not, only
by the trial judge but also by the learned Judges of the High Court. The facts
here are that the idol had been in the family for a number of *ears and only
the family was doing the seba-puja in the Thakur Dwara, and there is no mention
anywhere that the public ever looked after this idol and were allowed a share
in the worship as of right.
Further, by the will also the author of the
dedication did not make it clear that the public were ,to be admitted as of
right thereafter. The whole of the arrangement shows that the further looking
after of the Thakurji was to be the concern of the family, and it was only
under the nomination of the family that a particular person of the Vaishavanava
belief was to be in-charge after the demise of the members of the family who
were to become the mutawalls after the death of the testator. It is obvious
that in this family there was no male issue and, there-fore, there was nobody
to carry on worship and make arrangements for the seba-puja of the Thakurji, as
had been done in the family. 'Some other kind of arrangement had to be made and
this arrangement was made by the will. No more can be read into it than what is
said there.
Now, if it was intended that this should have
been a public endowment, it is quite obvious that when the testator died, the
testator would have thought of somebody from the public instead of the ladies
who could not carry on the puja except through others. It was after his own
death and his wives and sister were not available that a particular person was
to be chosen for the seba-puja. There is no arrangement here that public were to
look after or manage the Thakurji.
At no stage any intervention of the public is
either intended or allowed by the will in question.
Two other documents were brought to our
notice, but they may be disposed of summarily. The first is a mortgage deed, exh.
B, in which there is a recital about the property which was the subject of the
endowment. But that document is silent about the nature of the endowment and is
of no significance. The other document is a judgment of the Assistant
Commissioner of Agricultural 655 Income-tax, exh. C, in which exemption was
claimed in regard to income as was set apart for charitable and religious
trusts in terms of the trust deed. This is an attempt to show that the family
regarded it as a public trust. What a person does with a view to claiming
exemption from income tax or for that matter, agricultural income-tax, is not
decisive of the nature of the endowment. The nature of the endowment is to be
discovered only from the tenor of the document by which the endowment is created,
the dealings of the public and the conduct and habits of the people who visit
such a temple or Thakur Dwara. The claim to exemption was with a view to saving
some income of the endowed property. It might have been motivated from other
considerations and not that it was a public endowment.
This brings us to the second case which was
cited before us.
But even in that case, a reference was made
by the learned Judges to the earlier case and they have extracted a passage
from the earlier judgment, in which it was observed that "when property is
dedicated for the worship of a family idol, it is a private and not a public
endowment, as the persons who are entitled to worship at the shrine of the
deity can only be the members of the family, and that is an ascertained group
of individuals. But where the beneficiaries are not members of a family or a
specified individual, then the endowment can only be regarded as public,
intended to benefit the general body of worshippers".
In the present case, the idol was a family
idol and the worshippers had all along. been the members of the family.
Indeed, the evidence is overwhelming on that
score. The learned trial judge mentions that very important and leading persons
gave evidence in that behalf. In the judgment of the trial judge, a list is
given which includes P.Ws. 3,7,12,14,15 and 16 of village Kusmari. In addition
there are P.W. 17, who is an advocate of Sitamarhi, P.W. 6 who is a respectable
witness, being a chemist, P.W. 8 who is also a pleader, and P.Ws II and 13 who
are mokhtears and acquainted with Somari Kuer. These respectable persons had
occasion to know the family of Chaudhury Lal, Behari Singh, and, therefore,
were competent to speak on the fact that Shri Ram Janakiji were the family
deities of Chaudhury Lal Behari Singh. In the case to which we were presently
referring, the circumstances connected with the establishment of the temple
were such that they could be only consonant with a public endowment. It was no
doubt at private temple of which the sole proprietor was one Madrasi Swamiji,
but he, however, by the execution of the deed, decided to open the temple to
the public. He was a man with no family and could not have installed the deity
for the members of his family.
It was pointed out in that case that the deed
was of such a recent date that evidence of subsequent conduct would not alter
nature of the endowment as determined from the deed and that the decision was
on a 6 56 question of fact. Even if we were to treat it as a question of law,
because whether the trust is public or private, partakes of both fact and law,
and we are satisfied in the present case the evidence is entirely one-sided.
There is not one circumstance to show that the endowment was public endowment,
and this being the case, we do not see any reasons to differ from the decision
already arrived at.
On the whole, we have not been able to
discover any reason why we should depart from the unanimous opinion of the High
Court and the court below. Both the courts are agreed that the oral evidence as
well as the documents indicate only a private trust and that there is nothing
to show that the endowment enjoyed a public character at any time. The cases
before this Court, which were cited earlier are easily distinguishable.
The result is that the appeal fails. The High
Court in its order did not award costs to the plaintiffs. The reasons given by
the High Court for denying costs to the Plaintiffs apply here also. We,
accordingly, order that the costs shall be borne as incurred.
R.K.P.S. Appeal dismissed.
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