Bihar State Board Religious Trust,
Patna Vs. Mahant Sri Biseshwar Das [1971] INSC 47 (9 February 1971)
SHELAT, J.M.
SHELAT, J.M.
VAIDYIALINGAM, C.A.
CITATION: 1971 AIR 2057
ACT:
Bihar Hindu Religious Trusts Act (1 of 1951),
s. 2(1)-Mutt- Property gifted personally to first mahant-Passing in succession
from Guru to Chela-Whether public religious trust within meaning of
section-Tests.
HEADNOTE:
Gaibi Ramdasji was the recipient of certain
lands from the the Maharaja of Darbhanga and other zamindars. From out of the
income of these lands a temple and certain residential buildings were
constructed. The estate came to be known as Kamlabari asthal. Gaibi Ramdasji,
was succeeded in the office of Mahant by his chela, and thereafter succession
lo the Mahantship was from Guru to Chela. The respondent who was the reigning
Mahant at the relevant time resisted the demand of the appellant ,,for the
production of accounts and other particulars under the provisions of the Bihar
Hindu Religious Trusts Act, 1 of 1951. The Board took out criminal proceedings
against the respondent, who thereupon filed a suit in which he claimed the
asthal and its properties to be his personal property outside the definition of
religious trust in s. 2(1) of the Act. The trial ,court decided in favour of
the appellant but the High Court took a contrary view. In appeal to this Court.
HELD : (1) Properties of the temple being
admittedly in the possession,of the Mahant ever since the time of Gaibi
Ramjidas the onus of proof that the respondent mahant held them on trust for
public purposes of a religious or charitable character was clearly on the
appellant Board who alleged that it was so. The trial Judge was, therefore,
clearly in error in holding that the respondent mahant ought to have produced
sanads and ,that on his failure to do so in adverse inference could be drawn
viz., that had they been produced they would have shown that the grants to
Gaibi Ramjidasji were for public purposes of religious or charitable character.
[686 F-G] (2)The mere fact that Mahants of a particular order did not marry and
properties held by them is descended from Guru to Chela was not indicative of
and did not raise a presumption of such properties being religious properties.
If originally the property was acquired by a
Mahant the fact of its descent subsequently from guru to chela did not also
lead to the conclusion that it had lost its secular character. [687 E]
(3)Evidence that Sadhus and other persons visiting the temple were given food
and shelter was not by itself indicative of the temple being a public temple or
its properties being subject to a public trust. [688 A] (4)The mere fact of the
public having been freely admitted to the temple cannot mean that courts should
readily infer therefrom dedication to the public. The value of such public user
as evidence of dedication ,depends on the circumstances which give strength to
the inference that the user was as of right-. No such evidence of any reliable
kind was avail-able to the appellant Board in the instant case. [689 D] 681
(5)A religious mutt in northern India is generally known as asthal, a monastic
institution founded for the maintenance and spread of a particular sampradaya
or cult.
The distinction between dedication to a
temple and a mutt is that in the former case it is to a particular deity, while
in the later case it is to a superior or a mahant. But just as in the case of
the debutter endowment, there is both private and public endowment, so too
there can be the same distinction between a private and public mutt. A mutt can
be dedicated for the use of ascetics generally or for the ascetics of a
particular section or cult, in which case it would be a public institution. But
it is not impossible to have a private mutt where the endowment is not intended
to confer benefit upon the public generally or even upon the members of a
particular order. Examples do occur where the founder may grant property to his
spiritual preceptor and his disciples in succession with a view to maintaining
one particular spiritual family and for perpetuation of certain rites and
ceremonies which are deemed to be conducive to the spiritual welfare of the
founder and his family. In such cases it would be the grantor and his
descendents who are the only persons interested in seeing that the institution
is kept up for their benefit. Even if a few ascetics are fed and given shelter,
such a purpose is not to be deemed an independent charity in which the public
or a section of it is interested. Such charities appertain to a private
debutter also. [690 D-R] The existence of a private mutt in which the property
was given to the head of the mutt for his personal benefit only has in the past
been recognised. In such cases there is no- intention on the part of the
grantor to fetter the grantee with any obligation in dealing with the property
granted.
In each case the court has to come to its
conclusion either from. the grant itself or from the circumstances of the case
whether the grant was for the benefit of the public or a section of it i.e.
annas curtained class, or for the benefit of the grantee himself or for a class
of ascertained individuals. An inference can also be drawn from the usage and
custom of the institution or from the mode in which properties had been dealt
with as also other established circumstances. [691 B-C] (6)The fact that idols
were installed permanently on a pedestal and the temple was constructed on
grounds separate from the residential quarters of the mahant could not,lead to
inference of dedication to the public. In the first place such factors are also
found in private temples and mutts and therefore are not conclusive. In the
second place there was the evidence that the mahants residential quarters were
in fact, not separate from the temple premises. [691 G- H] (7)The expression
'appertaining to the asthal' in the deeds of gifts made by the reigning mahants
in favour of their nominees as successor$ meant things which were appurtenant
to and forming part of the principal property which was the subject matter of
the instrument. The expression would at best mean that the properties formed
part of the asthal and were not the properties of the mahant as distinct from
those of the asthal. But unless the asthal itself was a public trust for the
religious or charitable purposes, the properties appertaining thereto would not
be properties of a public trust for religious or charitable purposes. The use
of the expression 'appertaining to the asthal', therefore, could not lead to
the conclusion that the property in question was stamped with a trust for
public purposes. [692 C] The appeal must accordingly be dismissed.
682 Mahant Ramsaroop Das Ji v. S. P. Sahi,
1955 B.L.J.R. 88, Mahant Ramsaroop Das Ji v. S. P. Sahi, 1959 Supp. 2 S.C.R.
583 & Deoki Nandan v. Murlidhar, [1956]
S.C.R. 756 at 761, referred to.
Permanand v. Nihal Chand [1938] I.L.R., 65
I.A. 252 Ramsaran Das v. Jai Ram Das, A.I.R. 1943 Pat 135, Babu Bhagwan Din v.
Gir Har Saroop, 67 I.A. 1, Matam Nadipudi v.
Board of Commissioners for Hindu Religious Endowments, Madras, A.I.R.
1938 Mad. 810, Missir v. Das, [1949] I.L.R.
28 Pat. 890 and Sri Thakurji Ramji v. Mathura Prasad, A.I.R. 1941 Pat. 254 at
358 and Mahant Puran Atal v. Darshan Das, [1942] I.L.R.
34 All 468, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 407 of 1967.
Appeal from the judgment and decree dated
March 13, 1962 of the Patna High Court in Appeal from Original Decree No.. 3 30
of 1958.
D. Goburdhun and R. Goburdhun, for the
appellant.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by
Shelat J.-This appeal arises from a dispute between the appellant-Board and the
respondent which occurred when the Board tried to enforce the provisions of the
Bihar Hindu Religious Trusts Act, 1 of 1951, in respect of the estate known as
Kamlabari asthal consisting of a temple, buildings and lands. The respondent is
the current mahant claiming direct descent from the founding mahant Gaibi
Ramdasji in the line of succession from Guru to Chela. Gaibi Ramdasji was the
recipient of certain lands from the then Maharaja of Darbhanga and other
zamindars. From out of the income of these lands, a temple with Shri Ram, janki
and Laxmanji as the presiding deities thereof, and certain residential
buildings were constructed. Later mahants added to these properties by
acquisition from out of the income of the existing properties. The respondent
mahant resisted the Board's demand for production of 'accounts and other
particulars and in consequence the Board took out criminal proceedings against
the respondent. The respondent thereupon filed a suit of which this appeal is
the outcome.
In the suit, the respondent claimed that the
said asthal and its properties were his personal properties, the gifts of lands
having originally been made personally to the founding mahant, and thereafter,
to the mahants succeeding him, and that therefore, the properties were not
religious trusts as defined by S. 2(1) of the Act. That sub-section defines a
'religious trust' to mean any express or constructive trust created or existing
for any purpose recognised by Hindu Law to be religious, pious or charitable
but shall not include a trust created according to Sikh religion or purely for
the benefit of the Sikh community and a private endowment created for the
worship of the family idol in which the public are not interested".
The Board took the stand that the asthal and
the properties belonging to it were not the personal properties of the manant
or his predecessors, that the, gifts to them were not personal gifts but to the
asthal that the fact that members of the public had, without any let or
hindrance, been using the temple for darshan and worship, the fact that
festivals were celebrated at which members of the public gave offerings, the
practice of feeding of sadhus and pilgrims, all went to indicate that the
asthal was a public trust in which the members of the public had an interest.
Both sides led considerable amount of
evidence, both oral and documentary. The oral evidence consisted of the
testimony of witnesses, some of whom deposed, on the one hand, that the members
of the , public had been coming to the temple without any obstruction on the
part of the mahant, and some others, on the other hand, that on certain
occasions some of the members of the public had actually been turned away from
the temple. Witnesses also deposed to the fact of festivals having been
celebrated when members of the public were allowed and placed offerings, of
sadhus and pilgrims having been fed and given shelter, thus showing the user of
the temple by the public and the as thal having disbursed the income of its
properties towards religious and charitable purposes. Some of the witnesses
examined by the Board were even prepared to depose that on occasions certain
members of the public had exercised some sort of 'control over the mahant's
management of these properties. The oral evidence, however, was not of much
assistance, partly because it was interested and partly because none of the
witnesses had any personal knowledge of the things which they sought to depose.
As regards the documentary evidence, the
respondent mahant did not produce the sanads under which the founding mahant
had acquired properties. These, he said, could not be traced. The Board also
did not make any attempt to produce the record of the Darbhanga Estate which,
on merger there-of with the State of Bihar presumably must be in the custody of
the State Government. The record, which presumably must contain copies of these
sanads, if produced, would have thrown considerable light on the nature of the
gifts and the manner in which they were made. The documentary evidence produced
at the trial, therefore, consisted mainly of (1) deeds of gift or nomination
made by a reigning mahant in favour of his chela as his successor, (2) deeds of
Sales, purchases; mortgage deeds etc. made and executed by the mahants in the
14-918 Sup. C.I./71 684 course of their administration of the asthal
properties, and (3) certain revenue records.
The issue which the Trial Judge considered to
be, the most crucial one was framed by him as follows :
"Whether the temple and the properties
in suit are the personal properties of the plaintiff or are trust properties
under the provisions of Act 1 of 1951 ?" The issue was framed by him in
these terms partly because the respondent had claimed these properties as his
personal properties, and partly because the Trial Judge was under 'the
impression, because of the High Court's decision in Mahant Ramsaroop Das Ji v.
S. P. Sahi(1) that the definition in s. 2(1) of the Act also covered private
religious trusts. That decision was however, reversed on appeal to this Court
and as reported in Mahant Ramsaroop Das ji v. S. P. Sahi(2) the correct
position is that ' private trusts do not fall within the ambit of the
definition in that section. It was because the Trial Judge was under the belief
that private religious trusts also fell within the definition that' he also
placed before himself only two alternatives, namely, whether the properties
were personal properties of the respondent or whether they were trust
properties. On the evidence before him he ultimately hold that the asthal and
the properties appertaining thereto were public religious trust and dismissed
the respondent's suit.
In coming to this conclusion the Trial Judge
took into account the following circumstances :
(1) that the mahants were bairagis, i.e.,
celibates, which fact raised the presumption that they held properties on
behalf of the asthal to which their lives were entirely devoted;
(2) that Mahant Gaibi Railidasji had set up a
sampradaya which attracted a large following, that therefore, the temple built
by him was for the benefit of his followers and for spreading and propagating
the doctrines of that sampradaya, (3) that from these facts the presumption'
arose that he had dedicated the temple and the properties to the public or a
section thereof;
(4) that the evidence showed that sadhus,
fakirs and abhyagats were entertained at the temple, that the income of the
properties was spent. on puja (1) 1955 B.L.J.R. 88.
(2) [1959] Supp. 2 S.C.R. 583.
68 5 and other religious activities' and for
festivals; consequently, the presumption was that the properties were subject
to religious and charitable purposes;
(5) that at the time of the installation of
the deities in the temple Pran Pratishtha and other ceremonies must have been
performed which meant that the temple and the properties were declared to have
been dedicated to the public;
(6) that the deeds of appointed of successors
executed by the mahants described the mahants as asthaldharis and the
properties as appertaining to the asthal, and (7) that though revenue records
descried the mahants as proprietors of these properties, they had to be read in
the light of the facts aforestated.
On these premises he upheld the Board's contention
that "the temple and the properties were trust properties of a public
nature for religious and charitable purposes".
On a appeal by the respondent-mahant, the
High Court first observed that the evidence on record had to be viewed in the
light of the definition section as constructed by this Court in Mahant
Ramsaroopdasji v. Sahi(1) that is to say, that the trust, as defined in that
section, meant only public trusts and did not include private trusts. The High
Court then appraised the entire evidence 'and came to the conclusion that even
if the mahant had not been able to show that the temple and the other
properties were the private properties of the mahants, all the factors from
which the Trial Judge, raised the presumption of a public trust were constent
with the properties constituting a private religious trust. On this view the
High Court reversed the judgment of the Trial Judge and decreed the
respondent's suit, holding that the Act did not apply to the properties in
suit. Counsel for the appellant-Board challenged before us the correctness of
the High Court's judgment and supported the Trial Court's judgment.
It is true that the respondent-mahant did not
produce the original sanads whereunder certain lands had been gifted to the
founding mahant by the various zamindars. They were not produced because, as
the respondent deposed, they could not be traced, but, as stated earlier it was
not impossible for the Board also, if it wanted to rely on them, to produce the
record, such as that of Dharbhanga Estate, and show therefrom the nature and
the terms of those gifts. The Trial Court, however, was not entitled, (1)
[1959] Supp. 2 S.C.R. 583.
686 as we shall presently. show, from the
mere failure of the mahant to produce the original sanads to draw an adverse
inference which it did against him.
From the rest of the evidence the following
facts as summarised by the High Court, emerged 1.that the temple was
constructed by Gaibi Ramdasji and it was he who installed the deities therein;
2.that he was succeeded to the mahantship by
his chela, and thereafter succession to the mahantship had been from guru to
chela, 3.that the appointment of a successor has been all throughout from guru
to chela, the reigning mahant appointing or nominating his successor from amongst
his chelas and the members of the public have had at no time any voice in the
selection or nomination;
4.that the properties have always, been
recorded in the names of the mahants as proprietors and not in the name of the
deities in the D registers, khewats and khatians;
5.that the mahants have been in possession
and management of the, asthal and the properties all throughout;
6.that the mahants acquired properties from
time to time in their own names as proprietors and-never in the names of the
deities 6r the asthal, without, any objection at any time from any one and
dealt with, some of them through deeds of sales, mortgages, leases etc.
Properties of the temple being thus
admittedly in the possession of the mahants ever since the time of Gaibi
Ramdasji, the onus of proof that the respondent-mahant held them on trust for
public purposes of a religious or charitable character was clearly on the
appellant-Board who alleged that it was so. The Trial Judge was, therefore,
clearly in error in holding that the respondent-mahant ought to have produced
the sanads and that on his failure to do so an adverse inference could be
drawn, namely, that had they been produced they would have shown that the
grants to Gaibi Ramdasji were for public purposes of a religious or charitable
character. (see Parmanand v. Nihal Chand(1) The sanads not having been
available, the appellant-Board tried to establish through the oral evidence of
six witnesses (D.Ws. 1 to 6), that the temple was founded and the properties in
question were acquired for the benefit of the public or a section thereof (1)
[1938] I.L.R. 65 I.A.252, 687 The testimony of these witnesses, however, did
not possess much credibility, because although these witnesses declared that
the temple was established for the benefit of the public, none of them deposed
that Gaibi Ramdasji or any of the succeeding mahants, had at any time dedicated
the temple or the properties to the public or to those who used to attend the
temple for worship and darshan. In these circumstances, the appellant-Board had
to fall back upon certain circumstances and the conduct of the mahants to
establish that these properties were properties of a public trust.The
circumstances and the conduct relied on were : (1) the fact that the mahants
were vaishnav bairagis who were lifelong celibates; (2) that sadhus and others
were given food and shelter when they visited the temple; (3) that festivals
and other important Hindu dates used to be celebrated; (4) that the members of
the public came to the temple for darshan without any hindrance and as of
right;
(5) that in the deeds and wills, whereby
reigning mahants appointed or nominated their successors, the properties were
described as appertaining to the asthal, and that the temple being the dominant
part of the asthal and maintained for the worship and puja of the presiding
deities installed therein, the properties belonged to the temple, and
therefore, they were properties of a trust for religious and charitable
character.
In Parmanand vs. Nihal Chand(1) the Privy
Council held that the mere fact that mahants of a particular order did not
marry and properties held by them descended from guru to chela was not
indicative of and, did not raise a presumption of such properties, being
religious properties. If originally the property was acquired by a mahant, the
fact of its descent subsequently from guru to chela did not lead to the
conclusion that it had lost its secular character.
Where, however, a property is dedicated to an
idol for the object of performing its puja and other necessary ceremonies the
person managing such property is only a she bait, the idol being a juristic
person in Hindu law capable of holding such property. If it is alleged that
such property is a trust property held for public purposes to which Acts, such
as the Charitable and Religious Trusts Act, 1920 or the present Act, applies,
it has to be shown that the trust is not a private trust but is one
substantially for public purposes of a religious and charitable nature. In such
cases provision for the service of the sadhus, occasional guests and wayfarers
does not render a trust for an idol into a trust for public purposes. This is
because where the main purpose of the trust is making provision for the due
worship of an idol and performance of, its seva puja 'and other ceremonies, the
feeding of sadhus and giving hospitality to wayfarers are inevitable. These are
regarded as duties forming part (1) [1938] I.L.R. 65 I.A. 252, 688 of the due
worship of the particular deity. (see Ramsaran Das A vs. Jai Ram Das(1)
Therefore, evidence that sadhus and other persons visiting the temple are given
food and shelter is not by itself indicative of the temple being a public
temple or its properties being subject to a public trust.
Evidence that the mahants used to celebrate
Hindu festivals when members of the public used to attend the temple and give
offerings and that the public were admitted to the temple for darshan and
worship is also not indicative of the temple being one for the benefit of the
public. The celebration of festivals is, according to Hindu belief, part and
parcel of the puja of the deity. Such festivals are celebrated in family and
other private temper also. The, fact that members of the public used to come to
the temple without any hindrance also does not necessarily mean that the temple
is a public temple, for members of the public do attend private temples. It is
against Hindu sentiments to turn away persons who come to do worship and
darshan. The mere fact, therefore, that no instance had occurred when persons
from the public were asked to go away or the absence of proof that they were
allowed on permission or invitation only cannot be conclusive of the temple
being one in which the public have by user acquired interest.
The case in point is of Babu Bhagwan Din vs.
Gir Har Saroop (2) . The original grant there was to the respondent ances- tor,
one Daryao Gir, by the then Nawab of Oudh. The property in question comprised
of land on which stood the temple, the presiding deity of which was Bhaironji,
certain houses and shops. ,The respondents, who claimed to be the descendants
of the original grantee, were grahastha fakirs, i.e., both goshains and house
holders. There was no proof that there had been any interference with the
management of the properties. The revenue records showed the properties in the
names of the descendants of Daryao Gir. The shops were let out and in the
leases concerning them the goshains were referred to sometimes as owners and
sometimes as owners of the "asthan Sri Bhaironif'. There was evidence,
however, of members of the Hindu public having resorted to the temple for
worship and darshan without any obstruction. An annual mela used to be held for
many years with public subscription on the grounds of the temple. The evidence
showed that the temple and the gushains profited from the increased resort to
the temple by the public the mela period. Yet, the Privy Council held that the
general effect of the evidence was that the family had treated the temple as
family property and the mere fact of the members of the public having come to
the temple and having (1) A.I.R. 1943 Pat, 135, (2) 67 I.A. 1 689 made
offerings and the mela having been held which gave popularity to the temple and
increased its esteem in the eyes of the public and the fact that they were
never turned away were not enough to hold the temple and the properties as a
public trust. At page 10 of the report their Lordships observed Dedication to
the public is not to be readily inferred when it is known that the temple
property was acquired by grant to an individual or family. Such an inference,
if made from the fact of user by the public, is hazardous, since it would not
in general be consonant with Hindu sentiments or practice that worshippers
should be turned away; and, as worship generally implies offerings of some
kind, it is not to be expected that the managers of a private temple should in
all circumstances desire to discourage popularity." Thus, the mere fact of
the public having been freely ' admitted to that temple cannot mean that courts
should readily infer therefrom dedication to the public. The value of such
public user as evidence of dedication depends on the circumstances which give
strength to the inference that the user was as of right. No such evidence of
any reliable kind was available, to the appellant-Board in the instant case.
True it is that a charitable trust might
either be created by a grant for an express purpose or a grant having been made
in favour of an individual or a class of individuals, that individual or that
class of individuals might, after obtaining the grant, create a charitable
trust on behalf of the Board reliance was placed on the deeds of gifts or
nominations by, reigning mahants in favour of their nominees, marked in Ex. 7
series., where, the mahants have stated that they appointed such chelas mahants
of Kamlabari asthal and described the properties as properties appertaining to
the asthal. Relying on these words counsel argued that what the founding mahant
Gaibi Ramdasji established was the asthal of Kamlabari for the propagation of
Sri Sampradaya where his disciples and the other adherents of Sri Sampradaya
could receive instruction in the doctrines of that Sampradaya at the hands of
the mahant and that the temple was only part of the asthal as its adjunct.
The argument was that the asthal was to
support the sadhus and other followers of Sri Sampradaya, the temple being only
an instrument for propagating and teaching the doctrines held by the
Sampradava. In support of the argument, reliance was placed on Mahant Puran
Atal v. Darshan Das(1).
There was in that case also no evidence of
any original grant for a charitable purpose from a donor, nor was there in
evidence (1)[1912] I.L.R. 34 All. 468.
690 any instrument expressly creating a
charitable trust. The High Court of Allahabad, however, held that the mahant
held the properties in trust for"a charitable purpose relying on the mode
of the user of the property and declarations made from time to time by the
mahants. Those declarations were to the effect that the properties were held
for the purpose only of supporting and maintaining Manakshahi fakirs,
entertaining visitors and for giving of alms. The properties were held muafi,
i.e., free from Government revenue, on the strength of such declarations. Also,
in litigations for succession to the gaddi, it had all along been assumed that
the properties belonged to the gaddi, managed by the gaddinashin for the time
being and held for charitable purposes. On this evidence, the High Court held
that it could presume that there was a charitable or religious'. trust, and
further observed that even if the main purpose of the trust was to support
Nanakshahi fakir's and to spread the religion founded by Guru Nanak, the trust
would still be one for a public purpose within the meaning of s. 92 of the Code
of Civil Procedure.
A religious mutt in northern India is usually
known as asthal, a monastic institution founded for the maintenance and spread
of a particular Sampradaya or cult. The distinction between dedication to a
temple and a mutt is that in the former case it is to a particular deity, while
in the latter, it is to a superior or a mahant. But just as in the case of the
debutter endowment, there is both a private and a public endowment, so too there
can be the same distinction between a private and a public mutt. A mutt can be
dedicated for the use of ascetics generally or for the ascetics of a particular
sect or cult, in which case it would be a public institution. Mutts have
generally sadavrats, i.e., arrangements for giving food and shelter to
wayfarers and ascetics attached to them. They may have temples to which the
public is allowed access. Such circumstances might indicate the public
character of the institution. But it is not impossible to have a private mutt
where the endowment is not intended to confer benefit upon the public generally
or even upon the members of a particular religious sect or order. Examples do
occur where the founder may grant property to his spiritual preceptor and his
disciples in succession with a view to maintain one particular spiritual family
and for perpetuation of certain rights and ceremonies which are deemed to be
conducive to the spiritual welfare of the founder and his family. In such cases
it would be the grantor and his descendants who are the only persons interested
in seeing that the institution is kept up for their benefit. Even if a few
ascetics are fed and given shelter, such a purpose is not to be deemed an
independent charity in which the public or a section of it has an interest.
Such charities, as already stated earlier, appertain to a private debutter 691
also. (see B. K. Mukherjea, Hindu Law of Religious & Chari- table Trusts.
(3rd /ed.), 303, 304).
The existence of a private mutt, where the
property was given to the head of the mutt for his personal benefit only, has
in the past recoginised. (see Matam Nadipudi v. Board of Commissioners for
Hindu Religious Endowments, Madras(1) and Missirv. Ras(1). In such cases there
is no intention on the part of the grantor to fetter the grantee with any
obligation in dealing with the property granted. In each case the court- has to
come to its, conclusion either from- the grant itself 'or from the
circumstances of the case whether the grant was for the benefit of the public
or a section of it, i.e., an unascertained class, or for the benefit of the
grantee himself or for a class of ascertained individuals. An inference can
also be drawn from the usage and custom of the institution or from the mode in
which its properties. have been dealt with as also other established
circumstances.
Puran Atal's case(,') has no application in
the present case because there is no evidence such as there was regarding the
user of the properties for the maintenance of a particular far class of
ascetics, nor are here declarations made from time to time by the mahants which
led the Court there to pronounce that the trust was for a charitable purpose,
and on the strength of which the proper-ties were held revenue free.
An attempt appears to have been made in' the
Trial Court to establish that certain ceremonies, such as Sankalpa, Pratistha
and Utsarga, were performed at the time when idols were installed in the
temple. In the case of temples Pratistha, and not Utsarga, if established, would
indicate dedication to the public. (see Kane's History of Dharmasastras, Vol.
2, part If, 892 to 893, and Deoki Nandan v. Murlidhar (4 ). Unfortunately for
the appellant Board,.
there was no clear evidence of the particular
ceremonies performed at the time when Gaibi Ramdasji installed the idols except
a general 'statement from the respondent that when idols are installed in
temples Pran Pratistha is generally performed. Support for a dedication to the
public was also sought from the fact that the idols were installed permanently
on a pedestal (Sinhasun) and the temple was constructed on ground.-, separate
from the residential quarters of the mahant. In the first place, such factors
are also found in private temples and mutts, and therefore, are not conclusive.
In the second place, there was the evidence that the mahants residential
quarters are in fact not separate from the temple premises.
(1) A.I.R. 1938 Mad. 810. (3) [1942] I.L.R,
34 All. 468.
(2)[1949] I.L.R. 28 Pit. 890 (4) [1956]
S.C.R. 756 at 761.
918 Sup. C.I./71 692 Lastly, reference was
made to some of the deeds of gifts made by the reigning mahant is favour of
their nominees as successors where the properties were described as
appertaining to the asthal. Assuming that the scribes of these documents used
the expression appertaining to the asthal' in the sense in which such
expression is sometimes used in the deeds of conveyance, the expression means
things which are appurtenant to and forming part of the principal property
which is the subject matter of the instrument. (see Stroud's Judicial
Dictionary, (3rd Ed.), Vol. 1. 177). The expression 'appertaining to the
asthal' in these deeds, therefore, would at best mean that the properties
formed part of the as thal and are not the properties of the mahant as distinct
from those ,of the asthal. (see Sri Thakurji Ramji v. Mathura Prasad(1) But
unless the asthal itself is a public trust for religious or charitable
purposes, the properties appertaining thereto would not be properties of a
public trust for religious or charitable purposes. The use of the expression
'appertaining to the asthal', therefore, cannot lead to the conclusion that.
the properties in question were stamped with a trust for public purposes.
These were all the contentions urged before
us. In our view, the appellant-Board failed to establish that the proportion in
suit, fell within the ambit of the Act and he respondent-mahant was subject to
its provisions. The High Court accordingly was right in reversing the Trial
Court's judgment and decreeing the respondent's suit. Consequently, the appeal
is dismissed with costs.
G.C. Appeal dismissed.
(1) A.I.R. 1941 Pat. 354, at 358.
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