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PETITIONER: BIHAR STATE BOARD OF HINDU RELIGIOUS TRUSTS

       Vs.

RESPONDENT: BHUBNESHWAR PRASAD CHOUDHARY & ANR.

DATE OF JUDGMENT09/04/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR 1123            1974 SCR  (3) 867  1974 SCC  (2) 288

ACT: Bihar  Hindu  Religious  Trusts  Act,  s.  2--Dedication  of properties to idol--When a religious trust.

HEADNOTE: The  members  of  a family executed  various  documents  the effect  of  which  was that the  executants  had  completely divested  themselves of any title to or interest in  certain properties dedicated to a deity, and which, thereby,  became the  properties of the deity. The appellant called upon  the respondent,  who had been appointed shebait and  manager  of all  the  dedicated properties, to furnish returns  and  the respondent filed a suit contending that the temple was not a religious  trust within the meaning of the terms in s.  2(1) of  the Bihar Hindu Religious Trusts Act but that it  was  a private endowment.  The trial court held that the trust  was one in which the public were interested.  The High Court, in appeal, took a contrary view. Allowing the appeal to this Court, HELD : On the facts of this case the trust should be  deemed to be religious trust. as the public are interested in it. The  temple was situated within independent  compound  walls and  not within the residential precincts of  the  founders. There  was  provision for the appointment and  dismissal  of pujaris.  The only right that the members of the family  had was  to have a member of the family as manager  or  shebait; but  the  shebait  was subject to  the  superintendence  and control of a body of outsiders (panches) who were given  the power  to  remove the shebait if he did  not  act  properly. There  could  be no better indication of the fact  that  the members of the public were associated with the management of the  temple  and interest in its management was  created  in them, thus bringing the trust directly within s.2(g) of  the Act.  The fact that the provision regarding the panches  was to  come into effect only after the death of the  executants of  the  deed, does not affect the merits of  the  question. There  was also provision for expenses over faquirs,  Sadhus and occasional festivals.  Since the endowment was in favour of  the  idol  itself proof of user by  the  public  without interference would be cogent evidence-that dedication was in favour of the public. [870 F-H; 871 C-D] Deoki Nandan v. Murlidhar [1956] S.C.R. 756, followed.

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Bhagwan  Din v, Har Saroop A.I.R. 1940 P.C. 7  and  Ramsaran Das v. Jai Ram Das, A I.R. 1943 Pat. 135, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 1871 of 1967. Appeal from the Judgment and Decree dated the 3rd May,  1965 of  the Patna High Court in Appeal from Original Decree  No. 345 of 1960. D.   Goburdhan, for the Appellant.’ K. K. Sinha and S. K. Sinha, for Respondent No.  1. The Judgment of the Court was delivered by- ALAGIRISWAMI, J.-The question for decision in this appeal is whether  the  temple of Shree Maharaja Ram  Janki  Lacchuman Maharaj in the village of Mauza Deogan in the State of Bihar is  a  religious trust within the, meaning of  the  term  in section  2, clause (1) of the Bihar, Hindu Religious  Trusts Act, or a private endowment. 868 Two  brothers, Ram Adhikari Choudhary and Ram  Lochan  Chou- dhary, and Amir prasad Choudhary, son of their brother,  for himself  and as guardian of Ramakant Prasad  Choudhary,  who were all members of joint Hindu family executed on 17.6.1921 a samarpannama by which they dedicated certain properties to the above mentioned temple.  By that deed of dedication they completely  divested  themselves  of  any  interest  in  the properties  except  that  they  and  the  members  of  their families  were  to  be  shebaits.  By  the  same  deed  five persons,  who  were absolute strangers to the  family,  were appointed  panches "to take the rendition of account of  the income  and expenditure from, the manager, shebait  for  the time   being   year  after  year  on  the  death   of   the, executants. . . . If in the opinion of the said panches  the manager and shebait for the, time being be found (illeg) and extravagant or there be any loss in respect of the income of the dedicated property or the dedicated property which is at present  or be acquired in future, in that case they  should discharge  the  manager  shebait  for  the  time  being  and (appoint)  other deserving manager, shebait, who  be  deemed according  to the conditions mentioned above, in  his  place from among the members of the family of the executants." The panches  were  given  power to fill up  vacancies  in  their ranks. On  7-12-1928 Ram Adhikari Choudhary alone executed  another samarpannama  endowing some further properties in favour  of the  temple,  containing  similar terms as  in  the  earlier samarpannama; but in place of five panches mentioned in  the earlier  deed he appointed a fresh set of five  panches,  of whom  only one belonged to the earlier set of  panches.   In this  deed also it was provided that "if any future  shebait fails  to manage the dedicated properties’, arrange  ragbhog to  the aforesaid deities properly, show  negligence,  spoil the  property, and incur (un)-necessary expenses,  the  said panches  will be competent to dismiss the said  shebait  and appoint another one out of the members of the family of  me, the executant, who happens to be honest and capable." On  14.7.1934 Ram Adhikari Choudhary executed  another  deed called ’ekrarnama’ referring to the fact that he had adopted Bhagwat Prasad Choudhary, the present first respondent,  and that  he had been appointed shebait and manager of  all  the dedicated   properties   covered   by   the   earlier    two samarpannamas.   He  also directed  that  "the  stipulations contained  in the samarpannama dated the 7th December,  1928 in   respect  of  maintenance  of  account  of  income   and

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expenditure  of the dedicated property, shall hold  good  in respect  of  the management of the  dedicated  property  and maintenance  of the account of income and  expenditure."  He mentioned nothing about the panches mentioned in the earlier deed, but provided that "as (to) the appointment of shebaits in  future,  the practice to be followed will  be  that  the shebait  in  office shall be fully  competent  to  (appoint) during  his life time or that after him he who  amongst  his sons be alive and most capable shall be appointed shebait of the  said  deities one after another.  In case there  be  no male issue in the family of  869 the shebait in office, firstly, amongst the male issue or in case  there  be no capable man amongst the children  of  the aforesaid persons, the shebait in office shall be  competent to  appoint  a  shebait amongst the children  of  my  cousin (father’s  brother’s sons) brothers, deemed to  be  capable. But  the shebait in office is and shall not be competent  to appoint  a shebait from the family of other persons." It  is unnecessary  for  the purpose of this case to  go  into  the question whether by executing the samarpannama of  7.12.1928 and  ekrarnama  of  14.7, 1934 Ram  Adhikari  Choudhary  was competent to change the provisions of 1921 document.  It  is not even clear, whether by this document he had intended  to do  away  with  the  provisions  contained  in  the  earlier documents  regarding the panches and their powers.  Be  that as  it may, we are of opinion that the main point  regarding all these documents is the fact that the executants had com- pletely  divested themselves of any title to or interest  in the dedicated properties which thereby became the properties of  the  deity.   The only power which the  members  of  the family thereafter had was to be shebaits and managers of the temple.  The  Subordinate Judge who tried this suit considered  that the  1921 document created a trust in which the public  were interested.   But  in this to some extent he seems  to  have been influenced by a wrong reading of section 2(g)(i) of the Act,  especially the words "to participate in any  religious or  charitable ministration under such trust".   He  mistook the   word  ’ministration,  to  be  ’administration’.    The difference  between the words would make all the  difference as. to whether any member of the public could be said to  be interested  in the religious trust.  We have called for  and perused  the  copy  of the Act as printed  in  the  official publication   and   we,   find  that  the   word   used   is ’ministration’  and not ’administration’.  The question  for decision  in this case, therefore, has to be decided on  the grounds  other  than  the  supposed  presence  of  the  word ’administration’ in section 2(g) (i). The learned Judges of the High Court on the other hand  took the  view  that the mere fact that the temple  was  situated within independent compound walls, though near the house  of the  founders, could not by itself indicate that the  temple was  meant for public purposes.  They further took the  view that  "the  cost  over faqirs,  sadhus  and  the  occasional festivals  would be ancillary to the main purpose, that  is, for puja of the deity." As regards the panches mentioned  in the  documents  they  were  of  opinion  that  they  had  no opportunity  to function or take any part in the affairs  of the  temple  and the trust properties, and  that  there  was nothing  to  indicate that the founder or  founders  of  the trust  intended  that  members  of  the  public  should   be associated  with the management of the temple and the  trust properties and the puja.  They also held that "the mere fact that  some  other members of the public might  be  attending

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festivals like Ram Navami, Janmashtami etc. does not justify the  inference that the trust or temple was created for  the benefit  or  worship  of  the public at  large  or  of  some considerable portion of it." 870 We  find ourselves unable to agree, with the learned  Judges of  the High Court.  We are of opinion that the judgment  of the  High  Court  proceeds from failure  to  appreciate  the effect  of  the judgment of this Court in  Deoki  Nandan  v. Murlidhar  (1956 SCR 756).  In that case the  dedication  of the properties was not as complete and as categorical as  in the  present case.  Only in the absence of male  issue,  the entire  immovable property was to stand endowed in the  name of the deity.  Half of the income from the properties was to be  taken  by  the  two waves of  the,  testator  for  their maintenance during their lifetime.  If a son was born to the testator then the properties were to be divided between  the son  and  the  temple.   A committee  of  four  persons  was appointed to look after the management of the temple and its proper-ties, and of these, two were not the relations of the testator.  The committee "may appoint the testator’s  nephew as Mutawalli by their unanimous opinion".  The documents  in the  present case are only slightly different in  that  they provide for the members of the family. being shebaits.   But the panches are all outsiders.  In Deoki Nandan v. Murlidhar this Court referred to certain facts as indicating that  the endowment is to the public :               "Firstly, there is the fact that the idol  was               installed   not   within  the   precincts   of                             residential quarters but in a separate  building               constructed for that very purpose on a  vacant               site.   And  as pointed out in  Delroos  Banoo               Begum v. Nawab Syud Ashgur Ally Khan(1), it is               a factor to be taken’ into account in deciding               whether  an  endowment is private  or  public,               whether the place of worship is located inside               a   private  house  or  a   public   building.               Secondly,  it  is admitted that  some  of  the               idols are permanently installed on a  pedestal               within  the temple, precincts.  That  is  more               consistent  with  the endowment  being  public               rather than private.  Thirdly, the puja in the               temple  is performed by an  archaka  appointed               from time to time." In  the present case the first factor is present.  There  is no  evidence about-the second.  There is also provision  for appointment  and  dimissal of pujaris.  Though there  is  no evidence in this case, as in that case, that the temple  was built  at the request of the public we do not think that  it makes much difference.  We are particularly of the view that as the only right which the family had was to have a  member of  the family as a manager or shebait and the  shebait  was subject  to  superintendence  and  control  by  a  body   of outsiders, who were given the power to remove the shebait if he  did not act properly, it is decisive of the question  as to  the public character of the temple.  There could  be  no better indication of the fact that the members of the public were  associated  with  the management  of  the  temple  and interest  in  its  management  was  created  in  them,  thus bringing the matter directly within clause (g) of section  2 of  the  Act.  The fact that this  provision  regarding  the panches was to come into effect only after the death of  the executants  of the deed, does not affect the merits  of  the question.  We are also of opinion that the learned Judges of

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the High Court were (1)  1875 15 Bon.  L R. 167, 186.  871 not correct in their view that the, fact that members of the public  took  part  in the worship in  the  temple  and  the provision  for faqirs etc.. was of no significance,  and  in relying  upon the decision of the Privy Council  in  Bhagwan Din v. Har Saroop (AIR 1940 PC 7) for this purpose.  In that case the properties were granted not in favour of an idol or temple,  but  in  favour of a private  individual,  who  was maintaining a temple, and his heirs.  The contention in that case  was  that subsequent to the grant the  family  of  the grantee  must  be held to have dedicated the temple  to  the public  for purposes of worship and it was this  contention. that was repelled by the Privy Council by observing that  as the grant was initially to an individual a plea that it  was subsequently dedicated by the family to the public  required to  be  clearly made out and it was not made out  merely  by showing  that  the  public was allowed  to  worship  at  the temple.   But in the present case, as in the case  of  Deoki Nandan v. Murlidhar, the endowment is in favour of the  idol itself and in such circumstances proof of user by the public without   interference   would  be  cogent   evidence   that dedication was in favour of the public.  The decision of the Division  Bench of the Patna High Court in Ramsaran  Das  v. Jai  Ram Das (AIR 1943 Pat 135) that "a mere  provision  for the service of sadhus, occasional guests aid wayfarers in  a dedication  to  an  idol  does  not  render  the  dedication substantially for public purpose" must be understood in  the background  of  that case where  the  properties  originally stood  in the names of various mahants and the property  was to  be held by the grantee generation after  generation  and the Court held that the gift-was to the mahant personally. We are, therefore, satisfied that on the facts of this  case the  trust should be deemed to be a religious trust  as  the public are interested in it.  The appeal is allowed and  the judgment  and decree of the High Court set aside,  restoring the  judgment  of the learned Subordinate  Judge.   The  1st respondent will pay the costs of the appellant.  The  C.M.P. No. 3132 of 1973 is allowed. Appeal allowed. 872