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PETITIONER: BIHAR STATE BOARD OF RELIGIOUS TRUST

       Vs.

RESPONDENT: PALAT LALL AND ANOTHER

DATE OF JUDGMENT: 16/10/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: 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  life- time  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 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 the idol.

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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.

JUDGMENT: 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

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but  no  son had been born to him from either of  them,  al- though  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 ar- 6 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 life- time  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  de- claration  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

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it  was also again distinguished on the grounds.  that  this idol-  was 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.

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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  bene- ficiaries  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 worsh ippers". 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

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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. 65 7