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PETITIONER: MAHANT HARNAM SINGH, CHELA OFBHAI NARAIN SINGH

       Vs.

RESPONDENT: GURDIAL SINGH & ANR.

DATE OF JUDGMENT: 24/02/1967

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA WANCHOO, K.N. BACHAWAT, R.S.

CITATION:  1967 AIR 1415            1967 SCR  (2) 739  CITATOR INFO :  C          1984 SC 858  (23)

ACT: Code  of  Civil Procedure (Act 5 of  1908),  s.  92-"Persons having interest in the trust", meaning of.

HEADNOTE: The  appellant  was  the  Mahant of  a  Gurdwara  which  was maintained  for  a seat known as.  Nirmala  Sadhus  and  was registered   as  one  of  the  branches  of  the   principal institution  of Nirmala Sadhus.  All its Mahants,  including the  appellant were Nirmala Sadhus.  The  institution  owned land,. which was donated to it by the inferior owners of the village.  It also Tan a free kitchen for providing food  for visitors.   The  respondents, who were Sikhs  filed  a  suit under  S. 92, Civil Procedure Code, for the removal  of  the appellant  from his office.  They sought to  establish  that they had such interest in the public trust as would  entitle them  to institute the suit, by showing : (1) that they  had interest  in  the  trust  property  in  their  capacity   as representatives  of  the  owners of the  land,  and  as  the representatives  of  the residents of the village;  and  (2) that  the  institution was a Sikh.  Gurdwara meant  for  all persons following the Sikh faith. The  trial  court  dismissed the suit, but  the  High  Court decreed it. In appeal to this Court, HELD:     (1) The respondents who were merely Lambardars and residents of the village, bad, in those capacities, no  such interest  as would entitle them to institute the suit.  [743 G] The  mere  capacity as Lambardars did not  entitle  them  to claim that they were representatives of the inferior  owners of  land, when they themselves were not inferior  owners  of any land, nor successors-in-interest of any inferior  owners who donated the land. [742 F-G] The free kitchen was not being run for the general residents of  the  village  who could, as of right, claim  to  be  fed therein.   Nor  did the residents of the  village  have  any clear  interest  in the particular trust entitling  them  to file such a suit, and mere residence in the village did not.

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create such an interest. [743 A-B] Vaidyanatha Ayyar v. Swaminatha Ayyar, 51 I.A. 282, applied. (2)  The Nirmala Sadhus, though they started as a section of Sikhs, became later followers of Vedanta philosophy, adopted the  customs of Hindu Sastras, the dress of  Indian  faqirs, and  worshipped  at Samadhis.  Therefore they could  not  be regarded  as  Sikhs at all, and the  respondents,  who  were Sikhs  could  not be held to have such an  interest  in  the trust as would entitle them to file the suit. [745 E, H; 746 A-D; 747 B-C] Hem  Singh v. Basantdas,     Shiromani  Gurdwara  Prabandhak Committee v.   Ram Parshad, 63 I.A. 180, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 1377 of 1966. 740 Appeal from the Judgment and decree dated September 7, 1962, of  the Punjab High Court in Regular First Appeal No.  29(P) of 1956. Naunit Lal, for the appellant. I.   M. Oberoi, S. K.Mehta and K. L. Mehta,  for  respondent No. 1 The Judgment of the Court was delivered by Bhargava,  J. This appeal under certificate granted  by  the Punjab  High Court at Chandigarh, has been filed  by  Harnam Singh  appellant against a decree passed by the High  Court, decreeing  a  suit  under section 92 of the  Code  of  Civil Procedure, after setting aside the dismissal of the suit  by the  District  Judge, and removing the  appellant  from  the office  of  the Mahant of an institution  described  in  the plaint as ’Gurdwara Jhandawala.’ The suit was brought by two plaintiffs  after  obtaining permission from  the  Advocate- General.   One of the plaintiffs/respondents, Ishar  ’Singh, died  and his legal representatives were not brought on  the record.   However,  in view of the nature of  the  suit,  no objection was raised before us about the maintainability  of this  appeal  on this ground and, consequently,  we  refrain from dilating on this aspect. The respondents claimed in the plaint that there is one  Gur Granth  Sahib at village Jhandawala in the name of  Gurdwara Jhandawala which is managed by Mahant Harnam Singh appellant as  a Mohatmim, and that he is in possession of  the  ’Dera’ and  agricultural  land  belonging  to  Guru  Granth  Sahib, Gurdwara  Jhandawala.   The  Gurdwara was alleged  to  be  a public   religious  place  which  was  established  by   the residents  of  the  village, and it was  pleaded  that  this religious  institution  was a public trust  created  by  the residents  of the village for the service of the  public  to provide food to the visitors from the Lungar (free  kitchen) to  allow  the people to fulfill religious beliefs  and  for worship,  etc.  The plaintiffs/respondents stated  that,  in the capacity of representatives of owners of lands  situated at   village   Jhandawala  and  of  residents   of   village Jhandawala, they submitted an application for permission  to institute  this  suit on the ground that the  appellant  was indulging in various undesirable activities and was misusing the funds of the trust which justified his removal from  the office  of  the Mahant.  The respondents  claimed  that,  in their capacity of representatives of the owners of the  land situated  at village Jhandawala and of residents of  village Jhandawala, they were entitled to institute this suit  under s. 92, C.P.C. The suit was contested by the appellant on various  grounds,

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:amongst  which  the  principal  one,  with  which  we   are concerned,  is that the plaintiffs/respondents had  no  such interest in this public 741 trust  as would entitle them to institute the suit.  At  the initial stage, the appellant did not admit that there was  a public  trust in existence at all, but the trial Court  held that  the  institution  was a public trust  of  a  religious character ; and that finding was not challenged on behalf of the  appellant  before the High Court.   The  two  principal grounds, on which the dismissal of the suit by the  District Judge was sought to be justified before the High Court, were that  the plaintiffs/respondents had no right  to  institute the  suit under s. 92, C.P.C., for want of interest  in  the trust, and that the respondents had failed to prove that the appellant  had  indulged  in any such  activities  as  would justify his removal from the office of the Mahant. In this appeal, we heard learned counsel for the parties  on the first question as to whether the  plaintiffs/respondents had any such interest in this trust which could entitle them to  institute  the  suit under s. 92,  C.P.C.  As  has  been mentioned  above,  in  the plaint the  claim  was  that  the plaintiffs    were   interested   in   the    capacity    of representatives  of  the  owners of  the  land  situated  at village  Jhandawala and of residents of village  Jhandawala. On  behalf of the plaintiffs/respondents, the  pleading  was that  this  Gurdwara was established as a  public  trust  on behalf  of  the residents of the village,  but,  during  the course of evidence, even the plaintiffs themselves  admitted that,  before  the  residents of  the  village  donated  any property  at  all to this institution, the  institution  was already  in  existence.  According to  the  plaintiffs,  the institution  was then known as Guru Granth Sahib  Dera  Bhai Saida  Ram,  and  Bhai  Saida Ram  was  the  Mahant  of  the institution.  On February 19, 1904, Shamilat land  belonging to  the  inferior proprietors of the  village  measuring  92 bighas and 12 biswas was donated to Guru Granth Sahib  known as  Dera  Bhai Saida Ram by way of charity.  That  gift  was subsequently  confirmed in a mutation order of  the  revenue authorities on 1st July, 1905.  Some time later, it  appears that  Mahant Mehtab Singh Sadh Nirmala became the Mahant  of this  institution, and he was succeeded by his  Chela,Mahant Narain  Singh.   On 20th July, 1926,  Mahant  Narain  Singh, describing  himself  as the Chela of  Mahant  Mehtab  Singh, executed , a will bequeathing his rights in the Dera to  his Chela,  Harnam  Singh  appellant.  It also  appears  that  a construction,. described as Gurdwara, was built over an area of  8  kanals and 17 marlas out of the land donated  to  the Dera by the inferior owners of the village.  This suit under s. 92, C.P.C., was instituted on 21st September, 1953 on the allegation  that  the  appellant had  started  indulging  in activities  which  unfitted  him for the  position  of.  the Mahant,  as he had been responsible for abduction of  women, habouring   of   dacoits,   malversation   of   the    trust income,closure   of   the  Langar  stoppage   of   religious activities and perpetration of immoral acts. Sup.CI/67-2 742 During the trial of the case, it appears that the plaintiffs attempted  to show their interest in the trust  property  on one   other   alternative  ground.   The   plaintiffs   were admittedly Sikhs by religion, and the claim put forward  was that  this  Gurdwara was a religious institution  meant  for Sikhs,  and, in fact, evidence was also sought to be led  on behalf  of the plaintiffs to show that the Mahants  of  this

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institution were not Sadh Nirmalas, but were Sikhs.  One  of the  plaintiffs/respondents  specifically  stated  to   that effect,  but there is a concurrent finding by  the  District Judge  and  by the High Court that all the Mahants  of  this institution,  from  Bhai  Saida Ram to  the  present  Mahant Harnam Singh appellant, have been Sadh Nirmalas.  The  trial Court  held that Sadh Nirmalas are not Sikhs and  that  this institution  was  not a Sikh institution at all.   The  High Court disagreed and held that Sadh Nirmalas are a section of the Sikhs and, consequently, that Sikhs had interest in this institution because of its being a Sikh Gurdwara.  The  High Court thus found in favour of the respondents that they  had an interest as required by s. 92, C.P.C., because they  were Sikhs  and that the institution was a religious  institution of  Nirmala Sadhs who were a section of Sikhs.  It was  also mentioned  by the High Court that the villagers having  made the  original donation of land which is the nucleus  of  the institution, the plaintiffs/respondents could not be said to be  devoid  of interest in the trust of whose  property  the appellant  now  asserts himself to be the sole  owner.   The correctness  of this decision was the main  point  canvassed before us on behalf of the appellant. As  we have indicated earlier, in the plaint the  plaintiffs claimed interest in the trust property in their capacity  of representatives  of  the  owners of  the  land  situated  at village  Jhandawala and of residents of village  Jhandawala. The findings of fact recorded show that the land, which  was donated  to  this  institution, was given  by  the  inferior owners  of  this  village  out of  their  joint  land.   The plaintiffs/respondents did show that they were Lambardars in the  village, but no attempt has been made at any  stage  to prove  that any of the two plaintiffs was an inferior  owner of  any  land  situated in-this village, or that  he  was  a descendant or a successor-in-interest of any of the inferior owners who donated the land to this institution in the  year 1904.  The mere capacity as Lambardars does not entitle  the plaintiffs/respondents   to  claim  that  they  are   repre- sentatives  of the inferior owners of the land  who  donated the  land to this institution.  The second ground  of  claim was  that  the  plaintiffs/respondents  were  residents   of village Jhandawala, but, again, there is no pleading and  no evidence  tendered  to show that the  residents  of  village Jhandawala  in general had any such interest in  this  trust which could entitle them to institute such a suit.  The only allegation  was  that  a  Langar used  to  be  run  in  this institution where free kitchen was provided to visitors.  It was nowhere stated 743 that  any  such free kitchen was being run for  the  general residents  of  village Jhandawala who could,  as  of  right, claim to be fed in the Langar.  Mere residence in a  village where  free  kitchen  is being run  for  providing  food  to visitors  does not create any interest in the  residents  of the  village  of  such a nature as to claim  that  they  can institute a suit for the removal of the Mahant.  The  nature of the interest that a person must have in order to  entitle him  to  institute  a suit under s. 92,  C.P.C.,  was  first examined  in  detail  by  the Madras High  Court  in  T.  R. Ramachandra  Ayyar  and Another v. Parameswaran Unni  and  5 Others(1)   After  the dismissal of the suit  under  s.  92, C.P.C.,  by the District Judge, the case came up  in  appeal before  Wallis,  C.  J., and  Kumaraswami  Sastri,  J.,  who delivered  dissenting judgments.  The appeal  was  dismissed and  then came up before a Full Bench of three Judges  under the   Letters  Patent.   Three  different   judgments   were

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delivered by the members of the Full Bench, Abdur Rahim, Old field   and  Coutts  Trotter,  JJ.  Wallis,  C.   J.,   when dealing,with the appeal at the earlier stage, expressed  his opinion  that to entitle him to sue under s. 92, C.P.C.,  it is not enough that the plaintiff is a Hindu by religion, but he  must have a clear interest in the particular trust  over and above that which millions of his countrymen may be  said to  have by virtue of their religion; and this  opinion  was expressed  even though the word "direct" in s.  92,  C.P.C., had  been  omitted.  It is not necessary to refer  to  other opinions  expressed  by the learned Judges in that  case  in view of the decision of their Lordships of the Privy Council in  Vaidyanatha  Ayyar and another v. Swaminatha  Ayyar  and Another(2), where they approved the opinion expressed by Sir John Wallis, C.J., in the case cited above, and held : "They agree  with  Sir  John Wallis  that  the  bare  possibility, however  remote,  that a Hindu might desire to resort  to  a particular temple gives him an interest in the trust appears to  defeat  the object with which the  Legislature  inserted these  words  in  the section.  The object  was  to  prevent people  interfering  by virtue of this section  in  the  ad- ministration of charitable trusts merely in the interests of others  and  Without  any  real  interests  of  their  own." Agreeing  with the view expressed by the Privy  Council,  we hold  that in the present case  the  plaintiffs/respondents, who   were  merely  Lambardars  and  residents  of   village Jhandawala,  had, in those capacities, no such  interest  as could entitle them to institute this suit. The alternative ground, on which the High Court accepted the claim  of  the  plaintiffs/respondents  that  they  had   an interest in this institution entitling them to institute the suit  because  it is a Sikh Gurdwara meant for  all  persons following the’Sikh faith, was not specifically taken by  the plaintiffs in the plaint.  However, it appears that,  during the  trial of the suit as well as in the appeal  before  the High Court, the claim of the plaintiffs that they had an (1) I.L.R. 42 Mad. 360. (2) 51 I.A. 282. 744 interest  entitling them to institute the suit was  actually pressed  and  examined on this ground.  The  District  Judge rejected  this claim, but the High Court held in  favour  of the  plaintiffs on its view that Nirmala Sadhus were  Sikhs. It  appears  from the judgment of the High  Court  that,  in arriving  at  this decision, the Court relied  on  only  two items  of evidence consisting of some observations  made  in Sir  Edward  Maclagen’s Census Report  and  in  Macauliffe’s Treatises  on  the  Sikh Religion.  The High  Court  made  a reference to a judgment of the Bhide, J., in Kirpa Singh  v. Ajaipal  Singh and Others(1) in which this question  whether Nirmala Sadhus were Sikhs was examined in great detail.   An error,  however, appears to have been committed by the  High Court  in taking from that judgment a few extracts from  Sir Edward  Maclagan’s Census Report and Macauliffe’s  Treatises on  the Sikh Religion and relying on those extracts  without examining  the entire material that was discussed by  Bhide, J. in his elaborate and well-considered judgment. Bhide, J., referred to various books which gave the  history and  description of Nirmalas and rightly held  that,  though the  origin of Nirmalas was somewhat obscure, it appears  to be  clear  that they were originally the followers  of  Guru Gobind Singh, but the important point for consideration  was whether  they had become distinct from the general  body  of the Sikhs and had ceased to be regarded as such. The  quotation  from Macauliffe’s book "The  Sikh  Religion"

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relied upon by the High Court, is to the following effect :               "There  are  two  great  divisions  of  Sikhs,               Sahijdhari  and Singhs.  The latter  are  they               who  accept  the baptism inaugurated  by  Guru               Gobind  Singh, which will be described in  the               fifth  volume of this work.  All  other  Sikhs               are called Sahijdharis.  The Singhs, after the               time of Guru Gobind Singh, were all  warriors,               the  Sahijdharis those who lived at  ease,  as               the  word  denotes,  and  practised  trade  or               agriculture.   In the Singhs are included  the               Nirmalas and Nihangs.  The Sahijdhari  include               the  Udasis founded by Sri Chand, son of  Guru               Nanak." Reference was also made to an article written by  Macauliffe on  "Sikhism"  in  the  Calcutta Review  in  1881  where  he described  Nirmalas  as only nominally Sikhs.   The  extract from Sir Edward Maclagan’s Census Report, on which  reliance was placed, runs as follows :               "It is said that Guru Gobind Singh sent  three               followers  named  Karam Singh, Har  Chand  and               Mihr Rai to Benares to acquire a knowledge  of               Sanskrit, when the Pandits of               (1)   I.L.R. II Lah. 142.               745               that city refused to come themselves to Gobind               Singh;  and  that, on their  return  the  Guru               blessed  them  as being the only  learned  men               among the Sikhs and called them Nirmala.  They               were allowed to take the pahul and founded the               order  of  Nirmala Sadhus.   They  are  almost               always   celibate,   and  almost   always   in               monasteries.   Their  principal Akhara  is  at               Hardwar  and it is said that  their  societies               throughout   the  province  are   periodically               visited  by a controlling council.  They  have               three   considerable   monasteries   in    the               Hoshiarpur  District  at  Munak,  Adamwal  and               Alampur  Kotta and by our returns they  appear               to  be  strong in Gurdaspur,  where  they  are               mainly  returned  as  Hindus  and  in  Ambala,               Ferozepore and Amritsar where they are  mainly               returned  as Sikhs.  It is supposed that  they               are  to be found in some numbers  in  Patiala,               but our tables would intimate that they are as               strong  in  Faridkot.  They are looked  on  as               unorthodox by most true Sikhs,, and it will be               observed that more of them are returned in the               census as Hindus than as Sikhs." We  are unable to agree that these passages relied  upon  by the  High  Court  are enough to lead to  an  inference  that Nirmala  Sadhus  are Sikhs and that they  still  retain  the essential  characteristics  of the Sikh faith.  It  is  true that,  in their origin, Nirmala Sadhus started as a  section of  Sikhs  who  were followers of Guru  Gobind  Singh,  but, subsequently,  in  the period of about 300  years  that  has since elapsed, they have veered away from the Sikh religion. That   is  why,  after  giving  their   historical   origin, Macauliffe  expressed  the opinion that Nirmalas  were  only nominally  Sikhs.  In Maclagan’s Census Report also it  was, mentioned  that Nirmala Sadhus are treated as Sikhs in  some places,  while in other places they are returned as  Hindus. He  has  mentioned the Districts in Punjab  where  they  are returned  mainly  as  Hindus, and  others  where  they  were considered  as Sikhs.  Faridkot, the District  within  which

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the institution with which we are concerned is situated,  is mentioned  as a place where they are regarded as Hindus  and in  the  Census they have been returned as such.   In  these circumstances, we do not think that this material by itself, which  the High Court culled out of the judgment  of  Bhide, J.,  could properly lead to the inference that Nirmalas  are Sikhs. Bhide,  J.,  quoted Sir Edward Maclagan’s Census  Report  in greater detail and mentioned how in that Census Report there was  a  description that the Nirmala Sadhus  were  at  first devoted to the regulations of Gobind Singh, but their  taste for Sanskrit literature led them to imbibe the principles of the  Vedanta  and  to readopt many of  the  customs  of  the Shastras.  They gave up the use of meat and spirits and they adopted the dress of the Indian 746 ’faqir’ which was strictly prohibited to the true  followers of  Guru  Gobind Singh.  They had so far deviated  from  the orthodox  Sikhs that they were hardly  distinguishable  from the  Udasi  followers  of Nanak.  They  were  looked  on  as unorthodox by most true Sikhs and it was also observed  that more  of them were returned in the Census as Hindus than  as Sikhs.   Then the "Glossary of the Tribes and Castes of  the Punjab  and  N.W.F.  Province" by H.  A.  Rose  contained  a statement that the Nirmalas, having adhered to the study  of the orthodox Hindus scriptures, had lost touch with Sikhism. In Oman’s "Mystics, Ascetics, and Saints of India"  Nirmalas were  described as followers of "Vedanta philosophy".   From all these authorities an inference clearly follows that Nir- malas  have  a close affinity to Hindus and  in  the  Census Report  for the Punjab for the year 1891 a large  number  of Nirmalas actually declared themselves as Hindus.  Bhide, J., on  these  materials, rightly came to  the  conclusion  that Nirmala Sadhus are not Sikhs. Further, in this case, there was material showing that  this institution  at  Jhandawala  was registered as  one  of  the branches  of  the principal institution  of  Nirmala  Sadhus known  as  the Panchayati Akhara situated  at  Kankhal  near Hardwar.   There was further evidence showing that  in  this institution  the worship is primarily of a Samadh  which  is against all tenets of the Sikh religion.  Nirmala Sadhus, it appears,  as a class worship at Samadhs which goes  to  show that they can no longer be regarded as people following  the Sikh religion.  In their beliefs and practices, the  Nirmala Sadhus  are now quite akin to Udasis, and there is a  series of-cases which has laid down that members of the Udasi  sect are  not Sikhs.  We need only mention the view expressed  by the Privy Council in Hem Singh and Others v. Basant Das. and Another,  Shiromani  Gurdwara Parbandhak  Committee  v.  Ram Parshad & Others(1), holding that "parallel with the  growth of  this movement, there seems from the time of  Sri  Chand, Nanak’s son, to have been a, sect of Udasis who, while using the same sacred writings as the Sikhs, kept up much more  of the old Hindu practices, followed asceticism, were given  to the veneration of Samadhs and tombs, and continued the Hindu rites concerning birth, marriage, and Shradh.... the Udasis, so  far  as  the  matter  can  be  decided  by  beliefs  and practices, are, from the point of view of Sikhs, schismatics who separated in the earliest days of the movement and never merged  thereafter."  Relying on these observations  of  the Privy  Council, the Lahore High Court in Bawa Ishar Das  and Others  v.  Dr.  Mohan Singh and Others(2)  held  :  "It  is clearly  established  in the present case that  this  is  an Udasi institution and that the Sikhs have nothing to do with it  except  that they may have gone there to listen  to  the

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reading  of the Sikh scriptures, which is also done  by  the Udasis." These decisions clearly indicate the principle (1) 63.  I. A. 180. (2) A.I.R. 1939 Lah. 239. 747 that,  though  the  Sikh Guru Granth Sahib is  read  in  the shrines  managed by the members of the Udasi sect, that  was not  enough to hold that those shrines were Sikh  Gurdwaras. In  the  case before us, the mere fact that  at  some  stage there was a Guru Granth Sahib in this Dera cannot thus  lead to  any conclusion that this institution was meant  for,  or belonged  to, the followers of the Sikh religion.   Clearly, the Dera was maintained for an entirely distinct sect  known as  the Nirmala Sadhs who cannot be regarded as  Sikhs  and, consequently,  in their mere capacity of followers  of  Sikh religion residing in village Jhandawala, the plaintiffs/res- pondents could not be held to have such an interest as could entitle  them to institute the suit under s. 92 of the  Code of  Civil Procedure.  The judgment of the High Court has  to be set aside on this ground. In  view of the fact that we are holding that this suit  was not instituted properly by persons interested as required by s.  92,  C.P.C., we consider it unnecessary to  express  any opinion at all on the second main point decided against  the appellant   by  the  High  Court,  viz.,  that  there   were sufficient grounds for the removal of the appellant from the office of the Mahant.  In this case, it is not at all neces- sary  to record any finding on that aspect of the case  and, consequently,  we  refrain from commenting  on  the  finding recorded by the High Court on this question. The  appeal is allowed with costs.  The decree of  the  High Court  is  set aside and the decree passed by  the  District Judge is restored. V.P.S.                         Appeal allowed. 748