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PETITIONER: MAHANT RAM SAROOP DASJI

       Vs.

RESPONDENT: S.   P.   SAHI,  SPECIAL  OFFICER-IN-CHARGE  OF  THE   HINDU

DATE OF JUDGMENT: 15/04/1959

BENCH: DAS, S.K. BENCH: DAS, S.K. DAS, SUDHI RANJAN (CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1959 AIR  942            1959 SCR  Supl. (2) 503  CITATOR INFO :  R          1959 SC 951  (4)  R          1959 SC1002  (6)  F          1959 SC1073  (9,14)  R          1960 SC 554  (8,9)  E          1980 SC 161  (12)  RF         1991 SC 672  (33)

ACT: Hindu Religious Trusts Private Trusts-Applicability of Bihar Hindu Religious Trusts Act-Religious Endowments, public  and private-Distinction between-Definition of " religious trust" -scope  and  Effect-Bihar Hindu Religious Trusts  Act,  1950 (Bihar 1 of 1951), SS. 2(1), 4(5), 30(1), 32, 48.

HEADNOTE: The  appellant as the Mahant of the Salouna asthal  made  an application  in  the  High  Court  under  Art.  226  of  the Constitution  praying  inter alia for the issue  of  a  writ quashing  the  order of the Bihar State Board  of  Religious Trusts requiring the appellant to submit a return of  income and  expenditure  under s. 59 Of the Bihar  Hindu  Religious Trusts  Act,  1950,  on the grounds, inter  alia,  that  the Salouna  as  that  was  a  private  institution  and  not  a religious  trust within the meaning of the Act and that  the Act  did not apply to private trusts.  The High  Court  took the  view  that the language of s. 2(1) of  the  Act,  which defined  a  " religious trust ", was wide  enough  to  cover within  its ambit both private and public trusts  recognised by Hindu law and that the Salouna asthal did not come within any of the two exceptions recognised by the section. Held,  that on a true and proper construction of the  provi- sions  of the Act, considered in the background of  previous legislative history with regard to religious, charitable  or pious  trusts in India, the definition clause in s. 2(1)  of the Act does not include within its ambit private trusts and that the provisions of the Act do not apply to such trusts. The  essential  distinction in Hindu law  between  religious endowments  which are public and those which are private  is that in a public trust the beneficial interest is vested  in

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an  uncertain  and fluctuating body of persons,  either  the public at large or some considerable portion of it answering a   particular  description  ;  in  a  private   trust   the beneficiaries  are definite and ascertained  individuals  or who  within a time can be definitely ascertained.  The  fact that  the  uncertain and fluctuating body of  persons  is  a section  of  the public following  as  particular  religious faith  or is only a sect of persons of a  certain  religious persuasion  would not make any difference in the matter  and would not make the trust a ’private trust. 584

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 343 of 1955. Appeal from the judgment and order dated September 13, 1954, of  the  Patna High Court in Misc.  Judl.  Case  No.  39  of 1954. L.   K.  Jha,  B.  K. P. Sinha and R.  C.  Prasad,  for  the appellant. Mahabir  Prasad,  Advocate-General for the State  of  Bihar, Ishwari Nandan Prasad and S. P. Varma, for the respondents. 1959.   April 1,5.  The Judgment of the Court was  delivered by S.   K. DAS, J.-This appeal on a certificate granted by  the High  Court  of Patna is from a judgment of  the  said  High Court  dated  September  13,  1954,  in  a  writ  proceeding numbered  as Miscellaneous Judicial Case No. 39 of  1954  in that  court,  which  the  appellant  had  instituted  on  an application  made under Art. 226 of the Constitution in  the circumstances stated below. It was alleged that one Mahatma Mast Ram" Hindu saint, owned and  possessed  considerable properties in the  district  of Monghyr in the State of Bihar.  About two hundred years ago, he  built a small temple at Salouna in which he installed  a deity called Sri Thakur Lakshmi Narainji.  This temple  came to  be  known as the Salouna asthal.  Mast Ramji  died  near about  the year 1802.  He was succeeded in turn by  some  of his  disciples,  one of whom was Mahant Lakshmi  Dasji.   He built  a new temple in 1916 into which he removed the  deity from  the old temple and installed two new deities, Sri  Ram and Sita. in 1919 Mahant Lakshmi Dasji died.  He left  three disciples,  Vishnu  Das, Bhagwat Das and Rameshwar  Das.   A dispute arose among these disciples about succession to  the gaddi, which was settled sometime in February 1919.  By that settlement  it  was arranged that Vishnu Das  would  succeed Mahant Lakshmi Das as the shebait and would be succeeded  by Bhagwat  Das,  and thereafter the ablest "bairagi "  of  the asthal,  born  of  Brahmin parents, would  be  eligible  for appointment as 585 shebait.   Bhagwat  Das died sometime in 1935  and  again  a dispute arose between one Rameshwar Das, the youngest  chela of Mahant Lakshmi Das, and Ram Saroop Das who is the present Mahant and appellant before us.  Rameshwar Das, it  appears, filed  an  application under the  Charitable  and  Religious Trusts  Act  (XIV of 1920) for a direction upon  Mahant  Ram Saroop  Das  to  render an account of the  usufruct  of  the asthal.  This application was contested by Mahant Ram Saroop Das,  who  said  that the  properties  appertaining  to  the Salouna asthal did not constitute a public trust within  the meaning  of the provisions of the Charitable  and  Religious Trusts   Act  (XIV  of  1920)  and  therefore  he  was   not accountable  to  any  person.  Mahant Ram  Saroop  Das  also

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applied  for  and  obtained permission under  s.  5  of  the aforesaid Act to institute a suit for a declaration that the Salouna asthal and the properties thereof did not constitute a public trust.  Such a suit was brought in the court of the Subordinate  Judge  of Monghyr who, however,  dismissed  the suit.  Then, there was an appeal to the High Court of  Patna and by the judgment and decree passed in First Appeal No. 10 of  1941  dated  March  5,  1943,  the  High  Court  gave  a declaration  to the effect that the Salouna asthal  and  the properties appertaining thereto did not constitute a  public trust within the meaning of the provisions of the Charitable and  Religious Trusts Act, (XIV of 1920).  Some eight  years later, the Bihar Hindu Religious Trust Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, was passed by the Bihar  Legislature  and received the President’s  assent  on February  21, 1951.  It came into force on August 15,  1951. The  Bihar  State  Board of Religious  Trusts  (one  of  the respondents  before  us) was constituted under this  Act  to discharge  in  regard to religious trusts  other  than  Jain religious  trusts  the functions assigned to  it  under  the several  provisions of the Act.  On November 14, 1952,  this Board, in exercise of the powers conferred on it under s. 59 of  the Act, asked the appellant to furnish to the  Board  a return of the income and expenditure of the asthol. 74 586 The  appellant replied by a letter dated December  1,  1952, that  the Salouna asthal was a private institution to  which the  Act did not apply, and also drew the attention  of  the Board to the judgment and decree of the High Court in  First Appeal No. 10 of 1941.  The Board, however, gave a reply  to the effect that it was not bound by the declaration made  by the  High  Court  and  asked  the  appellant  to  obtain   a declaration in respect of his claim under the provisions  of the  Act or to submit a return.  Thereafter’ on January  22, 1954,  the appellant made his application under Art. 226  of the  Constitution in which he averred (a) that  the  Salouna asthal  was not a religious trust within the meaning of  the Act;  (b) that the properties appertaining thereto  did  not constitute  a  religious trust and the appellant was  not  a trustee within the meaning of the Act; (e) that the Act  did not apply to private trusts; and (d) that the demand made by the  respondent Board amounted to an interference  with  the appellant’s fundamental right to hold the asthal properties. The  appellant  accordingly prayed for the issue of  a  writ quashing  the  order of the respondent Board  requiring  the appellant  to submit a return of income and expenditure  and also  for  an order directing the respondent Board  and  its officers  to refrain from interfering with the appellant  in his  right  of  management of the  Salouna  asthal  and  the properties appertaining thereto. The  High Court of Patna by its judgment complained  against dismissed the petition on the main ground that the  language of  s. 2(1) of the Act, which defined a I  religious  trust’ for the purposes of the Act, was wide enough to cover within its ambit both private and public trusts recognised by Hindu law  to  be  religious, pious or  charitable  and  that  the Salouna asthal did not come within any of the two exceptions recognised  by the section, namely, (1) a trust created  ac- cording  to Sikh religion or purely for the benefit  of  the Sikh community; and (2) a private endowment created for  the worship  of  a  family  idol in which  the  public  are  not interested.  The High Court also held that the materials  on the record were not sufficient to decide 587

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the  question whether the Salouna asthal and the  properties thereof constituted a religious trust of a public character; but  proceeding  on  the footing that  the  Act  applied  to private trusts, it expressed the view that the  restrictions imposed on the trustee by the several provisions of the  Act were not violative of the fundamental right guaranteed under Art. 19(1)(f) of the Constitution, inasmuch as there was  no legal reason why the State should not exercise  superintend- ence  and control over the administration of private  trusts as  in  the  case of public trusts.   In  a  judgment  dated October  5,  1953, dealing with the same  question  in  some earlier  cases,  the High Court had,  however,  expressed  a somewhat  different  view.   It had  then  referred  to  the principle  that when a legislature with limited power  makes use  of a word of wide and general import,  the  presumption must be that it is using the word with reference to what  it is  competent to legislate, and adopting that  principle  it said that s. 2(1) of the Act should be read in a  restricted sense  so as to include only Hindu religious  or  charitable trusts  of a public character and the provisions of the  Act would accordingly apply to such trusts only. The  principal  point  urged  before us  on  behalf  of  the appellant  is one of construction-do the provisions  of  the Act  apply to private religious trusts?  The  contention  of the appellant is that they do not.  It is necessary to refer at this stage to some of the relevant provisions of the Act. In  connected Civil Appeals Nos. 225, 226, 228, 229 and  248 of 1955 (1) in which also we are delivering judgment  today, we  have referred to the provisions of the Act  in  somewhat greater  detail.   In  this appeal we shall  refer  to  such provisions only as have a bearing on the principal point. We start with the definition clause in s. 2 (1).  It says- "  religious trust’ means any express 6r 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 the Sikh religion or purely for the benefit of the Sikh (1)  Mahant Moti Das v. S.P. Sahi, see P. 563 ante. 588 community and a private endowment created for the worship of a family idol in which the public are not interested The  expression  ’trust  property ’ in a. 2  (p)  means  the property   appertaining  to  a  religious  trust   and   the expression ’trustee’ in s. 2 (n) is defined in the following terms- "  I  trustee’  means any person,  by  whatever  designation known,  appointed  to administer a  religious  trust  either verbally  or  by  or  under any deed  or  instrument  or  in accordance  with the usage of such trust or by the  District Judge  or  any other competent authority, and  includes  any person  appointed  by a trustee to perform the duties  of  a trustee  and any member of a Committee or any  other  person for the time being managing or administering any trust  pro- perty as such; ". The  next  important  section for our purpose  is  s.  4  as amended  by  Bihar Act, XVI of 1954, which gives  effect  to certain amendments and repeals.  Sub-section (5) of s. 4  is in these terms- "The  Religious  Endowments  Act, 1863  (XX  of  1863),  and section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall  not  apply to any religious trust in this  State,  as defined in this Act." Chapter  V  of the Act contains a series of  sections  which delimit  the  powers  and  duties  of  the  State  Board  of Religious  Trusts.  Section 28, the opening section  of  the

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chapter, states the general powers and duties of the  Board. Section 29(1) has a bearing on the question at issue  before us.   It states inter alia that where the supervision  of  a religious  trust is vested in any committee  or  association appointed  by  the  founder  or  by  a  competent  court  or authority,  such committee or association shall continue  to function  under the general superintendence and  control  of the Board unless superseded by the Board under sub-S. (2) of the  section.  If an order of supersensible is  passed,  the committee  or association or any other person interested  in the  religious trust may within 30 days of the order of  the Board  under sub-s. (2) make an application to the  District Judge for varying, modifying or setting aside 589 the  order  of supersession.  Section 30, so far  as  it  is relevant for our purpose, states- "  When any object of a religious trust has ceased to  exist or  has, in the opinion of the Board, become  impossible  of achievement,  the  Board may, of its own motion  or  on  the application  of  any  Hindu, after  issuing  notice  in  the prescribed manner, to the trustee of such trust and to  such other  person  as may appear to the Board to  be  interested therein  and  after making such inquiry as  it  thinks  fit, determine  the object (which sfiall be similar or as  nearly similar  as  practicable to the object which has  ceased  to exist  or  become impossible of achievement)  to  which  the funds,  property or income of the trust or so much  of  such fund,  property or income as was previously expended  on  or applied  to the object which has ceased to exist  or  become impossible  of  achievement, shall be a plied."  Section  32 defines the power of the Board to settle schemes for  proper administration of religious trusts.  It states: " 32(1).  The Board may, of its own motion or on application made to it in this behalf by two or more persons  interested in any trust,- (a)  settle  a scheme for such religious trust after  making such  inquiry  as  it thinks fit and giving  notice  to  the trustee of such trust and to such other person as may appear to the Board to be interested therein;  (b)  in  like manner and subject to  the  like  conditions, modify  any scheme settled under this section or  under  any other law or substitute another scheme in its stead: Provided that any scheme so settled, modified or substituted shall be in accordance with the law governing the trust  and shall not be contrary to the wishes of the founder so far as such  wishes  can  be ascertained.  (2)  A  scheme  settled, modified or substituted instead of another scheme under this section  shall,  unless otherwise ordered  by  the  District Judge on an application, if any, made under sub-section  (3) come  into  force on a day to be appointed by the  Board  in this behalf and shall be published in the official gazette. 590 (3)  The trustee of, or any other person interested in, such trust,  may  within  three  months  from  the  date  of  the publication  in  the  official  gazette  of  the  scheme  so settled, modified or substituted instead of another  scheme, as  the  case may be, make an application  to  the  District Judge  for varying, modifying or setting aside  the  scheme; but, subject to the result of such application, the order of the Board under sub-sections (1) and (2) shall be final  and binding  upon  the trustee of the religious trust  and  upon every other person interested in such religious trust. (4)  An   order  passed  by  the  District  Judge   on   any application  made under sub-section (3) shall be final."  It may  be here stated that the expression " person  interested

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in religious trust " is defined in s. 2(g).  The  definition is in these terms- "  "  person  interested in a religious trust  "  means  any person  who  is entitled to receive any pecuniary  or  other benefit  from a religious trust and includes, (1) any person who has a right to worship or to perform  any rite,  or  to attend at the performance of  any  worship  or rite, in any religious institution connected with such trust or   to   participate  in  any   religious   or   charitable ministration under such trust; (ii) the founder and any descendant of the founder;    and (iii)     the trustee;". The only other section which need be quoted in full is s.   48 of the Act which is in these terms:- "  48(1).  The Board, or with the previous sanction  of  the Board,  any person interested in a religious trust may  make an application to the District Judge for an order- (a)  removing  the trustee of such religious trust, if  such trustee- (1)  acts  in  a manner prejudicial to the interest  of  the said trust; or (ii) defaults  on three or more occasions in the payment  of any amount payable under any law for the time-being in force in  respect of the property or income of the said  trust  or any other statutory charge on such property or income; or 591 (iii)     defaults on three or more occasions in the payment of any sum payable to any beneficiary under the said  trust, or in discharging any other duty imposed upon him under  it; or (iv)   is guilty of a breach of trust. (b)  appointing a new trustee; (e)  vesting any property in a trustee; (d)  directing accounts and inquiries; or (e)  granting such further or other relief as the nature  of the case may require. (2)  The order of the District Judge under sub-. section (1) shall be final ". Now,  the argument on behalf of the appellant is that  on  a true and proper construction of the aforesaid provisions  of the   Act,   considered  in  the  background   of   previous legislative history with regard to religious, charitable  or pious trusts in India, the definition clause in s. 2 (1)  of the Act is confined to religious, pious or charitable trusts of  a  public nature recognised as such by  Hindu  law.   In order  to appreciate this argument it is necessary to  state first  the  distinction  in  Hindu  law  between   religious endowments which are public and those which are private.  To put  it  briefly,  the essential distinction is  that  in  a public  trust  the  beneficial  interest  is  vested  in  an uncertain and fluctuating body of persons, either the public at  large  or some considerable portion of  it  answering  a particular description; in a private trust the beneficiaries are  definite  and ascertained individuals or who  within  a definite time can be definitely ascertained.  The fact  that the  uncertain and fluctuating body of persons is a  section of  the public following a particular religious faith or  is only  a  sect of persons of a certain  religious  persuasion would  not make any difference in the matter and  would  not make the trust a private trust (see the observations in Nabi Shirazi v. Province of Bengal) (1).  The distinction in this respect  between  English law and Hindu law  has  been  thus stated  by Dr. Mukherjea in his Tagore Law Lectures  on  the Hindu Law of Religious and Charitable Trusts (1952  Edition, pp.  392-396):  ,,In  English  law  charitable  trusts   are

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synonymous (1)  (1942) I.L.R. I cal. 211, 228. 592 with  public  trusts and what is called religious  trust  is only  a  form of charitable trust.  The beneficiaries  in  a charitable  trust being the general public or a  section  of the  same  and not a determinate body  of  individuals,  the remedies  for enforcement of charitable trust  are  somewhat different   from   those  which  can  be   availed   of   by beneficiaries in a private trust.  In English law the  Crown as  parens  patriae is the constitutional protector  of  all property  subject  to charitable trusts, such  trusts  being essentially   matters   of   public   concern........    One fundamental distinction between English and Indian law  lies in  the fact that there can be religious trust of a  private character  under Hindu law which is not possible in  English law ". On  behalf of the appellant it has been pointed out that  so far as public religious and charitable trusts are concerned, there  are a number of legislative enactments, both  general and  local,  which  aim at controlling  the  management  and administration  of such trusts and provide for  remedies  in cases  of  maladministration, So far  as  private  religious trusts  are  concerned,  there  are  no  specific  statutory enactments and such trusts are regulated by the general  law of  the  land.  The British Government, when  it  was  first established in India, following the tradition of the  former rulers,  asserted by virtue of its sovereign  authority  the right  to visit public religious and  charitable  endowments and  to prevent and redress abuses in their  management.   A Regulation  for  that purpose was passed in Bengal  in  1810 (Regulation  XIX  of  1810)  and  one  for  Madras  in  1817 (Regulation  VII  of  1817).  In Bombay  also  there  was  a Regulation (XVII of 1827) which related to endowments of the same character.  In 1863 was passed the Religious Endowments Act  (XX  of  1863), which repealed the  Bengal  and  Madras Regulations  in so far as they related to  purely  religious institutions  and  their control was  transferred  from  the Board  of  Revenue  to-non-official  committees  constituted under the Act of 1863.  It is worthy of note, however,  that the Act of 1863 also applied to public religious  endowments only.   In course of time it was found that the Act of  1863 did not provide adequate protec. 593 tion  to public religious trust against abuses which led  to their control by the State and the remedies provided by that Act  did  not  go  far enough.   Then  came  the  Charitable Endowments  Act, 1890 (VI of 1890), and the  Charitable  and Religious  Trusts  Act, 1920 (XVI of 1920),  both  of  which related to public trusts ; the former related exclusively to public  trusts  for  charitable  purposes  unconnected  with religious  teaching or worship while the latter  related  to trusts  created  for  public purposes  of  a  charitable  or religious  nature.   In the Civil Procedure Code of  1877  a specific section was introduced, viz., s. 539, under which a suit  could be instituted in case of any alleged  breach  of any  express  or  constructive  trust  created  for   public religious  or charitable purposes.  This section  was  later amended,  and  in this amended form it became s. 92  of  the present Civil Procedure Code, the first condition  necessary to bring a case within its purview being the existence of  a trust,  whether express or constructive for public  purposes of  a  religious or charitable nature.  It is  clear  beyond doubt  that a private trust is outside the operation  of  s. 92,  Civil Procedure Code.  Of the local Acts, the  earliest

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was that of the Bombay Presidency of the year 1863.  In more recent   years  were  passed  the  Orissa  Hindu   Religious Endowments  Act, 1939, the Bombay Public Trusts  Act,  1950, and  the  Madras Hindu Religious and  Charitable  Endowments Act,   1951,  all  of  which  relate  to  public   religious institutions and endowments.  No local Act has been  brought to  our  notice  which clearly  or  unmistakenly  sought  to include within its ambit private religious trusts. On behalf of the appellant it has been submitted that though the definition clause in s. 2 (1) of the Act is expressed in wide  language,  other provisions of the Act make  it  clear that it is confined to public trusts only.  Section 2 (1) of the  Act,  we have pointed out, recognises  two  exceptions: first,  a  trust created according to the Sikh  religion  or purely for the benefit of the Sikh community; and, second, a private endowment created for the worship of a family  idol, in which the public are not interested.  It is not  disputed 75 594 that the second exception is an instance of a private trust, in which the public are not interested.  The High Court  has taken  the  view  that inasmuch  as  the  definition  clause mentions  by  way  of an exception only one  instance  of  a private endowment, all private endowments created  otherwise than  for  the  worship of a family idol  must  be  included within  the  definition  Of the maxim  of  expression  unius exclusio alterius.  We do not think that this view is  quite correct.  First of all, let us examine some other provisions of the Act which specifically refer to the definition clause and  see what the legislature has itself taken it  to  mean. Take, for example, s. 4 of the Act, as amended by Bihar Act, XVI  of  1954.   This section  amends  and  repeals  certain earlier  Acts like the Charitable Endowments Act, 1890,  and the Charitable and Religious Trusts Act, 1920, both of which we  have already pointed out related exclusively  to  public trusts.   Sub-s.  (5)  of s. 4  states  that  the  Religious Endowments  Act,  1863,  and  s. 92 of  the  Code  of  Civil Procedure,  1908, shall not apply to any religious trust  in the State, as defined in this Act.  The Religious Endowments Act,  1863, and s. 92, Civil Procedure Code,-both  apply  to public  trusts; they have no application to private  trusts. If the definition clause was intended to include within  its ambit private trusts (other than those created for the  wor- ship  of a family idol), then it is difficult to  understand why sub-s. (5) of s. 4 should be worded as it has been done. That sub-section in effect says that two earlier  enactments which apply exclusively to public trusts shall not apply  to any trust (we emphasise the word ’ any ’) as defined in  the Act.   If  private  trusts created otherwise  than  for  the worship of a family idol were included in the definition  of religious  trust,  then sub-s. (5) was  entirely  otiose  or redundant so far as those private trusts were concerned  for the  earlier enactments never applied to them.  The  obvious indication is that all trusts defined in the Act are  public trusts  and, therefore, it became necessary to  exclude  the operation of earlier enactments which but for the  exclusion would have applied to such trusts.  If the intention of sub- s. (5) of s. 4 was to exclude some, trusts 595 only out of many included within the definition clause  from the operation of the earlier enactments, as is contended for by  the learned Advocate-General of Bihar, then the  use  of the word ’any’ appears to us to be particularly inapt.  Sub- section  (5) of s. 4 was amended by Bihar Act XVI  of  1954. Before the amendment it read as follows:

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" S. 4(5).  The Religious Endowments Act, 1863, and  section 92 of the Code of Civil Procedure, 1908, shall not apply  to any Hindu Religious Trust in the State of Bihar." Prior to the amendment, sub-s. (5) made no reference to  the definition  clause; it merely said that two of  the  earlier enactments  shall not apply to any Hindu Religious Trust  in the  State  of  Bihar.   The  amended  subsection,  however, specifically refers to the definition clause and states that two  of the earlier enactments, which apply only  to  public trusts,  shall  not apply to any trusts, as defined  in  the Act.  In our opinion, by sub-s. (5) of s. 4 the  Legislature itself has spoken and indicated the true scope and effect of the definition clause. Secondly, it may be asked why the legislature having  before it  the  earlier enactments which applied to  public  trusts only,  failed  to  use the word ’public ’  before  the  word ’purpose’  in the definition clause ?  This is  a  pertinent question  which  must be faced.  The answer,  we  think,  is this.   Charitable trusts are public trusts, both under  the English and Indian law; in England a religious trust being a form  of  charitable  trust is also public,  but  in  India, according  to  Hindu law, religious trust may be  public  or private.  But the most usual and commonest form of a private religious  trust is one created for the worship of a  family idol in which the public are not interested.  Any other pri- vate  religious  trust must be very rare  and  difficult  to think  of.’ Dealing with the distinction between public  and private endowments in Hindu law, Sir Dinshah Mulla has  said at p. 529 of his Principles of Hindu Law (11th edition)- "  Religious endowments are either public or private.  In  a public endowment the dedication is for 596 the  use  or benefit of the public.  When  property  is  set apart  for the worship of a family god in which  the  public are not interested, the endowment is a private one ". Obviously  enough, the definition clause merely  quotes  the typical example of a private endowment mentioned above.   It is  also  significant  that the exclusion  of  an  endowment created  for  the worship of a family idol is based  on  the adjectival  clause  which follows it, viz., " in  which  the public  are not interested ". In other words, the  exclusion is  based on the essential distinction between a public  and private trust in Hindu law.  If the test is that the  public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It  also  shows that there may be a trust  created  for  the worship  of  a  family  idol in  which  the  public  may  be interested.   Those  are  cases of trust which  began  as  a private trust but which eventually came to be thrown open to the  public.   This also indicates that the  definition  was intended to cover only public trusts. We  now  turn to some of the other provisions  of  the  Act, which we have earlier quoted.  Section 29(1) which talks  of supervision  of  a  religious  trust  being  vested  in  any committee  or association appointed by the founder or  by  a competent  court or authority is ordinarily  appropriate  in the  case  of  a public trust  only.   Section  30(1)  which embodies  the doctrine of cypress permits any Hindu to  make an  application  for  invoking the power  of  the  Board  to determine the object to which funds, property and income  of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achievement.  This section is also inappropriate in the case of  a private trust, the obvious reason being that  any  and every Hindu cannot be interested in a private trust so as to

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give him a locus stand to make the application.  Further, it is difficult to visualise that a Hindu private rebutter will fail, for a deity is immortal.  Even if the idol gets broken or  is lost or stolen, another image may be consecrated  and it  cannot  be said that the original object has  ceased  to exist.  Sec- 597 tion 32 is an important section of the Act and confers power on the Board to settle schemes for proper administration  of religious trusts.  Now, the section says that the Board  may exercise the power of its own motion or on application  made to  it in this behalf by two, or more persons interested  in any trust.  The language of the section follows closely  the language of s. 92,  Civil  Procedure  Code, so  far  as  the phrase " two or     more  persons interested in any trust  " is concerned. It    is  difficult to understand why  in  the case of a private trust, it should be necessary that two  or more   persons  interested  in  the  trust  must  make   the application  to  settle  a scheme for such a  trust.   In  a private  or family rebutter the beneficiaries are a  limited and defined class of persons, as for example, the members of a   family.   If  the  trustee  or  shebait  is  guilty   of mismanagement,   waste,  wrongful  alienation  of   debutter property or other neglect of duties, a suit can certainly be instituted  for remedying these abuses of trust.  Under  the general law of the land the founder of the endowment, or any of  his  heirs is competent to institute a suit  for  proper administration  of  the  debutter, for removal  of  the  old trustee  and  for  appointment  of a new  one.   It  is  not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit.   The condition of " two or more persons " is appropriate only  to a  public trust, the reason being that a public trust  is  a matter  of  public concern.  Section 48 of the Act  is  also analogous to s. 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of s. 92 of the Code of Civil Procedure from trusts as defined by the Act is  the existence of provisions in the Act which are analogous to s. 92  of  the Code of Civil Procedure.  This section  is  also more  appropriate to public trusts than to  private  trusts. In  fact,  the  Act contains  provisions,  as  the  preamble states,  for  the better administration of  Hindu  religious trusts  in  the State of Bihar and for  the  protection  and preservation  of properties appertaining to such trusts  and for  that  purpose  certain  earlier  enactments  like   the Religious  Endowments Act, 1863, the  Charitable  Endowments Act, 1890, 598 the Charitable and Religious Trusts Act, 1920 and the  Civil Procedure  Code, 1908, have either been amended or  excluded from  operation.  All those earlier enactments related  only to public trusts and if the intention was that the Act would apply  to  private  trusts as well, one  would  expect  that intention would be made clear by the use of unambiguous lan- guage.  We find, on the contrary, that though the definition clause  in s. 2(1) is expressed in somewhat  wide  language, sub-s.  (5)  of  s. 4 makes clear what the  true  scope  and effect of the definition clause is. For  the  reasons given above, we hold that  the  definition clause does not include within its ambit private trusts  and the Act and its provisions do not apply to such trusts. Learned  counsel  for the appellant has in  the  alternative argued before us that if the Act applies to private  trusts, several   of  its  provisions  will  be  violative  of   the fundamental right guaranteed to citizens under Art. 19(1)(f)

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of  the  Constitution inasmuch as the  restrictions  imposed thereby  on trustees of private trusts, in which the  public are  not  interested,  cannot  be  justified  as  reasonable restrictions  in the interests of the general public  within the meaning of cl. (5) of Art. 19.  The High Court negatived this  argument by adopting the rule of English law  that  in the case of a charitable corporation where the founder is  a private person, he and his heirs become visitors in law  and where  such heirs are extinct or incompetent,  their  powers devolve  on the Crown or the State; therefore, it is in  the interests  of  the  general public  that  the  State  should exercise superintendence and control over the administration of  private  trusts as in the case of public  trusts.   This view  of the High Court has been seriously contested  before us, and learned counsel for the appellant has submitted that there  is  no  war. rant for the adoption  of  the  rule  of English  law in view of the fundamental distinction  between English  and Hindu law as to private religious  trusts.   He has  also drawn our attention to the following  observations of  Dr.  Mukherjea (Hindu Law of  Religious  and  Charitable Trust, 1952 Edition, p. 393) on this point: 599 ,,In English law there is a ’ visitatorial ’ power  attached to  all eleemosynary corporations.  A visitor has the  right to  settle disputes between members of the  corporation,  to inspect and regulate their actions and generally to  correct all  abuses  and  irregularities in  the  administration  of charity.   The law allows to the founder of an  eleemosynary institution full powers to make regulations for its creation and  such powers include the right of  nominating  visitors. Under  the  law  of England as it stood before  1926,  if  a private person was the founder of a charitable  corporation, then  he  and his heirs became automatically  the  visitors. The descent of the rights of a visitor to heirs has now been abolished by the Administration of Estates Act, 1925, and it is  not  clear  as to who would be  visitor  in  default  of appointment by the founder.  Most probably such rights would devolve upon the Crown as they did when the founder’s  heirs became  extinct  or  could not be found or the  heir  was  a lunatic." He  has further submitted that whatever be the  position  in English  law,  the  guarantee of a  fundamental  right  must depend on the terms of Art. 19 of the Constitution and  such guarantee  cannot be whittled down by  importing  artificial rules of English law. In  view of our finding on the question of  construction  of the  definition  clause  read  with  s.  4  (5)  and   other provisions  of  the  Act,  we  consider  it  unnecessary  to pronounce  finally  on the contentions referred  to  in  the preceding  paragraph, except merely to state that a  serious question   of   the  constitutional  validity   of   several provisions  of the Act would have undoubtedly arisen if  the Act were held to apply to private trusts as well. On  our  finding  that, the Act does not  apply  to  private trusts, the appellant is entitled to succeed in his  appeal. The High Court has said that the materials on the record  of the  case are not sufficient to decide the question  whether the  Salouna  asthal  and  the  properties  of  the   mahant constitute  a trust of a public character.   This  question, however,  was the subject of a contested litigation and  the appellant had obtained a declaration in First Appeal No.  10 of 1941 that the Salouna asthal 600 and the properties appertaining there to did not  constitute a  public trust.  The respondents were not parties  to  that

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litigation  and  may not be bound by that judgment;  but  on behalf  of the respondents no affidavit was filed  nor  were any materials placed to show that the position is  different from  what was declared by the High Court.  The  High  Court commented  on  the fact that the appellant did  not  produce before  the  court all the documents in his  possession.   A petition has been filed before us for taking in evidence the documents  which were considered by the High Court in  First Appeal  No.  10  of  1941.  We do  not  think  that  in  the circumstances of this case it is necessary to consider  that evidence  afresh.   As long as the declaration made  by  the High Court in First Appeal No. 10 of 1941 stands and in  the absence  of some evidence to the contrary, the appellant  is entitled  to say that the Salouna asthal and the  properties appertaining  thereto do not ’Constitute a public trust  and the Act and its provisions do not apply to it. Our attention has been drawn to s. 43 of the Act as  amended by Act XVII of 1956.  That section says inter alia that  all disputes as to whether any immovable property is or is not a trust  property  shall be inquired into, either on  its  own motion  or on an application, by the authority appointed  in this  behalf by the State Government by notification in  the official gazette.  Without. expressing any opinion as to the constitutional validity of s. 43 of the Act we merely  point out  that no decision has been given under s. 43 of the  Act (as  it  stood  prior or after the  amendment)  against  the appellant   in  respect  of  the  Salouna  asthal  and   the properties  appertaining thereto.  It would be open  to  the respondents  to take such steps as may be available to  them in  law to get it determined by a competent  authority  that the trust in question is a public trust. We  would  accordingly  allow this  appeal,  set  aside  the judgment  and  order of the High Court dated  September  13, 1954,  and direct the issue of an appropriate writ  quashing the order of the respondent Board calling upon the appellant to file a statement of income and expenditure with regard to the properties of the Salouna 601 asthal and also prohibiting the respondents from interfering with  the rights of the appellant in the management  of  the Salouna  asthal  and the  properties  appertaining  thereto, unless and until the respondents have obtained the necessary determination  that  the Salouna asthal is a  public  trust. The appellant will be entitled to his costs throughout. Appeal allowed.