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PETITIONER: THE BIHAR STATE BOARD OF RELIGIOUS TRUST

       Vs.

RESPONDENT: RAMSUBARAN DAS

DATE OF JUDGMENT:       29/02/1996

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCALE  (2)702

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T BHARUCHA, J.      The order  under appeal  was passed by a learned single Judge of  the High Court at Patna. Thereby the appeal of the present appellants  against the  order  and  decree  of  the Subordinate Judge  of Muzaffarpur  in a  suit filed  be  the respondent against them was dismissed.      The suit  related to  two temples  one in  the  village Ramchaura and  the other in the village of Majhauli, both in the district  of Muzaffarpur.  By a  Sanad given in the year 1177 Fasli,  one Madhodas  alias Mohandas  was  granted  was granted 55  bighas of land in Ramchaura by Syed Suleman Raja Khan. This  was  done  because  Madhodas  was  a  pious  and religious man.  Upon this land Madhodas constructed a temple and installed  the deities of Ram Jankiji and Charan-Paduka. He left  two chelas, one of whom was Garibdas. Garibdas went to the  village of  Khalishpur and  installed the deities of Ramjankijee on 7 bighas of fakirana land granted by Babus of that village.  The other  chela, Hanumandas, who remained at Ramchaura,  acquired  lands  by  purchase  in  Mathauli  and thereon  constructed   a  temple   where  the   deities   of Remjankijee and  Laxmi Narayanjee  were installed. After the death of  Garibdas, the Khalispur properties also came to be in possession  of Hanumandas.  Hanumandas was  succeeded  by Gangaramdas and  he, in his turn, by Hareram, Harbhajandass, Harakh  Narain   and  Raghubardas.   Raghubardas,  upon  the abolition of  zamindari in  1951 made returns and claimed an annuity on the basis that the properties were the properties of a  public temple. He also submitted returns, accounts and expenditure to  the appellants on the basis that the temples were public  temples. These returns were made from 1951 till 1958-59, when  Raghubardas died. The respondent was a nephew and a  chela of  Raghubardas and  he came into possession of the properties  upon  the  death  of  Raghubardas.  On  29th September, 1961  he respondent  filed  a  suit  against  the appellants  in   the  court  of  the  Subordinate  Judge  at

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Muzaffarpur averring  that the  act of Raghubardas of filing an application in the Land Reforms Office claiming annunity, treating the properties as those of a public religious trust and giving  an account  of income  and  expenditure  to  the appellants upon  that basis  "was  under  mistaken  view  of plaintiff"; the same had been done "under misapprehension of fact and law". The plaint prayed for a declaration "that the properties were  secular properties  of plaintiff or at best private trust properties and not public trust properties and the defendant  cannot claim  any supervision  over acts  and deed of  plaintiff". The  appellants, in defence, maintained that the  temples and  the properties  attached thereto were public religious  trust properties  and the  respondent  was liable to  render accounts  to the  appellants and  remained under their  control. Issues  were framed  and evidence  was led. The  trial court was of the view that the grant by Syed Suleman Raja  Khan to  Mohandas of the land at Ramchaura did not appear  to be a grant to the deity "and in fact it could not have  been granted  to a  Hindu deity  by a  Mohamaden". there was  no evidence  that the  public had  anything to do with the  construction of  the temple  or its management. In regard to  the temple  at Majhauli, the trial court observed that if  the properties  had been  dedicated to the deities, then the revenue records would have stood in their names and not in  the name of Raghubardas. The trial court referred to a deed  of endowment made in 1916 by one Hulasbati Devi. She had dedicated  certain properties  to Laxmi Narainjee in the temple at Majhauli. This, in the opinion of the trial court, was merely  an accretion  to the  asthal and it could not be said that  because some  additional grant had been made by a pious lady to the deities in the temple, the temple became a public trust.  The trial  court relied upon the evidence, as it read  it, of the respondent that Raghubardas had been ill when he  made the  returns aforementioned  to the appellants and "under mistaken view of fact and wrong legal advice that though it  was not  public trust...  " Admissions, the trial court said,  could be  shown to be wrong and placed reliance again on  the fact  that the  grant  had  been  given  by  a Mohamaden to a Hindu to hold that the admission was shown to be wrong  Reference was then made to certain documents which showed that  the mahanths  had executed sale deeds and given rent receipts  regarding the  properties in their own names. The oral  evidence, according to the trial court, was not of much importance;  the mere  fact that  members of the public were allowed  to enter  the temples  for  darshan,  to  make offerings and  to attend  functions  held  therein  did  not justify the  inference that  they were public temples for it had been  said that  it would  not, in general, be consonant with Hindu  sentiment or practice that worshippers should be turned away. In the result, the suit was decreed.      In the  appeal before the High Court the respondent did not appear.  The High  Court was,  however, not persuaded to take a view different from that of the trial court.      The respondent has not appeared before us.      Learned counsel for the appellant drew our attention to the Judgment  of this  Court in Bala Shanker Bhattjee & Ors. vs. Charity  Commissioner, Gujarat State, J.T. 1994 (5) S.C. 152,   where the  law relating  to the  public character  of temples has  been set  out. It  has  been  said  that  where temples are  ancient, proof  of dedicating  to the public is difficult to  find and  circumstances which obtain in regard to the  management of  the temple and worship therein afford indications of  its character, that is to say, whether it is a public or a private temple.      In our  view, the High Court and the trial court failed

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to appreciate that this was a suit on the basis of a mistake of law  and fact.  It was  for the respondent (plaintiff) to discharge this  onus and the onus was made heavier by reason of the  fact  that  the  mistake  alleged  was  not  of  the respondent  but  of  his  deceased  predecessor.  The  first question to  which the    courts  ought  to  have  addressed themselves was whether the plaintiff had discharged the onus of proving  that Raghubardas  had made  the relevant returns "under  mistaken   view  of   law  and   fact"   or   "under misapprehension of  fact  and  law".  The  evidence  of  the respondent in  this behalf  is only  this : "Raghubardas had submitted some  returns before the Religious Trust Board. He was advised by lawyer that public and private trust both are liable to  submit return.  I have  not submitted any return. "In the  first place, to act on the basis of legal advice is not, ipso facto, to act on a misapprehension of fact or law. Secondly, the  respondent did not depose that he was present when the lawyer gave the alleged advice. He did not name the lawyer.  The   lawyer  was   not  examined.  The  conclusion inescapably is that there was no credible evidence establish that Raghubardas  had acted  on a mistake of fact or law and that the  suit should  be dismissed. Secondly, upon the case of the  respondent himself, his suit failed. It was his case that  the   temples  were   Raghubardas’s  private  temples. Raghubardas’s filing  of the relevant returns that they were public temples  was tantamount to their dedication by him as such.      In  any   case,  the   evidence  ought   to  have  been scrutinized in  the light  of the  fact that Raghubardas had traded the  temples as  public  temples  and  if  there  was evidence which  could indicate  that the temples were public temples, the courts ought to have held that the temples were public temples.  The courts  were  unjustified  in  brushing aside the  evidence led  by the appellants which showed that members of  the public  worshipped at  the temples  and gave offerings to  the deities,  and did  so without  seeking any permission. This  is the evidence of 17 witnesses and no one of them was cross-examined in this regard. At Ext. D. on the record before  the trial  court was  the deed  of dedication made by  Hulasbati Kuer  to Lachhmi Narainjee. The executant dedicated, according  to the desire of her late husband, the property therein  described for  Rag Bhog worship of Lachhmi narainji on  Ram Naumi  and Janam  Astami  in  the  Majhauli temple. The  trial court  was right in saying that it was an accretion but  in error  in saying  that merely  because  an additional grant  has been  made by  a  pious  lady  to  the deities in  the temple,  the temple  did not become a public temple. The  fact that the said pious lady could make such a dedication, which  was accepted,  showed the  public temple. The fact  that  the  said  pious  lady  could  make  such  a dedication, which  was accepted, showed the public character of the  temple. That  the mahanths dealt with the properties in their  own names  does not detract from the fact that the temples were public temples as they could well be said to be dealing therewith  on behalf  of the  deities  to  whom  the properties were dedicated.      There are  two other aspects which we must note. First, the trial  court was  in error in stating that the plaintiff had given sworn evidence that, during the relevant period in which he  had filed the returns, Raghubardas was ill and the High Court  was in  error in not noticing this. The evidence of the  plaintiff in this behalf has already been quoted and it does not say that Raghubardas was ill. This is making out a case  of incapacity that was not pleaded. Again, the trial court observed  that the  grant did not appear to be a grant

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to the  deity and "in fact it could not have been granted to a Hindu  deity by  a Mohameden".  The basis  upon which this statement was made does not appear, and it seems to us quite erroneous.      In the  result, the appeal is allowed. The judgment and order of  the courts  below are set aside and the suit filed by the  appellant is  dismissed. The respondent shall pay to the appellant the costs of the appeal.