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PETITIONER: THE STATE OF BIHAR & OTHERS.

       Vs.

RESPONDENT: SM. CHARUSILA DASI

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 1002            1959 SCR  Supl. (2) 601  CITATOR INFO :  F          1959 SC1073  (9,12,13,15)  F          1963 SC 853  (10,12)  F          1976 SC 871  (31)  RF         1977 SC1523  (21)

ACT: Hindu  Religious Trusts-Property relating to  Trust  situate outside   State  of  Bihar-Applicability  of   Bihar   Hindu Religious   Trusts   Act   to   such    Property-Legislative competency-Constitutional     validity    of     Enactment-- Applicability to Private trusts-Bihar Hindu Religious Trusts Act, 1950 (Bihar 1 Of 1951), SS.  1(2),2(1), 3  Constitution of India, Arts. 245, 246, Sch.  VI, List 111, Item 28. Deed-Construction-Hindu Religious Trust-Private or Public.

HEADNOTE: A deed of trust was executed by the respondent on March  II, 1938,  when she was residing at D in the State of Bihar,  in respect  of  the  properties  described  in  the   Schedules referred to in the deed, some of which were situate  outside the State of Bihar.  In the trust deed she described herself as the settlor, and it was recited therein that the  settlor had installed a deity named Iswar Srigopal in her house  and had since been regularly worshiping and performing the  puja of  the  said deity; and that she had been  erecting  a  Nat Mandir  to  be  named in memory of her  deceased  son.   The recitals  also showed that the settlor had provided for  the construction of two temples (jugal Mandir), in one of  which was  to be installed the deity Srigopal and  other  deities, and in the other the marble image of, her preceptor and that the  temple, committee shall consist of the, Jugal.   Mandir shebait for the time being and six pious Hindus who must  be residents. of D and of whom at least four shall be  Begalis. One 76 602 of the clauses of the trust deed recited :-"The ’ pronamis ’ and  perquisites to be offered to the deities and  image  in the  jugal Mandir shall form part of the  Srimati  Charusila

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Trust Estate and neither the shebait nor any one else  shall have interest or claim in or over same.,, The provisions  of the trust deed in regard to the ceremonials relating to free distribution  of  food  and water and the  festivals  to  be performed for the deity and the image, which were well known festivals  in which members of the Hindu  Community  usually take part, contemplated that they were to be done on a large scale so as to enable a large number of persons to take part in  them.  There was also a provision in the trust deed  for the  establishment  of a hospital for Hindu  females  and  a charitable dispensary for patients of any religion or creed. After  the  coming into force of the Bihar  Hindu  Religious Trusts  Act,  1950, the President of Bihar  State  Board  of Religious Trusts started proceedings under ss. 59 and 70  Of the  Act against the respondent in respect of the  trust  on the  footing  that it was a public trust to  which  the  Act applied.   The respondent made an application to  the  Patna High  Court under Art. 226 of the Constitution in which  she prayed  that  a  writ  or  order  be  issued  quashing   the proceedings  taken against her by the Bihar State  Board  of Religious  Trusts  on the grounds (I) that  the  trust  deed dated  March II, 1938, was a private endowment  created  for the  worship of a family idol in which the public  were  not interested,  (2)  that  the Act did  not  apply  to  private trusts, (3) that the Act was ultra vires the Constitution by reason  of  the  circumstance that  its  several  provisions interfered  with  her rights as a citizen  guaranteed  under Part III of the Constitution, and (4) that, in any case, the Act was not applicable to the trust deed in question as some of the properties were situate outside the State of Bihar. Held  (1)  that on its true construction the deed  of  trust dated  March  11, 1938, created a religious  and  charitable trust of a public nature. Deoki Nandan v. Murlidar, [1956] S.C.R. 756, considered. In re Charusila Dasi, I.L.R. [1946] I Cal. 473, explained. One  of the relevant considerations as to whether the  trust was  a public trust, will be if by the trust deed any  right of  worship has been given to the public or any, section  of the public answering a particular description. (2) that the Act does not apply to private endowments. Mahant Ram Saroop Dasji v. S. P. Sahi, [1959] SUPP. 2 S.C.R. 583, followed. (3)  that  the  provisions of the Act do not  take  away  or abridge  any  of  the rights conferred by Part  III  of  the Constitution. Mahant  Moti Das v. S. P. Sahi, [1959] Supp. 2  S.C.R.  563, followed. 603 (4)  that  S. 3 of the Act makes the Act applicable  to  all public  religious  and charitable institutions  within,  the meaning  of  the definition clause in S. 2(1)  Of  the  Act, which are situate in the State of Bihar and any part of  the property of which is in that State. (5)  that where the trust is situate in Bihar the State  has legislative  power  over it and also over  its  trustees  or their servants and agents who must be in Bihar to administer the  trust, and as the object of the Act is to  provide  for the  better administration of Hindu Religious Trusts in  the State  of  Bihar  and  for  the  protection  of   properties appertaining  thereto, in respect of the property  belonging to  the  trust  outside the State the aim is  sought  to  be achieved   by  exercising  control  over  the  trustees   in Personam, and there is really no question of the Act  having

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extra-territorial operation. (6)  that,  in the present case, the circumstance  that  the temples   where  the deities were installed are  situate  in Bihar and that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu  Public in Bihar, gives enough territorial connection to enable  the legislature  of  Bihar to make a law with respect  to  such. trust. Tata Iron & Steel Co. Ltd. v. State of Bihar, [1958]  S.C.R. 1355  and  The  State of Bombay  v.  R.M.D.  Chamaybaugwala, (1957] S.C.R. 874, relied on. Saydar Gurdyal Singh v. The Rajah of Faridkote, (1894)  L.R. 21 I.A. I71, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 230 of 1955. Appeal from the judgment and order dated October 5, 1953, of the Patna High Court in M. J. C. No. 128 of 1953. Mahabir Prasad, Advocate-General for the State of Bihar  and R. C. Prasad, for the appellants. N.   C. Chatterjee and P. K. Chatterjee, for the respondent. 1959.  April 15.  The Judgment of the Court was delivered by S.   K. DAS, J.-This appeal relates to a trust known as  the Srimati  Charusila  Trust and  the  properties  appertaining thereto.   By its judgment and order dated October 5,  1953, the High Court of Patna has held that the trust in  question is a private trust created for the worship of a family  idol in  which the public are not interested and, therefore,  the provisions 604 of  the Bihar Hindu Religious Trusts Act, 1950 (Bihar  I  of 1951),  hereinafter referred to as the Act, do not apply  to it.  Accordingly, it allowed an application made to it under Art.  226  of the Constitution and quashed  the  proceedings taken  against the respondent herein under ss. 59 and 70  of the  Act.   The State of Bihar, the President of  the  Bihar State  Board of Religious Trusts and the  Superintendent  of the  said Board who were respondents to the  petition  under Art. 226 are the appellants before us. The  trust in question was created by a trust deed  executed on  March 11, 1938.  Srimati Charusila Dasi is the widow  of one  Akshaya  Kumar  Ghose of No.  3,  Jorabagan  Street  in Calcutta.  She resided at the relevant time in a house known as  Charu  Niwas  at  Deoghar in  the  district  of  Santhal Parganas  in  the  State of Bihar.  In the  trust  deed  she described herself as the settlor who was entitled to and  in possession of certain properties described in schedules B, C and D. Schedule B property consisted of three bights and odd of  land  situate  in  mohalla  Karanibad  of  Deoghar  town together  with buildings and structures thereon  schedule  C property  was  Charu  Niwas, also situate  in  Karanibad  of Deoghar;  and  schedule D properties  consisted  of  several houses  and  some land in Calcutta the  aggregate  value  of which  was  in  the  neighborhood of  Rs.  8,50,000.   In  a subsequent  letter to the Superintendent, Bihar State  Board of  Religious  Trusts, it was stated on  behalf  of  Srimati Charusila  Dasi  that the total annual income from  all  the properties  was about Rs. 87,839.  In the trust deed it  was recited  that the settlor had installed a deity named  Iswar Srigopal   in  her  house  and  had  since  been   regularly worshipping  and performing the " puja " of the said  deity; that  she had been erecting and constructing a  twin  temple (jugal mandir) and a Nat Mandir (entrance hall) to be  named

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in memory of her deceased son Dwijendra Nath on the plot  of land  described  in schedule B and was further  desirous  of installing in one of the two temples the deity Srigopal  and such  other deity or deities as she might wish to  establish during her lifetime and also of installing in 605 the  other  temple  a  marble  image  of  Sri  Sri  Balanand Brahmachari,  who  was her religious preceptor and  who  was regarded  by  his  disciples as a  divine  person.   It  was further recited in the trust deed that the settlor was  also desirous   of  establishing  and  founding  a  hospital   at Karanibad  for  Hindu  females to be  called  Akshaya  Kumar Female  Hospital in memory of her deceased husband.  By  the trust  deed  the  settler transferred to  the  trustees  the properties  described  in  schedules  B, C  and  D  and  the trustees  were  five in number including  Srimati  Charusila Dasi  and her deceased husband’s adopted son  Debi  Prasanna Ghosh;  the other three trustees were Amarendra Kumar  Bose, Tara Shanker Chatterjee and Surendra Nath Burman, but  they. were  not  members of the family of the  settlers  Amarendra Kumar  Bose resigned from the office of trusteeship and  was later  replaced  by Dr. Shailendra Nath  Dutt.   The  trusts imposed  under  the  trust deed  were-(1)  to  complete  the construction of the two temples and the Nat Mandir at a cost not exceeding three lakhs to be met out of the trust  estate and donations, if any ; (2) after the completion of the  two temples, to instal or cause to be installed the deity  Iswar Srigopal  in one of the temples and the marble image of  Sri Balanand Brahmachari in the other and to hold a consecration ceremony and a festival in connection therewith ; (3)  after the  installation ceremonies and festivals mentioned  above, to  provide for the payment and expenditure of the  daily  " sheba puja " and periodical festivals each year of the deity Srigopal and such other deities as might be installed at  an amount  not  exceeding the sum of Rs. 13,600 per  annum  and also to provide for the daily " sheba " of the marble  image of  Sri Balanand Brahmachari and to celebrate each  year  in his  memory  festivals on the occasion of (a) the  "  Janma- tithi  " (the anniversary of the installation of the  marble image); (b) " Gurupurnima " (full moon in the Bengali  month of Ashar) ; and (c) " Tirodhan " (anniversary of the day  on which  Sri Balanand Brahmachari gave up his body) at a  cost not exceeding Rs. 4,500 per annum ; and (4) to establish  or cause to be established and run and 606 manage  in Deoghar a hospital for Hindu females only  to  be called Akshaya Kumar Female Hospital and an attached outdoor charitable  dispensary for all out-patients of any  religion or  creed  whatsoever  and pay out of  the  income  for  the hospital  and  the outdoor dispensary an annual sum  of  Rs. 12,000  or  such  other  sum  as  might  be  available   and sufficient after meeting the charges and expenditure of  the two temples and after paying the allowance of the "  shebait " and trustees and members of the temple committee.  It  was further  stated  that the work of the establishment  of  the ’hospital and the out-door charitable dispensary should  not be  taken in hand until the construction of the temples  and the installation of the deities mentioned above. It  may be here stated that it is the case of  both  parties before  us  that the temples and the Nat  Mandir  have  been constructed  and  the deity and the marble  image  installed therein;  but  neither  the  hospital  nor  the   charitable dispensary has yet been constructed.  The powers,  functions and  duties of the trustees were also mentioned in the  deed and,  in schedule A, detailed rules were laid down  for  the

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holding  of annual general meetings, special  meetings,  and ordinary  meetings  of the trustees.  To  these  details  we shall advert later. On  October 27, 1952, the Superintendent, Bihar State  Board of  Religious  Trusts,  Patna,  sent  a  notice  to  Srimati Charusila Dasi under s. 59 of the Act asking her to  furnish a  return  in  respect of the trust  in  question.   Srimati Charusila Dasi said in reply that the trust in question  was a private endowment created for the worship of a family idol in  which the public were not interested and  therefore  the Act  did  not  apply  to  it.   On  January  5,  1953,   the Superintendent   wrote  again  to  Srimati  Charusila   Dasi informing her that the Board did not consider that the trust was a private trust and so the Act applied to it.  There was further  correspondence  between the  solicitor  of  Srimati Charusila Dasi and the President of the Bihar State Board of Religious  Trusts.   The correspondence  did  not,  however, carry  the matter any further and on February 5,  1953,  the President of the State Board of 607 Religious  Trusts  said  in  a  notice  that  he  had   been authorised to assess a fee under s. 70 of the Act in respect of   the  trust.   Ultimately,  on  April  6,1953,   Srimati Gharusila  Dasi made an application to the High Court  under Art. 226 of the Constitution in which she prayed that a writ or  order be issued quashing the proceedings  taken  against her by the Bihar State Board of Religious    Trusts  on  the grounds (a) that the trust in question was   a private trust to which the Act did not apply and (b)  that  the  Act   was ultra  vires the Constitution by reason of the  circumstance that its several provisions interfered with her rights as  a citizen guaranteed under Art. 19 of the Constitution. This application was contested by the State of Bihar and the Bihar  State Board of Religious Trusts, though no  affidavit was filed by either of them.  On a construction of the trust deed the High Court came to the conclusion that the trust in question  was wholly of a private character created for  the worship  of  a  family idol in which  the  public  were  not interested and in that view of the matter held that the  Act and  its provisions did not apply to it.   Accordingly,  the High Court allowed the application and issued a writ in  the nature  of  a writ of certiorari  quashing  the  proceedings under ss. 59 and 70 of the Act and a writ in the nature of a writ  of  prohibition restraining the Bihar State  Board  of Religious  Trusts  from taking further  proceedings  against Srimati Charusila Dasi in respect of the trust in  question. The  appellants then applied for and obtained a  certificate from the High Court that the case fulfilled the requirements of  Art.  133 of the Constitution.  The present  appeal  has been filed in pursuance of that certificate. In  connected Civil Appeals numbered 225, 226, 228, 229  and 248 of 1955 (1) judgment has been pronounced to day, and  we have given therein a conspectus of the provisions of the Act and   have   further  dealt  with  the   question   of   the constitutional  validity of those provisions in the  context of  fundamental  rights  guaranteed  by  Part  III  of   the Constitution.   We have held therein that the provisions  of the Act do not take away or (1)  Mahant Moti Das v. S. P. Saki, see P. 563, ante, 608 abridge any of the rights conferred by that Part.  In  Civil Appeal  No. 343 of 1955 (1) in which also judgment has  been pronounced  today, we have considered the definition  clause in  s. 2(1) of the Act and come to the conclusion  that  the Act  does not apply to private endowments, and have  further

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explained  therein  the essential distinction in  Hindu  law between private and public religious trusts.  We do not wish to  repeat what we have said in those two decisions; but  in the  light  of  the  observations  made  therein,  the   two questions which fall for decision in this appeal are-(I)  if on  a  true construction of the trust deed dated  March  11, 1938, the Charusila Trust is a private endowment created for the  worship  of a family idol in which the public  are  not interested, as found by the High Court and (2) if the answer to the first question is in the negative, does the Act apply by  reason  of s. 3 thereof to trust  properties  which  are situate outside the State of Bihar. We now proceed to consider and decide these two questions in the  order in which we have stated them.  On behalf  of  the appellants it has been contended that on a true construction of the deed of trust, the Charusila Trust must be held to be a  public religious trust.  The learned Judges of  the  High Court  emphasised that part of the preamble wherein  it  was stated  that the settler had installed a deity called  Iswar Srigopal in her house and had been regularly worshiping  the said  deity, which circumstance (according to  them)  showed that  in its, origin the endowment was a  private  endowment created for the worship of a family idol in which the public were not interested, and the learned Judges were further  of the  view that the installation of the said deity in one  of the  two  temples and of the marble image  of  Sri  Balanand Brahmachari in the other temple did not, alter the nature of the endowment which continued to be a expressed the  opinion that  deed  for  the  establishment  of  a  females  and   a charitable  dispensary for patients of any main  objects  of the  endowment.  These findings of the   private  endowment; they  also  the provision in the trust  hospital  for  Hindu religion  or  creed was merely incidental to the  other  (1) Mahant Ram saroop Dasji v.  S...e. sahi, see 609 High  Court have been seriously and  strenuously  challenged before us. We  say this with respect, but we consider that the  learned Judges  of  the High Court have failed to  give  to  several material  clauses  of the trust deed their  due  weight  and these  have an important bearing on the question  in  issue. It is true that the settler said that she had installed  the deity Iswar Srigopal in her house and she had been regularly worshipping the deity since such installation; if the  trust had  been  created only for the purpose of  continuing  such family  worship, the conclusion would no doubt be  that  the endowment  was  wholly of a private character in  which  the public  had  no interest.  That was not, however,  what  was done.  The settlor created the trust for the construction of two temples, in ’one of which was to be installed the  deity Iswar  Srigopal  and in the other the marble  image  of  her preceptor;  the trustees consisted of persons three of  whom were strangers to the family, though the settlor reserved to herself  the power to remove in her absolute discretion  any one  or  more of the trustees for misconduct  by  reason  of change of religion, etc.  One of the relevant considerations is if by the trust deed any right of worship has been  given to  the  public  or any section of the  public  answering  a particular  description.   One of the clauses of  the  trust deed reads : "  The  ’  pronamis’ and perquisites to be  offered  to  the deities and image in the Jugal Mandir shall form part of the Srimati  Charusila Trust Estate and neither the shebait  nor any one else shall have interest or claim in or over same." This  clause to which the learned Judges of the  High  Court

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have  made no reference shows that the right of worship  was not  confined to the family of the settlor or  founder,  but was  given  to other members of the Hindu public  who  could offer " pronamis " and perquisites to the deities, and those I  pronamis’ and perquisites were to form part of the  trust estate.   Schedule  E  of  the deed  gives  details  of  the festivals and ceremonials to be performed for the deity  and the  image  of Sri Balanand Brahmachari.  One of  the  cere- monials is a Jal Chhatra " (free distribution of 77 610 water); another is annakoot " (distribution of food) at  the time  of Diwali, the approximate expenditure being fixed  at Rs. 500.  A third ceremony is a "bhandara ", culminating  in free  distribution  of food, of the Mataji of  Sri  Balanand Brahmachari.   These are ceremonies which even if  ancillary to "deva-sheba", appear prima facie to confer benefit on the general body of worshippers.  Though not conclusive by them- selves, they have to be considered in the light of the other main  provisions  of the trust deed.   The  other  festivals which have to be performed as a rule for the deity are  such well-known festivals as Rath Yatra, Jhulan, Janmastami, Rash and  Dol  (Holi)  in which members of  the  Hindu  community usually  take  part  in  large numbers,  and  the  scale  of expenses  laid  down  shows that the  festivals  are  to  be performed on a large scale so as to enable a large number of persons  to  take  part in them.  Even with  regard  to  the special  festivals  for  Sri  Balanand  Brahmachari  on  the occasion  of the Janmatithi, Gurupurnima and  Tirodhan,  the provisions of the trust deed contemplate that they are to be performed  on a large scale so that other disciples  of  Sri Balananda Brahmachari may also join in them. Even  the constitution of the committee of trustees is  such as  would  show  that the endowment is not  a  mere  private endowment.  The trust deed says- " In filling up a vacancy the trustees shall see that in the Board  of Trustees there shall be, if available, one who  is the  seniormost  lineal  male descendant  of  Akshaya  Kumar Ghose, the deceased husband of the settlor, who is  eligible and willing and capable of acting as a trustee, another  who is  a  trustee of the Sree Sree Balanand  Trust  created  at Deoghar  by the said Sree Balanandji Brahmachari Maharaj  of sacred  memory,  and a third who shall be disciple  of  Sree Sree  Balanand  order,  that  is to  say,  any  one  of  the disciples of the said Sree Sree Balanand Brahmachari Maharaj of sacred memory and his disciples and the disciples of  the latter and so on if such a disciple is willing, eligible and capable  of  acting as a trustee of the  said  Trust  hereby created,  provided always that the full number  of  trustees shall at all times be five in number and no one 611 shall  be eligible to be a trustee unless he be adult  male, pious,  Bengali Hindu and provided also that the shebait  of Sree  Gopal and the shebait of Sree Baleshwari Devi  of  the Ashram  Deoghar shall under no circumstances be eligible  to be  a trustee tinder these presents save and except  in  the case of the settlor who shall so long as she lives to both a trustee and a shebait." We  may here draw attention to the formation of  the  temple committee as envisaged by the trust deed.  It says that  the temple committee ’shall consist of the Jugal Mandir  shebait for  the time being who shall be the ex officio  member  and president of the committee and the other members who will be appointed or nominated by the trustees shall consist of  six pious Hindus who must be residents of Deoghar and of whom at

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least four shall be Bengalis.  If the trust were created for the  worship  of  a  family  idol,  one  would  not   expect provisions  of this nature which vest the management of  the temple  and  the  " sheba puja " in members  of  the  public outside the family of the settlor. Besides the aforesaid provisions, there is in express  terms the imposition of a trust in favour of the public so far  as the  hospital and the charitable dispensary  are  concerned. It is necessary to quote here el. 8 of the trust deed.  That clause reads: " To establish or cause to be established and run and manage in  Deoghar a hospital for Hindu females only to  be  called in-  memory of the husband of the settlor,  since  deceased, the  " Akshaya Kumar Female Hospital " and an attached  out- door  Charitable  Dispensary  for all  out-patients  of  any religion  or creed whatsoever and out of the said income  to pay  and/or spend for the objects of the said  Hospital  and out-door Dispensary annually a sum of rupees twelve thousand or  such  sum  as will be  available  and  sufficient  after meeting  the  aforesaid charges and  expenditure  and  after paying the allowance of the shebait and trustees and members of  the  temple committee and the establishment  charges  of offices   at  Calcutta  and  Deoghar  and  of   the   temple establishment  hereinafter mentioned provided  however  that the work of the establishment 612 of the Hospital and out-door Charitable Dispensary shall not be  taken in hand by the trustees until the construction  of the  temple  and installation of  the  deities  hereinbefore mentioned." The  trust deed further states that the female hospital  and charitable  dispensary  shall,  so long as  the  settlor  is alive,  be  located in a house to be rented in  Deoghar  and after  her  death shall be shifted to and located  in  Charu Niwas.   Charu Niwas was, however, sold by an order  of  the Calcutta  High  Court and the sale proceeds, it  is  stated, were appropriated towards the satisfaction of the debts  and liabilities  of the trust estate.  One clause of  the  trust deed relating to the hospital and the charitable  dispensary says: " The object of the said Hospital shall be to provide  Hindu females  with gratuitous medical and surgical and  maternity advice and aid and also to admit them as indoor patients  in conformity with such rules and regulation as may be made  by or with the sanction of the Board of Trustees.  The  outdoor Charitable  Hospital  shall  be run as  the  trustees  shall provide by rules. In furtherance of these objects, its funds may  be  expended  in  subscriptions  or  contributions   to convalescent  and  other similar institutions and  to  other special hospitals and in sending patients to and maintaining them in such institution and hospitals provided that the sum so  expended  in any one year shall not  exceed  rupees  one thousand  or such sum as may be fixed by the  trustees  from time to time." The learned Judges of the High Court have expressed the view that  these provisions for the establishment of  a  hospital and charitable dispensary are merely incidental or ancillary to the other main objects of the trust.  With great respect, we  are  unable  to appreciate how the  establishment  of  a hospital  and charitable dispensary of the nature  indicated in the trust deed can be said to be ancillary or  incidental to other objects of the trust, viz., the construction of two temples  and  the installation of the deities  therein.   In clear  and  unequivocal  terms  the  trust  deed  imposes  a distinct  and independent trust in favour of a  considerable

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section of the public for whose benefit the hospital 613 and the charitable dispensary are to be established.  It  is true  that  the  establishment  of  the  hospital  and   the charitable  dispensary  is  to be taken in  hand  after  the construction  of  the temples and the  installation  of  the deities; that circumstance, however, does not make the trust in relation to the hospital and the dispensary any the  less important  or  even merely incidental or  ancillary  to  the other  trusts.   It merely determines the priority  of  time when  the  different trusts created by the deed  are  to  be given effect to.  The High Court has placed reliance on  the decision in Prasaddas Pal v. Jagannath Pal (1).  That was  a case  in  which  by the deed  of  endowment  were  dedicated certain houses and premises to the " sheba of a family  idol established  in one of the said houses and for  feeding  the poor  and carrying out other charitable objects;  the  deity was installed inside one of the residential quarters, the  " shebaitship  " was confined to the members of the family  of the founder, and the feeding of the poor and of students, in case  the  income of the debutter  property  increased,  was found  to  be part and parcel of the "debasheba  ",  and  in those circumstances it was held that the feeding of the poor etc.  was not an independent charity but incidental  to  the main  purpose  of the endowment, viz., the " puja "  of  the deity.   We are unable to hold that the same  considerations apply to the trust before us. In  Deoki Nandan v. Murlidhar (2) this Court considered  the principles  of  law  applicable to a  determination  of  the question  whether  an endowment is public  or  private,  and observed: "  The  cardinal point to be decided is whether it  was  the intention  of the founder that specified individuals are  to have  the  right of worship at the shrine,  or  the  general public or any specified portion thereof.  In accordance with this  theory,  it  has  been  held  that  when  property  is dedicated  for the worship of a familyidol, 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 (1) (1932) I.L.R. 6o Cal.538. (2) [1956] S.C.R. 756, 762. 614 where  the  beneficiaries 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 worshippers." One  of  the facts which was held in that case  to  indicate that  the  endowment  was  public  was  that  the  idol  was installed  not within the precincts of residential  quarters but in a separate building constructed for that very purpose on a vacant site.  We do not suggest that such a fact is  by itself  decisive of the question.  The fact that the  temple is  outside  the dwelling house is only  a  circumstance  in favour of it being regarded a public temple, particularly in Madras (except Malabar); there are, however, private temples in Bengal which are built outside the residential houses  of donors (see the Hindu Law of Religious and Charitable Trust, Tagore  Law Lectures by the late Dr. B. K.  Mukherjea,  1952 edition,  p. 188).  In the case before us, the  two  temples were constructed outside the residential quarters, but  that is only one of the relevant circumstances.  We must construe the  deed of trust with reference to all its clauses and  so construed,  we  have  no  doubt  that  the  trusts   imposed

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constitute a public endowment.  There is one other point  to be  noticed  in this connexion.  The deed of  trust  in  the presept  case  is in the English form and  the  settlor  has transferred the properties to trustees who are to hold  them for certain specific purposes of religion and charity;  that in  our  opinion  is  not decisive  but  is  nevertheless  a significant  departure  from the mode  a  private  religious endowment is commonly made. It  is necessary now to refer to a decision of the  Calcutta High  Court, In re Charusila Dasi (1) relating to this  very trust.  The question for consideration in that case was  the assessment of income-tax on the income of this trust  estate for  the accounting year 193839. The trustees were  assessed upon the whole income of the trust.  ’The trustees  appealed against  the assessment and contended that the entire  trust was  for public, religious and charitable purposes  and  the whole income (1)  I.L.R. [1946] 1 Cal. 473. 615 fell  within cl. (1) of sub-s. 3 of s. 4 of  the  Income-tax Act.   The contention of the Commissioner of Income-tax  was that  the trust was no more than a private  religious  trust and  the income did not enure for the public  benefit,  save with  respect  to that part of the income which  was  to  be devoted  to  the hospital and dispensary and  to  which  the latter part of cl. (1) applied.  A reference was accordingly made  to the High Court and the question framed was  whether on  a proper construction of the deed of trust, so  much  of the  income of the trust as was not applied for the  purpose of  constructing  and maintaining the  female  hospital  was exempt  from  tax  under the provisions of s.  4(3)  of  the Indian  Income-tax Act.  It was pointed out before the  High Court  that  no part of the income of the trust  during  the accounting  year was devoted to the hospital and  dispensary and  it was conceded that part of the income which would  be devoted   to  those  institutions  would  fall  within   the exempting  clause.  It so happens that the  learned  counsel who  argued  the  case  on behalf of  the  trustees  in  the Calcutta High Court in the income-tax reference is the  same counsel  who  has  argued the case before us  on  behalf  of Srimati  Charusila  Dasi.  The contention now  is  that  the trust in its entirety is a private religious trust.   Eleven circumstances  were  referred to by learned counsel  in  the income-tax  reference in support of his contention that  the entire  trust  as ascertained from the trust deed was  of  a public  nature.  Gentle, J., with whom Ormond,  J.,  agreed, held that on a proper construction of the deed of trust,  so much  of the income of the trust as was not applied for  the purpose  of constructing an maintaining the female  hospital was  not exempt from tax under the provisions of s. 4(3)  of the Indian Income-tax Act.  This decision, it must be stated at once, does not wholly support the present respondent.  So far  as  the hospital and the dispensary are  concerned  the trust  was  held to be a public trust.  We are of  the  view that having regard to the main clauses of the trust deed  to which we have already made a reference, the trusts in favour of  the deity Iswar Srigopal and the image of  Sri  Balanand Brahmachari are also of a public nature. 816 One  of the points which was emphasised before the  Calcutta High  Court was the provision with regard to pronamis "  and perquisites  to be offered to the deity and the image.   The High Court said: "  This provision does not indicate the creation of a  trust in favour of the public, but, on the contrary, it denies the

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right  of  any  one, which must include any  member  of  the public.  having a right to the pronamis.  In its terms,  the deed negatives that benefit is conferred upon the public ". The aforesaid observations appear to us, with respect, to be based on a misconception.  When a member of the public makes an offering to a deity, he does not retain any right to what he has offered.  What he offers belongs to the deity.   When we  talk  of  the  right  of members  of  the  public  or  a considerable  section  thereof,  we refer to  the  right  of worship  or  the right to make offerings in worship  of  the deity and not of the right to the offerings after they  have been made.  With regard to  other clauses of the trust  deed also  we  take  a view different from that  of  the  learned Judges  ’who  decided  the income-tax  reference.   We  have already  explained our view in the preceding paragraphs  and it is unnecessary to reiterate it.  The conclusions at which we  have arrived on a construction of the deed of  trust  is that it creates a religious and charitable trust of a public nature. Now,  we  proceed to a consideration of  the  second  point. Section 3 of the Act says- "  This  Act shall apply to all  religious  trusts,  whether created  before or after the commencement of this  Act,  any part  of the property of which is situated in the  State  of Bihar ". The argument before us on behalf of the respondent is  this. Under Art. 245 of the Constitution, Parliament may make laws for the whole or any part of the territory of India and  the legislature  of a State may make laws for the whole  or  any part  of the State.  Clause (2) of the said Article  further states that no law made by Parliament shall be deemed to  be invalid  on the ground that it would have  extra-territorial operation.    Article   246  gives   the   distribution   of legislative power; 617 Parliament has exclusive power to make laws with respect  to any  of the matters enumerated in what has been  called  the Union  List; Parliament as also the legislature of  a  State have  power to make laws with respect to any of the  matters enumerated  in  the Concurrent List; the  legislature  of  a State has exclusive power to make laws for such State or any part  thereof with respect to any of the matters  enumerated in  the  State List.  Item 28 of the  Concurrent  List  is,, charities   and  charitable  institutions,  charitable   and religious  endowments and religious institutions ".  Learned counsel  for the respondent contends that by reason  of  the provisions  in  Arts. 245 and 246 of the  Constitution  read with  item 28 of the Concurrent List, the Bihar  legislature which  passed the Act had no power to make a law  which  has operation  outside the State of Bihar; he  further  contends that under s. 3 the Act is made applicable to all  religious trusts, whether created before or after the commencement  of the  Act, any part of the property of which is  situated  in the  State  of  Bihar; therefore, the Act will  apply  to  a religious  institution which is outside Bihar even though  a small  part  of its property may lie in that State.   It  is contended that such a provision is ultra vires the power  of the  Bihar Legislature, and Parliament alone can make a  law which will apply to religious institutions having properties in  different States.  Alternatively, it is  contended  that even if the Act applies to a religious institution in  Bihar a  small  part  of the property of which is  in  Bihar,  the provisions  of  the  Act can have  no  application  to  such property of the institution as is outside Bihar, such as the Calcutta properties in the present case.

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It  is  necessary  first  to determine  the  extent  of  the application of the Act with reference to ss. 1 (2) and 3  of the Act read with the preamble.  The preamble states:- "  Whereas  it  is  expedient  to  provide  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 78 618 It  is clear from the preamble that the Act is  intended  to provide  for  the better administration of  Hindu  religious trusts in the State of Bihar.  Section 1 (2) states that the Act extends to the whole of the State of Bihar, and s. 3  we have  quoted earlier.  If these two provisions are  read  in the context of the preamble, they can only mean that the Act applies  in  cases  in  which (a)  the  religious  trust  or institution is in Bihar and (b) any part of the property  of which  institution  is situated in the State of  Bihar.   In other words, the aforesaid two conditions must be  fulfilled for the application of the Act.  It is now well settled that there is a general presumption that the legislature does not intend  to  exceed  its  jurisdiction, and  it  is  a  sound principle  of  construction  that the  Act  of  a  sovereign legislature   should,   if   possible,   receive   such   an interpretation  as  will  make  it  operative  and  not  in- operative; see the cases referred to In re the Hindu Women’s Right to Property Act, 1937 and The Hindu Women’s Rights  to Property (Amendment) Act, 1936 and In re a Special Reference under  s. 213 of The Government of India Act, 1935 (1),  and the  decision of this Court in R. M. D.  Chamarbaugwalla  v. The Union of India (2).  We accordingly hold that s. 3 makes the  Act applicable to all public religious trusts, that  is to  say,  all public religious and  charitable  institutions within  the meaning of the definition clause in s. 2 (1)  of the  Act,  which are situate in the State of Bihar  and  any part  of the property of which is in that State.   In  other words, both conditions must be fulfilled before the Act  can apply.   If this be the true meaning of s. 3 of the Act,  we do  not  think that any of the provisions of  the  Act  have extra-territorial  application or are beyond the  competence and power of the Bihar Legislature.  Undoubtedly, the  Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, "  charities, charitable institutions, charitable and religious endowments and religious institutions " situate in the State of  Bihar. The question, therefore, narrows down to, this:     in so legislating,, has it power to affect trust (1) [1941] F.C.R. 12, 27-30. (2) [1957] S.C.R. 93o. 619 property which may be outside Bihar but which appertains  to the  trust situate in Bihar ? In our opinion, the answer  to the  question  must  be in the affirmative.   It  is  to  be remembered  that with regard, to an interest under  a  trust the  beneficiaries’  only right is to have  the  trust  duly administered  according  to  its terms and  this  right  can normally  be enforced only at the place where the  trust  or religious  institution is situate or at the trustees’  place of residence: see Dicey’s Conflict of Laws, 7th edition,  p. 506.   The  Act purports to do nothing more.  Its  aim.,  as recited  in  the  preamble, is to  provide  for  the  better administration  of  Hindu religious trusts in the  State  of Bihar  and  for the protection  of  properties  appertaining thereto.   This aim is sought to be achieved  by  exercising control  over  the trustees in personam.   The  trust  being

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situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be  in Bihar to administer, the trust.  Therefore, there  is really  no  question  of  the  Act  having  extraterrestrial operation.   In any case, the circumstance that the  temples where  the deities are installed are situate in Bihar,  that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar  gives enough  territorial connection to enable the legislature  of Bihar  to  make a law with respect to such  a  trust.   This Court has applied the doctrine of territorial connection  or nexus  to income-tax legislation, sales tax legislation  and also  to  legislation imposing a tax on gambling.   In  Tata Iron  &  Steel Co. Ltd. v. State of Bihar  (1)  the  earlier cases were reviewed and it was pointed out that  sufficiency of  the territorial connection involved a  consideration  of two  elements, namely, (a) the connection must be  real  and not illusory and (b) the liability sought to be imposed must be pertinent to that connection.  It cannot be disputed that if  the religious endowment is itself situate& in Bihar  and the  trustees  function there, the  connection  between  the religious institution and the property appertaining  thereto is real and not illusory ; indeed, the religious institution (I)  [1958] S.C.R. 1355. 620 and  the property appertaining thereto form  one  integrated whole  and  one cannot be dissociated from the  other.   If, therefore,  any liability is imposed on the  trustees,  such liability must affect the trust property It is true that  in the Tata Iron & Steel Co.’s case this Court observed : "  It is not necessary for us on this occasion to  lay  down any broad proposition as to whether the theory of nexus,  as a  principle  of legislation is applicable to all  kinds  of legislation.   It will be enough for disposing of the  point now under consideration, to say that this Court has found no apparent  reason  to confine its application  to  income-tax legislation  but has extended it to sales tax and to tax  on gambling." We  do  not  see any reason why the  principles  which  were followed  in The State of Bombay v. R. M. D.  Chamarbaugwala (2) should not be followed in the present case.  In R. M. D. Chamarbaugwala’s  case (2) it was found that the  respondent who was the organiser of a prize competition was outside the State   of  Bombay;  the  paper  through  which  the   prize competition was conducted was printed and published  outside the  State of Bombay, but it had a wide circulation  in  the State  of Bombay and it was found that " all the  activities which the gambler is ordinarily expected to undertake"  took place  mostly,  if  not entirely, in the  State  of  Bombay. These  circumstances, it was held, constituted a  sufficient territorial  nexus  which entitled the State  of  Bombay  to impose  a  tax on the gambling that took  place  within  its boundaries  and  the  law could not be struck  down  on  the ground of extra-territoriality.  We are of the opinion  that the  same  principles  apply in the  present  case  and  the religious  endowment itself being in Bihar and the  trustees functioning there, the Act applies and the provisions of the Act   cannot  be  struck  down  on  the  ground  of   extra- territoriality. We  proceed now to consider some of the decisions  on  which learned  counsel  for the respondent  has  placed  reliance. These are (1) Sirdar Gurdyal Singh v. The Rajah of Faridkote (3) ; (2) Commissioner of Wakfs, Bengal (1) [1958] S.C.R. 1355.           (2)[1957] S.C.R. 874. (3) (1894) 21 I.A. 17r, 185.

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621 V.   Narasingh Chandra Daw and Co. (1); (3) Madangopal Bagla v. Lachmidas (2); and (4) Maharaj Kishore Khanna v. Raja Ram Singh  (3  ). Those decisions, in our opinion,  are  not  in point, as they related to different problems altogether.  In Sirdar Gurdyal Singh’s case (4) a Faridkote court passed  an ex  parte  money decree against a defendant who had  been  a treasurer  of  Faridkode, but who at the time  of  suit  had ceased  to be such and was resident in Jhind of which  State he was a domiciled subject; it was held that the decree  was a  nullity by international law.  The ratio of the  decision was thus expressed by Lord Selborne: "Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily  resident within  the territory while they are within it; but it  does not follow them after they have withdrawn from it, and  when they are living in another independent country........... In a  personal  action,  to  which  none  of  these  causes  of jurisdiction  apply,  a decree pronounced in absentem  by  a foreign  Court, to the jurisdiction of which  the  defendant has  not in any way submitted himself, is  by  international law an absolute nullity." The  decision in Commissioner of Wakfs, Bengal v.  Narasingh Chandra  Daw & Co. (1) proceeded on a construction of s.  70 of  the Bengal Wakf Act which also had a section similar  to s. 3 of the Act.  Section 70 of the Bengal Wakf Act required notice to the Commissioner of Wakfs before any wakf property could be sold and the question was whether a court in  Assam was under any obligation to send such a notice.  It was held that  the Bengal Act did not apply to Assam and s. 70  stood in  a  different  category from the other  sections  of  the Bengal Act.  The ratio of the decision was thus explained :- " So far as the status of the Commissioner is concerned,  it is  conferred by the Bengal Act to operate even outside  the province.  Therefore, the Commissioner may bring suits under s.  72  or  s. 73 of the Bengal Act in  courts  outside  the province.  But s. 70 lies (1)  I.L.R. [1939] 1 Cal. 462. (3)  A.I.R. 1954 Pat. 164. (2)  I.L.R. [1948] 2 Cal. 455. (4)  (1894) 21 I.A. 171, 185. 622 in a different category, because it imposes an obligation on the  court  to issue notice to the Commissioner  in  certain circumstances........  Section  70(1) refers to  a  suit  or proceeding  in  respect of any wakf property, etc.,  and  if this wakf property is situated outside the province, so that the  court having jurisdiction over it is also  outside  the province,  then  the Act cannot operate beyond  its  extent, that is to say outside the province of Bengal." The  decision  in  Madangopal Bagla  v.  Lachmidas  and  the decision  in Maharaj Kishore Khanna v. Raja Ram  Singh  (1)- both related to the interpretation of some of the provisions of  the United Provinces Encumbered Estates Act (U.  P.  Act 25  of 1934).  In the former case the limited  question  for decision  was  if  the decreeholder under a  decree  of  the Original side of the Calcutta High Court was precluded  from executing the decree by reason of certain proceedings  which had taken place before the Special Judge, Banaras, under the United  Provinces Encumbered Estates Act, 1934.  The  answer given was that the decreeholder was not so precluded and the decision proceeded on a construction of s. 18 of the  United Provinces Encumbered Estates Act, 1934, read with ss. 7,  13 and  14(7)  of  that Act.  It was held  that  the  exclusive jurisdiction  intended to be conferred on the Special  Judge

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in  supersession  of  those  of  civil  and  revenue  courts extended,, as indicated by s. 7, only over debts enforceable through  the  courts  within the province  and  the  word  " creditor  "  in s. 10 must be limited to those of  them  who would  have  to  enforce their rights  through  such  courts alone.   In the Patna case the question for decision was  if s.  14(7) of the U. P. Encumbered Estates Act, 1934,  should be  construed to mean that the decree of a Special Judge  is to be deemed to be the decree of a civil court of  competent jurisdiction even beyond the territorial jurisdiction of the State  Legislature.  It was held that the decree  passed  by the Special Judge of Banaras had not the effect of a  decree of  a  civil  court outside the territorial  limits  of  the United Provinces and the Sub- (1) I.L.R. (1948) 2 Cal. 455. (2) A.I.R. 1954 Pat. 164. 623 ordinate  Judge  of Purnea in Bihar had no  jurisdiction  to execute such a decree or to direct that the properties of  a judgment-debtor in Purnea should be attach, ed in  execution of  the  decree.  As we have said earlier,  these  decisions relate  to  an  altogether different  problem,  namely,  the proper  construction of certain sections of the Bengal  Wakf Act or of the United Provinces Encumbered Estates Act.   The problem  before  us  is of a more  general  nature  and  the aforesaid  decisions are no authorities for the solution  of that problem. There is a decision of this Court to which our attention has been  drawn (Petition No. 234 of 1953 decided on  March  18, 1953).  A similar problem arose in that case where the  head of a math situate in Banaras made an application under  Art. 32 of the Constitution for a writ in the nature of  mandamus against the State of Bombay and the Charity Commissioner  of that State directing them to forbear from enforcing  against the  petitioner the provisions of the Bombay  Public  Trusts Act,  1950,  on the ground inter alia that  the  Bombay  Act could have no application to the math situate in Banaras  or to any of the properties or places of worship appurtenant to that math.  In the course of the hearing of the petition the learned Attorney-General who appeared for the State of  Bom- bay made it clear that there was no intention on the part of the  Government  of Bombay or the  Charity  Commissioner  to apply  the  provisions  of the Bombay Act  to  any  math  or religious institution situated outside the State  territory. The  learned Attorney-General submitted that the Bombay  Act could  be  made  applicable,  if at all,  to  any  place  of religious instruction or worship which is appurtenant to the math and is actually within the State territory.  In view of these submissions no decision was given on the point  urged. The case cannot, therefore, be taken as a final decision  of the question in issue before us. For the reasons which we have already given the Act  applies to the Charusila Trust which is in Bihar and its  provisions cannot be struck down on the ground of extra-territoriality. 624 The  result is that the appeal succeeds and is allowed  with costs,  the  judgment  and order of  the  High  Court  dated October  5, 1953, are set aside and the petition of  Srimati Charusila Dasi must stand dismissed with costs. Appeal allowed.