Patna High Court
Ram Chandra Mishra vs Bihar State Board Of Religious Trusts on 18 September, 1981
Equivalent citations: AIR1982PAT59, 1982(30)BLJR116, (1982) BLJ 97, AIR 1982 PATNA 59, 1982 BLJR 116, (1982) PAT LJR 173
JUDGMENT
1. The defendant has preferred an appeal before this Court against the judgment and decree of the trial Judge.
2. The Bihar State Board of Religious Trusts (hereinafter referred to as 'the Board') instituted a suit for a declaration that the Thakurbari and the properties mentioned in schedule A of the plaint are Hindu Public Trust properties and not private trust properties. It was also prayed that the Court be pleased to declare that the judgment passed by the authorities under Section 43 of the Bihar Hindu Religious Trusts Act 1951 (hereinafter referred to as 'the Act') in case No. 40 of 1963 (Ext. F) is illegal, void and inoperative.
3. On these facts, the trial Court decreed the suit of the plaintiff and declared the temple and the lands mentioned in schedule A in village Nagri to be the religious trust under Section 2 (1) of the Act. It is relevant at this stage to quote the definition of 'religious trust' as given under Section 2 (1) of the Act which runs as follows:
" 'religious trust' means any express or 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 community and a private endowment created for the worship of a family idol in which the public are not interested."
4. The definition given in Section 2 (1) of the Act clearly suggests that if a private endowment is created for the worship of a family idol in which the public are not interested, such an endowment shall not be a religious trust within the meaning of Section 2 (1) of the Act.
5. The simple point for consideration is whether the temple in village Nagri. Police Station Piro, in the district of Bhojpur and the properties mentioned in schedule A are "religious trust" properties or not?
6. In order to know as to whether a (certain property or a temple is a religious trust within the meaning of Section 2 (1) of the Act, the Court will have to look into the original document of the founder of the trust in order to know the intention of the founder. In the present case, the samarpanama (deed of dedication) is Ext. D. We have to gather the intention of the founder from Ext. D. The main test is whether the beneficiaries of the temple are ascertained individuals or the general public? If the answer is to the effect that the beneficiaries are ascertained individuals, then it will be a private trust. This view was taken by a Division Bench of this Court in Bihar State Board of Religious Trusts v. Baldeo Gir, (AIR 1979 Patna 175). This was also the view of the Supreme Court in the case of Ram Saroop Dasji v. S. P. Sahi (AIR 1959 SC 951). In that case, the Supreme Court has held that the essential distinction between a public trust and a private trust is that in the former, the beneficiaries are uncertain and fluctuating bodies of persons and in the latter the beneficiaries are definite and ascertained individuals. On a perusal of the samarpanama (Ext. D), it is clear that the beneficiaries of the Samarpanama are Ramchandra Mishra (defendant) and after his death, his family members. In other words, the beneficiaries are ascertained individuals, namely, Ramchandra Mishra (defendant) and, after his death, his family members. There is no mention in the deed that the public will have any right of worship of the deities, namely, Ram, Lakshman and Jankiji. There is no reliable evidence on the record that the temple of Ram, Lakshman and Jankiji was constructed with the public subscription. The evidence of the plaintiff's witnesses is that Ram Prasad Kuer executed a deed of endowment in favour of Ram, Lakshman and Jankiji, and Ramchandra Mishra (defendant) was appointed the shebait of the temple. It is also stated by almost all the witnesses except P. W. 1 that the temple was constructed by Ram Prasad Kuer. The finding of the Court below in paragraph No. 15 is that the temple was constructed on cadastral plot No. 1274 which belonged to the defendant. There is another finding of the trial Judge in paragraph No. 17 to the effect that the members of the family of the defendant are in occupation of the rooms which are within the precinct of the temple. This fact is also admitted by P. Ws. 3. 4, 6 and 15. P. W. 3 stated in paragraph No. 2 of his evidence that the family members of Ramchandra Mishra (defendant) reside in the temple.
7. On the basis of Ext. D as well as on the basis of the evidence and the finding, it is clear that the temple of Ram, Lakshman and Jankiji was constructed on the land belonging to the defendant. The family members of the defendant also reside within the precincts of the temple premises, (See paragraph 17 of the judgment). It is also clear from Ext. D that Ramchandra Mishra was appointed as Shebait of the temple in question by Ram Prasad Kuer. It is also clear from Ext. D that after the death of Ram Prasad Mishra, a fit person from amongst his family members will be selected with his consent for worshipping these deities. These facts clearly suggest that the temple and the properties of the temple are private trust properties.
8. It is contended by the learned Counsel for the respondent that it is clear from the deed of endowment (Ext. D) that sadhus and any other person who will visit will be entertained by the temple authorities. It is on this basis the learned Counsel for the respondent contends that it is a public trust. Learned Counsel for the respondent also contends that the temple in question is a public trust, because festivals are held on janmastami and other occasions. It is further contended by the learned Counsel for the respondent that there is no hindrance for the public to worship the deities in the temple.
9. The above three points raised by the learned Counsel for the respondent are covered by the decision of the Supreme Court in the case of the Bihar State Board of Religious Trust v Biseshwar Das, (AIR 1971 SC 2057). So far as point No. 1 is concerned, their Lordships held in Para. No. 13 of the judgment that merely because sadhus and other persons visiting the temple are given food and shelter, this by itself is not indicative of the temple being a public temple or its properties being subject-matter of a public trust. In this connection, their Lordships have referred to the case of Ramsaran Das v. Jairamdas, (AIR 1943 Patna 135). We, therefore, hold that merely because there is a provision in the endowment deed to the effect that sadhus and any other person visiting the temple will be given food and shelter, it is not indicative of the temple being a public temple or a public trust or the properties attached to the temple being public trust properties.
10. So far as the next point raised by the learned Counsel for the respondent is concerned, the plaintiffs' witnesses have stated consistently that the festivals like janmastami etc. are celebrated in the temple and the public attend these festivals. In this connection, their Lordships of the Supreme Court in Biseshwar Das's case (supra) have held in para. No. 13 that the performance of the ceremonies is regarded as duties forming part of the worship of a particular deity. We are of opinion that merely because the festivals are celebrated, it does not mean that the temple is a public trust. In a private temple also, the shebait performs the festivals and other ceremonies which are, in our opinion, part of the worship of the particular deity. It is usually seen that where there is a deity of Bhagwan Ramchandraji, the private trust owner also celebrates janmastami, Ramnaumi etc. in the temple of Bhagwan Ramchandraji. Merely because a festival is performed, no inference can be drawn by this fact itself that it is a public trust. These festivals are celebrated in connection with the worship of the deities concerned. It happens both in private and public trusts.
11. In this connection, his Lordship of the Supreme Court relied upon the case of Bhagwan Din v. Gir Har Saroop (1940-67 Ind App 1) a (AIR 1940 PC 7). In this case, the Privy Council held as follows:
"Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and, as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity."
12. So far as the third point is concerned, we rely on Bhagwan Din's case (AIR 1940 PC 7) (supra) as well as on the case of Biseshwar Das (AIR 1971 SC 2057) (supra), and we hold that merely because the public are freely admitted to the temple, the Court should not readily infer therefrom dedication to the public. It is a matter of common knowledge that even in private trust, no Hindu will turn out any person who will come to visit the temple. The important point for consideration is whether the public entered the temple as a matter of right or not? In the present case, there is no reliable evidence led on behalf of the plaintiff to suggest that the public had any right to visit the temple in question as a matter of right. The samarpanama (Ext, D) also does not suggest that the public will have any right to visit the temple. The samarpanama only shows that Ramchandra Mishra will act as shebait and will manage the temple in question. He will be responsible for doing rag-bhog to the deities. It is also mentioned in Ext. D that the founder of the private trust, namely. Ram Prasad Kuer would do rag-bhog of the deity and he would also maintain himself from the income of the private trust property. This fact itself suggests that it was a private trust in question.
13. It is a settled law that the intention of the founder can be inferred from the endowment deed. It has also been held in the State Board of Religious Trusts v. Sheo Kumar Missir (1978 BLJ 397) that the intention of the founder is to be gathered from the deed of endowment and not from any other circumstance. The founder never intended that the temple would remain open for the worship of the public. According to the endowment, the beneficiaries are Ramchandra Mishra (defendant) and, after his death, his family members. Therefore, the intention of the founder, was that the temple and the properties attached to the temple would be treated as a private trust.
14. The consistent evidence of the P. Ws. except P. W. 1 is that the temple was established by Ram Prasad Kuer, the founder of the Trust. It is also stated by the P. Ws. consistently that the public visit the temple and worship the deities, It is also stated by almost all the P. Ws. that sadhus are entertained in the temple and festivals are celebrated occasionally. Even if the evidence of the plaintiff is accepted as correct, then also no inference can be drawn that it is a public trust. In this connection, we have referred to the Supreme Court and Privy Council decisions to show that such a case will not fall within the purview of a public trust.
15. So far as the evidence of the D. Ws. is concerned, they have established consistently that the temple is situated on the land of the defendant. The temple and the lands attached to the temple are being managed by the defendant and are in possession of the defendant. It is also stated consistently by the D. Ws. that the family members of the defendant reside within the premises of the temple. There is also a finding to this effect by the trial Judge that the family members reside within the premises of the temple. This fact itself clearly suggests that it is a private trust. This view has been held by a Division Bench of this Court in the case of Bihar State Board of Religious Trusts v. Baldeo Gir, (AIR 1979 Patna 175). This Court has laid down the following tests as to whether a particular trust is a private or public trust in a judgment of this Court in Bihar State Board of Religious Trust v. Lakshman Prasad Singh (First Appeal No. 362 of 1969 disposed of on 14th April, 1978) :--
"In order to ascertain as to whether a trust is a private trust or a public trust, the test is whether the beneficiaries are definite and ascertained individuals or uncertain and fluctuating individuals. If the answer comes to the effect that the beneficiaries are definite and ascertained individuals then it is a private trust. If the beneficiaries are uncertain and general public then it is a public trust. If the beneficiaries of the trust are limited to the guru and the chelas of the guru, then also it is a private trust for the simple reason that the beneficiaries of the trust are ascertained individuals. The other test to decide as to whether a trust is a private or public trust is that whether the management of the trust is being controlled by the Shebait or by the public. If there is an averment in the deed of dedication to the effect that the income and expenditure account shall be scrutinised by a body consisting of the local persons each year, then it will be a public trust. If the day to day management is being controlled by the Shebait in respect of a family idol, then it will be deemed to be a private trust. The third test is whether the temple or the trust is situated within the campus of the residential building or at a public place. If the deity is situated inside the residential building, then an inference can be drawn that it is a private trust. If the deity is situated in a public place outside the residential compound, then an inference can be drawn that it is a public trust. Each case will depend on the facts and circumstances of each case.
The Court should not draw inference on the basis of an individual circumstance but on the basis of the cumulative effect of all the circumstances in the case. An inference should not be ordinarily drawn that a trust is a public trust, merely because the Sadhus are entertained in the temple and the villagers attend the temple in a certain function. The Court should also be cautious in drawing the inference from the facts and circumstances of the case as a whole.
The main test is: Whether the beneficiaries of the temple are ascertained individuals or general public? If on the evidence an inference can be drawn that the general public are freely admitted in the temple as a matter of right, then certainly it is a public trust. The mere fact that the public are freely admitted to the temple cannot mean that the public are admitted as a matter of right and the Court should not readily infer therefrom that it is a public trust"
16. In the present case, the decisions, referred to above, are applicable, and, we hold that the temple in question along with the properties described in Schedule A is a private trust and not a public trust. We accept the defendant's evidence and reject the plaintiff's evidence.
17. To sum up, in order to ascertain as to whether a trust is a public or private one, the Court should infer that the trust is a private one if the following conditions are fulfilled:
(i) Whether the beneficiaries are ascertained individuals or uncertain and fluctuating individuals? If the answer comes that the beneficiaries are ascertained individuals, then it is a private trust; and, if the answer comes that the beneficiaries are uncertain and fluctuating individuals, then it is a public trust,
(ii) If the grant has been made in favour of an individual and/ not in favour of a deity, the only irresistible conclusion is that the property or the temple is a private trust.
(iii) If the temple is situated within the campus of the residence, then also an inference can be drawn that it is a private trust.
(iv) If the revenue records or entries in the survey records suggest the land coming in possession of an individual person and not in the name of a deity, then an inference can be drawn that the temple and the properties attached to it constitute a private trust.
18. In the following cases, an inference can be drawn that the temple along with the properties attached to it is a public trust:
(i) If the public visit the temple as a matter of right.
(ii) If the endowment is in the name of the deity and the beneficiaries are uncertain individuals or the public, then it is a public trust.
(iii) If the management is made through the agency of the public or the accounts of the temple are being scrutinised by the public on the basis of the dedication deed, then it is a public trust.
19. These are certain instances which have been given above in order to test whether a trust is a public trust or a private trust. But, each case will depend on the facts and circumstances of the case. The Court will also have to examine the attending circumstances while deciding whether a trust is a private or public trust. Therefore, on the facts of this case and on the basis of the evidence on the record as well as on the basis of Ext. D, we are clearly of opinion that the temple in village Nagri is a private trust and the properties mentioned in the schedule of the plaint form a part of the private trust. We are further of the opinion that the deities were established by Ram Prasad Kuer, the founder, for his private worship and Ramchandra Mishra will continue to worship the deities established by Ram Prasad Kuer, and, as such, it is a private trust.
20. In the result, the appeal is allowed and the suit of the plaintiff is dismissed. The parties shall bear their own costs.