Patna High Court
Khub Narain Missir And Ors. vs Ramchandra Narain Dass on 25 January, 1950
Equivalent citations: AIR1951PAT340, AIR 1951 PATNA 340
JUDGMENT Narayan, J.
1. Appeal No. 274 arises out of Title Suit No. 10 of 1943 and App. No. 275 arises out of Title Suit No. 3 of 1943. In Suit No. 10 of 1943, which was instituted in the Court of the Subordinate Judge of Darbhanga on 8-2-1943, the plaintiff was Mahanth Ramchandra Narain Dass and the defendants ware Khub Narain Missir, Ramkishun Thakur, Shubhnarain Pande and Ramsunder Pande, and in Suit No. 3 of 1943, which was instituted in the Court of the District Judge of Darbhanga, the plaintiffs were one Rambihari Thakur and Khub Narain Missir, defendant 1 of Suit No. 10 of 1943. The defendants of Suit No. 10 had filed an application under Section 3 of Act XIV [14] of 1920 before the District Judge of Darbhanga for directing the Mahanth to furnish accounts for being examined and audited, and the then District Judge directed the Mahanth to produce the accounts for the years 1345, 1346 and 1347. The Mahanth moved this Court is civil revision against this order, but his application was dismissed. The Mahanth then filed Title Suit No. 10 of 1943 for a declaration that the "properties and temple appertaining to the asthal were private trust to which Act XIV [14] of 1920 was inapplicable, and that as such the order of the District Judge dated 5-7-1941 and the order of the High Court dated 18-3-1942 were illegal, ultra vires and void."
In the meantime Khub Narain Missir and one Rambihari Thakur had moved the Advocate-General of Bihar for giving his consent for the institution of a suit under Section 92, Civil P. C. against the Mahanth. The consent of the Advocate-General was obtained on 13-4-1943, and thereupon Khub Narain and Rambihari instituted Title Suit No. 3 of 1943. While the contention of the Mahanth is the suit instituted by him was that the properties appertaining to the asthal had not been dedicated for public purpose of a charitable or religious nature, and no trust either express or constructive had bean created, the case which Rambihari and Khub Narain made out in their own plaint was that the temple was a public temple and that the properties attached to it were debottar and trust properties. The allegations substantially wore that in the said asthal there is a public temple in which the idols of Sri Ramji, Jankiji and Lachhmanji were installed, and that the said asthal owned and possessed considerable properties the income of which was spent in maintaining the ashthal and acquiring other properties for religious and charitable purposes. It was further alleged that the defendant since his accession to the office of Mahanth had wasted the asthal properties and had been leading an immoral life. The plaintiffs instituted this suit as members of the Hindu public, and their alleged cause of action was that the defendant had committed breaches of the trust. The prayer was that the Mahanth be removed from the office and another suitable person be appointed in his place. It was farther prayed that the Mahanth be ordered to render accounts of the funds of the asthal which had come into his hands, and if it be found that he had misappropriated any money belonging to the asthal, a decree for the recovery of the same may be passed against him personally.
2. Both the suits were heard together by the learned District Judge, who, by his judgment dated 7-8-1945, decreed Title Suit No. 10 of 1943 which had been instituted by the Mahanth declaring that the properties detailed in the schedules attached to the plaint of the Mahanth were properties to which Act XIV [14] of 1920 was not applicable. The learned Judge dismissed Title Suit No. 3 of 1943 on the finding that it had not been established that there was a trust for public purposes of a charitable or religious nature, and that consequently Section 92, Civil P. C., was inapplicable. Rambihari Thakur and Khub Narain Missir, the plaintiffs of Suit No. 3 of 1943, have preferred F.A. No. 275 of 1945 against the decision of that suit, and the four defendants of Suit No. 10 of 1943 have preferred F.A. No. 273 of 1945 against the decision of that suit, and the principal matters of controversy in these two appeals are whether the proper, ties mentioned in the plaint of Suit No. 10,were debottar properties and were held on trust for purposes of religious and charitable nature, and whether the Mahanth has rendered himself liable to removal from his office on account of his alleged misfeasance and malversation. One of the arguments advanced on behalf of the appellants before us was that the Court below should have in this case held that the asthal was a public institution and that the properties appertaining to it were held on trust for public purposes of a religious and charitable nature when it negatived the contention of the Mahanth that the asthal properties were his private properties. IN other words, the contention of Mr. De for the appellants was that the Court below by earning to the funding that the properties were held on private trust had made out a third case. But, I think, the learned Judge has been quite careful in his statements and findings, and he has concluded his discussion on this point with the following observation:
"On a consideration of all the facts and circumstances of this case and keeping in view of the rulings referred to above, I am unable to hold that the disputed properties were held in trust for a public purpose of a charitable or religious nature. It is unnecessary for me to consider whether the properties are held in private trust or whether they are private properties of the Mahanth."
But it can, however, be legitimately contended by the appellants that the amendments which have been made in the plaint of Suit No. 10 of 1943 go to show that the Mahanth was at first not clear regarding the stand which he should take and whether he should claim the pro-parties as private trust properties or as his own private properties. His ultimate decision, however, was that he should claim the properties as his personal properties, and, therefore, certain important amendments were made in the plaint. For the words "religious institution" the word "temple" was substituted, and for the words "private trust properties" the words "private property" were substituted. The plaint, as it stands now, no doubt, shows that the Mahanth is claiming those properties as his private properties. But it would not be a sound contention that if the contention that the properties are his private properties is negatived, the Court must hold that these properties are held for public purposes of a charitable and religious nature. The only relief sought by the Mahanth in his own suit is that it be declared that the properties attached to the asthal and the temple are properties to which Act XIV [14] of 1920 has got no application, and this relief the Mahanth would-be-entitled to whether he claims the properties as his own or as private trust properties. It does not, therefore, matter much if in the beginning he claimed those properties as private trust proparties and is now claiming them as his personal properties. So far as the plaintiffs of Suit No. 3 are concerned, their action cannot succeed unless it is held that the asthal is a public institution and that the properties appertaining to it are held for public purposes of a charitable or religious nature, and the Mahanth is certainly entitled to the declaration which he seeks if the trust is not held to be a trust for purposes of a chartitable or religious nature. The difference in the wordings of the original plaint and the wordings of the amended plaint cannot, therefore be of any assistance to the appellants in establishing the case which they have made out. I cannot agree with Mr. De that the use of the word "institution" in the original plaint indicates that there was a trust for public purposes of a charitable or religious nature. The temple would be called an institution even if there are properties appertaining to it which can be regarded as private trust properties. The whole question in this case, therefore, is whether the asthal is a public institution and She properties appertaining to it have been held for public purposes of a charitable or religious nature, and the onus is on the appellants to show that the properties have been held under a trust for public purposes. In order to determine this point we have to investigate what was the origin of this institution and how it has been developed and what has been its raison d'etre. As has been repeatedly pointed out, a "trust" in the sense in which this expression has been used in English law is unknown to the Hindu system. As was pointed out by their Lordships of the Judicial Committee in the well-known case of Vidya Varuthi Thirtha v. Balusami Ayyar, 44 Mad. 831 : (A.I.R. (9) 1922 P. C. 123), "Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system: to Brahman, Goswamis, sanyasis etc"
Their Lordships quoted with approval the following observation of the officiating Chief Justice of the Madras High Court in the case of Kailasam Pillai v. Nataraja Thambiran, 33 Mad. 265 : (5 I.C. 4) "I think, then, that it cannot be predicated of the head of a mutt, as such, that he holds the properties constituting its endowments as a life tenant or as a trustee. The incidents attaching to the properties depend in each case upon the conditions on which they were given, or which may be inferred, from the long-continued and well-established usage and custom of the institution in respect thereto."
3. There can be no doubt that the incidents attaching to properties depend in each case upon the conditions on which the properties were dedicated or upon the conditions which can be gathered from the way the properties have been dealt with or which may be inferred from the usage and the custom of the institution. In Ram Parkash Das v. Anand Das, 43 I.A. 73 : A.I.R. (3) 1916 P.C. 256) their Lordships of the Judicial Committee observed that an asthal is an institution of a monastic nature, and that it is established for the service of a particular cult, 'the instruction in its tenets, and the observance of its rites, and that the question as to who has the right and office of Mahant is one, which must depend upon the custom and usage of the particular math or asthal. Such questions in India, their Lordships said, are not settled by an appeal to the general Customary law; the usage of the particular math stands as the law, therefore. In Chhotabhai v. Jnan Chandra Basak, 62 I.A. 146: (A.I.R. (22) 1935 P.C. 97) their Lordships pointed out that it is necessary to consider who was the author or who were the authors of the trust which is alleged to have been a trust for a public purpose of a charitable or religious nature. Their Lordships further pointed out that the intention to create a trust must be indicated by words or acts with reason. able certainty and that the purpose of the trust( property, and the beneficiaries must be indicated is such a way that the trust could be administered by the Court if occasion arose. It was, therefore, incumbent on these appellants to place on the record certain very essential materials in absence of which it cannot be held that there is an express or constractive trust created or existing for a public purpose of a charitable or religious nature to which Act XIV [14] of 1920 applies. The question is what materials are there on the record which can go to establish that a treat had been created for a public purpose of a charitable or religious nature. I have no hesitation in agreeing with the learned Advocate General, who appeared on behalf of the respondent before us, that there is no evidence in this base to show that a trust for a public purpose of a charitable or religious nature had been created. I am further inclined to hold that the way in which the asthal properties have been dealt with over since its inception leaves no room for doubt that this asthal is a private institution. The observance of religious festivals, the feeding of sadhus and giving hospitality to atithis or guests are inevitable where there is a temple in which idols are being worshipped and-which is under the control of a bairagi Sadhu. It is common ground that this asthal was founded by Mahanth Damodar Dass, who, it appears, was a saint whose piety had attracted the attention of not only the local people but also of a big person like the Maharaja Bahadur of Darbhanga. 'The plaintiffs of Suit No. 3 of 1943 have stated in para. 1 of the plaint that in village Bihat Tola Adulpur there is an asthal from a very long time of Bairagi Ramanandi Laskari sect, which is commonly known as the Adalpur asthat, and that in the said asthal from its very inception there is a "temple in which the murties of Sri Ramji, Jankiji and Lachhmanji besides other deities are consecrated and installed." In the depositions the witnesses for these appellants have been described as plaintiff's witnesses, and the witnesses for the Mahant have been described as defendant's witnesses, and we get it from the evidence of the plaintiffs' witnesses that Mahant Damodar Dass was the founder of the Adalpur asthal, and that idols of the temple were installed in his time. In the written statement of Suit No. 3 the Mahant has stated that in the yeas 1759 the temple was established by Mahant Damodar Dass who, "by reason of his great piety and devotion of the deities was able to attract the attention and loyalty of the people round about who made gifts of property to him so that he might better be able to perform the daily religious practices he had established."
There is absolutely nothing to show that when this temple was constructed or when the deities were installed Mahant Damodar Dass dedicated the temple for public use, and the mere fact that during festivals and on ceremonial occasions a large number of people used to come to the temple to make offerings and to receive prasad cannot establish that the temple was a public institution. Such things happen even in private temples, and a bairagi can maintain a private temple even though he depends, for the up keep of the temple, on public charity. Some-thing more substantial is required for establishing the alleged public nature of the institution than mere evidence to show that people used to assemble and make offerings at the temple on ceremonial occasions. Mr. De placed great reliance on the sanads granted by that Maharaja of Darbhanga, and, in his opinion, the recitals in these sanads go to establish that the temple was a public institution, and that the properties dedicated to it are of the nature of a public trust. There are five sanads and two parwanas, by which properties appear to have been gifted to Mahant Damodar Dass. Out of the five sanads, four appear to have been granted by the then Maharaj of Darbhanga and one by some other person whose identity is not established. We have looked into the original sanads, and we find that the translator while translating some of these sanads has wrongly substituted the word "Vishunprit" for "Sriprit." In the sanads (Exs. A, A(1), A(2), A(3) and A (4)) Mahant Damodar Dass is mentioned as the donee, and in all of them, except Ex. A (3), the Maharaja is mentioned as the donor. Exhibit A (3) is a Fakirana Patra by one Shri Thakurji to Shri Damodar Dass. The recital in Ex. A is as follows:
"Fakirana Prit land excluded from rent has been granted in the said mauza since 1172 Fasli excepting the previous barmottar and inami lands within the boundary of the mauza. You shall cultivate at your convenience and enjoy the produce thereof disciples after disciples. This shall be treated as prit land and no obstruction shall be caused thereto."
The expression "Shishyopashisyhya mili" has been translated as disciples after disciples, and this expression indicates that along with his disciples he will enjoy the usufruct of the land. The expression 'Fakirana prit land" is interpreted to mean that the dedication was a dedication for public use. In Ex. A as well, the statement is that the produce will be enjoyed by the donee, that he will not have to pay any rent for it and the land will be treated as priti land. In Ex. A (2) the recital is similar to the recital in Ex. A and the lands described as sriprit land. In Exs. A (3) and A (4) also the lands have been described as sriprit land, and the expression "Shishyopashishya-mili" is to be found in Ex. A (4) as well. In Ex A (5) the name of one Shri Vidyapati Jha is mentioned as the donee, and this document cannot be regarded as a relevant document when it does not appear that any of the Mahanths of this math or asthal was given the property mentioned in this document as brahmottar land. The whole question, so far as these sanads are concerned, is whether the expression "Vishunu prit" or 'Sriprit" and the expression "Shishyopshishya-mili" can lead us to hold that the dedication was for public use. The word "Vishunu prit" has been interpreted in some of the decisions of this Court, and in Naurangi Lal v Bam Charan Das, 11 P.L.T. 403 : (A.I.R. (17) 1930 Pat. 455) Fazl Ali. J. as he then was, pointed out that in a number of cases the words "Vishnuprit." "Sheoprit" and "Sheottai" have bean held to indicate strongly that the property with reference to which one or other of these terms was used was not the private property of a Mahant or Shebait. His Lordship further observed that the terms "Khairat" and 'Vishunuprit" although they strongly indicate that there was an endowment for certain religious or charitable purposes are, strictly speaking, not conclusive for the purpose of establishing that the endowment was for public use. With the greatest respect for his Lordship's views, I may point out that the literal meaning of the word '"Vishunuprit" is "for the love of Vishnu", and, according to the Hindu Shastras not only every dedication for public use but every act of charity is to be regarded as an act done for the love of Vishnu, even when alms are given to beggars, that is an act done for the love of Vishnu, and the Hindu Shashtras are so strict in this respect that they enjoin upon all Hindus not to take credit for any pious act done, but to lay the effects of the pious acts at the feet of the Lord Vishnu without claiming any benefit for the same. At the time when these grants were made the Hindu Society had not advanced in the modern sense of the term, and people had much greater faith in the injunctions of the Hindu Shastras, and, therefore, the expression "Vishnuprit" or "Sriprit" does not to my mind lead to the inference that the donor intended that the properties would be gifts not to the Mahant, whose piety, it appears, had a great impression upon him, but that the properties would be used by the public and would be treated as a public trust. In a much later case Ramsaran Das v. Jai Ram Das, 21 Pat. 815 : (A.I.R. (30) 1943 Pat. 135), Harries C. J. and Manohar Lall J. had to consider the meaning of the word "Vishnuprit" and the observations of Fazl Ali J. in the case of Naurangi Lai v. Ram Charan Das, 11 P.L.T. 403 : (A.I.R. (17) 1930 Pat. 455), and the learned Chief Justice, with whom Manohar Lall J. agreed, made the following observation;
"This case in which Fazl Ali J., made the observation, which I have quoted, was subsequently reversed by their Lordships of the Privy Council but only on a point of limitation, whether their Lordships approved of this observation of the learned Judge, it is impossible to say, but it is an observation of weight. Bat as the learned Subordinate Judge himself points out, the use of the word 'Bishunprit' is not conclusive. In any event, there is nothing in the word 'Bishunprit' to indicate that the property was gifted to the idol for public purposes."
4. I respectfully agree with his Lordship's views, and I have no hesitation in holding that the expression ' Vishnuprit", "Sheoprit" or "Sriprit", does not indicate that the gift was made for public purposes. The gift in this case was made to a bairagi sadhu, who, it appears,, had come to be regarded as a very pious man and whose piety had attracted the attention of all the local people including a big zamindar like the Maharaja of Darbhanga. The sanads show that the gift was made to Mahanth Sri Damodar Das and not to the idol but even if it was a gift to the idol, that does not lead to the inference that it was a gift for public use when the temple cannot be held to be a public temple, and when it is obvious that the idol bad been installed by Mahanth Damodar Das himself, who was the founder of the temple and the asthal. In the Parowan's (Exs. B and B (1)) as well the lands have been described as Vishnuprit land, and Mahanth Damodar Das is mentioned as the donee. It appears from the recitals in all these sanads and parwanas that the donor was very anxious to indicate that these grants should. be treated as rent free grants, and that no obstruction should be caused to the sadhus or his disciples in the possession or the cultivation of the lands. The words ' Fakirana" has been used, and it has been explained as excluded from rent. It is important to note that in the survey record which was finally published in 1902 the lands have been mentioned as "Fakirana Vishunuprit," It would appear from the Guide and Glossary to Survey and Settlement Operations that the word "Fakirana" means rent-free grant to Muhammadan ascetics. of course, this word must have come into use during the Muhammadan rule, but certainly when the survey authorities used the word "Fakirana Vishunuprit" they meant that the land would be treated as rent-free. In col. II of the survey khewat where the nature, conditions and incidents of the tenure are to be mentioned the entry is "Fakirana Vishunuprit," and evidently what the survey authorities meant by this entry was that the grant was a rent-free grant. It is also noteworthy that the name of Mahanth Balmakund Dass alone was recorded as tenure-holder in the khewat, and this entry, which carries a presumption of correctness, goes to show that the Mahanth was treated as the sole owner of these dedicated lands. There is no mention even of the idol in Col. No. 2 of survey khewat where the name of the tenure-holder has to be mentioned, and it is remarkable that no member of the public cared to have these lands recorded in the survey as lands dedicated for public use, or as lands in respect of which the Mahant was a trustee and in which he was not personally interested. The entry in the survey record, therefore, militates against the case which Rambihari Thakur and others have made out, and if the survey record is considered along with the sanads and the parwanas referred to above, there would be little doubt left that the properties, which Rambihari Thakur and others claim as properties dedicated for public use, are really the personal properties of the Mahanth.
5. Mr. De next relied on a judgment of the Calcutta High Court in ft case which had been instituted by one Ganga Das to recover possession of the asthal in question from Bishun Das, who was the fourth Mahanth after Mahanth Damodar Das. Mahanth Bishun Das died during the pendency of the above suit, and the suit proceeded against Balmukund Das, the Chela of Mahanth Bishun Das, in whose favour Mahanth Bishun Das had executed a will dated 13-11-1888. In this judgment there are certain passages on the basis of which Mr. De argues that this temple should be regarded as a public institution. In the very first sentence of this judgment the asthal has been called a Hindu convent, and there is another passage in the judgment which runs as follows:
"This suit relates to the asthal of Adalpur admittedly belonging to the Luskari brotherhood.....The brotherhood to which the asthal of Adalpur belongs is a branch, of the Ramanandi sect."
The mere fact that their Lordships used the expression "Hindu Convent" while referring to this asthal cannot indicate that their Lordships treated this institution as a public institution, just as the observation of their Lordships of the Judicial Committee in Ram Parkash Das v. Anand Das, 43 I.A. 73 : (A.I.R. (3) 1916 P.C. 256) that an asthal, commonly known in Nor-them India as a math, is an institution of a monastic nature, would not lead us to hold that every asthal is a monastery. What their Lordships of the Judicial Committee meant was that an asthal bears resemblance to a monastery and can be taken to be an institution of that nature. By this statement their Lordships never meant to say that every asthal is a public institution just as a monastery is. Similarly, when their Lordships of the Calcutta High Court used the expression "Hindu Convent" they merely meant that the asthal bears some resemblance to a Christian convent, and even though their Lord-ships of the Calcutta High Court said that Adalpur asthal belongs to the Laskari brotherhood, they never meant that it is an institution belonging to the entire sect, known as the Ramanandi Liskari sect. In the case of Vidya Varuthi Thirtha v. Balusami Ayyar, 44 Mad. 831 : (A.I.R. (9) 1922 P.C. 123), their Lordships condemned the idea of judging these Hindu institutions in the light of legal conceptions borrowed from abroad, and the following passage of their Lordships' judgment is an answer to the contention of Mr. De, who relied on the expression "monastic nature" and the expression "Hindu convent" in the judgments referred to above :
"It would, in their Lordships' opinion, be a serious inroad into their rights if the rules of the Hindu and Muhammadan laws were to be construed with the light of legal conceptions borrowed from abroad, unless perhaps where they ate absolutely, so to speak, in pari materia. The vice of this method of construction by analogy is well illustrated in the case of Vidyapurna Thirtha Swami v. Vidyanidhi Tirtha Swami, 27 Mad. 435 : (14 M.L.J. 105) where a Mahant's position was attempted to be explained by comparing it with that of a bishop and of a beneficed clergyman in England under the ecclesiastical law. It was criticised, and rightly, in their Lordships opinion, in the subsequent case, which arose also in the Madras High Court, of Kailasam Pillai v. Nataraja Thambiran, 33 Mad, 265: (5 I.C 4)."
6. When their Lordships of the Calcutta High Court said that the asthal belongs to the Laskari brotherhood they meant nothing more than this that the Mahanths of this asthal belonged to the Laskari brotherhood. And it is not necessary for me to point oat that statements of facts in a previous judgment cannot be admissible in a subsequent case. There does not appear to be anything in the Evidence Act to warrant the view that the statements of facts is a previous Judgment can be used as evidence in a subsequent lease to decide the points which are in issue in 'that case. As such the appellants can gain very little by relying on the statements in the judgment of the Calcutta High Court (Ex. 5 (b), in which case there were two rival claimants for the Mahanthship.
7. Mr. De next relied on certain recitals in the will which Mahanth Bishun Das had executed in favour of Balmukund Das. It appears that when this will was executed Balmukund Das was a minor, aged only ten years, and Mahanth Bishun Das had to make arrangement for the management of the asthal during his minority. Paragraph 4 of this will says that Bansi Ram Das, the adhikari of the asthal, who has been the "manager of the village and Court affairs from the time of the previous Mahanths, shall be the guardian of Balmakund Das till he attains majority and shall maintain and bring him up and educate him. and shall realise rent, manage and settle the village affairs and shall appoint and dismiss servants, shall pay Government revenue and cess and other demands and other 'items that are obligatory and generally done, shall bear the expenses of Puja Pat, utsab, festivals concerning Sri Thakurji and bhandara, shall entertain the casual visitors, and seek the pleasure of the poor, and the destitute, shall repair and construct houses, shall pay the salaries of the servants, shall take care of the boundary limits, shall look after (all) the cases, the estate relating to moveable and immoveable properties, take care of the cattle, viz. he cows and she cows, horses and elephant etc. which are at present in the asthal and that which may be acquired in future." In para. 5 of the will it is stated that the "income from the village and the produce of the zirat lands as well as the income from the sewaks, devotees and the pujas of Sri Thakurji comes to more than ten thousand rupees and that after meeting the above-mentioned expenses he should keep the balance in his custody, and if he deems possible and proper out of the balance he shall purchase milkiat lands and other lands etc. in the name of the said disciple for his betterment and improvement."
Paragraph 7 of the will says that :
"After the period of minority when the said minor attains majority ho shall manage the affairs of the dharam asthal as is being done from time immemorial, he shall not utilise the income from the village and the produce of the zirat lands on useless and immoral purposes save and except on legal necessities so that the properties and the reputation of the asthal may not be ruined and may not bring disgrace to the fair name of me, the executant."
In para. 9 of the will there is a statement which runs as follows :
"The said disciple shall have no light to borrow money. If the said disciple requires some money for meeting the expenses of the bhandara or for purchasing properties, he shall in consultation with the adhikaris, shall take loan and perform the necessary work and shall (illegible). He shall have no right is cause loss to the milkiat (properties) and properties appertaining to the asthal."
The question is whether these rectials in the will can at all lead to the inference that the institution was treated as a public institution. I have already said that even a private institution like this is expected to look after the poor and the destitute, and every bairagi Mahanth would be careful enough to leave a direction that the income of the asthal should not be used for immoral purposes. This asthal has a large income, and the executant of the will rightly thought that his successor will have no necessity to borrow money, but still he made a provision for taking loans in case his successor thought that money was required for bhandara expenses or for purchasing properties. The clauses referred to above do not go to establish that the institution was a public institution, and that the asthaldhari was liable to reader account to the public with regard to the income and expenditure of the math. On the other hand, the statement in para. 5 to the effect that the guardian would be at liberty to purchase properties is the name of the succeeding Mahanth "for his betterment and improvement" goes to show that the Mahanth was the sole owner of the math, and that the properties appertaining to the asthal were his private properties. This document, therefore, instead of helping the appellants seems to destroy the case which they have set up. On the materials, therefore, which are forthcoming is this case I am unable to take a view contrary to the one which has been taken by the learned District Judge, and I fully agree with the learned Judge's view that the onus which Say on these appellants has not been discharged by them, and that it has not been established that the asthal is a public institution and that the properties appertaining to it are held for public purpose of a charitable and religious nature. It was. held by the Calcutta High Court in the case of Prosad Das v. Jaganath Pal, 37 C.W.N. 181 : (A.I.R. (20) 1933 Cal 519) that even where a deed of endowment provides for devasheva and for feeding of the poor and of students if the income increases, that doss not make the endowment anything but a private trust, and in another case reported in Sm. Charusila Dassi, In the matter of, 50 C.W.N. 521 : (A.I.R. (34) 1947 Cal. 148) the same High Court held that the performance of Prosad Utsarga, does not necessarily render a temple a public one, and that a trust for a Hindu idol and temple simpliciter is not necessarily one for public purpose. And it need not be pointed out that the mere fact that a property had descended from guru to chela does not warrant a presumption that it is a religious property. Mr. De relied on the decision of the Madras High Court reported in Sammantha Pandara v. Sellappa Chetti, 2 Mad. 175, and a decision of this Court reported in Susil Chandra v. Gobind Chandra, A.I.R. (21) 1934 pat. 431 : (150 I.C. 61). There are several cases of the Madras High Court on the point which were decided subsequent to the decision reported in Sammantha's case, 2 Mad. 175, and in my opinion, the decision of the Madras High Court in Sammantha's case, 2 Mad. 175, is of very little use to the appellants In this case. That was a case where a math had been sued on the basis of a bond, and the defence was that the debt had not been contracted for the purpose of the math, and that the Mahanth who had borrowed the loan had no authority to do so. There an observation in the judgment that the property is attached to the office and passes by inheritance to no one who does not fill the office and that it is in a certain sense a trust property. There is a further observation 'that the superior has large dominion over the property, and is not accountable for its management or for the expenditure of the income, provided he does cot apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution. The question whether that particular institution was a public institution or a private institution was not directly in issue in that case and from the facts given in the judgment it appears that the institution was taken to be a private institution. In the case of Susil Chandra v. Gobind Chandra, A.I.R. (21) 1934 Pat. 431 : (150 I.C. 61), Dhavle J., observed that there are some differences between debutter property and property dedicated to a math, and that whether or not the property is dedicated to the idol the property, it Appertains to the math, would not be the personal property of the Mahanth. Nobody says that the property appertaining to a private asthal is to be regarded as the personal properly of the Mahanth in the sense in which we generally use the expression "personal property." There can be private trust, and there has always been a distinction between a private trust end a public trust, The question before us In this case is whether this is a trust to which Section 92, Civil P. C., or Act xiv [14] of 1920 can be applicable. If it is found that in this case there is no express or constructive) trust created lor public purposes of a chartitable or religious nature, that would conclude the matter, and really it is not within the scope of this case to investigate whether the properties of the asthal should be regarded as private trust properties or as the personal properties of the Mahanth. In the case of Ramsaran Das v. Jairam Das, 21 Pat. 815 : (A.I.R. (30) 1943 Pat. 135), Harries G. J. quoted a passage from the judgment of the Judicial Committee in the case of Parma Nand v. Nihal Chand, 65 I.A. 252 : (A.I.R. (25) 1938 P.C. 195) and, I think, the observation of his Lordship Sir Shadi Lal in the Privy Council case is fully applicable to this case. The observation runs as follows :
"Their Lordships do not think that any user or treatment of the property has been proved, such as would justify the conclusion that it was a public, and not a private trust. It cannot be disputed that the plaintiff can be defeated only if the defendants establish affirmatively that a trust of a public character was imposed upon the property. To constitute a trust 'created or existing for a public purpose of a charitable or religious nature' within the meaning of Act XIV [14] of 1920, the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purposes of the trust, the trust property, and the beneficiaries must be indicated so as to enable the Court to administer the trust if required; Chotabhai v. Jnan Chandra, 62 I.A. 146 : (A.I.R, (22) 1935 P.C. 97). Those conditions have not been fulfilled."
For applying Act xiv [14] of 1920, it must be established that the trust was substantially for public purposes, and as already pointed out it is not sufficient if one or some of the purposes of the trust are public. The feeding of sadhus and the distribution of alms and the entertainment of the guests are inevitable in a temple, and these are merely incidental to the worship of the deities. In fact, no Mahanth worth the name can refuse to entertain sadhus and guests if he has the means for it- His Lordship, the Chief Justice, while construing the arpannama in the case of Ramsaran Das, 21 pat. 815 : (A.I.R. (30) 1943 Pat, 135) observed that though the arpannama had made it clear that thereafter the properties were debottar properties, there was nothing in the terms of the arpannama to indicate that the properties were dedicated to the public, and, therefore, his Lordship held that the trust was a private one. In this ease also it would appear from the sanads and the parwanas that properties were gifted only to the Mahanth, there being nothing in these documents to indicate that they were dedicated foe public use. It is true that in the case of Ramsaran Das, 21 pat. 815 : (A.I.R. (30) 1943 Pat. 136) the grant in favour of the Mahanth was described as Gurudakshina, but that makes no difference whatsoever. By whatever name the gift is flailed it is a gift to the Mahanth of the asthal, and after the gift the property either retains its secular character or a private trust is created with regard to it. These suits were, therefore, correctly decided by the learned Judge, and his decision must be confirmed.
8. Mr. De did not challenge the findings of the learned Judge that it had not been established that the Mahanth was leading an immoral life, but he pointed out to us that the learned Judge had held that the Mahanth bad, without any necessity, settled some bakast lands and had executed two ladavi deeds, the execution of which documents constituted a breach of trust. These things will be material only if the trust is held to be a public trust. On the findings of the learned Judge it must be held that the Mahanth has not been acting like a prudent manager, but the public or any section of the public cannot complain against it when the trust is not a public trust. 'These appeals, therefore, fail and are dismissed with costs, one set of hearing fee.
Sinha, J.
9. I agree.