Patna High Court
Bihar State Board Of Religious Trust vs Acharya Mahanth Amrit Das And Anr. on 2 July, 1973
Equivalent citations: AIR1974PAT95, AIR 1974 PATNA 95
JUDGMENT B.D. Singh, J.
1. This appeal by the Bihar State Board of Religious Trust through its President is directed against the judgment and the decree passed by the Subordinate Judge in title suit No. 44/78 of 1959/64 holding that the properties mentioned in the Schedules of the plaint were personal properties of the plaintiffs and they were not the properties of the Public Trust. The learned Subordinate Judge also set aside the order dated the 28th February, 1959, (Ext 12) passed by Shri M.K. Chatterji, an authority under Section 43 of the Bihar Hindu Religious Trusts Act, 1950, (hereinafter referred to as 'the Act').
2. Mabanth Rambilas Das (original plaintiff-respondent No. 1) and Shri Das (plaintiff-respondent No. 2), the latter Chela of the former, had instituted a title suit on the 27th April, 1959. for declaration that the order dated the 28th February, 1959 (Ext. 12), passed by the authority under Section 43 of the Act was illegal and for further declaration that the properties mentioned in Schedules A and B of the plaint were not endowed properties; rather they were personal properties of the plaintiffs.
3. The case of the plaintiffs in brief was that the aforesaid properties were acquired by them and their predecessors-in-interest by dint of their labour. No trust was either public or private ever created with regard to those properties. The plaintiffs in response to the notices issued under Section 59 of the Act and under coercion or threat of prosecution had submitted return and had also paid taxes to the Bihar State Board of Religious Trust for sometime. On legal ad-
vice to the effect that the Act was not applicable to their personal properties, they filed an application under Section 43 of the Act for determination that the Math at Sikandarpur, with the properties attached to it, was in the nature of private property of the plaintiffs and it did not relate to a public trust. However, the authority held that the beneficiaries were general public professing Kabirpanthi tenet, and that the Math properties were in the nature of public religious trust. Therefore, the Act was applicable to the Math. Aggrieved by the said order the plaintiffs under Sub-section (5) of Section 43 of the Act instituted the suit to get the above order set aside.
4. A written statement was filed on behalf of the defendant-appellant on the 19th August, 1959, and an additional written statement was filed on the 11th February, 1963. The case of the appellant, as disclosed in those written statements, was that Kabir Saheb, the founder of the Kabirpanth, had established the Kabir Chaura Math at Varanasi with considerable properties donated by the Muslim rulers for propagation of the Kabirpanthi tenet (doctrine). Plaintiff No. 1, according to the defendant, was the Mahanth of the said Kabir Chaura Math at Varanasi and the Math at Sikandarpur with all its properties, including the properties mentioned in Schedules A and B of the plaint, were in the nature of subsidiary Math (branch Math) of Kabir Chaura Math, at Varanasi. Plaintiff No. 1 mostly resided at Varanasi and rarely used to stay at Sikandarpur Math where he used to come only to look after the properties, to meet the disciples there and to propagate the Kabirpanthi doctrine. Plaintiff No. 2 was the Chela of plaintiff No. 1. According to the defendant, the plaintiffs were falsely churning the suit properties as their private and personal properties, although they were public trust properties, meant for meeting the cost of stay of Sadhus in the said Math at Sikandarpur and for propagation of Kabirpanthi doctrine. According to the further case of the defendant, the plaintiffs had submitted returns and paid the taxes, on notices from the Board under Section 59 of the Act, and were assessed from time to time. It was further pleaded that the suit was undervalued, the court-fee paid was insufficient, the suit was barred by law of limitation, estoppel, waiver and acquiescence, as also under Section 42 of the Specific Relief Act and that the plaintiffs had no cause of action for the suit.
5. On the pleadings of the parties various issues were framed out of which only two are important for the purpose of this appeal. On the submissions of the counsel of the parties before us the findings of the Court below on the two issues fell for consideration. Those two issues were:
(8) Is the plaint property private personal property of the plaintiffs and not the public trust property?
(10) Is the impugned order under Section 43 of the Bihar Religious Trust Act dated 28-2-1959 with respect to the plaint property illegal, without jurisdiction and fit to be set aside?
6. On behalf of both the parties various witnesses were examined and documentary evidence was also filed in support of their respective cases on the two issues, referred to above. The learned Subordinate Judge after considering the various materials on the record on issue No. 8 found that the suit properties were private and personal properties of the plaintiffs and that they did not relate to any public trust as contended on behalf of the defendant and as held by the order dated the 28th February, 1959 (Ext. 12) by the authority under Section 43 of the Act. In substance, the learned Subordinate Judge decided this issue in favour of the plaintiffs. Likewise, under issue No. 10 he held that the order dated the 28th February, 1959 (Ext 12) was illegal and without jurisdiction. Therefore, he set aside that order. Thus, issue No. 10 was also decided in favour of the plaintiffs.
7. Mr. R.S. Chatterji, learned counsel appearing on behalf of the appellant, has assailed the judgment and the decree of the learned Subordinate Judge based upon the findings under issues Nos. 8 and 10.
8. It would be convenient to deal with the findings of the learned Subordinate Judge under both the aforesaid issues together as they are inter-connected. Mr. Chatterji submitted that the said findings cannot be sustained on the evidence on the record. According to him, the learned Subordinate Judge failed to appreciate the evidence which clearly establishes that the Math at Sikandarpur with all its properties, including the properties mentioned in Schedules A and B of the plaint, was a public trust, governed by the Act. He drew our attention to Ext. J dated the 21st September, 1916, which is a certified copy of the deed of arrangement, executed by Mahanth Gur Prasad Das Jee and others, including Rambilas Das Jee (plaintiff No. 1), describing therein as residents, of Mahalla Kabir Chaura, Math Kabir Das, Banaras City. The relevant portion of the said deed reads as:
"The followers of Kabir Panthi sect are found almost everywhere in India and its main Asthan is at Mohalla Kabir Chaura,Banaras City. There are several Asthans subordinate to it in the district of Banaras and other districts and provinces. There are every kind of movable and immovable properties, houses, Zamindari, cultivation, utensils, appurtenances, cash and materials etc. appertaining thereto (Math). The same has been in use over charitable purposes according to old customs. The Mahanth for time being or any body is not competent to let out the same in rehan, or sell it or make any kind of transfer (or to do anything) against customs. No Mahanth is absolute proprietor of the above-mentioned properties, rather the Mahanth for the time being has been the manager and supervisor thereof. For some time past, there had been ill-feeling among us regarding the management of the property appertaining to the said math due to which (ill feeling) deterioration and loss had been caused in the improvement of the Asthan and income etc. and the management. The reason for the same is that the entire work appertaining to the Asthan, which is in very large number, has been done under the management and advice of only one person. Hence for the sake of proper management of the Aslhan and all the arrangement appertaining thereto it is necessary to get the management done through panchayat. consisting of us the executants as members:--
1. So long as the executant No. 1, i.e., Mahanth Gur Prasad Das Jee. who has ceased to have all concern with all the affairs (works) of a Muhanth, remains alive, he shall be the head member of The Panchayat and his respect shall all along remain intact as usual. Thereafter, executant No. 2 who has been installed on the Gaddi of Asthan. Kabir Chaura according to custom, shall remain Gaddinashin, and his respect also shall be like that of a Gaddinashin.
2. The name of executant No. 2 shall be recorded in respect of the entire properties i.e., Zamindari, cultivation, village affairs, bouses and other movable and immovable properties appertaining to Asthan Kabir Chaura, for the purpose of Court affairs etc. in the column of milkiat, but he shall not be competent to let out the property in re-han or sell the same or to make any kind of transfer. In special circumstances, this will be done with the consent of all the members of the Committee, if there will be necessity to transfer the property.
3. No affairs and management of the Aslhan, besides ordinary and daily works which shall continue to be done with the powers of Mahanth Gaddinashin, shall be done without the approval of the Panchayat. If any difference arises regarding management, affairs or action of any one of the members of the Panchayat, it shall be settled by majority of opinion.
4. No member of the Panchayat for the time being shall be changed without the decision and approval of the Panchayat. If any person (member) turns to be a man of bad character, or shows any recusancy in religious matters, or if he causes disturbance in the business of the Panchayat, this matter Will be referred to the Panchayat and that person shall be removed according to the decision of the Punches, and in his place a Kabir Panthi Sadhu for the time being, of Kabir Chaura Asthan shall be appointed.
5. The number of the members shall be nine, but in every case, the Panchayat shall not be complete without the Mahanth, for the time being, being a member of it.
6. That each member shall be jointly responsible for the (work of) Panchayat (i.e.) that one, who shall be entrusted with a particular work of the Asthan shall do the work with full enthusiasm and interest. He shall not act otherwise. If he does so, the Panchayat is competent to remove him. It shall also be proper (for the Panchait) to render full services according to old customs, to the sewaks and other Fakirs, who may come to the Math, or who may have concern with it, and as they may deserve. There should be no slackness in charitable works and religious discourses.
7. That all the works and affairs relating to the Math shall be done with the consent and advice of Gur Prasad Das Jec, so that cordial relation may exist oetween gad-diriashin chela and Mahanth Gur (Prasad) Das.
8. If any difference may crop up in the Committee, due to which, disturbance may be caused in the management of the said Math, in that case (1) Jagmohan Das Jee of Asthan Bantj Darwaza, Baroda Gujarat and (2) Mahanth Mangal Das Jee, Chela of Mahanth Shyam Das Jee of Asthan Naigolwar, Baroda City, Gujarat and (3) Mahanth Basant Das Jee, Chela of Mahanth Harkisun Das Jee of Asthan Umdabad, Naya Darwaza, Kanyarapol, (4) Premdas Jee Chela of Mahanth Mangal Das Jee, of Asthan Samhapur, district Darbhanga, (5) Mahanth Bishun Das, Jee, of Asthan Baldahi, district Darbhanga and (6) Mahanth Bhikham Das Jee, Chela of Mahanth Ramcharan Das Jee of Asthan Gomabhi Muker? Nepal, (7) Mahanth Hansraj Das Jee, Chela of Mahanth Krishna Das Jee of Asthan Mainpur, district Molihari, (8) Bhag-wat Das Sewak son of Shankar Sahu of Gola Gopalpur, district Gorakhpur, (9) Mahanth Gobardhan Das Jee, Chela of Mahanth Sanwaldas Jec of Asthan Jalkar, district Balia, and (10) Mahanth Bhaywat Das Jee, Chela of Mahanth Mosahebdas jee of Asthan Basatpur, district Darbhanga, (II) Kanhai Lal son of Janpi Sahu, Sewak of Nagar Nousa, district Patna or the Mahanth who may be on the Gaddi in their place, shall come here and enquire into affairs of the committee and remove the member, who may be found at fault, from the membership of the committee, and in his place appoint another fit Sadhu, who may be available that time in the Kabir Chaura Math, so that (he management of the Math, puja, arti, sewa of sadhus, may continue to be done............"
9. Learned counsel emphasised that Ext. J. clearly indicated that the main Asthan of the followers of Kabirpanthi sect was at Mahalla Kabir Chaura, Benaras. There were several Asthans Subordinate to that in the district of Varanasi and other districts and Provinces. Learned counsel submitted that the Math at Sikandarpur in the State of Bihar was subordinate to the Asthan at Kabir Chaura. The Asthan also owned and possessed movable and immovable properties, including cash and other materials, which were used for charitable purposes. Any Mahanth, who was holding the property of the Asthan at the relevant time was not competent to Jet out the properties of the Asthan or the Math or to mortgage or to encumber them. None of the Mahanths was absolute proprietor of the properties of the Asthan or the Math and he was a simple manager or supervisor of the properties of the Math. Mr. Chatterjee drew our attention to paragraph 1 of Ext. J in order to show that none of the Mahanths had any personal interest in the properties of the Asthan. Simply the right of management was passing from one Mahanth to the other. As long as Mahanth Gur Prasad Das Jee (executant No. 1) was alive, he was to manage the property of the Asthan and after his death it was to pass on to Rambilas Das Jee (plaintiff No. I) who was executant No. 2 of the deed of arrangement and the name of Rambilas Das Jee was to be recorded in respect of the entire properties of the Asthan. Mr. Chatterji pointed out that paragraph 6 of Ext. J clearly indicated that it was a public religious trust. The beneficial interest was vested in an uncertain and fluctuating body of persons. The executants of Ex. J made it clear that the Asthan was to render full Service, according to old customs, to the sewaks and other Fakirs, who might come to the Math or who might have concern with it and as they might deserve. It was further enjoined upon the executants, who were jointly responsible for the work of Panchayat, that there should be no slackness in charitable works and religious discourses. If any of the Mahanths, who was in charge of the management at the relevant time, was found to be at fault in not discharging the charitable works properly, the Panchayat was competent to remove him. Paragraph 3 also provided that after a is removal a suitable member of the committee or another suitable Sadhu who might be available that time in the Kabir Chaura Math might be taken in so that the management if the Math, puja, arti, sewa of sadhus, might continue to be done. According to earned counsel the emphasis in Ext. J. is in charitable works, such as, puja, arti, sewa of Sadhus and other Fakirs. Among the properties in Ext. J is also a Math situated at mauza Bahadurpur, pargana Pillichh, district Patna, which is the subject matter of one of the disputed properties.
10. Learned counsel in this connection drew our attention to the provisions contained in Section 2 (1) of the Act, which defines religious trust' as follows:--
"'religions 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." On the basis of the above provisions learned counsel submitted that the provision is wide enough to include even constructive trust and from Ext. J it was obvious that the subsidiary disputed Math in the State of Bihar was also for the benefit of the Sadhus, Sevaks and Fakirs and, therefore, it was a public trust within the purview of the Act. Section 2 (e) defines 'Hindu' as "a person professing any religion of Hindu origin and includes a Jain and a Budhist, but does not include a Sikh." Learned counsel submitted that the learned Subordinate Judge erred in holding under issue No, 10 in paragraph 40 of his judgment that the defendant had failed to establish whether the followers of Kabir Saheb were Hindus within the meaning of the Act. In order to substantiate his contention learned counsel relied on a Bench decision of this Court in Baijaynanda Giri v. State of Bihar. AIR 1954 Pat 266, where Ramaswami and Sinha, JJ. (as they were then), while dealing with Section 59 of the Act, held that Kabirpanthis were of Hindu origin and the Act applied to trusts existing for the benefit of Kabirpanthis. No doubt in my opinion, this submission of the learned counsel is well founded. Kabirpanthis being Hindus, the Act would be applicable to them, provided it is found out ihat the disputed Math was a public trust, as has been held by the Supreme Court that the Act applied only in case of public trust and not to private trust --vide Mahant Ram Saroop Dasji v. S.P. Sahi, AIR 1959 SC 951. Therefore, the main consideration in the present, case is whether the disputed Math was a public religious trust. In the above case their Lordships at p. 956 in para. 6 observed:
".........To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a section of the public fallowing a particular religious faith or is only a sect of persons of a certain religious persuasion would not make the trust a private trust....."
11. Mr. Chatterji submitted that by reading Ext, J and other evidence on the record the following ingredients are found in the present case, which establish that Sikandarpur Math was a public trust; (a) promotion of religion; (b) Spiritual head; (c) from head to particular disciple to be nominated for the sake of managing the Math properties. In this connection learned counsel drew our attention to Sub-section (n) of Section 2 of the Act, which provides that "trustee" means any person, by whatever designation known, appointed to administer a religious trust either verbally or by or under any deed or instrument or in accordance with the usage of such trust....."
He also referred to Sub-section (p) to Section 2 of the Act, which provides that "trust property" means the property appertaining to a religious trust. Other ingredients Mr. Chatterji pointed out, (d) Office devolving on different Mahanths according to usage and requirement for the sake of management; (e) Beneficiaries will be members of the fraternity, that is, followers of Kabirpanthis or other religious persons, namely, sadhus, (f) The properties to be managed by Mahanth. (g) Religious discourses to be conducted in the Math and religious books to be kept there, (h) Sadhus to be fed. (i) Mahanths, who were to manage the properties, were celibates and (j) Building of the disputed Math contained 30 to 32 rooms, which were much beyond personal requirements. All these ingredients taken together, learned counsel contended, clearly proved tha' the Math at Sikandarpur was established for the service of a particular cult, namely. Kubirpanthi, and the income of the properties attached to it was for rendering services to sewaks, Fakirs and Sadhus and for other charitable works and religious discourses. The properties, therefore, attached to the Math were relating to public trust governed by the Act.
12. In order to substantiate his contention he relied on Ram Parkash Das v. Anand Das, AIR 1916 PC 256 corresponding to 24 Cal LJ 116, where it was held that "an asthal, commonly known in Northern India, as a irmth is an institution of a monastic nature. It is established for the service of a particular cult, the instruction in its tenets and the observance of its rites. The followers of the cult and disciples in the institution are known as chelas; the chelas are of two classes celibate and non-celibate. .........
The Mahant is the "head of the institution. He sits upon the gaddi; he initiates candidates into the mysteries of the cull; he superintends the worship of the idol and the accustomed spiritual rites; he manages the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself." Mr. Chatterji pointed out that the various tests have been laid down by the Supreme Court for ascertaining as to whether a religious endowment is a private trust or a public trust. In this connection he referred to Deoki Nandan v. Murlidhar, AIR 1957 SC 133. He drew our attention to their Lordships' observation at p. 136 in para. 5 to the following effect :---
"It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment ........."
Learned counsel submitted that in view of the above observation in the instant case the beneficiaries are general public or a class thereof. To fortify his contention he relied on the same judgment at p. 137, para. 7, wherein it was observed, "when once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that wordship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. 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 family idol, 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 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."
He also referred to Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinavak Gosavi, AIR I960 SC 100 where their Lordships observed that the question of intention to dedicate the place for the use of the public or of the user by the public being as of right was necessarily a matter for inference from the nature of the institution and the nature of the user and the way the institution had been administered. Once a long course of user by the public for the purpose of worship was established, and the fact of a separate endowment in trust for the deity was also proved, it was fair to infer that the institution must have been dedicated for user by the public (unless the contrary was established)-- particularly when the character of the temple, its construction, the arrangement of the various parts of the temple and the nature of the deities installed there were similar to what obtained in admittedly public temples. Similarly, when user by the public generally to the extent to which there was a worshipping public in the locality was established, it was not unreasonable to presume that the user by the public was as of right, unless there were circumstances clearly suggesting that the user must have been permissive or that the authorities in charge of the temple had exercised such arbitrary power of exclusion that it could only be ascribed to the private character of the institution. The extensiveness of the temple and of grants to it were pertinent circumstances to be taken into account in judging the nature and extent of the public right."
13. On the basis of the above observations learned counsel submitted that in the piesent case also the building of the Math contained 30 to 32 rooms. The extensiveness of the building indicated that it was meant for general public or class thereof.
14. He further relied on Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638, where their Lordships observed that where evidence in regard to the foundation of a temple was not clearly available, the question whether a Hindu temple was public or private was determined by relying on certain other facts which were treated as relevant, was the temple built in such in imposing manner that it might prima facie appear to be a public temple? The appearance of the temple of course could not be a decisive factor; at best it might be a relevant factor. Were the members of the public entitled to an entry in the temple? Were they entitled to take part in offering service and taking Darshan in the temple? Were the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Were their offerings accepted as a matter of right? The participation of the members of the public in the Darshan in the tcrnple and in the daily acts of worship or in the celebrations of festival occasions might be a very important factor to consider in determining the character of the temple. Some temples of this cult might have been private in the past and some of them might be private even today. Whether or not a particular temple was a public temple must necessarily be considered in the light of the relevant facts relating to it 14-A. In my opinion, in the cases referred to above their Lordships while laying down the tests for distinction of a private and public endowment have emphasised that it depends upon the evidence of user, dedication and the circumstances of a particular lease. Reference may be made to the case of Deoki Nandan, AIR 1957 SC 133, referred to above, on which reliance has been placed on behalf of the appellant. In that case, it was a]so observed that the question as to the scope of the dedication was a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found. Similarly, in Tilkayat Shri Govindlalji Maharaj, AIR 1963 SC 1638, their Lordships have observed, as mentioned earlier, that whether or not a temple was a public temple must necessarily be considered in he light of the relevant facts relating to that. It may further be noticed that in none of the cases their Lordships have observed that any of the tests was decisive in one way or the other. Those tests have to be kept in view while appraising the evidence adduced [by the parties in a particular case.
15. Mr. J.C. Sinha, learned counsel appearing on behalf of the respondents, at the first instance contended that Ext, J was not admissible. In this connection he drew our attention to para. 26 of the judgment of the trial Court where it has been observed that the certified copy of Ext. J was marked as an exhibit on formal proof having been waived by the defendant as per order No. 101 dated the 4th May, 1964, and not on formal proof being waived on behalf of the plaintiffs. On the very next day a petition was filed on behalf of the plaintiffs that they had not waived the formal proof of Ext. J. Therefore, they had prayed for expunging the evidence taken on the basis of Ext. J. The said petition was filed before Mr. K.D Prasad, predecessor-in-office of the learned Subordinate Judge, who had passed the impugned judgment. Mr. Prasad had left the matter to be decided at the time of hearing. The learned Subordinate Judge, who has passed the judgment under consideration, held that Ext. J was not to be taken into consideration.
16. Mr, Chatterji, however, urged that the learned Subordinate Judge has erred in not taking into consideration Ext. J. According to him. Ext. J was admissible into evidence. He referred to Clause (a) of Section 65 of the Evidence Act, which reads as :
"Secondary evidence may be given of the existence condition or contents of a document in the following cases :--
(a) when the original is shown or appear* to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;"
He also drew our attention to order No. 80 dated the 29th April, 1963, passed by the learned Subordinate Judge, the relevant portion of which reads as:
"Defendant files certified copy of deed of Intazamnama along with a petition and prays that the original of it may be called for from the plaintiff as the same is in his custody.
The plaintiff files a petition praying that the above petition be rejected or the plaintiff be given time to enquire about the existence of the original Intazamnama. Plaintiff to file the original document."
17. In my opinion, this portion of the order sheet ought to have been included in the paper book but it was not done due to the mistake on the part of the appellant. Generally Courts do not look to the materials or part of the document which are not included in the paper book, but, in the instant case, in the ends of justice I will condone the laches on the part of the appellant and will look into Ext. J and will also take it into consideration. In that view of the matter, Ext. J would be admissible into evidence. But still it remains to be examined as to how far it is relevant and what evidentiary value it has got. It may be noticed that Ext. J no doubt indicated that Rambilas Das plaintiff No. 1, was Mahanth of Kabir Chaura Math at Benaras. of which Bahadurpur Math was a branch but it did not specifically speak of Sikandarpur Math and the properties attached to it, as given in the plaint.
18. Mr. Chattarji, however, urged that in the present case the plaintiffs had filed annual returns before the Board for the years 1951 to 1956, which had been marked Exts. B Series. As an illustration, learned counsel referred to Ext. B/1. Under serial No. 2, 'name of the trust', Sikandarpur is mentioned. Under serial No. 4, 'Main Math Sikandarpur branch Math Bahadurpur' is mentioned. Under serial No. 5, 'names of trustees, Shri Mahanth Rambilas Das, (plaintiff No. 1), Manager Sri Mahanth Siri Das (plaintiff No. 2) chela Mahanth Rambilas Das is mentioned. Under serial No. 9 'objects of the Trust', it is clearly mentioned, 'propagation of religion, service to Sadhus and Atithis and propagation of religion of Kabir Saheb'. Under serial No. 13 'annual expenditure' on religious objects Rs. 850/- and on charitable objects Rs. 215/- are entered. Under serial No. 14 'particulars as to import and customs and usages followed'-- it is mentioned as "Guru Parab, Bhandara on the date of birth of Kabir Saheb". Similarity, the plaintiffs have also submitted budget estimate (Ext. C) to the Board for the year 1956-57.
19. Mr. Sinha, on the other hand, contended that the statement contained in those returns (Exts. B series) would not amount to admission nor they would amount to waiver and acquiescence. In order to find support to his contention he relied on a Bench decision of this Court in Bihar State Religious Trust Board v. Mahanth Jaleshwar Gir, 1968 Pat LJR 507 corresponding to ILR 46 Pat 23, where Untwalia, J. (now C. J.) and K.K. Dutta, J., while dealing with Sections 28, 43, 59, 60 and 67 of the Act and Sections 8, 17, 21 and 115 of the Evidence Act, observed that the fact of conduct being a relevant fact under Section 8 of the Evidence Act might be admissible in evidence, but that fact by itself would not lead to the conclusion within the meaning of Section 8 of the Evidence Act, that the trustee by his conduct influenced or was influenced by the fact that the trust in question was a public one. The conduct by tself was no proof of that fact, unless the conduct amounted to a waiver or acquiescence. The trustees, not being fully conscious of their rights or not being aware of the true state of law or facts, submitted to the dictates of the Board of Religious Trusts, and, therefore, their conduct neither amounted to waiver of their right nor to acquiescence with knowledge of their legal rights and that Section 115 of the Evidence Act would be no bar in their way to deny the fact that the trust in question was a public one. Mere conduct was not admission, as defined in Section 17 of the Evidence Act for making it eligible to be used as admission under Section 21 of the Evidence Act. The statements contained in the various returns filed under Section 59 of the Act were not such that it could be held that they amounted to an admission of the fact that the trust in question was a public one.
20. In my opinion, in view of the above observation learned counsel for the appellant cannot take advantage of those returns or their contents nor can it take advantage of the budget estimate (Ext. C). It may also be observed that in the plaint itself the plaintiffs have stated that the returns and the budget were submitted on their behalf and taxes were also paid to the Board under threat of prosecution. In support of the said assertion in the plaint, Shri Das, plaintiff No. 2. was examined as P. W. 16 and the Karpardaz, Rameshwar Lal, was examined as P. W. 17. Both of them stated that under threat of prosecution by the officials of the Bihar state Board of Religious Trust those returns and the budget were filed before the Board and the taxes were paid. On behalf of the defendant none was examined to deny those statements. That apart, it was stated by P. Ws. 16 and 17 that they used to write Kaithi script and not Devnagri script. Therefore, their signatures on tho.se returns and the budget were forged. On behalf of defendant, D. Ws. 1, 2, 6 and 12 were examined to state that those returns and the budget were written and signed in their presence. Therefore, the handwriting expert Md. Hanif (D. W. 8) was examined whereas plaintiffs examined the handwriting expert Bishwanath Ojha (P. W. 20). The learned Subordinate Judge has discussed all these matters in paragraphs 18 to 23 of his judgment and he found inherent defect in the opinion (Exts. K series) of D. W. 8, who admitted that he did not take any photographic enlargement of the disputed writings or the standard admitted writings as they were not needed in that case. But P. W. 20 had given his opinion based upon photographic enlargement (Exts. 10 series). Contrary to the opinion of D. W. 8 the opinion of P. W. 20 was that the writings on the documents, Exts. B series, C. D and E were not of the plaintiffs or their Karpardaz, Rijmeshwar Lal (P. W. 17). Ext. D is the petition dated the 27th April, 1964, filed by Rambilas Das (plaintiff No. 1) and Mahanth Sri Das (plaintiff No. 2), who was examined as P. W. 16, whereas Ext. E is the signature of Rameshwar Lal (P. W. 17) on Ext. F, which is a note written by an officer of the Board regarding assessment and payment of fees by Mahanth Rambilas Das. On Exts. D and E also their alleged signatures are in Devnagri script. The learned Subordinate ludge held that the opinion given by P. W20 was dependable and he preferred his opinion to that of D. W. 8. I do not find any reason to differ from his above finding.
21. Mr. Chatterji contended that since Rambilas Das has not examined himself as a witness, an adverse inference should be drawn against the case of the plaintiffs, as Exts. B, C and D were signed by him and therefore he was the most competent witness to come and state before the Court as to whether they were signed by him or not. No doubt, in my opinion, he was an important witness and he ought to have been examined but on the evidence on the record no adverse inference can be drawn against the plaintiffs in the present case. Reference may be made to the evidence of P. W. 16 who stated in examination-in-chief as:
"Rambilas Das is aged 80 to 85 years. His memory is very weak. He is also physically weak. At present he is at Hardwar. He has gone there for sake of change as he remains in bad health."
He was not cross-examined on this point. In Karindan Sarda v. Sailaja Kanta Mitra, AIR 1940 Pai 683 Wort and Manohar Lall. JJ. observed that if witnesses are not cross-examined on the point, their evidence has to be acccpted, unless there were any inherent improbabilities. Similar view was taken in Jayalakshundevamma v. Janardhan Raddy, AIR 1959 Andh Pra 272 by Satyanarayana Raju and Kumarayya, JJ. I find no inherent improbabilities in the evidence of P. W. 16. Therefore, I am not inclined to draw any adverse inference due to non-examination of Rambilas Das, plaintiff No. 1.
22. I am unable to accept the contention of the defendant-appellant on other grounds as well. It may be recalled that the defendant's case was that the beneficiaries of the properties in dispute were Kabirpanthis, but it has not examined a single member of such Panth, in the present case to establish that he has any beneficial interest in those properties. On the other hand, plaintiffs have examined P. Ws. 1 to 15, who arc residents of Sikandarpur, Bahadurpur and other neighbouring villages where the suit lands are situated. They have stated in their evidence that the suit properties were the private personal properties of the plaintiff and they were not public properties appertaining to any public trust. Mahboob Mian (P. W. 2) is a Muslim whereas the plaintiff's other witnesses are other Hindu. Sanatan Dharmi and Kabirpanthi. It may be noticed that Lala Singh (P. W. 3) slated in cross-examination that he was a Kabirpanthi, Mathura Singh (P. W. 7) also stated that he was a Kabirpanthi. Similar are the statement of Sarbi Gope (P. W. 8) and Ramnarain Singh (P. W. 9). If the suit lands were public properties of which the beneficiaries were the people holding Kabirpanthi faith, it was not expected from these witnesses to have deposed against their own interest. In that view of the matter the evidence of those witnesses carrier weight and there is no reason to disbelieve them.
23. On behalf of the defendant Shiv Dayal Mahato (D. W. 3). Rajendra Prasad (D. W. 5), Dukhan Mahto (IX W. 7), Rampati Mahto (D. W. 9) and Krit Narayan (D. W. 10) all of village Taraura have admitted in their evidence that the ground level of their village was higher than the ground level of village SIkandarpur and that water for irrigation flows from their village to village Sikandarpur. A suggestion was made on behalf of the plaintiffs that there was dispute between the people of the two villages with regard to irrigation of their lands. In my opinion, due to physical features of the lands, as deposed to by those D. Ws. it is quite possible that there might be disputes among the people of those two villages for the purpose of irrigation. Besides, they admitted in their evidence that there was a temple of Shaligramji in village Taraura, to which several bighas of land were donated, out of which Mahanth of Shaligrarnji temple sold about 7 bigas to Shri Da.s (P. W. 16), plaintiff No. 2. Those D. Ws. also admitted that there was a dispute for possession of the said seven bighas of land between P. W. 16 and the people of village Taraura. The learned Subordinate Judge has rightly held that the evidence of those D. Ws. was not reliable as their evidence was motivated due to enmity. In that circumstance, in my opinion, the evidence of plaintiff's witnesses has rightly been preferred.
24. Mr. Chatterji submitted that no doubt plaintiffs' witnesses have stated that all the properties which were claimed by the plaintiffs in the suit, belonged to them exclusively and the public had no concern with the same, but none of them has staled how those properlie.r were acquired by the plaintiffs. He further contended that the plaintiffs have not filed documentary evidence regarding personal acquisition. On the other hand, the plaintiffs being Mahants of Sikandarpur Math, the legal presumption will be that the properties of the said Math were for the benefit of the general public or some considerable portion of it. He also reiterated that by order dated the 28th February. 1959 (Ext. 12) the authority under Section 43 of the Act had found the properties claimed by the plaintiffs as appertaining to public trust of which the beneficiaries were general public professing Kabirpanth. religion and they did not belong to the plaintiffs or the members of their family. In that circumstance he urged that the learned Subordinate Judge in the suit failed to appreciate that the onus was upon the plaintiffs to establish that the properties were their exclusive properties and they did not belong to any public trust. In my opinion, this submission of the learned counsel tor the appellant is also not acceptable in view of the judgment of the Supreme Court in the Bihar State Board of Religious Trusts, Patna v. Mahant Sri Biseshwar Das, 1972 Pat LJR 16 (SC) ) corresponding to (1971) 1 SCC 574 = (AIR 1971 SC 2057). It may be noted that that case had gone to the Supreme Court against the judgment of this Court. In that case also Mahant Sri Biseshwar Das in a suit claimed that the Asthal and its properties were his personal properties. The Bihar State Board of Religious Trust took the stand that the Asthal was public trust in which the members of public had an interest. The trial Judge dismissed the suit, holding that the temple and properties were trust properties of a public nature for religious and charitable purpose. This Court reversed the judgment and decreed the suit filed by Sri Biseshwar Das, holding that the Act did not apply to the properties in suit. Aggrieved by the said judgment of this Court the Board preferred an appeal to the Supreme Court. It was held that the properties of the suit being in the possession of Mahant Sri Biseshwar Das for a long time the onus of proof that the properties were held on trust for public purpose of a religious or charitable character was clearly on the Board who alleged that it was so. It was * further held that it was not impossible to have private Math where the endowment was not intended to confer benefit upon the public or even upon the members of a particular religious sect or order. In such a case it would be the grantor and his descendants who are the only persons interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an indenendent charity in which the public or a section of it has an inlerest Such charities appertained to a private debutter also. The existence of a private Math, where the property was given to the head of the Math for his personal benefit only, had in the past been recognised. In such cases there was no intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted. Their Lordships lastly observed that unless the Asthal itself was a public trust, for religious or charitable purposes, the properties appertaining thereto would not be properties of a Dublic trust for religious or charitable purposes. The use of the exnrcssion "appertaining to the Asthal", therefore, cannot lead to the conclusion that the properties in question were stamped with a trust for public purposes. (See also B.K. Mukherjee's Hindu Law of Religious and Charitable Trusts, 3rd Edition, pages 300 to 304).
25. Apart from the above observation of their Lord-ships the question at issue, raised by the learned counsel for the appellants, also loses its importance in view of the decision in AIR 1960 SC 100 (supra) where it was observed that where the parties had joined the issue and had led evidence and the conflicting evidence he weighed to determine which way the issue could be decided, the abstract question of burden of proof became academic.
26. Mr. Sinha for the respondents also pointed out that in the instant case there are materials to indicate that the properties belonged exclusively to the plaintiffs. He referred to Ext. 14, which is a khatian of mauza Bahadurpur where the name of Mahant Guru Prasad Das is entered in individual capacity. Similarly in Exts. 4 to 4/Z (rent receipts) the names of the plaintiffs are entered in their individual capacity. Learned counsel for the appellant contended that if really those entries were not in their personal capacity, they ought to have been made with reference to Kabirpanthi Math through Sebait. He also pointed out that Ext. L, deed of exchange between Hari Prasad and Mahant Rambilas Das, on which reliance was placed on behalf of the appellant, also contained similar entry, that is, in personal capacity of plaintiff No. 1. In my opinion, in the background of the discussions made above the contention of the learned counsel for the respondents is well founded.
27. Mr. Chatterji also referred to us to Ext. H, which is a deposition of Rambilas Das (plaintiff No. 1) in Suit No. 106 of 1953 dated the 29lh July, 1954 in the Court of the 1st. Additional Munsif, Benaras, where he stated that Gurudwara Kabir Chaura was the All India Gurudwara of Kabir Panthis. He also stated therein that he was in the Math since the age of 20 years. He used to perform Puja at several Asthans before he became a Mahanth. Learned counsel emphasised on his statement "It being a Devasampati belongs to all but I am its malik." In my view, the statements made in Ext. H obviously related to Gurudwara Kabir Chaura at Benaras. It does not relate to the suit properties. Hence, the statements therein do not at all help the contention of Mr. Chatterji.
28. In the result, after due consideration from different respects I find no reason to interfere with the judgment and the decree passed by the trial Court, which are affirmed, and the appeal is dismissed with costs.
Anwar Ahmad, J.
29. I agree.