Patna High Court
The Bihar State Board Of Religious Trust vs Rameshrey Prasad Choudhary on 29 January, 1977
Equivalent citations: AIR1977PAT272, 1978(26)BLJR234, AIR 1977 PATNA 272
JUDGMENT M.P. Singh, J.
1. This is an appeal by the defendant Bihar State Board of Religious Trust (for short the Board) against the judgment of the Subordinate Judge, Samastipur, dated the 10th July, 1973 reversing the decision of the court of first instance. The suit was for a declaration that the temple of Sri Ram Laxman and Jankiji with the properties dedicated to it under deed of Samarpannama dated the 28th November, 1916 (Ext. 4) was a private trust and not a public one, and also for permanent injunction restraining the Board from interfering with the administration of the trust property by the plaintiff. The temple is located in village Harpur-Purandar alias Keota within Dalsinghsarai police station in the District of Samastipur. The dispute occurred when the Board tried to enforce the provisions of the Bihar Hindu Religious Trust Act 1 of 1951 (briefly 'the Act') by serving a notice upon the plaintiff-respondent to submit return and continued to interfere even thereafter.
2. The case of the plaintiff was that his father Chhatradhari Choudhary who was a great devotee of the aforesaid deities had a desire to construct a temple for installing the above named deities and to endow some properties for their Raibhog and he, therefore, started construction of the temple, but unfortunately he died. After his death, the plaintiff and other members of his family completed the construction. They installed the above deities in the temple. The plaintiff and his brother also executed a deed of Samarpannama dated the 28th of November, 1916 and dedicated some properties for the worship of the above named idols. It is said that the plaintiff was made Manager and trustee of the properties through a separate deed of Managernama dated the 28th of Nov. 1916 (Ext. 5). The plaintiff was since then managing the properties, maintaining idols and repairing the temple honestly It was also alleged that the endowment was created in favour of the family deities with one of the family members as trustee to be succeeded on death or removal by any other family member. The further case of the plaintiff was that the endowment was for the benefit of the members of the family and the temple had been constructed just in front of their residential house with a view that all the members may regularly visit the temple for worshipping the deities. It was also asserted that the public had no concern with the temple or its properties and that only members of the family were the real beneficiaries on these allegations the plaintiff prayed in the suit for a declaration that the endowment created by the deed of Samarpannama (Ext. 4) dated the 28th November, 1916 was a private trust and it was beyond the jurisdiction of the Board and for permanent in junction as aforesaid.
3. The appellant Board did not dispute that the temple was constructed by the members of the family of the plaintiff. It took the stand that the deities were not the family idols, that the members of the general public had a right to worship the deities without any obstacle or hindrance and that the people in general and the villagers used to attend celebrations without interference and used to give offerings in cash and kinds and hence the trust was a public one in which the members of the public had interest and to which the Act applied.
4. Both parties led evidence in the case, on a consideration of which the learned Additional Munsif, Samastipur held that it was a public trust and, therefore, it came within the purview of the Act. On appeal, the learned Subordinate Judge, held that the trust was a private one which did not come within the purview of the Act.
5. Thus, the material question which arises in the case is whether the trust is a public trust to which the Act applies or is a private trust which does not come within the purview of the Act. The principles of law for determination of the question whether an endowment is public or private are fairly well settled. This Court observed in Deoki Nandan v. Murlidhar, 1956 SCR 756: (AIR 1957 SC 133) as follows (at p.136):
"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."
This Court further held:
"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 worship for the benefit of 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."
(See also the case of the State of Bihar v. Sm. Charusila Dasi, 1959 Supp (2) SCR 601 at p. 613 : (AIR 1959 SC 1002 at p. 1008.)
6. In Ramswaroop Dasji v. S. P, Sahi, (AIR 1959 SC 951) at page 956 it was 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 same view has been expressed by Dr. Mukherjee in his Tagore Law Lecture on the Hindu Law Religious and Charitable Trust, 1970 Edn. at page 143, where it has been observed as follows:
"So far as Debutter endowment is concerned the essential test to distinguish a private from a public place of worship is, whether right of worshipping the idols is limited to the members of a particular family or group or extends to all persons professing the Hindu religion."
7. In Govindlalii v. State of Raias-than, (1964) 1 SCR 561 : (AIR 1963 SC 1638). this Court held to consider about a Hindu temple being a private or public and observed as follows (at p. 1648):
"Where evidence in regard to the foundation of the temple is not clearly available some times, iudicial decisions rely on certain other facts which are treated as relevant.
x x x x Are the members of the public en titled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple? Are the members of the pub lic entitled to take part in the festi vals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right. The participa tion of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple."
In the case of Bihar State Board Religious Trust, Patna v. Sri Biseshwar Das, (1971) 3 SCR 680 : (AIR 1971 SC. 2057) the following observations were made (at pp. 2061, 2082. 2063):
"Thus, the mere fact of the public having been freely admitted to that temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right."
"Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity ip which the public or a section of it has an interest. Such charities, as already stated earlier, appertain to a private debutter also."
X X X X "In such cases provision for the service of the Sadhus, occasional guests and wayfarers does not render a trust for an idol into a trust for public purposes. This is because where the main purpose of the trust is making provision for the due worship of an idol and performance of its seva puja and other ceremonies, the feeding of Sadhus and giving hospitality to wayfarers are inevitable. These are regarded as duties forming part of the due worship of the particular deity. (See Ramsaran Das v. Jairamadas, AIR 1943 Pat 135). Therefore, evidence that Sadhus and other persons visiting the temple are given food and shelter is not by itself indicative of the temple being a public temple' or its properties being subject to a public trust."
In Babu Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7: 67 Ind App 1, Sir George Rankin said that the dedication to the public was not to be readily inferred when it was known that a temple property was acquired by grant to an individual or family. He also observed that the fact that the worshippers from the public were admitted to the temple was not a decisive fact. Such an inference, if made, from the fact of user by the public was hazardous since it Would not, in general, be consonant with Hindu sentiment or practice that worshippers should be turned away, and, as worship generally implied offerings of some kind, it was not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. It was further emphasised by their Lordships that the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.
In the Bihar State Board of Religious Trust v. Palat Lal, (AIR 1972 SC 57) it was held that where by a will certain properties were endowed in favour of an idol which was worshipped all along by the family members and the public were not allowed the share in the worship as of right and in the will also it was not made clear whether the public would be admitted as of right and intervention of the public was neither intended nor allowed, it would be a private endowment. In that case the will of the arrangement showed that the looking after the deity was to be the concern of the family. After considering the oral as well as the documentary evidence, it was held that the endowment was a private endowment.
8. In T.D. Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, (AIR 1972 SC 1716), the following observations were made (at pp. 1720, 1721):
"In short the origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public of private."
X X X "It is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple. It was also established that persons who were outsiders in the sense that they did not belong to the Thouguluva family used to come and worship at the temple and made offerings there. There were also some jewels and other articles in the temple. But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone. The entire evidence, both documentary and oral, had to be considered as a whole keeping in view the principles already noticed by us. We are satisfied that the learned District Judge came to the correct conclusion that the suit temple was private in character."
In the Bihar State Board of Religious Trust v. Acharya Mahanth Amarnath Das, (AIR 1974 Pat 95) it was observed that whether a religious trust is a public or private endowment, depends upon the existence of user, dedication and the circumstances of a particular case.
9. There are also cases where members of the public are associated in the management of the temple and interest in its management is created in them. In such cases it has been held that the endowment is a public one. That was held by the Supreme Court in Deokinandan v. Murlidhar (AIR 1957 SC 133: 1956 SCR 756) where the testator had associated two strangers in the meeting of management and on that inference was drawn that Thakurdwar was dedicated for worship by the members of the public and not merely by the family of the testator.
In State of Bihar v. Smt. Charusila Dasi, (AIR 1959 SC 1002) the settlor had provided for management of the trust by a Board of five trustees of whom three were strangers and in that situation it was held that this was an indication that the endowment was public.
In Bihar State Board of Religious Trusts v. Bhubneshwar Prasad Choudhary, (AIR 1974 SC 1123) the manager or shebait was subiect to the superintendence and control by a body of outsiders who were given the power to remove the shebait if he did not act properly and in the circumstances it was held that it has public character.
10. From the tests laid down in the various abovementioned cases, it is clear to me that each case of endowment as to its character has to be decided upon its own circumstances. It is not always possible to have all the features of a public trust in every case. Even some of the tests laid down by the Supreme Court in a good case may be sufficient to enable the court to come to a conclusion about the correct character of the trust. The most important test however 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.
11. Keeping these tests, in view, let us examine the circumstances proved in the present case by evidence. In the present case that ori-
gin of the endowment is known and direct evidence oral and documentary is available. From the evidence the following facts emerge in the present case:
(i) That the temple was constructed by the members of the family of the plaintiff and it was they who installed the deities therein to be worshipped.
(ii) That provisions were made in Exts. 4 and 5 for continuously worshipping the deities under the superintendence and management of the members of the family. In order to facilitate worship the founder clearly intended that regular worship shall be maintained and the entire income of the properties dedicated to the deities were to be spent over Raibhog etc. and in the expenditure over casual visitors and also over the repairs of the temple and the houses appertaining to the temple and for payment of the salaries to the servants of the deities.
(iii) That the entire responsibilities for the management of the trust were placed on the members of the family and the control over the management was exclusively kept in the family. No stranger was associat-ed with the institution. On a perusal of the two documents namely, Samarpannama dated 28-11-1916 (Ext, 4) and the Managernama (Ext. 5) of the same date, it is quite clear that the management was exclusively confined to the member of the family as a trustee to be appointed by the members of the family. The document nowhere indicated that the members of the general public were to interfere with the management in any manner. There is nothing to show that the general members of the public gave offerings or contributed anything towards expenses of the temple or in the repairs of the temple or other buildings appertaining to it. There is absolutely no evidence on record that the temple was being run by contributions and benefactions obtained from members of the public. The evidence is rather to the contrary. The entire management was with the family of the plaintiff. Ext. 5 clearly shows that if the trustees somehow or other becomes unfit, he has to be removed and in his place some other member of the family has to be appointed as a manager. The power of removal was placed in the hands of the members of the family and the new trustee was also to be appointed out of the members of the family and by the members of the family. In Ext. 5 it is no doubt provided that on removal of the trustee the members of the family could appoint any other person who is competent and honest as trustee. It does not provide however, that the said other person shall be an outsider. Even if he be an outsider he was to be appointed by the members of the family and he was put under the control of the members of the family of the plaintiff.
(iv) That there is no evidence on record that the public ever used the temple as a matter of right, though there is evidence that there was no interference by the plaintiff in the matter of worship by the villagers.
(v) That only the members of the family of the plaintiff have all along been in possession and management of the temple and the properties ever since the establishment of the deities.
(vi) That no resident of the village nor any one from the adjoining village deposed about the temple being public. Not a single member of the public deposed to the effect that the members of the general public ever worshipped the deities as of right or gave offerings to the temple. Several witnesses who were residents of the village in question, namely, Keota where the temple is situated, deposed that the temple was a family temple of the plaintiff and that the public in general did not visit the temple nor made any offerings. That evidence was accepted by the lower appellate court and there is no good reason to differ from the view of the court of appeal below.
In my opinion, the presence of all these features in the present case can lead to the only conclusion that the temple of Sri Ram Laxman and Jankiji with the properties is a private trust and the temple was founded and the properties were dedicated to it for the benefit of the members of the family. My concluded opinion is that the intention of the founder was that, only the members of their family were to have right of worship at the temple and not the general public or any specified portion thereof,
12. Mr. Katriar, however, has relied upon certain circumstance to show that the endowment is a public one. The circumstances relied upon by him are (i) That the temple was situated in a separate building and the height of the deities was 1 to 1 1/4 cubits, (ii) That the building was a massive one; (iii) That the villagers used to worship the deities in the temple freely without any hindrance and they attended all celebrations in the temple, (iv) That the Pujaris were appointed from time to time for the performance of the Pula in the temple (v) That the Sadhus and others were given food and shelter when they visited the temple and the entire income of the properties was spent over Rajbhog etc. and for entertaining the casual visitors and others; and (vi) That the consecration of the temple and the installation of the deities of Sri Ram Laxman and Jankiji were made with great solemnities and in accordance with Shastras
13. I will briefly deal with these contentions. I will indicate the points raised by the learned counsel for the appellant Board in the margin, as for example. "Location of the temple" etc. for easy reference at a glance. The first circumstance relied upon by Mr. Katriar is that--
Location of the temple.-- In the present case the temple was situated in a separate building outside the dwelling house and this was a circumstance in favour of the temple being public. He submitted that adverting to this aspect of the question the Supreme Court observed in Deoki Nandan v. Murlidhar, (AIR 1957 SC 133 at p. 142) "There is the fact that the idol was installed not within the precincts of residential quarters, but in a separate building constructed for that very purpose on a vacant site and as pointed out in Debroos Banoo Begum, v. Nawab Syud Ashgar Ally Khan, (1875) 15 Beng LR 167 at p. 186 "it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building "He also drew my attention to the case of Bihar Board of Religious Trust v. Bhubneshwar Choudhary. (AIR 1974 SC 1123) in which the fact that the idol was installed not within residential precincts but in a separate building, was considered to be a relevant factor. It is to be noted, however, that in these two Supreme Court cases members of the public were associated with the management of the institution. In my opinion, though this circumstance is a relevant factor and has to be taken into account, it is not a strong circumstance. In State of Bihar v. Smt. Charusila Dasi, (AIR 1959 SC 1002) the Supreme Court, while reiterating the observations in Deokinandan v. Murlidhar (supra), observed that the fact that the temple is constructed outside the dwelling house would not be a strong circumstance where the temple is in Bengal. Thus, the contention has no force.
14. His second contention is that the extensiveness of the temple, that is to say, it has nachghar, Juhlanghar, Vandar, naubatkhana, house for casual visitors, Sant Niwas, Chakra and the piace of Parikarma, was also a relevant factor to be taken into account for determining the nature and character of the endowment. He submitted that this circumstance indicated that the trust had the public character. In my opinion, the appearance of a temple though a factor to be taken into account, cannot be treated as decisive of the matter. See the cases of Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas, (1970) 2 SCR 275: (AIR 1970 SC 2025) and T.D. Gopalan V. The Commissioner of Hindu Religious and Charitable Endowments Madras, (AIR 1972 SC 1716).
15. User by the public.-- Thirdly, the learned counsel for the appellant Board urged that the villagers had been worshipping the deities in the temple freely without any interference by the founders or their descendants and this was cogent evidence in favour of the temple being public. He submitted that there was no hard and fast rule with regard to the poriod of user by the public, that there was no minimum which must be fulfilled and there was no maximum which must compel an inference and that each case depends on its own circumstances. In my opinion, the contention does not merit any serious consideration in the facts and circumstances of the present case. Here there is a deed of endowment (Ext. 4) and a deed of appointment of Manager or Shebait (Ext. 5) and from these two documents, it appears to me that the clear intention of the founder was to benefit the members of the family and that only the members of the family shall have the right to worship the deities. Such inference is reasonable, because there is no indication whatsoever in these documents to make the members of the general public beneficiaries. Ordinarily, it is only in absence of express dedication through a document that the user by the public assumes importance. Any way in the present case, there is no evidence to show that the public ever worshipped the deities as of right. The court of appeal below has held on evidence that the public never made any offerings to the deities. As held in Bihar State Board of Religious Trusts, Patna v. Bisheshwar Das (AIR 1971 SC 2057) the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. In Bhagwandin v. Girhar Swaroop (AIR 1940 PC 7) also it was observed that the fact that the worshippers from the public were admitted to the temple was not a decisive fact, because worshippers would not be turned away as they brought in offerings, and the popularity of the idol among the public was not indicative of the fact that the dedication of the properties was for public. In the circumstances aforesaid, I am of the opinion that the user of the temple by the villagers without interference. If any must have been permissive and the same cannot be regarded as sufficient to show that temple and properties were dedicated to the public for the purpose of worship.
16. Appointment of pujari -- His fourth contention is that the appointment of a Archaka for the performance of the pirja in the temple was also a factor indicating that the temple was a public one. Learned counsel referred to the observations to this effect made in Deokinandan v. Murlidhar (AIR 1957 SC 133) (supra) but in that Supreme Court case the testator had associated two strangers in the Committee of Management and on that the inference was drawn that Thakurdwara was dedicated for worship by the members of the public and not merely by the family of the testator. It is also to be noticed that in the present case the appointment of Pujari was under complete control of the family of the founder. The trustee was given full power under the deed of appointment of Manager (Ext. 5) to appoint a person of his own choice as Puiari for performing puja of the deities. The salary of the Puiari was to be fixed by the trustees. I have already stated that the trustee was to be a person from the members of the family of the founder and was to be appointed or removed by the members of the family of the founder and the public had no hand in it.
17. Feeding of Sadhus and service of wayfarers -- His fifth contention is that the Sadhus and others were given food and shelter when they visited temple and the entire income of the property was spent over Rajbhog etc. and for entertaining casual visitors and others. In my opinion this circumstance is not decisive. As held in Ramsaran Das v. Jairam Das (AIR 1943 Pat 135) a mere provision for service of Sadhus and occasional guests and wayfarers in a dedication to an idol does not render the dedication substantially for public purpose. In the Supreme Court case of Bihar State Board of Religious Trust, Patna v. Bisheshwar Das (AIR 1971 SC 2057) this view of the Patna High Court was approved and it was held that the feeding of Sadhus and giving hospitality to wayfarers were regarded as duties forming part of the due worship of the particular deity and they were not by themselves indicative of the temple being a public temple or its properties being subject to a public trust.
18. The sixth contention of the learned counsel for the appellant is that construction of the temple and installation of deities were made with great solemnities and in accordance with Shashtras and this was also a relevant factor to consider in determining the character of the temple. I will again say that this may be a relevant factor, but it cannot be regarded as decisive of the matter.
19. These are all the contentions urged by Shri Katriar on the point as to whether endowment is private or public. In my opinion, all these contentions taken individually or collectively do not establish that the temple with the properties in question is a public trust. My .definite conclusion is that it is a private trust and. therefore, outside the ambit of the Act. I, therefore, hold that the plaintiff is not subject to the provisions of the Act and the lower appellate court was right in reversing the lodgment of the trial court and in decreeing the suit of the plaintiff respondent.
20. The next point relates to the question of limitation. By order No. 9, dated the 3rd March, 1976 this Court said that the application under Section 5 of the Limitation Act as also the appeal will be heard. Notices were issued in both. Order No. 13 dated the 12th August, 1976 passed by this Court runs thus :
"The question whether the appeal itself is barred bv limitation shall be considered at the time of hearing of the appeal, because the appeal itself has been admitted and is pending for hearing."
It is thus clear that the question of limitation has also to be considered in this case.
The period of limitation expired on 10-11-1973. This appeal was filed in this Court on 27-11-1973, alleging that Civil Courts were closed for the annual vacation from 26-9-1973 to 2-11-1973 and again on 9th and 10th Nov. 1973 for Kartik Purnima and that, for that reason, the judgment and decree of the trial court could not be obtained. The appeal was thus barred by 16 days. The limitation petition "as filed under Section 5 of the Limitation Act on 21-12-1973 with a prayer that the delay may be condoned. It appears that though the judgment was delivered by the trial court on 25-11-1973, the appellant applied for a copy of the trial Court judgment on 11-1-1974 and obtained on the 17th January, 1974. There is thus no explanation for the delay of the period between 10-11-1973 to 27-11-1973, and it remains unexplained. Mr. Katriar, learned counsel appearing for the appellant has submitted that the staff of the office of the Board was negligent and he has referred to paragraph No. 4 of the limitation petition, which is as under.
"That the appellant asked its staff at Samastipur to obtain the certified copy of the trial court judgment and decree in connection with filing of second appeal in the High Court at Patna."
There is no allegation of negligence in the aforesaid paragraph. I have perused the entire limitation petition and there is no allegation of negligence against any one. The petition does not state whether any particular person was responsible for late filing of the appeal. In my opinion, the delay during the period 10-11-1973 and 27-11-1973 has not at all been accounted for and no sufficient cause has been made out for excusing the delay in filing the appeal. There is no doubt that whether it is a department of the government or a private party, the provisions of law applicable are the same unless the statute itself makes any distinction. The department cannot be treated differently. It is needless to point out that the expiration of the period of limitation prescribed by law for making an appeal gives rise to a valuable right in favour of the decree holder to treat the decree binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be lightly disturbed. I am of the opinion that in the present case the appellant is guilty of such inaction or negligence, as would deprive it of the protection of Section 5 of the Limitation Act. The application for condoning delay is therefore, dismissed. The result is that the appeal is held barred by limitation and on this ground alone it is fit to be dismissed.
21. The end result is that there is no merit in the appeal. It is accordingly dismissed. In the circumstances of the case I make no order as to costs.