Punjab-Haryana High Court
Suraj Bhan (Died) And Ors. vs Bodha Nand And Ors. on 17 April, 1986
Equivalent citations: AIR1987P&H183, AIR 1987 PUNJAB AND HARYANA 183, (1986) 2 CURLJ(CCR) 331 (1986) 90 PUN LR 52, (1986) 90 PUN LR 52
JUDGMENT
1. This judgment will dispose of Regular First Appeals Nos. 741 and 964 of 1976 which arise out of the same judgment of the Subordinate Judge, lst Class, Hoshiarpur. Swami Hira Nand Puri of village Nangal Bihalan, District Hoshiarpur it is averred, was an eminent scholar and spiritual man. He was highly respected and even worshipped by countless followers throughout the country. Under his spiritual influence various devotees made different donations in his favour for the welfare of his followers. The assets which he left at the time of his death are given in Annexure 'A' attached herewith.
2. It is further averred that the Swamiji created a Trust styled as Shri Hira Nand Puri Sat Sangh (Mission) and dedicated his personal and the above property to it. He utilised all his income for purely religious and charitable purposes. He died on 7th Jan 1964 at Chandigarh. Defendants 1 to 5 were his chelas. Defendants 6 and 7 were Shri Hira Puri Mission and Shri Hira Puri Sat Sangh, whose Presidents were also the chelas of Swamiji. Defendants 1 and 2 started quarrelling after his death and various civil and criminal proceedings started between them regarding the property. They set up personal claims to it and thus frustrated the purpose of the trust created by Swamiji. Consequently the plaintiffs instituted a suit for settling a scheme for proper administration of Shri Hira Nand Puri Sat Sangh (Mission), a trust created by Swamiji and for appointment of trustees or the Manager and for directing accounts and proper enquiries regarding all its assets.
3. The suit was contested by Bodha Nand defendant 1 alone. He controverted the allegations of the plaintiffs and inter alia pleaded that Swami Hira Nand Puri belonged to Abhdhoot Sanyasi sect according to which no grasthi could be his chela. The plaintiffs were grasthis and were, therefore, not entitled to file the suit. The defendant was the owner to the extent of one-half share of the land situated in village Barkatpur but the plaintiffs mala fide had instituted a suit for that land also. He pleaded that the other properties were self acquired properties of the deceased and he was his spiritual heir. No trust was ever created by the deceased of his personal properties and that the plaint does not disclose any cause of action. He also challenged the locus standi of the plaintiffs to institute the suit. Some other pleas were also taken but they are not relevant for the decision of the appeals.
4. On the pleadings of the parties nine issues were framed. However, arguments have been raised in the appeal on five issues which are as follows:
"4. Whether the suit property is trust property as alleged in the plaint?
5. Whether the defendant is entitled to succeed to the suit property as chela of Swami Hira Nand Puri?
6. If issue 4 is proved, whether Swami Hira Nand did not create any trust with respect to the property at Barkatpur?
7. Whether the plaintiffs have any locus standi to file the suit and whether they can challenge the right of defendant 1 in the property?
8. What is the proper scheme for the "Administration of the property?"
5. The learned trial Court held that the existence of public trust had been established, that some of the properties were trust properties while some were the individual properties of the deceased and that the land measuring 70 bighas 10 biswas situated in village Barkatpur belonged to defendant 1. (Full details have been given in Annexure "A"). It further held that the plaintiffs had locus standi to institute the suit. Consequently it decreed the suit of the plaintiffs regarding trust properties and framed a scheme but partially. It further observed that the full and complete scheme would be prepared at the time of passing the final decree. The plaintiffs and defendant 1 have filed the present appeals. The appeal of the former is R. F. A. No. 964 of 1976 and that of defendant 1 is R. F. A. No. 741 of 1976. First I shall deal with the appeal filed by defendant 1.
6. The main contention of Mr. Bindra is that the plaintiffs alleged that the deceased created a trust but they failed to prove any such trust. Therefore, no property could be held to be the property of the trust. If it was so, Swami Bodha Nand being chela of Swami Hira Nand; was entitled to inherit whole of the property left by the latter. On the other hand, Mr. Sethi has argued that the trust was a constructive trust for the benefit of followers. of the deceased and others and the income of whole of his property was utilised for religious and charitable purposes. Therefore, the property which has been held to be the private property of Swami Hira Nand by the Court could not be held to be such property and Swami Bodha Nand is not entitled to inherit it.
7. I have duly considered the matter. It is, well settled that in the Punjab a trust of religious or charitable nature can be created without writing and without performance of any particular ceremonies like those of sankalpa and utsarga. What is required to be proved is the intention of the settlor. It can be established from the user of the property and surrounding circumstances. Whether certain properties, have or have not been dedicated to a public Trust of religious or charitable nature is a question of fact and can be determined by reference to the terms of the document creating the Trust and where there is no such document by user of the property and other surrounding circumstances. In the above view I am fortified by the following observations of B. K. Mukherjea at page 143 in his treatise' The Hindu Law of Religious and Charitable Trusts', 1970 Edition:--
"In cases where no express dedication is proved, the character of the endowment must always be a legal inference from proved facts. As in the case of highways, long user is undoubtedly a material element from which an inference of dedication may arise. If the public have been in the habit of worshipping in the temples in an open and unconcealed manner, for a long period of time, and were never denied any access to it, that would be a strong evidence of dedication. With regard to period of user, no hard and fast rule has been laid down. 'There is no minimum which must be fulfilled, and there is no maximum which compels the inference'. Each case would depend upon its own circumstances. Besides user by the public, conduct of the founder and his descendants is also relevant, and if they in fact held out the temple to be a public temple, a very strong presumption of dedication would arise."
Same view was expressed in Sunder Singh-Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managing Committee, Sunder Singh-Mallah Singh, Rajput High, School, Indaura, AIR 1938 PC 73. That appeal was against the judgment of the Lahore High Court. Their Lordships in that case approved the following observations of the High Court:
"It is not disputed that for the foundation of a charitable endowment by a Hindu in this Province no writing is required. What is necessary is that the purpose be clearly specified and that the property intended for the endowment should be set apart as dedicated to that purpose. It is necessary that the donor should divest himself of the property. Whether he has done so is to be determined by his subsequent acts and conduct. All these propositions are well established. It is not disputed that a valid endowment once created cannot be revoked by the donor."
This view was affirmed by the Supreme Court in Deoki Nandan v. Murlidhar, AIR 1957 SC 133, and it was observed there that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. It was further observed that where it was proved that ceremonies were performed, that would be a valid evidence for endowment but absence of such proof would not be conclusive proof against it.
8. The Lahore High Court laid down the same rule in Prem Nath v. Har Ram, AIR 1934 Lah 771, and Jai Dayal v. Dewan Ram Saran Das, AIR 1938 Lah 686. In the former case a Division Bench ruled that in order to create a trust for religious purposes there must be sankalp and samarpan but according to the law as administered in the British Indian Courts no religious ceremonies of sankalp and samarpan are essential though sometimes performed. To the same effect observations were made in Jai Dayal's case (supra). It was further held therein that so long as there was a clear and unequivocal manifestation of intention to create a trust and there was a formal divesting of the ownership in the property on the part of the donor and vesting the same in another or even in the donor himself as a trustee, that is to say, so long as there was a clear change in the tenure of the property with the intention on the part of the donor to devote it to religious or public purposes, dedication thereof must be deemed to be complete. The evidence of divestiture may be contemporaneous and the subsequent acts and conduct of the donor are irrelevant and cannot reinvest him. Similar observations were made in Gurunatharudhaswami Guru Shidharudhaswami v. Bhimappa Gangadharappa Divate, AIR 1948 PC 214. In that case a Swami started giving discourses on the shastras and claimed to be an incarnation of the God Mahadeo and as such to be worthy of worship. He collected a large body of disciples and before his death property of very substantial value had been acquired for the purposes of the Math. He himself did not take much interest in material matters but was concerned on the religious side of the activities of the Math. Later the Swami made a will of the property in favour of the appellant, which was challenged. The question which came up for decision before the Privy Council was whether the property used for the purpose of the Math belonged to the Swami at the time of his death or appertained to the Math and was subject to an express or constructive trust created for public purposes of a charitable or religious nature within the meaning of S. 92 of the Code. Their Lordships, after perusing the evidence, held as follows:
"The evidence establishes beyond doubt, in their Lordships' view, that the properties in suit were either originally given, or were dedicated by the Swami, to the purposes of the Math which was a charitable or religious institution. It has been argued by counsel for the appellant that even if this be so the trust was not for public, but for private, purposes. But this is clearly not so. It is common ground that anybody was at liberty to go at any time to the Math to worship the Swami and take food there. The trust was plainly one for public purposes."
The above judgment was followed in Ananda Theartha v. Kumaraswami, AIR 1952 Trav-Co 134. In that case any member of the public could go to offer worship in the Math. Following Gurunatharudhaswami Guru Shidharudhaswami's case (supra), it was observed that the trust was for public purposes of a charitable or religious nature as contemplated in S. 72, Travancore-Cochin Code of Civil Procedure (corresponding to S. 92, Code of Civil Procedure). A Division Bench of Nagpur High Court in Jawaharbeg Umraobeg Musalman v. Abdul Aziz Bhondumiya Musalman, AIR 1956 Nag 257, held that creation of a wakf can be established by user, but the user must be of such an unequivocal nature which can only lead to an inference of dedication of the property to the wakf. What is required to be established is the intention on the part of the owner to dedicate a particular property to religious or charitable purposes, or, in other words, the intention of the owner to create a wakf of the property. Such intention may be established by a declaration or may be inferred from user.
9. Now I advert to the averments made in the plaint and the evidence. It is pleaded by the plaintiffs that Swami Hira Nandji utilised all his resources and income of the properties for purely religious and charitable purposes. Defendants 1 and 2 were his Sewaks and were expected to fulfil the hopes and ambition of their Guru but after his death they started quarrelling among themselves. They set up various claims to the property which belonged to Hira Nand Puri Mission and started litigation regarding them. It is further pleaded that the defendants have no personal right in them. In order to prove the aforesaid allegations they led oral as well as documentary evidence. They examined ten witnesses and one of them, namely, Suraj Bhan appeared as his own witness. All the witnesses were followers of Swami Hira Nandji. It emerges from their evidence that Swami Hira Nandji was a religious person and did not practice as Ayurvedic physician or astrologer nor he gave tabeez: He established Ashrams at various places with the donations of his devotees. The devotees, in addition to the cash donations, also gifted land to him for the benefit of the general public. Income of the land was spent for langar and other charitable purposes. The pilgrims could stay in the rooms attached with the Ashrams. He was unmarried and did not carry any business. He preached spiritual ideas. Bodha Nand, on the other hand, examined seven witnesses: He also appeared as a witness. They deposed that he was practising as an astrologer, gave medicines and tabeez. He had income from that source. The properties were purchased by him out of that income. Their statements do not inspire confidence. They also stand belied from the three passages marked as PXI, PXII and PXIII at pages 202, 538 and 561 respectively of the Book, Exhibit PX, written by Swamiji.
10. The conduct of Swami Hira Nand is also relevant to determine the nature of the properties. He had established a gaddi known as "Gaddi Param Hans Puri". He had constructed Ashrams at different places and visited those places for spreading his mission. He received donations from his followers. Out of the land in dispute most of the land was gifted to him for religious and charitable purposes. The land purchased by him was out of the donations and income of the land gifted to him Any person could visit Ashram, stay there in the rooms provided for that purpose and enjoy free Langar. Swami Hira Nand Ji led the life of recluse and gave sermons to his followers. He spent the income of the properties for religious and charitable purposes. All the circumstances show that he treated the Ashram and the lands whether standing in his own name or in the name of Ashram to be trust property. The learned trial Court held some of the properties specified in Annexure 'A' as trust properties on the ground that they stood in the name of Gaddi Param Hans Puri or were gifted to Swami Ji for religious and charitable purposes by the donors. I agree with that and affirm the same. The findings of the trial Court regarding the properties, which have not been held to be the properties of the trust, have been challenged by Mr. Sethi. I shall deal with that matter at a later stage.
11. Mr. Bindra has argued that the trust was not created according to the provisions of the Trust Act. He also submits that the plaintiffs instituted a suit earlier and therein placed reliance on a document dt. 25-12-63, Ex.PW 10/1 to prove trust. According to him, now the plaintiffs cannot allege constructive trust.
12. I have duly considered the argument but do not find any substance therein. The provisions of the Trust Act do not apply to public religious or charitable trusts. Consequently Mr. Bindra cannot derive any benefit from the provisions of the said Act. It is stated in Exhibit PW 10/1 that the followers of Swamiji assembled at Chandigarh on 25th Dec. 1963 and held discussion regarding carrying on the work of the Mission of Swami Ji. Swami Ji is not a party to the document. It cannot, therefore, be said that the trust was created by Swami Ji by that document. There is also no plea of the plaintiffs that the trust was created by Swami Ji on 25th Dec. 1963. On the other hand, as already mentioned above, the plaintiffs have pleaded constructive public trust. The matter has already been discussed above. It is true that an earlier suit was instituted but that was withdrawn with permission to file a fresh suit. In this situation the said document is of no assistance to the plaintiffs.
13. Faced with this situation Mr. Bindra has argued that a new case has been set up by the counsel for the plaintiffs. I do not agree with this argument also. The pleas of the plaintiffs in the plaint have already been referred to above. From the pleas, it is evident that they pleaded constructive trust and as already observed also, they have been able to establish the same.
14. Mr. Bindra made reference to Babu Bhagwan Din v. Gir Har Saroop; AIR 1940 PC 7 and Bihar State Board of Religious Trust v. Mahanth Sri Biseshwar Das, AIR 1971 SC 2057. In Babu Bhagwan Din's case (supra) the grant of a temple was made to an individual who was a grihasthi by a Nawab. The members of the family of the donee had been continuously in occupation and control of the temple and a number of samadhs had been set up containing the ashes of Goshains who belonged to the family. No interference with the management of the temple or in the conduct of the worship therein had been made at any time by the public. In Mahanth Sri Biseshwar Das's case (supra) the evidence proved that the Mahant who constructed the temple was succeeded by his Chela. Thereafter the succession to mahantship had been from Guru to Chela. The members of the public had at no time any voice in the selection of the Mahant. The Mahants acquired properties from time to time in their own names as proprietors and not in the names of the deities. They dealt with some of the properties through deeds of sale, mortgages, leases, etc. From the facts of the above cases it is clear that both the cases are distinguishable.
15. At this stage I shall deal with the argument of Mr. Sethi regarding the properties which have not been held to be properties of the trust. His contention is that the finding of the trial Court regarding such properties is erroneous. I have given thoughtful consideration to the argument. These properties can be put into two categories; firstly acquired by Bodha Nand and secondly acquired by, Swami Hira Nand. The first category consists of 70 bighas 10 biswas of land situated in village Barkatpur, Tehsil Sirhind, District Patiala given at serial No. 2 in Annexure 'A'. It was purchased by Bodha Nand in his name. Consequently I uphold the finding of the trial Court that it is not the property of the Trust.
16. The second category of the properties are of two types, namely, movable and immovable. The movable property consists of one steel trunk containing cash, jewellery and other articles mentioned at serial No. 5 in Annexure 'A'. Immovable properties are as follows:
i) land measuring 13 kanals 16 marlas comprised in khasra No: 115/170 and land measuring 5 kanals 4 marlas comprised in khasra No. 170/284, situated in village Nangal Behalan, District Hoshiarpur shown at serial No. l (b) in Annexure 'A', as non-trust property;
ii) land measuring 4 bighas 5 biswas, situate in Miani (Chail) District Shimla as shown at serial No. 3 in Annexure 'A', as non-trust property; and
iii) land measuring 4 bighas 7 biswas at Chattarpur (Delhi) shown at serial No. 6 in Annexure 'A'.
17. The trunk, it is pleaded, in the plaint, was entrusted to Smt. Vidya Kumari defendant 5 by Swami Hira Nand Ji on an understanding that it would be handed over to him on his next visit to Delhi but he died, before he visited Delhi. Smt. Vidya Kumari was proceeded against ex parte. There is no evidence regarding the allegations in the plaint. Even the plaintiffs did not make a statement in the Court that the trunk containing the said articles was entrusted to Smt. Vidya Kumari. In my view, the finding of the trial Court that the trunk is not proved to be trust property is correct and there are, no grounds to interfere with the said finding.
18. Regarding the three immovable properties as mentioned above, the evidence is that their income was being utilised for the purpose of the trust. Nothing has been brought to my notice that Swami Hira Nand maintained a separate account regarding the income of those properties and utilised that for his personal use. The said properties were treated at par with the properties which have been held to be properties of the trust. Consequently I am of the opinion that the said properties are properties of the trust and not his individual properties and the finding of the trial Court in that regard is liable to be reversed.
19. From the above discussion it emerges that all the properties given in Annexure 'A' except 70 bighas 10 biswas of land situated in village Barkatpur District Patiala, given at serial No. 2 as non-trust property and one truck containing cash, jewellery, etc., given at serial No. 5 are trust properties.
20. The next contention of Mr. Bindra is that a Sanyasi can own personal property and such property the chela is entitled to inherit. Swami Bodha Nand is thus entitled to inherit all the properties in dispute as they are the personal properties of Swami Hira Nand He has also challenged the right of the plaintiffs to institute the suit. To fortify his argument he has made reference to Dhirendra Singh v. Dhanai, AIR 1983 All 216. I have considered the matter. There is no quarrel with the proposition that a Sanyasi can hold personal property and that is inherited by his chela. I am in respectful agreement with the observations in Dhirendra Singh's case (supra) in that regard. Swami Bodha Nand, however, does not derive much benefit from the above observations as in the present case most of the properties have been held to be properties of the trust. Regarding those properties he would be deemed to be in possession as a trustee and not as an owner. Under S. 92 Civil P.C., a suit can be filed by two or more persons having interest in the public trust of religious and charitable nature after obtaining sanction from the Advocate-General for the reliefs mentioned therein. There is evidence that Swami Bodha Nand is not maintaining any accounts and is not managing the properties of the trust properly. The plaintiffs who are followers of Swami Hira Nand Ji were, therefore, entitled to file the suit for settling a scheme after obtaining sanction of the Advocate-General. Admittedly before instituting the suit they obtained the requisite sanction from him. Thus the plaintiffs have locus standi to institute the suit.
21. The last question that arises for determination is as to whether the scheme framed by the Court is a proper scheme for administration of the properties of the trust. Though at the time of opening the arguments Mr. Bindra had stated that he would challenge the scheme yet later no such challenge was made by him. Mr. Sethi also did not challenge it. Consequently I do not want to interfere with it. In case there is any flaw in the scheme, it can be examined at the time of passing the final decree.
22. In Regular First Appeal No. 964 of 1976 Mr. Sethi had argued that some of the properties had erroneously been held to be personal property of Swami Hira Nand. The argument has already been dealt with above by me.
23. For the aforesaid reasons I partly accept Regular First Appeal No. 964 of 1976, modify the decree of the trial Court and hold that the properties mentioned in Annexure 'A' except the land measuring 70 bighas 10 biswas shown as non-trust property at serial No. 2 and one trunk mentioned at serial No. 5 are properties of the trust. However, I dismiss Regular First Appeal No. 741 of 1976. No order as to costs.
24. Order accordingly.