Patna High Court
The Bihar State Board Of Religious ... vs Sheo Kumar Missir on 4 January, 1978
Equivalent citations: 1978(26)BLJR195
JUDGMENT B.P. Jha, J.
1. The plaintiff, the Bihar State Board of Religious Trusts, preferred this appeal before this court against the judgment dated 29th September, 1969, passed by Shri S.M. Ahmmad Second Additional subordinate Judge, Arrah, in Title suit No. 54 of 1965.
2. The plaintiff, the Bihar State Board of Religious Trust, instituted the suit for a declaration that the temple and the properties described in the plaint are Hindu Religious Trust Properties and not private trust properties. The plaintiff also prayed that the Judgment and order of the authority under Section 43 of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the Act') be set aside. The suit property comprises of a temple and 5.98 acres of land. In other words, the case of the plaintiff, in short, is that the temple and the properties attached to the temple are Trust properties, and, as such, the provisions of the Act apply to the case of the defendant.
3. The suit was resisted by the defendant, Shebait, on the ground that it is a private trust, and, as such, the provision of the act do not apply to the temple in question.
4. The short point for decision in this case is:
Whether the temple in question is a private trust property or public trust property ?
5. In order to ascertain as to whether the temple in question is a private trust or a public trust, the deed of endowment (Tamlikaama) dated 22nd February, 1943 (Ext. F) is the relevant document. In this document, it is stated that Ramlakhan Choubey and Most. Sona Kueri widow of Ramcharan Choubey constructed a temple in village Rewatia, Police Station Dumraon, district Shahabad, and in the temple they installed Sri Lakshman Jankiji, Shankarji, Bhagwan Shri Narwadeshwar Maharajji and Shri Mahabirji. It is also stated in the deed of endowment (Ext. F) that they dedicated 5.98 acres of land for the rag bhog of the temple as well as for payment of the rent. It is further stated in the deed that after meeting all these expenses (payment of rent, rag-bhog, etc.), the balance income shall be applied to the family of the Shebait and Pujari, Sheo Kumar Mishra, and his heirs during the life-time of the executants as well as after their death. In other words, the recital in the deed is clear that after meeting the expenses of rag-bhog and the payment of rent, the balance income of the property attached to the temple shall be applied for the maintenance of Sheo Kumar Mishra and his heirs. It is also stated in the deed that the descendants and heirs of Sheo Kumar Mishra shall remain Shebait of the temple in question. On a perusal of the deed of endowment (Ext. F). It is clear that the intention of the founder was that Sheo Kumar Mishra and his heirs shall worship the deities in question and no other person shall have the right to worship the deities. If it is so, in my opinion, the temple and the properties attached to the temple form a private trust. It is a settled law that in order to ascertain as to whether a trust is a private trust or a public trust, the test is whether the beneficiaries are definite and ascertained individuals or unascertained and fluctuating individuals. In the present case the beneficiaries of the temple are Sheo Kumar Mishra and his heirs, In this view of the matter, I hold that it is a private trust. It has been held in several cases that the intention of the founder is to be gathered from the deed of endowment and not from any other circumstances. In the present case, the intention of the founder was that Sheo Kumar Mishra and his heirs shall worship the deities and after incurring expenses on rag-bhog and payment of rent, the balance of the income shall be applied for the maintenance of the family of Sheo Kumar Mishra and his heirs.
6. In my opinion, in order to ascertain as to whether a temple is a private trust or a public trust, there are two important tests, namely (1) whether the beneficiaries of the trust are definite and ascertained individuals and (2) whether the management of the temple is being controlled by the public or by private individuals. In the present case, the beneficiaries of the temple are Sheo Kumar Mishra and his heirs, and the management is also being controlled by Sheo Kumar Mishra and his heirs. In those circumstances, to me, it appears that the founders intended to create a private trust and not a public trust.
7. Learned counsel for the appellant contends that the trust in question is a public trust for the simple reason that the properties were dedicated to the deities and not to Shebaits. He also contends that because the founders had no heirs, they therefore, intended to dedicate the properties to the deities for the use of the public. In my opinion, these factors are not by themselves sufficient to show that the trust in question is a public trust. In both types of trust, dedication is ordinarily to the deities, and, as such, merely because the properties were dedicated to the deities, it cannot be inferred that it is a public trust. In the present case, the deed of endowment clearly suggests that after meeting the expenses of rag-bhog and the payment or rent, the balance of the income shall be applied to the maintenance of Sheo Kumar Mishra and his heirs. It is also stated in the deed of dedication that after the death of the executants, Sheo Kumar Mishra and his heirs shall be the Shebait and Pujari of the temple in question. There is no mention in the deed of endowment that the public will have the right to worship the deities. In this connection, learned Counsel for the appellant relied on a decision of this Court in the bihar Board of Hindu Religious Trust v. Madan Lai Joshi. In my opinion, this decision does not apply to the facts of this case. In that case, there was no recital in the deed of dedication as in the present case. In the present case the recital in the deed of dedication is specific that the balance of the income alter meeting the expenses of rag-bhog and payment of rent shall be applied to the maintenance of the family of Sheo Kumar Mishra and his heirs during the lifetime of the executants as well as after their death. In that case, there was no such recital in the deed of endowment. Hence, I hold that the decisions in the Patna Case does not apply to the facts of this case. In this connection, learned Counsel for the appellant also relied on a, decision of the Supreme Court in the Bihar State Board of Religious Trusts v.Bhu-baneshwar Prasad Cnowdhary and Anr. . In my opinion, the decision of the Supreme Court does not apply to the facts of this case. In the Supreme Court case, five panches of the general public were appointed to take rendition of the account of the income and expenses of the shebaits for each year after the death of the executants. The panches were also vested with the power to remove the shebait. It is for this reason that their Lordships held that the general public were authorised to scrutinise the account of the temple and they had also the power to remove the shebait. It is for this reason that their Lordships held that there, can be no batter indication of the fact that the members of the Public were associated their Lordships held that there can be no better indication with the management of the temple and the interest in the management was created in them. In the present case, there is no tuch averment in the deed of endowment, and, as such, I hold that the decision of the Supreme Court does not apply to the facts of this case. In my opinion, the fact that the properties were dedicated to the deities will not alone be sufficient to show that the temple was a public trust property.
8. The second contention of the learned Counsel for the appellant was that the temple was a public trust, because the executants were issueless. In my opinion, this fact itself is not sufficient to hold that the temple in question was a public trust property. In this connection, learned Counsel for the appellant relied on a decision of the Supreme Court in Deoki Nandan v. Murlidhar and Ors. . In that case, their Lordships of the Supreme Court relied on a decision of the Calcutta High Court in Baji Mohammad Nabi Shirazi and Ors. v. Province of Bengal and Ors. A.I.R. 1932. Cal. 343. In the Calcutta case, the point for decision was whether the waqf was a public or private endowment. In that case, the Calcutta High Court held that the endowment was a public trust for the simple reason that the endowment was not confined to the sub-sect of Shias, to which the founder belonged. In the Supreme Court case, it has been held that when the testator recited in the waqf deed that he had no children, that was an indication that the dedication was not for the benefit of the family but for the public. In my opinion, the Supreme Court did not hold that in every case where the founder having no issue dedication the property to the deity, it will amount to a public trust. In my opinion, the fact that the founder died issueless will not itself be sufficient to show that the intention of the founder was to dedicate the property to the public trust. The answer to this question will depend upon the recitals in the deed of endowment. In the present case, the deed of endowment early suggests that Sheo Kumar Mishra and his heirs shall be maintained during the life-time of the executants as well as after the death of the executants after meeting the expenses on rag-bhog and after payment of the rent. In those circumstances, I hold that the intention of the founders was that it was a private trust for the benefit of Sheo Kumar Mishra and his heirs and not for the benefit of the Public. Hence, I hold that the decision of the Supreme Court does not apply to the facts of the present case.
9. The plaintiffs have examined 24 witnesses. Out of them, P. Ws. 13,14 and 21 to 24 are formal witnesses. Out of these witnesses, only P. Ws. 12, and 17 belong to village Rewetia and others are outsiders P. Ws. 1, 2, 4, 5, 6, 9, 10, 13, 14, 21, 22, 23 and 24 are advocate's clerks. I quite agree with the finding of the court below that the plaintiff's witnesses are not reliable. Further, in my opinion, the evidence of these witnesses, namely, P. Ws. 1 to 11, 15 and 16 clearly suggests that they had no occasion to visit this temple for the simple reason that they contradict themselves in their testimonies. The evidence of P.Ws. 2, 3, 4, 5 and 8 clearly suggests that the temple in question was constructed by public donations. This fact is being clearly contradicted by the evidence of P.W. 12. He is a resident of village Rewatia where the temple is situated P.W. 12 Baburam Choubey in his evidence has stated that Ramlakhan Choudhary, the founder of the temple, constructed this temple by donating his land. The evidence of P.W. 12 clearly contradicts the evidence of the aforesaid witnesses namely, P. Ws. 2, 3, 4, 5 and 8 who stated that the temple was constructed by Public donations. In my opinion, P. Ws. 2, 3, 4, 5 and 8 are not competent to say that the temple was constructed by Public donations as they do not belong to village Rewatia. Hence, I reject their testimonies.
The evidence of P. Ws. 8, 15, 16, 19 and 20 clearly suggests that there are two temples in villages Rewatia. On the other hands, the evidence of P. Ws. 4 and 7 clearly suggests that there is only one temple in village Rewatia. In my opinion, it is not safe to rely on these testimonies, because they contradict each other. This fact itself is sufficient to show that these witnesses have not seen the temple in question.
10. All the P. Ws. have clearly stated that the Public have a right to worship the deities installed in the temple in question. This fact is not supported by any documentary evidence on the record. Their testimonies are already contrary to the recitals in the deed of dedication (Ext. F). In my opinion, except P. Ws. 12, and 17 no witness belongs to village Rewatia, and, as such, they are not competent to say as to whether the public go to worship the deities as a matter of right Hence, I reject the testimonies of the plaintiff's witnesses. On the other hand, the defendant has examined D. Ws. 1, 3, 4, 5, 7, 8 and 9 who belong to village Rewatia. They have consistently stated that the public worship the deities with the prior permission of the pujari I accept the testimonies of these D. Ws. because they corroborate the recitals made in Ext. F I also believe these D. Ws, because they are the residents of village Rewatia, and they are competent to say as to whether the public visit the temple with the prior permission of the Shebait or pujari of the temple. D. Ws. 6 and 10 are formal witnesses. Hence, I hold that the plaintiff has failed to prove that the public worship the deities in question as a matter of right. It has been held by the Supreme Court in The Bihar State Board of Religious Trust v. Mahanth Sri Btsheshwar Das . that the mere fact that the public have been freely admitted to the temple for worship could not mean that the court should readily infer therefrom the dedication to the public Relying on this decision I hold that merely because the public are being admitted, it cannot mean that the dedication as to the public The intention of the founder is to be gathered from the deed of dedication and not from any of the circumstances. The deed of dedication clearly suggests that the intention of the founder was that the temple in question as for the benefit of Sheo Kumar Mishra and his heirs In these circumstances, I reject the testimonies of the plaintiff's witnesses and accept the testimonies of the D. Ws. because, the evidence of the D. Ws, is more in consonance with the recitals in the deed of endowment.
11. The plaintiff placed reliance on certain documents namely canal parchas (Ext. 1 and 1/a) and water-rate receipts (Ext. 5 to 5/f)' These parchas and receipts suggest that the payment of canal rent was made through Baburam Choubey who was holding the power of attorney of Shri Sheo Kumar Mishra by virtue of Ext. 4. These receipts clearly mention that Baburam Choubey was in possession of the temple, Baburam Choubey was occupying the temple on behalf of Sheo Kumar Mishra because Baburam Choubey was holding the power of attorney which was executed by Sheo Kumar Mishra in favour of Baburam Choubey. In other words Baburam Choubey was an agent or servant who was occupying the temple with the permission of Sheo Kumar Mishra. It is therefore, clear that these canal receipts (Exts. 1, 1/a and 5 series) suggest that Sheo Kumar Mishra was occupying the temple through Babulal Choubey who was holding the power of attorney. These receipts do not suggest that the general public were in any way interested in the temple. Thus/these documents do not support the case of the plaintiff. The plaintiff also filed Exts. 2 to 2 (c) to show that in the column of raiyat the names of i am, Lakshuman, Janki, Shivaji, Maliabir, Karinda Baburam Choubey were entered. The name of Baburam Choubey was mentioned in the column of raiyat for the simple reason that he was holding the power of attorney of Sheo Kumar Mishra. These rent receipts do not prove that the general public were in possession of the suit properties. The defendant also filed Exts A to a (3) showing that water tax was paid by Sheo Kumar Mishra. In view of the dispute between Sheo Kumar Mishra and Baburam Choubey, Sheo Kumar Mishra cancelled the power of attorney and came in possession of the suit properties. The dispute between Baburam Choubey and Sheo Kumar Mishra went up to the High Court in Criminal Revision No. 577 of 1961 arising out a proceeding under Section 145 of the Code of Criminal Procedure (Ext.-G). In that decision (Ext. G), the Patna High Court held that the possession of Baburam Choubey would be deemed to be the possession of, Sheo Kumar Mishra for the simple reason that Baburam Choubey was in permissive possession of the suit properties as an agent of Sheo Kumar Mishra. In view of this animosity, it is not possible for me to accept the testimony of P.W. 12 as well P.W. 12 in his evidence stated that the temple was constructed by Ramlakhan Choubey as well as by raising subscription from the public I do not accept this apart of the version of P.W. 12 that temple was raised by the subscription of the police for the simple reason that there is no documentary evidence to support this fact. This part of the evidence of P.W. 12. cannot be accepted, because he gave evidence due to animosity between him and Sheokumar Mishra. Hence, I reject this part of evidence of P.W. 12.
12. In the present suit, the plaintiff also prayed that the decision of the authority under Section 43 of the Act in Case No. 61 of 1963 dated the 25th June, 1965, be set aside. Learned counsel for the appellant contends that the order under Section 43 in Case No. 61 of 1963 is not in accordance with law. He contends that the authority had no jurisdiction to decide the character of the trust. In this connection, he relied on a decision of the Supreme Court in the President of the Bihar State Board of Religious Trust v, Natini Chaudhary and Ors. A.I.R. 1973 S.C. 2578.. In that case. it has been held that Section 43 authorises the authority under Section 43 to decide whether any immovable property is or is not the trust property within the meaning of Section 2(p) of the Act. In the present case, the authority under Section 43 of the Act decided by order dated 25th June, 1965 (Ext. H) that the Thakurbari in question and the properties attached to it constituted a private endowment of which Sheokumar Mishra was the shebait. In my opinion, the authority acted within the ambit of Section 43 of the Act, and there is no reason to set aside order in question. The issue before the authority was not in respect of the character of the trust but in respect of the immovable property attached to the trust. Hence, I hold that the authority acted in consonance with the judgment of the Supreme Court in A.I.R. 1973 Supreme Court 2578 (supra) as well as in terms of Section 43 of the Act.
13. In the result, the appeal is dismissed with costs.
Sd. B.P. Jha.
S.P. Sinha, J.
14. I agree. Learned counsel for the appellant has dealt with certain features of the Tamliknama for the purpose of indicating that the trust was a public one, as defined in Section 2(p) of the Act, such of these features were : (1) the settlors, executing the said Tamliknama, were issueless ; (2) the settlors divested themselves completely of all rights over the dedicated properties, keeping for themselves only the Shebaitship of the ideals installed in the temple. Even this Shebaitship was relegated to the position of a more functionary as a Pujari getting remuneration in the shape of residue of the income of the trust after its application over certain expenses connected with the idols and the trust; (3) the averment that the temple was founded for the personal benefit of the family of the dedicators was absent from the Tamliknama ; (4) the idols were not installed within the residential house of the settlors, rather the temple was located away from the residential house, and (5) the appearance of the temple, with a dome on it and a basaha-barad (bullock) in it, indicates that it was meant for the general public. Some case laws have been cited in which some of these features were also present, and it was held that the trust was of public nature. As for example, in the case of the Bihar Board of Hindu Religious Trusts v. Madan Lal Joshi . and in the case of Deoki Nandan v. Murlidhar and Ors. . the courts observed that where the settlor had no child, it suggests that the settlement was not to remain a private or family institution. So far as item No. 4 is concerned, the plaintiff has, however, led no evidence to suggest that the idols were not installed within the residential house of the settlors.
15. It cannot be gainsaid that such of the features, as have been referred to by learned Counsel for the appellant, do help in determining the character of the trust, but it cannot be said that those features by themselves are the determining features for the character of the trust. The primary features, have been already deals with in my learned Brother's judgment above. For determining the character of the trust they are three, namely (1) the intention of the section (2) control of the trust property that is to say, whether it is by an individual for his own purpose or by and of the public in general and (3) the beneficiary Of the trust, namely, whether it is limited to a particular set of individuals or is unascertainable. These are the primary basic features. The other features are only sbsidiary aspects which by themselves cannot be a factor for determining the character of the trust. So that even if those features are taken to be in existence in the instant case they do not indicate that the trust in question was a public religious trust. Rather, on the basis of the features discussed above, the character of the trust in question was purely that of a private trust.