Allahabad High Court
Chandra Dutt And Others vs Shri Shyam Babu Mishra And Others on 22 August, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- CIVIL REVISION No. - 559 of 2009 Revisionist :- Chandra Dutt And Others Opposite Party :- Shri Shyam Babu Mishra And Others Counsel for Revisionist :- Manish Trivedi,A. Chaturvedi Counsel for Opposite Party :- Anjani Kumar Mishra,Manoj Mishra,Raghuvansh Misra Hon'ble Saral Srivastava,J.
1. Heard Sri Anuruddh Chaturvedi, learned counsel for the revisionists and Sri Devansh Misra, Advocate holding brief of Sri Raghuvansh Misra, learned counsel for the opposite parties.
2. The present revision has been filed by the revisionists challenging the order dated 09.11.2009 passed by District Judge, Kannauj by which application under Section 92 of C.P.C. of the plaintiffs/respondents has been allowed.
3. The plaintiffs/respondents have filed application under Section 92 of C.P.C. stating therein that one Bala Deen, Angeny Lal and Smt. Batasha Devi had constructed a temple in the name of Sri Ram Chandra Ji Maharaj, Shri Laxman Ji Maharaj and Shri Janki Ji Maharani situated at Mohalla Bazar Kala, Kannauj. The temple is open for the public for doing worship and prayer. Number of properties have been dedicated to deity. Sarvarahkar of the trust has to be from the family of Bala Deen, Angeny Lal and Smt. Batasha Devi. The Sarvarahkar can be appointed by four eminent persons of the society.
4. It is pleaded that the property dedicated to the deity is being misused by revisionist (defendant no.1), and therefore, interference by this Court is required for framing scheme of administration to manage and run the temple and to safeguard the interest of the property.
5. The aforesaid application was contested by the revisionists/defendants contending inter-alia that the application under Section 92 of C.P.C. is not maintainable as the trust is a private trust and not a public trust. It is stated that the scheme of the trust discloses that proceeds of the trust are to be utilised for the benefit of family members of the trustee. It is stated in the objection that the proceeds from the temple are to be used for the maintenance of property dedicated to the deity and for running the temple.
6. The trial court found that the trust is a public trust as it is evident from the trust deed that in case, no member of the family of the trustee survives, a trustee shall be appointed by four eminent persons of the society. It is further stated that as the properties had been dedicated to the deity, it implies that proceeds earned from the temple are to be used for the benefit of public, and therefore, it is a public trust and application 92 of C.P.C. is maintainable.
7. Challenging the aforesaid order, learned counsel for the revisionists has contended that the finding of the trial court that merely because temple is used for the worship and prayer of the public, it does not mean that it is a public trust. It is contended that the judgement of the trial court is contrary to the judgement of this Court in the case of Devendra Kumar Mishra Vs. Ramendra Kumar and Others 2006(62) ALR 101.
8. Per contra, learned counsel for the opposite parties has contended that perusal of trust deed leave no manner of doubt that it is a public trust as the proceeds of the trust are dedicated to the deity and it is not in dispute that the temple is open for the public.
9. I have considered the rival submissions of the parties and perused the record.
10. The trial court in recording a finding that trust is a public trust has placed reliance upon the stipulations, which are being reproduced herein below:-
"????????? ??? ???? ???????? ?????? ???? ???? ?????? ??? ???? ????? ?? ???? ????? ?????? ??? ?? ???? ?? ??? ?? ??? ????? ?? ??? ?? ??? ??? ???? ??? ???? ?? ?? ??? ?? ??? ??????? ?????? ?? ?????? ?????"
11. The perusal of stipulations, extracted above, discloses the manner in which the trustee has to be appointed in the trust. The trial court further held that as the proceeds are dedicated to the deity which implies that proceeds are to be used for the benefit of public, and therefore, it is a public trust, this Court does not find any illegality in the finding returned by the trial court inasmuch as it is not in dispute that the temple is open for the public and further the entire property has been dedicated to the deity of the trust.
12. Learned counsel for the revisionists could not show any stipulations in the trust deed which indicates that proceeds of the trust are to be utilised for the benefit of family member of the settler of the trust. Even the stipulations, as extracted above, with respect to appointment of Sarvarahkar shows that the trustee from the family of the settler shall be appointed by four eminent persons of the society. This conditions itself prima facie indicates that the trust is a public trust.
13. So far as the judgement relied upon by the learned counsel for the revisionists in the case of Devendra Kumar Mishra (supra) is concerned, the same is not applicable in the facts of the present case inasmuch as paragraph 20 of the said judgement on which reliance has been placed refers to a judgement of this Court defining what is the test to determine whether it is a public or private trust. Even paragraph 20 of the aforesaid judgement indicates the basic test to determine the nature of trust is who are the beneficiaries of the endowed property. Paragraph 20 of the aforesaid judgement is being reproduced herein below:-
"20. In Ram Dularey v. IVth Additional District Juge, Varanasi and Ors. 1997(29) ALR 31, Ram Dularey v. IV Additional District Judge, Azamagarh 31 (sic), it has been held by this Court after following certain decisions of the Supreme Court that whether a 'Matth' or a temple is a public religious institution depends upon the finding as to whether the public has right in such religious institutions. The basic test is who are the beneficiaries of the endowed property. If the beneficiaries are the general public or the section of the same and not an independent body of individuals, it can be treated as public trust. In case, where there is temple and the public is permitted by the Shivayat to worship or make their offerings to the deity that by itself may not create any right in the public, it has to be established that the public has a right and the endowment was made for the benefit of the public. A perusal of the trust deed goes to show that there is nothing to show that the public was given any right in any capacity or the public was the beneficiary of this temple. Mere management in consultation with certain persons, who do not belong to the caste or family of the creator of the trust is not sufficient to infer that trust is a public trust."
14. In in the paragraph, extracted above, it is held that if beneficiaries are the general public or the section of the same and not an independent body of individuals, it can be treated as public trust.
15. In this regard, it would be apt to refer two judgements of Apex Court in the cases of Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhmai Sansthan Vs. The Charity Commissioner, State of Bombay 1976(2) SCC 417 and Deoki Nandan Vs. Murlidhar and Others AIR 1957 SC 133.
16. It would be apposite to reproduce paragraphs 30 & 31 of the judgement of Apex Court in the case of Dhaneshwarbuwa Guru (supra):-
"30. 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 as follows:-
"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"
31. 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".
17. It would also be apt to reproduce paragraph 7 of the judgement of Apex Court in the case of Deoki Nandan (supra):-
"7.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 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."
18. In view of the judgement of the Apex Court in the aforesaid cases, this Court finds that the finding of the trial court is based upon proper appreciation of law and facts on record and is not perverse as the conditions enumerated in Section 92 of C.P.C. to grant permission are present in the instant case.
19. Lastly, it is urged that it is mandatory that trial court ought to have rejected the application under Section 92 of the Act as the plaint was not enclosed. The said contention of learned counsel for the revisionist is also misconceived as the perusal of Section 92 of C.P.C. discloses that after leave is granted, regular suit shall be instituted, thus, it is clear that filing of the plaint is an act which comes after the leave is granted by the court.
20. Thus, for the reasons given above, the civil revision lacks merit and is accordingly, dismissed.
Order Date :- 22.8.2022 Sattyarth