Orissa High Court
Dolagovinda Sethi vs Kanika Museum And Ors. on 29 February, 1988
Equivalent citations: AIR1989ORI60, AIR 1989 ORISSA 60
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT L. Rath, J.
1. These two applications under Articles 226 and 227 of the Constitution of India seek quashing of the orders passed by the Tribunal constituted under Section 57-A of the Orissa Land Reforms Act, 1960 (Act 16 of 1960) declaring the Kanika Museum and the Rajendranarayan Botanical Garden, the opposite party No. 1 respectively in each of the cases, as charitable trusts of public nature with Raja Sailendranarayan Bhanja Deo as the trustee under Section 2(24)(e) of the said Act and the properties claimed under each of the respective trusts as trust properties. So far as OJ.C. No. 150/81 is concerned, the facts are that an application was filed by the opposite party No. 1 through Raja Sailendranarayan Bhanja Deo, since substituted by opposite parties l(a) to l(c), before the Tribunal-cum-Subordinate Judge seeking declaration as trustee-holder of a religious/charitable trust I of a public nature. In an accompanying statement to the application giving short history of the creation of the trust, the opposite party No. 1 contended that the applicant Sailendranarayan Bhanja Deo and his father late Rajendranarayan Bhanja Deo being very much interested in studying the various intellectual and historical aspects of rare objects of beauty such as works of art, trophies, historical documents and records collected by them and preserved in four principal rooms of the main palace at Raj Kanika, he established the trust in memory of his late father. The properties constituting the trust are being utilised for the upkeep and maintenance of the museum from the date of foundation of the trust being dedicated from the beginning, although a formal deed of dedication of the same was made on 31-12-71 and with the purpose of the trust as preservation of rare objects of historic importance for research and intellectual pursuit of life. During the hearing, two registered trust deeds were exhibited, the first executed on 12th Sept., 1970 creating the trust and declaring the properties described in the schedule thereto, Ac. 25.005, as also such objects and records as would be permanently made over thereafter by the founder of the trust or the succeeding trustees, to become the properties of the trust. The second deed executed on 31st Dec. 1971 purported to vest some more properties of a total of Ac.80.92 in the trust with a recital that the trustee having found the income of the properties made over earlier not sufficient to manage the same, the subsequent vesting was made. Thus, the total property allotted to the trust was Ac. 105.925. In support of the claim, the applicant also adduced oral evidence and exhibited three visitors' book volumes and some other documents, reference to which would be made later.
2. So far as O.J.C. No. 152/81 is concerned, the facts are that an application was made by opposite party No. 1 through the same Sailendranarayan Bhanja Deo, since substituted by opposite parties l(a) to l(c), claiming opposite party No. 1 Rajendranarayan Botanical Garden to be declared a charitable trust of public nature and himself to be the trustee thereof as contemplated under Section 2(24)(e) of the Orissa Land Reforms Act and the properties in the schedule to the application, a total of Ac.86.85, as trust properties. In the statement of facts appended to the application giving a short history of creation of the trust, the trust was claimed to be created for the purpose of advancing study, research and experimentation on botany, horticulture and agriculture and providing for such intellectual recreation as may befit the said objects of the trust At the hearing, the registered trust deed executed on 8th July, 1965 by the applicant declaring the properties mentioned therein to constitute the trust properties was exhibited and certain other documents were also filed Besides, oral evidence was led by the petitioner in support of the claim.
3. The present petitioner was an objector before the Tribunal contesting the genuineness of the trusts on the plea of their having been created to defeat the provisions of the Orissa Land Reforms Act and that in fact, he along with others, was in cultivating possession of some of the lands included in the trust and had also filed application under Section 36-A of the Orissa Land Reforms Act for declaration of occupancy rights. Besides, it was contended that some of the objectors had their residential houses on portions of the lands comprised under the trust and had filed applications under Section 9 of the aforesaid Act.
4. Objections were also filed by the State of Orissa before the Tribunal contesting both the applications.
5. Mr. S. Misra-1, the learned counsel for the petitioners, has assailed both the orders of the Tribunal urging the trusts in question to be neither public nor charitable in nature. According to him, neither the trust deeds nor the exhibits or the evidence adduced shows any public character of the trusts and further the purpose of the trusts is not charitable. The establishment of a museum, according to him, is not a charitable purpose much less a museum of the kind contemplated, that is to preserve the private possession of the trophies, photographs, etc. of the applicants. Similarly, establishment of a botanical garden of the kind as is evidenced by the trust deed and the documents are also not of the type that can be accepted as privileged under Section 2(24)(e) of the O.L.R, Act. According to him, the trusts were created only for the purpose of committing fraud upon the statutes so as to escape its operation. No separate argument has been advanced by the State which has relied upon the submissions of Mr. Misra.
6. Section 2(24) (e) declares any trust declared to be a religious or charitable trust of a public nature by the Tribunal constituted under Section 57-A of the O.L.R. Act to be a privileged raiyat. A privileged raiyat ejoys protected status under the provisions of the O.L.R. Act and the Tribunal is constituted to adjudicate the claims to such character of the trust.
7. In view of the submissions made on behalf of the petitioners, it is necessary to consider the ingredients of public charitable trusts.
8. Charitable trust of a public nature has not been defined under the Orissa Land Reforms Act but Section 2(34) thereof stipulates that the words and expressions used in the Act but not defined therein shall have the same meaning as assigned to them in the Tenancy Acts, Laws, Rules, Regulations, Customs or Usage in force in any part of the State of Orissa and in the Transfer of Property Act as the case may be. In the Tenancy Acts prevalent in the State, there is no clue available to the meaning of the expression. Hence the meaning is to be gathered either from the Transfer of Property Act or from other statutes, subordinate legislations or even from customs or usage as may be prevalent in different parts of the State. Section 18 of the Transfer of Property Act provides that the restrictions in Sections 14, 16 and 17 of that Act shall not apply in the case of transfer of a property for the benefit of public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to the mankind. The exception so created is in favour of a transfer under which the public becomes the beneficiary so far as the objects of the transfer are concerned Legislations relating to public charitable trust also lie scattered in the Income-tax Act, 1961, the Charitable Endowments Act, 1890, Section 92 of the Civil Procedure Code, the law relating to Hindu Religious Endowments, etc. The expression 'charitable trust of a public nature' unmistakably contemplates the trust to be both a charitable one and a public one. So far as a trust is of a public nature, it is unquestionable that the beneficiaries under it must be the public, which though may not constitute the public at large, yet must be a classified section of it; no specified individuals, but must be unascertained persons. It was observed by Lord Wrenbury in Verge v. Somerville, 1924 AC 496 :
"To ascertain whether a gift constitutes a valid charitable trust so as to escape being void on the ground of perpetuity, a first inquiry must be whether it is public -- whether it is for the benefit of the community or of an appreciably important class of the community. The inhabitants of a parish or town, or any particular class of such inhabitants, may, for instance, be the object of such a gift, but private individuals, or a fluctuating body of private individuals, cannot,"
9. In AIR 1957 SC 133 (Deoki Nandan v. Murlidhar) the ingredients of a public trust were brought out in the following words :
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the i 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."
In (1946) 14 ITR 716 : (AIR 1947 Bom ll5) (Hanmantram Ramnath v. Commr. of Income-tax, Bombay), the Bombay High Court held, where an oral declaration of trust had been made in November, 1937 to set apart a sum of Rs. 2 lacs for religious and charitable purposes and to create a trust of it with a direction that the sum should be kept credited to the trust but the amount was not so set apart and credited to any account in the assessee's books of account on the date of declaration and was utilised along with other family properties in carrying on the family business, but in October, 1938 an account in the name of the trust was opened with the amount of Rs. 2 lacs with interest at 4 1/2 % which had accrued due from the date of declaration credited to the account, that there was no setting apart of the ascertained property, and no evidence to show that the settler had divested himself of the ownership and that the entries in the account books did ot creat a valid trust.
The Madras High Court in (1963) 49 ITR (ED) 105 decided that in the case of a dedication to a public trust, what is essential is that there should be an unambiguous expression of intention to divest and an actual divestment of the interest of the donor for the benefit of the charity. Such divestitute can be proved by a written document or by other evidence as it is not necessary that there should be a writing to constitute a valid dedication. The decision relied upon an earlier decision of the same Court, (1961) 74 Mad LW 388 : (AIR 1962 Mad 48) (State of Madras v. Subramaniaswami Mahimai Paripalana Sangam) to hold that it is not uncommon for business communities to make routine credit entries in the books of accounts in the name of charitable or religious objects but it is more a matter of personal convenience than real setting apart of funds for charity; but the case is different where the amount is actually set apart and appropriated towards a specific object. Thus a mere credit entry in the book of accounts would by itself be insufficient to indicate any intention of the donor to part with the property or to transfer the same in favour of the trust. It is necessary to be shown that the donor has actually stripped himself of his right, title and interest in the property and that the same has become vested in the trust. In AIR 1972 Raj 180(SriRamv. Prabhu Dayal) the various factors to be taken into consideration in determining whether a temple is public or private were discussed and it was held that the origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, the rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the character of the temple are essential ingredients to enter into the determination, and that by far the most important thing to determine is whether the public can have access to the temple as a matter of right. Dealing with the same question, theSupreme Court in AIR 1981 SC 798 (Radhakanta Deb v. The Commr. of Hindu Religious Endowments, Orissa) outlined some guidelines to determine the character of an endowment as public or private as: (1) where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vest either in a large body of persons or in the members of the public and the founder does not retain any control over the management and allied to this may be a circumstance where there is provision for a scheme to be framed by associating members of the public at large; (3) Wherea document is available to prove the nature and origin of the endowment and the recitals of the document show the control and management of the temple retained with the founder or his descendants, and that extensive properties are dedicated for its purpose of the maintenance of the temple belonging to the founder himself, the facts would be conclusive proof to show the endowment to be of a private nature; and (4) Where the evidence shows that the founde of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, it would be an important intrinsic circumstance to indicate the private nature of the endowment. Even in an earlier case, AIR 1971 SC 2057 (Bihar State Board of Religious Trust v. Mahanth Sri Biseshwar Das) it was held that the mere fact that public had been freely admitted to the temple does not mean that courts should readily infer therefrom dedication to the public and that 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 Thus the very clue to the question is not free admission to the temple, but whether such admission is as of right.
The tests to determine the public or private nature of a temple is of equal application to the question whether any endowment is public or private. The ratio of the foregoing discussions, without being exhaustive on the subject may be summarised as follows : --
(a) The first requirement of a public trust is that it must be for the benefit of the community or a class of the community as distinguished from private individuals or a fluctuating body of private individuals who are ascertainable persons or are capable of being ascertained.
(b) there must be definite expression of intention to divest and evidence of actual divestment of the right, title and interest of the donor in the property in favour of the charity and of the same to have become vested in the trust.
(c) The fact of divesting can be proved either by a written document or by other evidence since it is not necessary that there must be a writing to constitute a valid dedication.
(d) The origin of the trust, the manner in which its affairs are managed, the nature and extent of the gifts received by it and the awareness of the management and the beneficiaries that the trust is for the benefit of the public are important factors to be considered.
(e) Whether the exercise of the right by the public in enjoying the benefits is as of right or is by way of a concession allowed.
(f) Whether the scheme envisages association of the members of the public at large in the management of the trust.
(g) Where the document proving the original of the endowment shows the control I and management of the trust vested with the founder or his descendants and extensive properties are dedicated for the purpose of maintenance of the trust belonging to the founder, the facts in themselves would be conclusive to show the private nature of the endowment.
(h) Evidence of lack of any stipulation by the founder of offerings or contributions to be made by the members of the public is an important and intrinsic circumstance indicating the private nature of the endowment.
10. The next question is whether the creation of a museum could be a charitable trust. In AIR 1957 SC 133 (supra) the folbwing passage from Lewin on Trusts, Fifteenth Edition, pp. 15, 16 was cited with approval :
" By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions....."
Mr. Misra for the petitioner urged, placing reliance on (1957) 1 All ER 745 (In re Shaw (Deceased) Public Trustee v. Day) thatwhere charity is not for the purpose of relief from property, it must be for the purpose of advancement of education and that creation of a museum would not be one for such purpose and hence would not be charitable one. In that case, a trust created by late George Bernand Shaw to ascertain as to how much time could be saved by persons speaking and writing the English language by substituting for the present English alphabet a proposed British alphabet and to show, if possible, the loss of time in terms of loss of money; to transliterate one of his plays into the proposed British alphabet; to advertise and publich the transliteration with the original lettering opposite the transliteration, page by page; and to present copies thereof to public libraries, so as to persuade the government or the public to adopt the proposed alphabet, were held to be void since it was not for a charitable purpose, as increase of knowledge is not such a purpose unless combined with an element of teaching or education and, although the research and propaganda enjoined by the testator might tend to increase public knowledge in certain respect, yet, they were not for the advancement of education. The trusts were not also within the category of charitable trusts for other purposes beneficial to the community, because the very research and propaganda enjoined by the testator was to convince the public that the new alphabet would be beneficial and was analogous to the cases of trusts for political purposes advocating a change in the law of the land.
The court was not in a position to judge whether the adoption of the new alphabet in fact would be beneficial. It was further held to be void because the court was not at liberty . to give validity to the trust by creating the same as conferringon the trustees a power to carry out the testator's directions regarding the new alphabet, since the trust was not in favour of an ascertainable beneficiary but were impersonal trusts for a non charitable purpose. The views expressed by Harman, J. in the above case so far as scope of education relating to charitable causes was not ocheed (sic) by Roxburgh, J. in (1957) 1 A11ER 854 (Delius Will Trusts Re Emanueal v. Rosen) where he relied on the observations of Lord Greene, MR. in (1943) 2 AU ER 101 (Royal Choral Society v. Inland Revenue Commrs.) to protest against the narrow conception of education as involving teaching in the sense of a master teaching in a class, while dealing with education in the aesthetic sense.
The views of Justice Harman were explained in (1965) 1 ChD 669 (In re Hopkins' Will Trusts) by Justice Wilberforce in the words :
".....I think, therefore, that the word "education" as used by Harman J. in In re Shaw, deed; Public Trustee v. Day (1957-1 All ER 745) must be used in a wide sense, certainly extending beyond teaching, and that the requirement is that in order to be charitable, research must either be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education may cover -- education in this last context extending to the formation of literary taste and appreciation (compare Royal Choral Society v. Inland Revenue Commr.) (1943-2 All ER 101). Whether or not the test is wider than this, it is, as I have stated it, amply wide enough to include the purposes of the gift in this case.
As regards the fourth category, Harman, J. is evidently leaving it open to, the court to hold, on the facts, that research of aparticular kind may be beneficial to the community in a way which the law regard as charitable, "beneficial" here not being limited to the production of material benefit (as through medical or scientific research) but including at least benefit in the intellectual or artistic fields.
So I find nothing in this authority to prevent me from finding that the gift falls under either the third or fourth head of the classification of charitable purposes."
Again in (1971) 3 All ER 1029 (The Incorporated Council of Law Reporting for England and Wales v. Attorney General) education was taken to include the improvement of useful branch of human knowledge and dissemination.
In (1931) 2 Ch 130 (In re Lopes) the gift in support of a zoological garden was held to be charitable with the observation that a ride on an elephant may be educational-and it. brings the reality of the elephant and its uses to the child's mind, in lieu of leaving him to mere look leaning. It widens his mind, and in that broad sense is educational.
Besides, even if education is confirmed to its narrow meaning, yet in Shaw's Trust case (1957-1 All ER 745), the other question as to whether the trust was for the purpose beneficial to the community which would have brought it within the charitable causes in conformity with the classifications made by Lord Machaghten in the leading case of Income-tax Commissioners v. Permsel (1891) AC 531 was not considered since the very object of the trust was to convince the public that the new alphabet would be beneficial to them. Because of departure of the views in this case from the general concept of education as adopted and applied by the English Courts, B.K. Mukherjee in his treatises observed this to be ordinarily regarded as an exceptional case.
Whatever may be the law obtaining so far as English charities are concerned, yet considering the definition of 'charitable purpose' in the Indian Income-tax Act, 1961 (Act XLIII of 1961) it must be said that a charitable cause in India is understood in a wide sense. The definition may be extracted :
"Section 2(15). "charitable purpose" includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit."
The definition shows that while education is one of the charitable purposes, advancement of other objects of public utility are also made as much charitable purposes. It is of course true that in AIR 1976 SC 10 (Loka Shikshana Trust v. I.T. Commr. Mysore) the Supreme Court wasoftheview that the word 'education' in the definition has been used not in the wide and extended sense according to which every acquisition of further knowledge constitutes education, but in the sense of connoting the process of training and developing the knowledge, skill, mind and character of students by formal schooling. But it cannot be denied that creation of a Museum though may not be education within the ambit of the definition, yet it would undoubtedly be a purpose for advancement of an object of general public utility, if it does not involve the carrying on of any activity for profit. A museum as per the dictionary meaning, historically, is a university building dedicated to the pursuit of learning or the arts; a home of the Muses or a scholar's study and at present means a building or portion of the building used as a repository for the preservation and exhibition of objects illustrative of antiquities, natural history, fine and industrial art, or some particular branch of any of these subjects, either generally or with reference to a definite region or period and it is also applied to the collection of objects (vide Oxford English Dictionary). Thus the origin of museum is in education itself as a place for study and even at present the purpose is not far from it being concerned with the above objects and even otherwise it is undoubtedly a cause of general public utility. A museum forms an essential basis for acquiring knowledge of history, a repository of the facts belonging to the past and hence necessarily serves as a foundation for the present There can thus be hardly any doubt that creation of a trust for the purpose of a museum is a charitable one. Similarly, it also cannot be said that a botanical garden is not a charitable cause for the purpose of creation of a trust. A botanical garden which grows and habitates different types of plants and trees including rare varieties thereof serves as a basis for research to natural scientists, the result of which investigation may ultimately prove beneficial to the community. It may also aid the study of maintenance of ecological balance.
Though thus either a museum or a botanical garden can be regarded as charitable causes, yet it is to be examined in the light of the dicussions made above as to whether the trusts of the kind purported to be created by the deeds under consideration are public charitable trusts.
11. As regards the museum, certain salient features of the deed of 12th, Sept. 1970 may be profitably noticed. The trust is established in four rooms of the Raj palace of the Raj Kanika. The founder of the trust becomes the first trustee for life under the deed and on his death his eldest son is to succeed him as the sole trustee and therefore the sole trusteeship shall vest on the eldest male descendant of the trustee for the time being.
The trustee may accept by way of loan such other objects or articles from any member of the Raj family or Kanika for such period as may be agreed upon and of which separate list shall be maintained by the trustee mentioning therein the name of the owner, the period for which it has been received on loan and description of the object. The admission of the members of the public to the museum is restricted and is allowed as (probably wrongly typed for "is" in the original deed) kept open at the discretion of the trustees. The trustee has the right to refuse admission or to turn out such visitors whom he considers undesirable or who misbehave or who are found to commit any mischief to the objects of records inside the museum under unforeseen circumstances or for effecting rapairs of the rooms necessitating closure of the museum. The trustee can also keep the museum closed for such period during which such necessity exists. A perusal of the conditions show strong elements of the trust being only a private one. The sole trusteeship is always vested in the eldest male heir of the preceding trustee and the right of the public for admission into the museum is restricted at the discretion of the trustee.
The articles kept in the museum are only those belonging to the founder's family and only other articles belonging to the members of the family can be received on loan in the museum, but of none others. There is. no scheme of any association of the public with the management Even if out siders are allowed to visit the museum, that by itself is not a factor to establish it as a public one since even a private museum can admit visitors either with or without entrance fees, but nonetheless does not become a public place merely for that reason.
12. Undoutedly, the onus to establish a trust to be a public trust taking it out of the ambit of operation of the Orissa Land Reforms Act is on the person who claims it to be so. It is necessary to be shown, besides other facts as detailed heretobefore, that not only a trust was created for the benefit of the public, but also that the founder actually stripped himself of the right, title and interest in the property in favour of the trust and that the income of the property has been separately maintained and applied to the purposes of the trust. No such onus has been at all dischrged by the petitioners. No accounts have been produced to show the property to be separately maintained and no income or expenditure of the same for the museum has also been established There is nothing to show as to whether any separate fund for the purpose of the museum has been created or where such fund has been deposited. Nevertheless, a second deed was executed on 31st of Dec. 1971 further making over extensive property of 80.92 acres to the trust with the declaration that the properties already made over earlier, ie. 25.005 acres were not sufficient to maintain the institution. Except such bare statement, no accounts have been produced to show to justify the necessity of the second dedication on the ground of insufficienty of the property earlier dedicated to meet the necessities. In this context the time of dedication is also relevant since whereas the first deed was made on 12-9-1970, the second one was made on 31-12-1971, at a time when the Orissa Land Reforms Act was already in force and Chapter IV thereof dealing with ceiling proceedings were enforced only seven days after i.e. on 7-1-72. The order of the Tribunal shows the visitors' book of the museum to have been marked Ext. 3 and pages 17 and 18 thereof were referred to by the Tribunal as respectively containing serial Nos. 455 and 473 showing the visit of the District Magistrate, Cuttack and the Revenue Divisional Commissioner, Central Divisioa Cuttack to the museum. All the documents had been taken back by the opposite party No. 1 from the Tribunal after the order under challenge was passed and we had called upon the learned cousnel for the opposite party No. 1 to refile the document. A memo, supported by affidavit was filed by Mr. M.N. Das, learned cousel for the opposite party No. 1 on 11-2-88 purporting to file the trust deed and the visitors' book but however since the visitors' book was not filed a second memo was filed on 15-2-88 by the learned counsel of filing the visitors' book. A reference to the visitors' book filed however does not show it to be the book filed before the Tribunal and marked as Ext. 3 there. The book is also not page-marked and there are no entries therein as serial Nos. 455 and 473. It appears that the book filed is not the visitors' book exhibited before the Court and is some other document on which no reliance can be placed Th6 cumulative feature of all such different aspects considered in the background of the guidelines already discussed unhesitatingly leads to the conclusion that the purported creation of the trust was neither a public nor a charitable trust and hence the Kanika Museum would not be a privileged raiyat under the Orissa Land Reforms Act. As a result, the declaration to such effect by the Tribunal must be quashed.
13. So far as the botanical garden is concerned, the salient features of the trust deed are also similar that the founder of the trust shall be the first sole trustee and thereafter the eldest male heir in accordance with the law of primogeniture is to be the sole trustee and if such trustee suffers from temporary legal incapacity to act as the trustee for any time, the District Judge, Cuttack has the power to appoint, only during such incapacity of the person concerned any person fit in his opinion to act as the trustee. The sole trustee is permanently charged with the duly and responsibility of maintaining the Samadhi of the late father of the founder of the trust and those of his legitimate heirs as also the cremation ground within the area of the botanical garden and is also charged with the responsibility of maintaining the Dasahara ground and is to arrange for due performance of the rites and ceremonies connected therewith. Though the institution is declared to be a public trust, the admission of members of the public is always subject to the permission and control of the sole trustee and the trustee always has the power and discretion to grant or refuse permission for the performance of any of the objects of the trust as he may think fit and may grant or refuse admission to any person whatsoever into the trust estate and for the purposes and objects of the trust or for any other purpose and in doing so he shall always bear in mind and consider the protection of the Samad his and other structures, roads, trees, plants, etc. from interference, harm, damage, loss, etc. The trustee is to endow and contribute from time to time suitable amounts for the maintenance and upkeep of the Samadhi of the founder's late father as well as other Samadhis to be constructed in future and of the cremation ground, Dasahara ground, etc. The terms unmistakably point to the creation of a private trust only, but never a public one, with the sole trusteeship vested in the founder's family without any right in the public for association in the 'management and the rigrit of visit of the public being also completely restricted at the discretion of the trustee. One of the primary purposes of the trust is preservation and maintenance of the Samadhis of the founder's father, of himself and his descendants as also preservation and maintenance of the Dasahara ground and the cremation ground and even the upkeep and maintenance of the Samadhis are charged to the funds of the trust. Such purposes could hardly be charitable and of any utility to the public. The learned Tribunal is his order referred to certain documents marked as Exts. 1 to 19. These documents had been taken back by opposite party No. 1 after the decision of the learned Tribunal, but though by order dt. 30-1-88 we had called upon the opposite party No. 1 to refile the said document, yet after grant of several opportunities, the documents have not been filed and instead a memo supported by an affidavit has been filed by Mr. M. N. Das, learned counsel for opposite party No. 1, stating that the documents had been handed over to the late founder of the trust and that after his death they are not traced out except the trust deed which has been filed The trust deed is Ext. 8. Before the Tribunal one Mr. N.K. Kaul of the National Botanical Garden, Lucknow, who subsequently became the Vice-Chancellor of the Chandrasekhar Azad University of Technology, Kanpur, was examined as P. W. 1 on behalf of opposite party No. 1 and stated in his evidence that he had visited the area at the instance of the Director General, C. S. I. R. to find out the potentiality of developing the site for botanical activities and that he had found the area suitable for research purpose and that there is no other place in India where research can t"e carried out of growing botanical plants under saline climate and coastal conditions and hence he recommended to the C. S. I. R. for the purpose of establishing a botanical garden there. Even accepting the fact that the botanical garden intended by the founder bf the trust was a site suitable for research in some unique manner, that by itself would not convert it into a public trust unless the necessary ingredients are satisfied. As has been noticed above, no such foundation has been laid and the terms of the deed rather establish the contrary. Also no accounts have been produced of the income and expenditure of the land and no evidence is led as to their being kept apart separately. In this view of the matter, it cannot be said that a public charitable trust was created under the deed and hence the declaration of the learned Tribunal of the botanical garden to be a trust estate is liable to be quashed.
14. In the result, the petitions are allowed and the order of the Tribunal declaring opposite party No. 1 in each case to be a trust estate is quashed Hearing fee is assessed at Rs. 200/- in each case.
G.B. Patnaik, J.
15. I agree.