Chattisgarh High Court
Murti Shri Sinhwahini Devi Sinhwahini ... vs The State Of Chhattisgarh And Others on 23 April, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 206 of 2007
Murti Shri Sinhwahini Devi Sinhwahini Devi Mandir Rajapara and others
...Petitioners
Versus
The State of Chhattisgarh and others
...Respondents
! Shri Parag Kotecha counsel for the appellants
^ Shri Sushil Dubey Government advocate for the State respondents No 1 and 2 Shri Ravindra Agrawal counsel for respondent No
CORAM: Honble Shri Justice Prashant Kumar Mishra
Dated: 23/04/2010
: Judgement
JUDGMENT
Second Appeal under Section 100 of the Code of Civil Procedure, 1908 The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred by the plaintiffs whose suit for declaration and permanent injunction was dismissed by the trial Court, however, the appellate Court declared the title of the suit property in favour of the appellant No.1, Deity and dismissed the claim of the plaintiff No.2/appellant No.2 for a declaration as Sarvarakar of plaintiff No.1, Deity/temple.
2. Plaintiff No.1 is the Deity of Sinhwahini Devi, Sinhwahini Mandir, Rajapara, Kanker and plaintiff No.2/appellant No.2 claims to be the Sarvarakar of plaintiff No.1. The following reliefs were claimed in the suit:
(i) Plaintiff No.1 be declared the owner of land situated at 10 khasra numbers bearing an area of 30.00 acres at Village Banspattar and the temple situated on Nazul Plot No.15 area 211 Square Meters.
(ii) Plaintiff No.2 Laxminarayan be declared the Sarvarakar of plaintiff No.1, Deity.
(iii) The registration of public trust by defendant No.1, State of Chhattisgarh through Collector, Kanker and entry of the name of the Collector as Manager of the Trust be declared illegal, void and inoperative.
(iv) The constitution and registration of the Public Trust by the Registrar, Public Trusts, Kanker in Revenue Case No.1/B-113/93-94 dated 16-8-1994 be declared illegal and ineffective.
(v) The defendants be restrained from interfering with the plaintiffs' possession in the suit land and temple.
3. The suit was filed on 11-4-1992 on the pleadings inter alia that the idol of Sinhwahini, being the plaintiff No.1, is a juristic person having been installed in the temple of Sinhwahini situated at Rajapara, Kanker. The said Deity was consecrated and installed by the erstwhile Ruler of Kanker State Shri Komaldeo as his Kul-Devi (family Deity) by constructing the temple at Rajapara. After his death, the legal heirs of the erstwhile Ruler continued to worship the Deity on the occasions of Ram-Navami, Dashehara, Deepawali and other special occasions and on rest of the days the temple used to be closed and the general public were not allowed to enter the temple. Thus, it was a private temple of the erstwhile Ruler, which was thrown open for the public in 1985 by the present head of the royal family, namely, Maharajadhiraj Shri Uday Pratap Deo. The Deity possesses 30.00 acres of land at Village Banspattar and an area of 211 Square Meters on Sheet No.13, Plot No.15, at Rajapara, Kanker on which the temple has been constructed. According to the plaintiffs, the property was looked after and managed by its Sarvarakar Sunder Singh, Padum Singh and Pannalal, who are the ancestors of plaintiff No.2 Laxminarayan. Pannalal died in 1985 and thereafter plaintiff No.2 was appointed as Sarvarakar by the followers and worshippers of plaintiff No.1, Deity and since then plaintiff No.2 is performing the job of Sarvarakar. The Tahsildar, Kanker illegally entered the name of Collector, Bastar as Manager of the agricultural lands in the year 1974-75 without informing plaintiff No.1, whereas the Collector, Bastar has never taken any interest in the affairs of the temple. The Collector, Bastar has never been appointed as Manager by plaintiff No.1. Plaintiff No.2 moved an application before the Additional Collector, Kanker for entering his name as Sarvarakar, which was rejected on 10-7-1990 and an order was passed to declare the temple as Public Trust. The said order or registration of Public Trust is illegal and void.
4. It was further stated in the plaint that after registration of the Public Trust, the defendants are interfering in the affairs of the temple, therefore, the present suit has been preferred.
5. The defendants filed their written statement and stated that plaintiff No.2 is not the Sarvarakar of the temple and the present suit against the Manager of the Trust and challenging the registration of the Trust is not maintainable. It was stated that the temple was established for the benefit of public at large and the entire public of Kanker Town were offering their worship right from the time of the erstwhile Ruler of Kanker. It was specifically mentioned that when the temple was found closed permanently, the defendants, with the help of members of public, opened the temple and got it renovated, as the temple was in dilapidated condition. It was specifically denied that plaintiff No.2 was appointed as Sarvarakar. It was mentioned that the right of appointment of Sarvarakar is of the Government, as the temple is a Public Trust. The name of the Collector, Kanker was entered in the revenue records as Manager of the property in compliance of the State Government's notification dated 12-4-1974 and to protect the property from being wasted. It was also mentioned in the written statement that plaintiff No.2 is only the Pujari and was never appointed as Sarvarakar.
6. In the trial Court, the plaintiffs preferred an application under Section 92 of the Code of Civil Procedure seeking leave to prefer the suit. The application was rejected by the trial Court on 23-11- 1992, however, the Court of Additional District Judge, Kanker, vide its order dated 14-3-1995 passed in Civil Revision No.1/92, allowed the revision thereby allowing the plaintiffs' application under Section 92 of the Code of Civil Procedure.
7. In course of trial, the defendants were proceeded ex parte and the ex parte evidence of plaintiff No.2 Laxminarayan was recorded as P.W.-1 and that of his witnesses, namely, Badrinarayan as P.W.-2 and Kanhaiyalal as P.W.-3.
8. The trial Court, by its judgment and decree dated 31- 7-2006, held that plaintiff No.2 Laxminarayan is not entitled to be declared as Sarvarakar of the plaintiff No.1, Deity and that the plaintiffs are not entitled to seek a decree of permanent injunction against the defendants. Additional issue No.5 regarding the validity of the public trust created and entered in the Register of Public Trusts by the Registrar, Public Trusts, Kanker on 16-8-1994 was also decided against the plaintiffs and it was held that the plaintiffs are not entitled to a declaration that the registration of the public trust is illegal. On issue No.2, the trial Court held that the entry of the name of Collector, Kanker in the revenue records is neither illegal nor void.
9. The trial Court, by referring to Ex.P-27, Ex.P-28 and Ex.P-29, came to the conclusion that thought the plaintiff No.2's ancestors, namely, Sunder Singh, Padum and Pannalal were Sarvarakar, but there is no document to the effect that the plaintiff No.2 was either declared or acted as Sarvarakar at any point of time. Referring to other revenue records, the trial Court concluded that though the plaintiff No.2 made efforts to get his name recorded in the revenue records, however, since orders passed by the Tahsildar or Nazul Officer at different points of time were ultimately set aside by the Collector, the plaintiff No.2 does not get the status of owner or Sarvarakar of the property or the temple. It is specific finding of the trial Court that in view of the provisions/recitals in the document filed by the plaintiffs titled "Kanun Mal Riyasat, Kanker" it is established that the right of appointment of Sarvarakar vested in the Kanker State and that the right to the office of Sarvarakar was not by inheritance.
10. The first appellate Court partly allowed the plaintiffs' appeal and declared the title of plaintiff No.1, Deity in the suit property, however, it was declared that the plaintiff No.2 is not the Sarvarakar of the temple, but is only a Pujari and he shall be entitled to his remuneration as a Pujari. The appellate Court also held that the plaintiff No.1 has rightly been declared as public trust and after declaration of such trust the plaintiff No.2 has been declared as Pujari of the temple, therefore, his prayer for declaration that he is the Sarvarakar of the temple cannot be sustained.
11. While admitting the second appeal, this Court has formulated the following substantial question of law:
"Whether the finding of the Courts below that appellant No.2 is not the Sarvrakar of the trust is perverse?"
12. Before dealing with the substantial question of law formulated as above, it would be profitable to refer to the concept, legal character and incident of Shebaitship (referred as Sarvarakar in the present case).
In the Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures, by B.K.Mukherjea, Fifth Edition, Reprint 2003, in paragraph 5.1A of Chapter 5, namely, Management of Debutter-Shebaitship-Its Legal Character and Incidents, it has been described as under:
"5.1A. Shebait the human ministrant of the deity.- ......... "it is in an ideal sense that the dedicated property vests in an idol," and in the nature of things the possession and management of it must be entrusted to some person as Shebait or manager.
"It would seem to follow," the Judicial Committee observed in Prosonna Kumari Debya v Golab Chand Baboo, (1875) LR 2 IA 145, "that the person so entrusted must, of necessity, be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great as the manager of an infant heir. If this were not so, the estate of the idol might be destroyed or wasted, and its worship discontinued for want of necessary funds to preserve and maintain them." This human ministrant of the deity, who is its manager and legal representative, is known by the name of Shebait in Bengal and Northern India. He is called the Dharmakarta in the Tamil and Telugu districts, Panchayetdar in places like Tanjore and Urallen in Malabar. He is the person entitled to speak on behalf of the deity on earth and is endowed with authority to deal with all its temporal affairs. As regards the temple property, the manager is in the position of a trustee, but as regards the service of the temple and the duties that appertain to it he is rather in the position of the holder of an office of dignity. Ramanathan Chetti v Murugappa, (1906) LR 33 IA 139. For convenience I will call the manager by the general name of Shebait, though I am aware that a distinction has been made in some cases between a Shebait and a Dharmakarta. See Srinivasa v Evalappa, LR 49 IA 237."
The author further describes the position of Pujari in paragraph 5.1B and the difference between Pujari and Shebait has been narrated in paragraph 5.2 thereof. Both these paragraphs are reproduced hereinbelow:
"5.1B. Position of Pujari.- A Pujari is often appointed by the founder or Shebait to conduct the worship. The position of a Pujari was considered at length in Veerbasavaradhya v Devotees of Lingadagudi Mutt, AIR 1973 Mys 280, 288, para 20. It was held that such appointment would not have the effect of conferring any right on the Pujari. Ordinarily, he is not entitled to be continued as a matter of right in his office as Poojari. Poojaris or Archakas are liable to be removed for any of misconduct or indiscipline which would be inconsistent with the duties of the office which they hold.
5.2. Pujari differs from Shebait.- A Poojari or Archaka is a servant of the Shebait, and no part of the rights and obligations of the latter are transferred to him. Ananda v Brojo, ILR 50 Cal 292. When the appointment of a Purohit has been at the will of the founder, the mere fact that the appointees have performed the worship for several generations will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priests. Kalikrishna v Makhanlal, ILR 50 Cal 223."
13. The Hon'ble Supreme Court, in Profulla Chorone Requitte and others vs. Satya Choron Requitte, AIR 1979 SC 1682, has held in paragraphs 20, 21, 22 and 23 thus:
"20. Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of Shebaitship. Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debuttar, his position is analogous to that of a Trustee; yet, he is not precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolute dedicated to an idol, vests in the idol, and not in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder.
21. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office; but even so, it will not be quite correct to describe Shebaitship as a mere office. "Office and property are both blended in the conception of Shebaitship". Apart from the obligations and duties resting on him in connection with the endowment, the Shebait has a personal interest in the endowed property. He has, to some extent, the rights of a limited owner.
22. Shebaitship being property, it devolves like any other species of heritable property. It follows that, where the founder does not dispose of the shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist. (Gossamee Sree Greedharreejee v. Rumanlolljee, ibid).
23. Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of a family idol, the public are not interested. The present case is one of a private debutter. The distinction is important, because the results logically following therefrom have been given effect by Courts differently."
14. When the law thus stands as to the nature of the office of Shebait, its concept and its legal character, this Court shall now examine as to whether the findings of the Courts below that the appellant No.2 is not the Sarvarakar of the trust is perverse (as mentioned in the substantial question of law framed, however, it should have been as Sarvarakar of the temple not of trust).
15. Learned counsel for the appellants has relied on the following judgments in support of his submission that the office of Sarvarakar is inheritable being in the nature of property, therefore, the plaintiff No.2 being the successor and legal heir of the previous Sarvarakar and he being in charge of the temple, the Courts below have recorded an incorrect and perverse finding that the plaintiff No.2 is not the Sarvarakar of the trust/temple. The judgments are Shambhu Charan Shukla vs. Shri Thakur Ladli Radha Chandra Madan Gopalji Maharaj and another, AIR 1985 SC 905, Sm. Raikishori Dassi vs. Official Trustee of West Bengal and others, AIR 1960 Cal 235, Janki Raman Pd. Mishra and another vs. Koshalyanandan Pd. Mishra and others, AIR 1961 Pat 293, Kacha Kanti Seva Samity and another vs. Kacha Kanti Devi and others, AIR 2004 SC 608, Ramanujacharyulu and another vs. Panduranghacharyulu and others, AIR 1957 AP 272 and Narayanam Seshacharyulu and another vs. Narayanam Venkatacharyulu, AIR 1957 AP 876.
16. Before proceeding further, it is pertinent to mention the defects in the framing of the suit, though no issue was framed with regard to these defects. A declaration has been sought in the plaint that the registration of public trust be declared null and void yet neither the trust nor the trustees have been joined as party - defendant in the suit. Such a relief can only be claimed in the manner provided under the Chhattisgarh Public Trusts Act, 1951, wherein it has been provided under Section 8 that a suit challenging entries made in the Register of Public Trusts, findings recorded by the Registrar of Public Trusts with respect to the trust and the property, can be challenged by filing a suit in the civil Court meaning thereby in the principal civil Court of original jurisdiction, i.e., the Court of District Judge. The present suit was filed in the Court of Civil Judge Class-I. By claiming a declaration that the registration of the trust is void, the plaintiffs through its alleged/self-claimed Sarvarakar, i.e., the plaintiff No.2 impliedly seeks a declaration that the temple is a private temple and its founder has appointed the ancestors of the plaintiff No.2 as Sarvarakar after consecrating and installing the Deity and by making a donation/gift of the agricultural lands situated at Village Banspattar to the Deity. It has been stated in the plaint that the erstwhile Ruler of Kanker State has donated/gifted the property and that the present Maharajadhiraj Shri Uday Pratap Deo opened the temple for general public in 1985. Having thus pleaded and impliedly claimed that the temple is a private temple though opened for public only for the purpose of worship, the plaintiffs have not joined any member of the erstwhile royal family of Kanker State, who are the founders of the temple.
17. In the notice under Section 80 of the Code of Civil Procedure (Ex.P-1) dated 21-1-1992 as well as in the plaint, the plaintiff No.2 claims that he is Sarvarakar as well as the Pujari of the temple. He also says that the worshippers and followers of the temple have appointed him as Sarvarakar (paragraph 7 of the plaint and paragraph 6 of the notice under Section 80 of the Code of Civil Procedure). Thus, his claim to the office of Sarvarakar needs to be examined keeping in view the dedication of the property to the idol by the founder, the provision made therein for appointment of Sarvarakar and the subsequent registration of the public trust, which is sought to be annulled in the suit. Ex.P-27 is a document of the year 1944 titled as "Patta of the lands situated at Village Banspattar". In this document, name of Sunder Singh is mentioned as Sarvarakar of the plaintiff No.1. Similarly, Ex.P-28 is a Patta Mafidari issued under the signatures of the ruling chief of Kanker State and the Diwan of the Kanker State with respect to the lands of Village Banspattar mentioning therein that the lands of Village Banspattar are granted to the plaintiff No.1 for the worship and maintenance (Bhograag) of the temple. The lands were thus Mafi-lands in the name of the idol. In paragraph 17 of the judgment, the trial Court has referred to the provisions contained in Kanun Mal Riyasat Kanker, 1909 and has reproduced Sections 132, 133 and 223 thereof in the said paragraph, which is reproduced hereunder:
"17. dkuwu eky fj;klr dkadsj 1909 bZ0 dh nQk& 4 ds vuqlkj ^^yQ~t xkSafV;k] ls xkao dk Bsdsnkj] f'kdeh Bsdsnkj] vkSj ekQhnkj eqjkn gSA^^ nQk& 132 ds vuqlkj ^^ekQhnkj mls dgrs gSa ftls ;k ftlds [kkunku esa fdlh 'kDl dks ljdkj LVsV dh rjQ ls xkao ;k tehu ekQh esa feyh gks] vkSj ftl ij og 'kDl ekQh esa dkfct gks A^^ nQk&133- fj;klrgktk esa ekQhnkj pkj izdkj ds gSa %& ,1+ ekQhnkj rk vky vkSykn] ftuls ekQh ekStk ,xkao+ dh vkenuh ls] dqN Hkh jde ekQhnkj dks] ljdkj LVsV ds [ktkuk essa nk[ky djuk ugha gksrh] ,2+ ekQhnkj ftUgsa rk vky vkSykn] ekaQh xkao esa gS] exj mUgsa tks vCckc ,lslt+ dh jd tks oDr cankscLr ds eqdjZj gksrh gS- nk[ky [ktkuk djuk iM+rk gS] ,3+ ekQhnkj ftUgsa rkg;kr ekQh esa xkao feyk gks] oks mUgsa vCckc dh jde tks oDr cUnkscLr esa eqdjZj dh tkrh gS] nk[ky [ktkuk djuk iM+rk gS] ,4+ jstk ekQhnkj ftUgsa flQZ tehu dk'rdkjh dh rkg;kr ekQh feyh gS] ,v+ nsorkvksa esa tks ekQh ekStk fn;k x;k gS] og uEcj 3 esa `'kqekj gS A nQk&223- dksbZ xkSafV;k ukckfyx ;k vkSjr ;k ikxy ;k vDy okyk ;k tbZQ ,cq<+k+ ;k fdlh chekjh ds dkj.k fdlh lcc ls cnu dh detksjh gks rks og vius ofytk;t ;k vki [kqn fdlh yk;d 'kDl dks vius xkao ;k [ksrh ds dkjckj pykus ds okLrs ljcjkgdkj c eatwjh ljdkj LvSv ds eqdjZj dj ldrk gS A uhps fy[kh gqbZ ikap lwjrksa esa vk;s gq, 'kDl ljcjkgdkj eqdjZj ugha gks ldrk] ,1+ tks vkSjr gks] ,2+ ftldh pky pyu vPNh u gks] ,3+ ftldh mej 18 lky ls de vkSj 50 lky ls T;kng gks] ,4+ tks ikxy vkSj de vDy gks] ,5+ tks cnu ls detksj gks]"
18. On a combined reading of the above quoted Sections 132, 133 and 223 of the Kanun Mal Riyasat Kanker, 1909, it would appear that with respect to Mafi-lands the Mafidar or the Gontiya can appoint Sarvarakar with the previous approval of the Kanker State. Thus, the appointment of Sarvarakar can be made only with the previous approval of the Kanker State. The appointment of the ancestor of the plaintiff No.2 as Sarvarakar was made in 1944, however, it does not appear that at any point of time the plaintiff No.2 was appointed by the Ruler of Kanker State or their present successors in interest, i.e., the members of the royal family whose names have been referred in the plaint. Non-impleadment of the present symbolic Ruler, i.e., the Maharajadhiraj of Kanker, therefore, becomes significant, however, the plaintiff No.2 has not pleaded that he was appointed as Sarvarakar by the present Maharajadhiraj, whose ancestors/forefathers have dedicated the property to the idol. Thus, it is found that under the Kanun Mal Riyasat Kanker by which the property was dedicated to the temple as Mafi-lands did not provide that the office of Sarvarakar is by succession but could be made only with the previous approval of the Kanker State and that in the present case the office of Sarvarakar of plaintiff No.1 was not by inheritance.
19. Apart from the above, it would appear from the documents filed by the plaintiff No.2 that he had moved objections before the Registrar, Public Trusts vide Ex.P- 12 when the proceedings for registration of public trust was initiated. The Registrar, by order dated 16-8-1994 (Ex.P-13), declared the temple as public trust and ordered for its registration. In the said order, the name of Shri Uday Pratap Deo, the Maharajadhiraj has been mentioned as a trustee. The plaintiff No.2 himself was also mentioned as a trustee in the said order. The suit lands along with other property were declared as property of the trust. One Shri Tilak Kumar Dubey has been nominated as the managing trustee by the Registrar, Public Trusts. The application filed by the plaintiff No.2 before Nazul Officer, Kanker for entry of his name as Sarvarakar in the temple property was allowed on 8-11- 2002 (Ex.P-15). The said order was set aside by the Collector, Kanker on 11-11-2004 vide Ex.P-18 and the name of Collector, Kanker was re-entered as manager of the property. From Ex.P-19, which is an order by Naib- Tahsildar, Narharpur, District Kanker passed on 12-1- 2001, it would appear that one Kesharbai was the daughter of Sunder Singh, her sister being Sonbati. The said Kesharbai executed a Will in favour of Laxminarayan as Kesharbai was issueless. Apparently, Sunder Singh had no male issue, thus, even otherwise, Laxminarayan was not related to Sunder Singh, therefore, plaintiff No.2's plea of acquisition of right of Sarvarakar by inheritance is not sustainable.
20. Undisputedly, a public trust under the provisions of the Chhattisgarh Public Trusts Act, 1951 has already been registered and the property held by the Deity has been entered in the name of the trust in the Register of Public Trusts maintained by the Registrar, Public Trusts, Kanker. A managing trustee has already been appointed by the Registrar, Public Trusts, therefore, unless the said registration of public trust is set aside, the plaintiff No.2 cannot claim the relief of a declaration that he be declared as Sarvarakar of the temple. Since Sarvarakar is in the nature of a manager or trustee of the temple in the case of a private temple, the relief claimed by the plaintiff No.2 cannot be granted in the present suit because the relief claimed by him for declaration of registration of the public trust as void has already been rejected by the Courts below and this Court has not framed any substantial question of law as to the validity of the said part of the judgment and decree. Even otherwise, such relief cannot be granted in a suit where the public trust and the trustees have not been joined as a party in accordance with the provisions contained in Rule 2 of Order 31 of the Code of Civil Procedure. Joining of the trust and the trustees was all the more necessary when the plaintiff No.2 has moved an application under Section 92 of the Code of Civil Procedure seeking leave to prefer the suit and the said prayer was allowed.
21. The judgments/case laws relied by the plaintiffs/appellants are to the effect that the office of Sarvarakar is inheritable. The judgments are distinguishable in the facts and circumstances of the present case because the Supreme Court in Profulla Chorone Requitte and others vs. Satya Choron Requitte (supra) has held in paragraph 22 of the report that "Shebaitship being property, it devolves like any other species of heritable property, it follows that, where the founder does not dispose of the Shebaitee rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu law, if no usage or custom of a different nature is shown to exist". In the present case, the only disposition available is the Kanun Mal Riyasat Kanker, 1909 by which the temple was donated the property as the Mafi-lands, containing a clause that the appointment of Sarvarakar shall be made by the Gontiya with the previous approval of the Kanker State. Thus, the judgments relied by the appellants are not applicable in the facts and circumstances of the present case.
22. In Idol Ganeshji Maharaj and others vs. J.M. Anand and another, 1983 JLJ 248, a learned Single Judge of the Madhya Pradesh High Court has dealt with the law relating to the nature of office and rights of a Shebait. Since I have already referred to the law laid down by the Hon'ble Supreme Court in Profulla Chorone Requitte and others vs. Satya Choron Requitte (supra), I need not reiterate what has been laid down by the Madhya Pradesh High Court in Idol Ganeshji Maharaj and others vs. J.M. Anand and another (supra). As earlier mentioned in the preceding paragraph of this judgment, the plaintiff No.2 had moved an application under Section 92 of the Code of Civil Procedure. The difference between a public trust and a private trust and the application of Section 92 of the Code of Civil Procedure in relation to a public trust and how it has no application in the case of a private trust or a private debutter property has been dealt with by the Hon'ble Supreme Court in Mahant Ram Saroop Dasji vs. S.P. Sahi, Special Officer-in-charge of Hindu Religious Trusts and others, AIR 1959 SC 951. The judgment also deals with the basic difference between religious endowments which are public and those which are private. The relevant parts of the judgment from paragraphs 6, 7, 9 and 10 read thus:
"6. ..... In order to appreciate this argument it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust. ......
7. ...... In the Civil Procedure Code of 1877 a specific section was introduced, viz. S. 539, under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes. This section was later amended, and in this amended form it became S. 92 of the present Civil Procedure Code, the first condition necessary to bring a case within its purview being the existence of a trust, whether express or constructive for `public purposes' of a religious or charitable nature. It is clear beyond doubt that a private trust is outside the operation of S. 92, Civil Procedure Code. ......
9. ...... Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (11th edition)-
"Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."
Obviously enough, the definition clause merely quotes the typical example of a private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of `all' private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public trusts.
10. ....... Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase "two or more persons interested in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. ......."
23. The plaintiff No.2 having moved an application under Section 92 of the Code of Civil Procedure it pre-supposes existence of a public trust, however, the plaintiff No.2 has not arrayed the trust or the trustees as party in the suit. Moreover, in the order passed by the Registrar, Public Trusts, a managing trustee has been appointed. Section 92 of the Code of Civil Procedure itself enables filing of a suit for management of the trust and trust property, however, the plaintiff No.2 has not claimed any such relief but has claimed relief for his own by seeking a declaration that the plaintiff No.2 is the Sarvarakar, which means he has a limited Shebaitee rights in the property belonging to the endowment/debutter. In view of existence of public trust, such relief of declaration claimed by the plaintiff No.2 has rightly been refused by the Courts below.
24. From what has been discussed and found against the appellants/plaintiffs, this Court is of the opinion that the findings recorded by the Courts below to the effect that the plaintiff No.2 is not entitled to seek a declaration for his appointment or continuance as Sarvarakar of the plaintiff No.1/temple does not suffer from any perversity.
25. The substantial question of law is answered accordingly. The present second appeal, thus, fails and is hereby dismissed.
26. There shall be no order as to costs.
27. A decree be drawn-up accordingly.
JUDGE