BIHAR STATE BOARD OF HINDU RELIGIOUS TRUSTS v. BHUBNESHWAR PRASAD CHOUDHARY & Anr.

On 14. 7 .1934 Ram Adhikari Choudhary executed aaother deed called 'ekrarnama' referring to the fact that he had adopted Bhagwat the present first respondent, and that he had Prasad Choudhary, been appointed shebait and manager c~ all the dedicated properties covered by the earlier two samarpanna~as. He also directed that "the stipulations contained irl th• sllmarpannama dated the 7th De income and cember, 1928 in respect of maintenance of account qf expenditure of the dedicated property, shalt hold good in respect of the management of the dedicated property and maintenance of the account of income a'nd expenditure." He mentioned nothing about the panches mentioned in the earlier deed, but provided that "as (to) the practice to be followed the appoidtment of shebaits in future, will be that the shebait in office shall be fully competent to (appoint) during his life time or that after him he who amongst his sons be alive and most capable shall be appointed shebait of the said deities In case there be no male issue in the family of one after another. p G H I f f 'BIHAR RELIGIOUS TRUSTS v, B, p, CHOUDHARY (Alagiriswami, I.) 869 A B c D E F G H th~ shebait in office, firstly, amongst the male issue or in case there b~ no capable malt amongst the children of th~ aforesaid persons, the shebait in office shall be competent to appoint a shebait amongi;t the children of my cousin (father's brother's sons) brothers, deemed to be capable. But the shebait in office is and shall nof be compe tent to appoint a shebail from the family of other persons." It is unnecessary for the purpose of this case to go into the ques; tion whether by executing the samarpannama of 7.12.1928 and ek· rarnama of 14.7, 1934 Ram Adhikari Choudhary was competent to It is not even clear whet change the provisions of 1921 document. her .by this document he had intended to do away with the provisions contained in the earlier documents regarding the panches and their powers. Be that as it may, we are of opinion that the main point regarding :ill these documents is the fact that the executants had com pletely divested themselves of any title to or interest in the dedicated properties which thereby became the properties of the deity. The only power which the members of the family thereafter had was be shebaits arij managers of the temple. The Subordinate Judge who tried this suit considered that the 1921 document created a trust in which the public were interested. But in this to some extent he seems to have been inffuenced by a wrong reading of section 2(g) (i) of the Act, especially the words "to participate in any religious or charitable ministration under such trust". He mistook the word 'ministration' to b'e 'administration'. The difference between the woiqs would make all the difference as to whether any member of the public ccr.ild be said to be interested in the religious trust We have called for and perused the copy of the Act as printed in the official publicatio11 and we find that the word used is 'tninistration' and not 'administration'. The question for decision in this case' therefore, has to be decided on the grounds other than the supposed presence of the word 'administration' in section 2(g)(i). The learned Judges of the High Court on the other hand took the view that the mere fact that the temple was situated within independent compound walls, though near the house of the founders, could not by itself indicate that the temple was meant. for public purposes. They further took the view that "the cost over faqirs, sadhus and occasional festivals would be ancillary to the main purpose, that is, for puja of the deity," As regards the panches mentioned in the docu ments they were of opinion that they had no opportunity to function or take any part in the affairs of the temple and the trust properties, and that there was nothing to indicat~ that the founder or founders of the trust intended that members of the public should be associated with the managementof the temple and the trust properties and the puja. They also held that "the mere fact that some other members of the public might be attending festivals like Ram Navami. Janmashtami etc. does not justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some considerable portion of it" 870 SUPREME COURT REPORTS (1974) 3 S.C.R. We find ourselves unable to agree with the learned Judges of the High_ Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar (1956 SCR 756). In that case the dedication of the properties was not as complete and as categori cal as in the present case. Only in the absence of male issue, the entire immovable property was ·to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its proper .. ties, and of these, two were not the relations of the testator. The com mittee "may appoint the testator's nephew as Mutawalli by their un animous opinion''. The documents in the present case are only slightly different in that they provide- for the members of the. family being shebaits. But the panches are all outsiders. In Deoki Nandan v. Murli dhar this Court referred to certain facts as indicating that the endow ment is to the public : "Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan('), it js a factor to be taken into account in deciding whether a11 endo:,vment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within temple precincts. That is more consis.tent with the endow ment being public rather than private. Thirdly, the puja in the temple is performed by an ar~haka appointed from time to time." In the present case the first factor is present. There is no evidence about the second. There is also provision for appointment and dimis sal of pujaris. Though there is no evidenc_, in.this case, as in that case, that the temple was built at the request of the public we do not think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of family as a manager or shebait and the shebait was subjed to superin tendence and control by a body of 011tsiders, who were given power to remove the shebait if he did not act properly, it is decisive of the question as to the public character c( the temple. There· could be no better indication of the fact that the members of the public were associated with the management of the iemple and management was created in them, thus bringing the matter directly within clause (g) of section 2 of the Act. The fact that this provision regarding the panches was to col1le into ~!feet only after the death of the executants of the deed, does not affect the merits of the question. We are also of opinion that the learned Judges of the High Court were interest A B c D E F G H (I) 1875 15 B:n. LR. 167, 186. \ BIHAR RELIGIOUS TRUSTS v. B. P. CHOUDHARY (Alagiriswami, !.) 871 A l! c D E not correct in their view that the fact that members of the public took part in the worship in the temple and the provision for faqirs etc. was of no signifjcance, and in rejying, upon the decision of the Privy Council in Bhagwan Din v. Har Saroop (AIR 1940 PC 7) for this purpose. In that case the properties were granted not in favour of an idol or temple, but in favour of a private illdividual., who was maintaining a temple, and his heir~. The contention in that case was that subsequent to the grant the family of the grantee must be held to ·have dedicated temple to the. public for purposes of worship and it was this contention that was repel!ed' by the Privy Cou:ncil by observing that as the grant was initially to-mrcindividual, a plea that it was subsequently dedicated by the family to .the public requi.red to be ciearly made out and it was not made out rrierely by showing that the public was allowed.to worship at the temple. But in the present case, as in the case pf Deoki Na;ldan v. Murlidhar, the endowm_ent is in favour o[ the idol itself and in such circumstances proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsara11 Das v. Jai Ram Das (AIR 1943 Pat 135) tha.t "a mere provision for the service of sadhus, occasional guests and \vayfarers in a dedication to an idol does not render the dedication substantially for public pur pose" must be understood in the background of that case where the properties originally stood in the names o'f various mahants and. the property was to be held by the grantee generation after generation and the Court held that the gift was to. the mahant personally. We arc, therefore, satisfied that on the facts of this caso the trust should be deemed to be a religious trust as the public are interested in it. The appeal is allowed and the judgment and decree of the High Court set aside, restoring the judgment of the learned Subordimte Judge. The 1st respondent will pay t\te costs of the appcll.ant. The C.M.~. No. 3132 of 1973 is allowed. V.P .• S. Appeal allowed. ·, . I