The Bihar State Board of Religious Trust v. Bangali Bhagat, Chela of Jugan Bhgat

3. The relevant facts as pleaded by the plaintiff are that there is a Math known as Parsawni Math in Tola-Paraswni of Village- Pakridayal. This Math has also got a branch Math in village-Santpur. It is the case of the plaintiff that Racheya Bhagat was the founder of this Math and the Mahanths of this Math are Kabir Panthi Sanyasi and the Mahanthship has been passing from Guru to Chela as nominated. The plaintiff has asserted that Mahanths have been holding the properties as their private property and the Math is not a public institution and the public have got no right or access or control over the administration or the properties of the Math. The plaintiff has further alleged that even though there was no public trust still the defendant-Board issued notice to the plaintiff for the submission of return under the provisions of the Bihar Hindu Religious Trust Act and the plaintiff being unaware of the correct legal position, submitted the returns of the income of the lands held by him and had continued to do so year after year for 10 years. It is, however, the case of the plaintiff that after obtaining the legal advice, he realized that he had no obligation to submit the return under the said Act and he then Patna High Court FA No.637 of 1974 dt 11-12-2013 3 stopped submitting return and has filed the suit for the aforesaid declarations.

4. The defendant no.1 Bihar State Board of Religious Trust appeared in the suit and has filed its written statement contesting the claim of the plaintiff. It is the case of the Board that the suit properties are trust properties and the plaintiff is in possession of the same as a trustee. It has been further asserted that all the Mahanths have been the trustees within the meaning of the Act and the Maths in question are public institutions created by public at large. It is also the case of the defendant-Board that the income from the offerings in the Maths by the public as well as income from the lands are utilized over the puja of the deities in the math and, also for sadhus , guests and public. The defendant-Board has specifically pleaded that as the plaintiff has been submitting returns accepting the two Maths as public institutions and managing the properties of those Maths as trustees thereof, he is now estopped from claiming the Maths as private trust and the properties of the maths as his personal property. The defendants have also raised issue of maintainability of the suit in absence of notice under Section 78 of the Act prior to the filing of the suit.

5. In view of the rival pleadings of the parties, the trial court framed altogether 5 issues out of which issue nos. 1 ,3 and 4 have been tried as material issues and are as follows:- Patna High Court FA No.637 of 1974 dt 11-12-2013 4 Issue No. 1- Is the suit as framed maintainable? Issue No.3- Is the suit barred by the law of limitation, estoppel, waiver and acquiescence? Issue No.4-Is the plaintiff entitled to a declaration that the suit properties are not endowment and do not constitute any public trust within the meaning of the Bihar Hindu Religious Trust Act?

6. After scrutinizing the evidence and pleadings of the parties, the learned court below has come to the finding that the suit properties are the private properties of the plaintiff and the math in question is a private math. The issue no.4 has accordingly been decided in favour of the plaintiff. With regard to the issue no.3 relating to estoppel, waiver and limitation, it has been found that the said issue has not been pressed on behalf of the defendant and even otherwise also, it has been further found that the suit is not barred by limitation, estoppel or waiver. The learned court below has also held that the suit is not barred on the ground of non-service of notice on the defendant under Section 78 of the Act as the provisions of the Act do not apply to private trust. On the basis of these findings, the suit has been decreed by the impugned judgment and decree.

7. Mr Ganpati Trivedi, the learned counsel appearing for the appellant-Board has submitted that the returns, after accepting the math to be a public trust and the suit properties to be public trust Patna High Court FA No.637 of 1974 dt 11-12-2013 5 properties, have been submitted for a long 10 years by the plaintiff and thus the plaintiff would now be estopped from denying the said status of the math and cannot now claim the math properties to be his personal properties. It has been urged by the learned counsel that the action of the plaintiff throughout is clearly suggestive of the fact that the math is a public trust and the suit properties are not the personal properties of the plaintiff. It has been further submitted that admittedly the Mahanths of the Math are Kabirpanthi and the math has been established to propagate ‘kabir panth’ and therefore the property of the math cannot be claimed as private property of the Mahanths of the math including the plaintiff and in this regard the fact that the Math in question has also its branch in another village Santpur cannot be ignored. It has, thus, been proponed that the suit properties belonging to the Math cannot be declared to be the private property of the plaintiff. The learned counsel has next submitted that admittedly no notice was served upon the Board under Section 78 of the Act before filing of the suit and, as such, the suit would not be maintainable in view of the said provision. It has been argued that the learned court below has wrongly held that since the suit properties have been found not to be public trust properties, therefore, the provision of Section 78 of the Act will not be attracted.

8. In view of the contentions on behalf of the appellant the Patna High Court FA No.637 of 1974 dt 11-12-2013 6 following points emerge for determination: (I) Whether the suit property belongs to a public trust of religious and charitable character as defined in Bihar Hindu Religious Trust Act, 1950? (II) Whether the plaintiffs’ claim over the suit property is barred by estoppel, waiver, acquiescence and also limitation? (III) Whether the suit of the plaintiff was not maintainable in absence of notice under the 78 of the Bihar Hindu Religious Trust Act?

9. For convenience all the points are taken up together for determination. The plaintiffs’ case is that Math was established by Racheya Bhagat and the Mahanthship of the Math was to pass on succession from Guru to Chela by nomination. It is also the case of the plaintiff that Racheya Bhagat and thereafter the successive Mahanths acquired properties in their names and had been holding those properties as their private properties. It is also the case of the plaintiff that the Math is not a public institution and the general public have no right, access or control over the administration or the Math’s properties which have been acquired by Mahanths out of their personal funds and there was no public trust created with regard to those Patna High Court FA No.637 of 1974 dt 11-12-2013 7 properties. The defendant-Board on the other hand has claimed that the suit properties are trust properties and the plaintiff is in possession of the same as trustee within the meaning of the Bihar Hindu Religious Trust Act (hereinafter referred as Act). It is also the case of the defendant that Parsawni Math and its branch at Santpur are public Maths and properties attached thereto are the trust properties acquired with the income of the originally dedicated properties. It is further case of the defendant that the public have full control over the administration of the properties appertaining to aforesaid two Maths and the Mahanths have been managing these properties as trustees and not as title holders thereof.

10. At the outset it would be relevant to mention here that earlier it was pointed out by the office that the lower court records of this appeal including the exhibits etc could not be traced out and by order dated 19.04.12 while directing the appeal to be listed for hearing in view of its pendency for a long period, the appellants were directed to file documents available with them on or before the final hearing of the appeal but no such documents were filed for the purpose of reconstruction of the lower court records. When the hearing of this appeal has been taken up, the learned counsel for the appellant has submitted that no documents are available with the appellant but has further agreed to proceed with the hearing of the appeal on the basis Patna High Court FA No.637 of 1974 dt 11-12-2013 8 of the materials available on the record.

11. The plaintiff has examined altogether 24 witnesses in support of the fact that the suit properties are the private properties of the plaintiff. The learned court below, on the basis of the testimony of the plaintiffs’ witnesses has recorded finding that the plaintiff has got full control over the suit properties and the Math, and only the plaintiff, his aunt and nephew live in the Math. The learned counsel appearing on behalf of the appellant-Board has not pointed out any substantial material in the testimonies of those witnesses to persuade this Court to take a different view then that taken by the learned court below. It is well settled by now that appellate court should normally not take a different view on the oral evidence then that taken by the trial court unless it can be established that the view taken by the trial court is not a reasonable possibility.

12. Besides the oral evidence the plaintiff has also adduced documentary evidence in support of his assertions. The learned court below has taken into notice the sale deeds (Ext.1 Series and Ext.3 Series) through which the suit properties have been acquired, and has come to the conclusion that those sale deeds are in the name of the different Mahanths who have acquired those properties. The learned court below has also taken into notice the survey Khatians (Ext.2 and 2/A) of the two villages and has found that the same are in the names Patna High Court FA No.637 of 1974 dt 11-12-2013 9 of the Mahanths and there is nothing in those Khatians to suggest the public or charitable nature of the properties. On behalf of the appellant-Board no documentary evidence has been filed to suggest that the suit properties are public trust properties. The possession of the plaintiff over the suit properties is an admitted fact.

13. At this juncture, it would be fruitful to take into notice the principles laid down by the Apex Court in the case of The Bihar State Board of Religious Trust (Patna) Vs Mahanth Sri Biseshwar Das, AIR 1971 SC 2057. In that case the temple was established by Mahanth Gaibi Ramdasji who installed the deities therein. He was succeeded to the Mahanthship by his Chela and thereafter the succession had been from Guru to Chela. The members of the public had at no point of time a voice in the selection or nomination of Mahanth. The properties had always been recorded in the names of Mahanths as proprietor and not in the name of deities in the Survey Khatian. The Mahanths had been in possession and management of the Asthal and the properties which they acquired from time to time in their own names as Proprietors and never in the names of the deities or the Asthal. In the backdrop of these facts their Lordships have laid down that the burden of proof to establish the fact that the properties are public trust properties of a religious or charitable character is on the appellant-Board who has claimed that it Patna High Court FA No.637 of 1974 dt 11-12-2013 10 is so. Their Lordships have further taken into notice the decision of the Privy Council in AIR 1938 P.C. 195 and thereafter have laid down as follows:- “… The mere fact that the Mahanths of a particular order did not marry and properties held by them descended from Guru to Chela was not indicative of and did not raise a presumption of such properties being religious properties. If originally the property was acquired by a Mahanth, the fact of its descent subsequently from Guru to Chela did not lead to the conclusion that it had lost its secular character. Where, however, a property is dedicated to an idol for the object of performing its Puja and other necessary ceremonies the person managing such property is only a Shebait, idol being a juristic person in Hindu Law capable of holding such property. If it is alleged that such property is a trust property held for public purposes to which Acts, such as the Charitable and Religious Trust Act, 1920 or the present Act, applies it has to be shown that the trust is not a private trust but is one substantially for public purposes of a religious and charitable nature. In such cases provision for the service of the Sadhus, occasional guests and wayfarers does not render a trust for an idol into a Patna High Court FA No.637 of 1974 dt 11-12-2013 11 trust for public purposes…………………………….. Therefore, evidence that Sadhus and other persons visiting the temple are given food and shelter is not by itself indicative of the temple being a public temple or its properties being subject to a public trust…”

14. Tested on the anvil of the aforesaid principles it becomes transparent that the evidence led by the appellant-Board as defendant in the suit are not sufficient to infer that the suit properties are the properties of a trust of a public nature created for religious and charitable purposes. From the depositions of the defendant’s witnesses as discussed by the learned court below, only this much is apparent that there is an idol of Kabir Das in the Math and the Sadhus who visit are provided for fooding and lodging. There is no evidence of dedication of the property or creation of an endowment of a public nature with regard to the same.

15. Much emphasis, however, has been laid by the learned counsel for the appellant that the return was submitted by the plaintiff to the Board definitely suggesting the acceptance by the plaintiff of the existence of a public religious trust with regard to the suit properties. However, from the averments in the plaint it is transparent that this fact of submitting returns to the Board has been accepted by the plaintiff but it has simultaneously been also asserted that those Patna High Court FA No.637 of 1974 dt 11-12-2013 12 returns were submitted under misconception as the plaintiff was unaware of the correct legal position. The plaintiff has also asserted that after realizing the correct legal position that he had no obligation under the Act as the suit properties are his personal properties, he stopped submitting the return and acceding to the demands of the defendant-Board.

16. From the impugned judgment it appears that the issue no.3 has been framed with regard to the bar of the suit by law of limitation, waiver, estoppel and acquiescence. However, in paragraph no.15 of the judgment it has been mentioned that the learned lawyer for the defendant did not press this issue. The learned court below has however also placed reliance on the decision of this Court in the case of Bihar State Board of Religious Trust Vs Acharya Mahanth Amrit Das, AIR 1974 Patna 95 and has held that the bar of estoppel is not attracted in the facts and circumstances of the case. It appears from this decision that the question of accepting the property to be public trust on the basis of submissions of the returns before the Board was directly in issue and it has been laid down as follows:- “….The fact of conduct being a relevant fact under Section 8 of the Evidence Act might be admissible in evidence, but that fact by itself would not lead to the conclusion within the meaning of Section 8 of the Evidence Act, that the trustee by his conduct Patna High Court FA No.637 of 1974 dt 11-12-2013 13 influenced or was influenced by the fact that the trust in question was a public one. The conduct by itself was no proof of that fact, unless the conduct amounted to a waiver or acquiescence……………… …The trustees, not being fully conscious of their rights or not being aware of the true state of law or facts, submitted to the dictates of the Board of Religious Trusts, and, therefore, their conduct neither amounted to waiver of their right nor to acquiescence with knowledge of their legal rights and that Section 115 of the Evidence Act would be no bar in their way to deny the fact that the trust in question was a public one. Mere conduct was not admission, as defined in Section 17 of the Evidence Act for making it eligible to be used as admission under Section 21 of the Evidence Act. The statements contained in the various returns filed under Section 59 of the Act were not such that it could be held that they amounted to an admission of the fact that the trust in question was a public one..”

17. It has been next submitted by the learned counsel for the appellant that the suit was barred under Section 78 of the Act which mandates notice to the Board before institution of the suit. Section 78 of the Act reads as follows:-

78. No suit to be brought against the Board or the Patna High Court FA No.637 of 1974 dt 11-12-2013 14 President etc until after notice of cause of action—No suit shall be brought against the Board or the President or any other member or the Superintendent or any other officers or servants of the Board for anything done or purporting to be done under this Act, until the expiration or two months next after notice in writing has been delivered or left at the Office of the Board and also (if the suit is intended to be brought against the President or any other member or the Superintendent or any of the officers or servants of the Board), as the place of abode of the person against whom such suit is intended to be brought, stating the cause of action and the name and place of abode of the person who intends to bring the suit.

18. It is vivid from this provision itself that it encompasses only such suit against the Board which is for anything done or purporting to be done under this Act. This provision is not attracted in view of the relief claimed in the present suit which is for declaration that the suit properties are not trust properties and the suit properties do not belong to a trust within the meaning of the Act and the Board has no jurisdiction or control over the same. The plaintiff has not sought to assail any action of the Board under the Act as such also the bar envisaged under this provision is not attracted. In view of the finding that the suit properties are not the properties of a trust of a public nature there is no substance in the submission on behalf of the Patna High Court FA No.637 of 1974 dt 11-12-2013 15 appellant regarding the bar of the suit which is clearly too technical.

19. In the result I do not find any merit in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)