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650 BIHAR STATE BOARD OF RELIGIOUSTRUST v. PALAT LALL AND ANOTHER October 16, 1970 [M. HIDAYATULLAfl, C.J. AND A. N. RAY, J.] Bilic.r Hindu ReligiousTrusts Act, 1950-Public and Private .Distinction between-Requirements before endo}vrnent canbe as public. Trustsregarded An uncleof thetworespondentsmade a .will in December, 1908 by w.bichcertainpropertieswere endowed by him in favourof anidol whichcertainpropertieswere endowed by him in favourof anidol will thathe hadtwo wives and no sonhadbeenborn to eitherof them. He nominated his two wives and his sisteras "Mutawallies, managers and executives" toadministerthe endowmentduring their life-timeand also providedthat in consultationwith his Guru they shouldappointa succes· sor to themselves. ·Upon the cpming intoforceof theBiharHindu Reli· gious TrustsAct, 1950,a notice was sentto therespondentsby theBoard constitutedunder the Actcallingupon them to file certainparticularsas requiredunder the provisionsof theActon theviewthat the properties .constituteda PublicHindu ReligiousTrust. The respcndentsthereafter lileda suitagainstthe Boardfor a declarationthat the saidproperties werenot subjectto theAct and ·.vere privateendowments. After con sideringsubstantialoral and documentaryevidence, the TrialCourtheld thatthe endowment was privateto whichthe Actwasnot applicable. An appealto theHighCourtwas dismissed. Tn the appealto thisCourtit wascontendedthat it couldeasilybe inferredfrom the factsand circumstancesthat the endowmentwas a publicone. The testatorwas childlessand, therefore, thore was no need B c D E forhimto preservethe propertyfor his family;that he baddedicated largepropertiesfor theupkeepof theidol,.and ihe largenessof the pro pertiesindicatedthat it musthave been for the benefitof theworshippers drawnfrom the publicand not from the family;that on theextinction F -0f the lineof shebaits· consisting of thetwowivesand the sisterof the testator,the shebaitship was to go to a personof a differentcommunity ontheadviceof a strangerand thattherewas no mentionin anyof the deedsthat the publicwere not to beadmitted to theworship of theidol. HELD : Dismissingthe appeal, (i) On the facts,it wasclearthat the idolhad beenin thefamilyfor anumber of yearsand onlythe familywas doingits regularworship; therewas nothingto showthat the publicever lookedafter this idol or werealloweda share in theworshipas of right. Nor did the authdr of the dedication by his will makeit clearthat the publicwere to be admitted as of right.The wholearrangementshowed that the furtherlookingafter oftheidol was to betheconcernof thefamily,and it was onlyunder the nomination of the familythat a parti.::ular person of the Vaishavnava beliefwas to be in-chargeafter the demiseof tho members of the family who wereto becomemutawallisafter the deathof thetestator. It was -0bviouS that in thisfamily as therewas no maleissue and, therefore,,there was nobody to carryon Worsh~p and makearrangements fOr the seba-puja G H : B c D E F G H BillAR RELIGIOUS TRUST v. PALAT LALL (Hidayat111/ah, C.J.) 65 I of the 'idol, as hadbeendonein thefamilyfor alongtime. someother kind of arrangement had to be made and this arrangement Vas made by the will. No morecan be read into it thanwhatwas saidthere. [654 CJ (ii) There was no fo:rce in the contention that merelybecause an exemptionwas claimedin regard to theincomeof theendowment as beingforcharitableand religiouspurposes.this would make the endo.w· menta publicone .. What a per>on does with a viewto claiming excmp· tionfromincometax or agriculturalincome-tax, is not decisiveof the nature of theendowment.The nature of the endowment is to be dis· covered only from thetenor of the documentby whichthe endowment is created,the dealingsof thepublicand tho conductand hahits of the peoplewho visit such· a templeor ThakurDwara.The claimto exemp· lion was with a view to savingsome income of the endowedproperty. It misht have been motivatedfrom otherconsiderationsand not that it wu a publicendowment.[655 A·C] Babu Bhagwan Din anti others v. Gir Har Saroop and others, referred to. Deoki Nandan v, Murlidhar [1961]3 S.C.R.220; Swami Sa/igrama. charya v. Raghavacharya and others, Civil Appeal645 of 1964 decided on 4-11-65;distin211ished. CIVIL APPELLATE JURISDICTION: Civil AppealNo. 800 of 1967. Appealfrom the judgmentand decreedated January 15, 1964 of the Patna HighCourtin Appealfrom OriginalDecree No. 321 of 1959. D. Goburdhun and R. Goburdhun, forthe appellant., R. C. Prasad, for respondentNo. ,1. The Judgmentof theCourt was deliveredby Hidayatullab, C.J. This is an appealagainstthe judgment of theHighCourtat Patna, dated January 15, 1964, affirmingthe decisionof thecourtof firstinstance. The casearosein the follow· ing . circumstances: OneChaudharyLal Behari Sinha, who was the uncle of thetwo plaintiffs(respondentsin thisappeal),made an endowmentby a willexecuted hy himon December2, 1908, by whichcertai.n pro· pertieswere endowedin favourof an Idol called'Ram Janakiji' alsoknown as Shri Thakurji,installed in thefamilyhouse of the testator.The testatorsaid that his parentshad installedthis idol insidetheir houseand theyusedto performthe pujaand he hadalso beenperformingthe puiasincethe timehe hadattainedthe age of discretion.The testatorwent on to saythat he hadmarriedtwo wives but no sonhadbeenborn to himfromeitherof them, aJ. thoughhe hada daughterand therewas alsoa daughter'sdaughter. Whenhe madethe will,he hadhis twowivesliving,two sister's sons,BabuUma. Kant Prasad and BabuGauriKant Prasad, and a daughter's daughter GirirajNandiniKuari. By thewill,he ar- 652 SUPREME COURT REPORTS [1971]'2 S.C.R. ranged for the s~ba-puja, ragbhog,samaiya, utsava of Thakurji, andfor the festivalsand expensesof thesadabartof thevisitors,to becarriedon, justas hehad been doing.He nommared his two wivesand his sisterRam Sakhi Kuariwidowof BabuGudar Sahai, as 'mutwallie,managers and _executives' so long as they remained alive.He ordained that theyshouldlook after the managementof theestateof Shri Thakurjiwith unanimousopinion, as. had been donesincelong,that aftertheir death,a sonof a Srivastava Kayasthaand Visnuupasak(worshipperof LordVisnu)should be appointed'Mutawalli,manager and executive'of theestateof Shri Thakurji,and thathis wives and sistershouldappointhim during theirlife-timewith the adviceof andin consul11ation witha certain Shri Jawharikh,resident of Baikunthpur,who was his guru.He 'dividedthe houseinto two parts.The innerapartmentof thehouse was tg remainin thepossessionof his wives andsisterduringtheir life-timeand the entire outerhousetogetherwith the housesituated at Sitamarhi, was tobelongto the ~state of Shri Thakurji.All money in cash and themovablepr()pertiesbelonging to himwould remainin thecustodyof his wives. To thewill was appendeda schepule which showedthe detailsof the properties. Thatincluded fourvillages in sixteenannas share, three villagesin eightannas share,and one village in twelveannas share.The will alsomade certainbequestsin favourof someof hisotherrelations,but with them we arenotconcerned.They are minoras comparedwith the properties dedicared forthe upkeepof Shri Thakurji. Whenthe BiharHinduReligiousTrusts Act, 1950,came to be passed,a notice was sentto theplaintiffs by theBoard constituted underthat Act,callingupon them to file certlain particularson the basisof theAct,in view, as the noticesaid, of.theproperties con stitutinga publicHindu Religioustrust. The presentsuit out of whichthis appealarises was thereupon filed by theplaintiffsafter servinga noticeunder s. 78 of theActuponthe.Board,for a de claration thatthesuit propertieswere not subjectto theBihar Re ligiousTrusts Act, and wereprivateendowments. Vasi oral evidencewas tendered in thecaseon behalfof the plaintiffs,and certaindocuments.were filed. On the basisof the evidencein thecase,which was acc)pted by thelearned triarjudge, it was decidedthat the endowment was privateto whichthe Act was notapplicable.Before the learnedtrial judge,reference was made toa decisionof thi~ Court, reportedin Deoki Nandan v. Mur/i dhar('). To thatcase, we shallcomepresently. The learned trialjudgedistinguishedthat caseand heldthat endowment in the presentcase couldnot be held to be a publictrust, because itwasin favourof a family'lle.ity. 1[1961] 3 S. C.R. 220. A B c D E p G B B c D I ' G B BIHAll RELl<.;JOUS TRUST v. PALAT LALL (Hidayatullah, C.J.) 653' An appeal was unsuccessful in the High Court. The High Court agreed with the learnedtrial judgethat the endowment createda privateand not a publictrust. 'f!!e High Court did notconsiderthe evidenee in the case, which, accordingto thelearned Judges, had been adequately siimmed up by the trial judge and whose conclusion was accepted. Before the High Court also, the same case of this court was cited. Butit was also againdistinguishedon the grounds, that this idol" was a family idol andhadnot changed its character since the endowment or at the time of the endowment. In this appeal, the only question that has been raised is whether thetrust is a publictrust, to which the Bihar Hindu Religious Trusts Actattaches,or is a privatetrust which does not come within the purview of that Act. Mr. Goburdhun, who argued the case, poin ted otit a number of circumstances from which, he said, itcould be easily inferredthat the endowmen~ was a public one andthat theAct applied. Accordingto him, the testator was childless and, therefore,there was no need for him to preserve the propertyfor his family, that he had dedicatedlarge properties for fue upkeep of the idol, and the larSC!less of the propertiesindicated that it must have been for the benefit of the worshi~pers drawn from the public and not from the family, that on theextmctio:i of the line of shebait1 consisting of the two wives andthe sister of tho testator,the shebait· ship was to go ,to a,person of a different community on the advice of astrangerand that there was no mentionin any of the· deeds , that thepublic were not to be admittedto the worshY, of Thakurji.He also relied U)'?Il the same case to which we have referred, and also upon a decision of this Court in Swami Saligramacharya v. Raghavacharyaand others('). As early as (BabuBhagwanDin andothers v. Gir Har Saroop and others)('), the PrivyCouncil distinguished between public andprivate endowm~nts of religious institutions,particularly, tem· ples and idols, and Sir George Rankin laid down certain principle. to which attention may be drawn, because they were referred to in that Supreme Courtruling on which Mr. Goburdhunstrongly relies. Sir George Rankjn said that the dedicationto the public was notto be readilyinferred when it was known that a temple property was acquired by grantto an individualor family. He also observed that the fact that the worshippers from the public wi:re admitted ~ the teqiple was not a decisive fact, because wor shippers wo,uld ~ot be turned away as they broughtin offerings, and the populanty of the idol among the ~ublic was notindicative of ~e f~t thatthe dedicati?n of the properties was for public. This ruhng was referred to m the case on which Mr. Goburdhun relies. (I} CA. No. 645 or 1964 decidicl on 4·11·15. (2) 67 lA I. .. 654 SUPREME COURT REPORTS (1971] 2 S.C.R. In that case,emphasis was laid on two mattersand theyare decisive of thecase we havehere.The first no doubt was that the dedicator in thatcasehad no male issue, andthatit would.be un usual for a person to tie up thepropertyfor the use of a diety with outcreatinga publictrust, but the second was thata ceremuny or pratishtha(installationof the idol), which was equivalentto utsarg (dedication), was performedand, therefore,the idolitselfbecamea publicidol after the ceremonies.This is not the caseherewhere anidolhad existed frl'tll before as a familyidol. In theearlier case ofthisCourt the installationof theidoland the dedicationwere bothdoneat thesametime,and the installation was public.This, in our opinion, was a verycardinalfact in thatcase.This was emphasized not; only by thetrialjudgebut also by the learned Judgesof theHighCourt.The factshere are thatthe idolhad been in thefamilyfor a numberof yearsand onlythe family was doingthe seba-pujain theThakurDwara, and there is no mention anywherethat the publicever lookedafter this idol and wereallowed a sl)are intheworship as of right. Further, by the will alsothe authorof thededicationdid notmakeit clearthat the publicwere to be admitted as ofrightthereafter.The wholeof the arrange mentshowsthat the furtherlookingafter of theThakurji was to be the concernof thefamily,and it was onlyunderthe nomination ofthefamilythat a particularperson of theVaishavanavabelief was to be in-chargeafter the demise of themembersof thefamily whowereto becomethe mutawallisafter the death of thetestator. It is obvious tkat in thisfamilythere was no maleissueand, there ·fore, there was nobodyto carryon worshipand makearrangements fortheseba-pujaof theThakurji, as hadbeendonein thefamily. Some otherkind of arrangementhad to bemadeand t'his arrange ment was made by the will. Nomorecan be readinto it thanwhat is said there. Now,if it wasintendedthat this shouldhave beena public en ·dowment, it is quiteobviousthat when the testatordied, the testator wouldhave thoughtof somebodyfrom the publicinsteadof the ladieswho couldnot carryon thepujaexceptthroughothers. It was afterhis owndeathand his wives and sisterwere not available thata particular ~rson wasto bechosenfor theseba-puja.There is no arrangementhere that publicwere to lookafteror manage theThakurji.At no stageany interventionof thepublic is either intended or allowed by the will inquestion. Twootherdocumentswere br0ught to ournotice,but they maybe disposedof summarily.The first is a mortgagedeed, exh. B,in whichthere is a recitalabout the propertywhich was the sub ject of theendowment.But thatdocument is silentabout the natureof theendowmentand is of nosignificance.The other docu ment is a judgmenrof theAssistantCommissionerof Agricultural A B c D E F G ff BIHAR RELIGIOUS TRUST v. PALAT LALL (Hidayatullah,C.J.) 655 Income-tax, exh. C, in whichexemptionwas claimedin regardto incomeas was set apartfor charitableand religious trusts in terms ofthetrustdeed.This is an attemptto showthat the family re garded 1t as apublictrust.What a persondoes with a view to claimingexemptionfrom incometax or forthatmatter,agricultural income-tax,is notdecisive of the natureof theendowment. The 8 . natureof· theendowmentis tobediscoveredonly fromthe tenor of thedocumentby whichthe endowmentis created,the dealings ofthepublicand the conductand habits of the peoplewho visit such a temple or ThakurDwara.The claimto exemption was with a viewto saving some incomeof theendowedproperty. It might havebeenmotivated from otherconsiderationsand not thatit was c D F G H a public endowment. This btings usto thesecondcase whichwas citedbefore us. But even in thatcase,a referencewas madeby thelearnedJudges . to theearliercase and theyhaveextracteda passagefrom the ear lier judgment,in whichit wasobservedthat "when property is de- . dicatedforthe worship of a familyidol, it isa privateand not a publicendowment, as the personswho are entifled to worship at the shrineof the deity can onlybe themembersof thefamily, and thatis anascertainedgroup of individuals.But wherethe bene ficiariesare notmembersof a family or aspecifiedindividual, theq. the endowmentcan only be regarded as public,intended to beneL fit thegeneralbody of worshippers". In the presentcase, the idolwas fl familyidol and the worship pershad all alongbeen the members of the family.Indeed, the evidenceis overwlielmingon thatscore.The learnedtrial judge mentionsthat veryimportantand leadingpersons.gave evidencein thatbehalf. In the judgmentof the trial judge,a list is givenwhich includesP.Ws. 3,7,12,14,15and 16 of villageKusmari. In addi-, tion thereare P.W.17, who is an advocateof Sitamarhi, P.W. 6 who is arespectablewitness, being a chemist, P.W. 8 whois alsoa pleader,and P.Ws 11 and13 whoare mokhtearsand acquainted withSomariKuer. These respectablepersons had occasion to know the familyof ChaudhuryLal Behari Singh, and,therefore, we~ competentto speakon thefactthat Shri Ram J anakijiwere the f~y deitiesof ChaudhuryLal Behari Singh. In the caseto whichwe werepresentlyreferring,the circumstancesconnected with theestablishmentof thetemplewere suchthat theycouldbe only consonantwith a publicendowment. It was no ddubt a private tellJple of whichthe soleproprietorwas one MadrasiSwamiji,but he,however, by the executionof thedeed,decide.d to open the tem, pie tothe public. Hewasa man withno familyand couldnot have inst~lled the deityforthemembersof hisfamily.Ir W'IS pointed outm thatcasethat the .deedwasof sucha recentdate that evid denceof subsequentconduct would not alternatureof rhe endow ment as determinedfrom the deedand thatthe decisionwas on· a 656 SUPREME COURT REPORTS [1971] 2 S.C.lil. questionof fact.Even if we were to treatit asa questionof law, becau~ whetherthe trust is publicor private,partakesof bothfact and Jaw, and we aresatisfiedin thepresentcase the evidence is entirelyone-sided. The~e is not onecircumstanceto showthat the endowment was publi.c endowment,and this beingthe case, we do not 1iee anyreasonsto differfrom the qecision alreadyarrived at. On the whole, we havenot beenable to discoverany reason why we shoulddepartfrom the unanimousopinion of theHigh Courtand the court below.Both ·the courts are agreedthat the oralevidence as well as the documentsindicate only a privatetrust andthat.there is nothingto showthat the endowmentenjoyed a publiccharacterat any time. Thecasesbeforethis Court,which werecitedearlierare easilydistinguishable. Theresult is that the appealfails. The HighCourtin itsorder didnotawardcosts to the plaintiffs .. Thereasonsgiven by theHigh Courtfor denyingcosts to theplaintiffsapply here also.We, ac· cordingly,order that the costsshall be borne as incurred. R.KP.S. Appeal dismissed. c |
