TMI Blog1949 (1) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the provisions of the law and is not liable to be challenged in appeal. The suit was thus properly instituted. 3. As already stated, the suit was instituted on 30th July 1940. The Defendant filed his written statement on 10th September 1940 and the Plaintiffs their rejoinder on 25th September 1940. In compliance with the order of the Court the Defendant filed a written statement on 4th December 1940 and the Plaintiffs their written statement on 9th December 1940. Issues were framed on 8th February 1941. Thereafter, the Plaintiffs examined Raja Bahadur Raghojirao Bhonsle on commission on 14th April 1941. 4. Subsequently, Shri Sarwate, who succeeded Shri Athavale as Additional District Judge, tried the case. In his order dated 21ST July 1941, he found that the plaint was very badly drafted and that be could not allow the trial to proceed on the nebulous pleadings. He pointed out several defects in the plaint and asked the Plaintiffs to file a fresh amended plaint, giving the particulars mentioned in his order. In compliance with this order, the Plaintiffs redrafted the plaint and filed it on 26th July 1941. 5. The Plaintiff stated that the temple of Shri Ramc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trust property in the custody of such newly appointed trustee; and (d) setting up a scheme for the management of the trust property. Two other reliefs were claimed but they were subsequently not pressed. 6. In his written statement, dated 25th October 1941, the Defendant denied that the temple of Shri Ramchandraswami was a public religious trust, that the members of the public had a right of worship in the temple, that the Plaintiffs were devotees of the temple, or that they were interested in the upkeep of the temple or the preservation of the endowed property. The Defendant admitted that Raja Raghuji III made a grant of land known as Chandanbai's bagicha, to Chandanbai to enable her to erect and maintain a temple, and that Chandanbai erected the temple of Shri Ramchandraswami; but he con-tended that the temple was intended for the use of Chandanbai, the Ranis and other ladies of the Bhonsla household and was not a public temple. According to the Defendant Chandanbai was the absolute owner of the property, the temple, garden etc., and that she subsequently gifted that property including the temple to Rajaba Saheb Mohite; that Rajaba Saheb was and after him his heirs w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the present appeal has been filed. No order was obtained from this Court for stay of further proceedings in the trial Court. 9. After hearing parties, the trial Court passed an order on 6-10-1942 By that order the Court:, appointed five persons, namely, A.B. Jamdar, Nilkanth Tukram Janephalkar, Narayan Krishnarao Diwan, Ramchandra Govind Salpekar, and Anna Sahib Ramchandrarao Mohite, to form the Board of Trustees. The Court framed a scheme for the puja of Shri Ramchandra-swami deosthan of Vakil Peth, Nagpur and for management of the endowed property. A final, decree was passed on that date embodying the terms settled by the final order. No appeal has been filed against the final decree. Nothing, was stated before us as regards the personnel of the Board of Trustees or the scheme framed by the trial Court for the management of the endowment. 10. The first question for decision in this appeal is whether an express or constructive trust was created for public purposes of a charitable or religious nature within the meaning of Section 92, Code of Civil Procedure, 1908. The Hindu law recognizes dedications for the establishment of the image of a deity and for the maintenance and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mahant to be a 'trustee'. In the subsequent case of Vidya Varuthi Tirtha v. Balusami Ayyar 44 Mad. 831 at p. 838 : (A.I.R. 1922 P.C. 123), their Lordships explained their previous decision and Stated that they used the term trustee in a general sense as in previous decisions of the Board, by way of a compendious expression to convey a general conception of those obligations, and that they did not attempt to define the term or to hold that the word in its specific sense is applicable to the laws and usages of the country. Their Lordships also compared the position of a mutwalli and a sajjadanashin and stated that neither the sajjadanashin nor the mutwalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the technical sense. Their Lordships pointed out that in view of the fundamental difference between the judicial conceptions on which the English law relating to trust is based and those which form the foundations of the Hindu and Mohammadan systems, the Indian Legislature in enacting the Indian Trusts Act (II [2] of 1882) deliberately exempted from its scope the rules of law applicable to wakf and Hindu reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as his secular office. Their Lordships farther held that if it be found by the Court that the functionary, in the exercise of his duties, has put himself in a position in which the Court thinks that the obligations of his office in connection with an endowment can no longer be faithfully discharged without danger to the endowment, that is a sufficient ground for his removal, if need be, from both of his (sic). The principle stated in S. Shah (sic) Kazim v. Syed Ali 11 pat. 288 : I.L.R. 1932 Pat. 33) and Satish Chandra (sic) v. Dharani Dhar Singha I.L.R. (1940) Cal 266 : (A.I.R. 1940 P.C. 24) was applied Radhawallabh v. Madanlal I.L.R. (1944) 788; (A.I.R. 1945 Nag. 64), where it was held that a shebait of a public temple is (sic) to be removed in a suit under Section 92, Code of Civil Procedure. 17. In the light of the decisions in the precious paragraph, we shall now discuss the evidence regarding the creation of the religious endowment and decide whether a trust was created for public purposes of a charitable and religious nature. 17a. Raja Raghuji III made a grant of land at Nagpur to his concubine Chandanbai in order that the may have a garden with a temple in (sic) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lings of human nature, namely, charity, and the desire to acquire religious merit. The sages of yore made a distinction between ishta or sacrificial gifts, and purta or charity. They said that the former led to heaven and the latter to salvation (ishtena lavatey swarga purtena moksham apnuyat), and in that way placed charity on a higher footing than religious ceremonies and sacrifices. The distinction between religious and charitable endowments, so far as the State and the Coutts are concerned, is of comparatively modern origin: vide Monohar Mukherji v. Bhupendranath Mukherji 60 Cal. 452 at p. 474 : (A.I.R. 1932 Cal. 791 (F.B.)). As stated at p. 478, the true principle of Hindu law is, what is mentioned in Chhandogya Upanishada, namely, that the offerings to the Gods are offerings for the benefit of all beings. 31. Ancient texts regarding ishta and purta have been set out in Prannath Saraswati's Hindu Law of Endowments (Tagore Law Lectures, 1892) and distinct enumeration has been made as to what is included in the word ishta and what is included in the word purta. At p. 27 enumeration has been made of the purta works. Among these are the construction of works for the storage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in that case was not an ancient temple. No deed or other documents of dedication of the temple had been produced and it was taken as a fact that there was never any deed or document of dedication of the temple to the public. Their Lordships of the Judicial Committee observed at p. 45: If the temple is not a public temple the Plaintiffs' have no right to maintain the suit in which this appeal has arisen ; unless it is a public temple the Plaintiffs are not concerned with it or with its management; their only remedy in such a case is to cease worship at the temple if they do not approve of the management of it. Their Lordships stated that the question whether the temple was ever dedicated to the public must consequently depend upon inferences which could legitimately be drawn from facts not in dispute and from unambiguous evidence on the record of the suit. They pointed out that it would be legitimate inference to draw that the founder of the temple had dedicated the temple to the public if it was found that he had held out the temple to the public as a public temple. After consideration of the evidence in the case, their Lordships came to the conclusion that Lakshmana G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eficiaries are either the public at large or a considerable portion of it answering a particular description,, Now, there is no documentary or oral evidence to show that the property was expressly dedicated for the use or the benefit of the public. Are there any circumstances from which the dedication of the property to a public trust can be implied? After discussing the evidence, their Lordships pointed out that the recitations of holy books are in no way incompatible with the hypothesis that the trust, if any, was of a private nature, (sic) that there can be no doubt that even in a 'private shrine the public may worship, but the question is whether they do so without any permission, leave or license and as of right. Applying that test, their Lordships held that no usurer treatment of the property had been proved which would justify the conclusion that it was a public, and not a private, trust. At page 461 the judicial Committee made the following observations: To constitute a trust 'created or existing for a public purpose of a charitable or religions nature within the meaning of Act XIV [14] of 1920 (Charitable and Religious Trusts Act), the author or authors of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact or user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally Implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Mundacheri Koman v. Achuthan Nair 611. a. 405 : (A.I.R. 1934 P.C. 230) the Board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. [Their Lordships discussed the evidence and proceeded:] 38-44. Remission of land revenue in-respect of the land on which the temple of Shri Ramchandraswami stands is one of the decisive factors in determining whether the temple was a private or a public one. In 1860 inquiry was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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