TMI Blog1959 (4) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ld temple and installed two new deities, Sri Ram and Sita. In 1919 Mahant Lakshmi Dasji died. He left three disciples, Vishnu Das, Bhagwat Das and Rameshwar Das. A dispute arose among these disciples about succession to the gaddi, which was settled sometime in February 1919. By that settlement it was arranged that Vishnu Das would succeed Mahant Lakshmi Das as the shebait and would be succeeded by Bhagwat Das, and thereafter the ablest bairagi of the asthal, born of Brahmin parents, would be eligible for appointment as shebait. Bhagwat Das died sometime in 1935 and again a dispute arose between one Rameshwar Das, the youngest chela of Mahant Lakshmi Das, and Ram Saroop Das who is the present Mahant and appellant before us. Rameshwar Das, it appears, filed an application under the Charitable and Religious Trusts Act (XIV of 1920) for a direction upon Mahant Ram Saroop Das to render an account of the usufruct of the asthal. This application was contested by Mahant Ram Saroop Das, who said that the properties appertaining to the Salouna asthal did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act (XIV of 1920) and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent Board amounted to an interference with the appellant's fundamental right to hold the asthal properties. The appellant accordingly prayed for the issue of a writ quashing the order of the respondent Board requiring the appellant to submit a return of income and expenditure and also for an order directing the respondent Board and its officers to refrain from interfering with the appellant in his right of management of the Salouna asthal and the properties appertaining thereto. 3. The High Court of Patna by its judgment complained against dismissed the petition on the main ground that the language of s. 2(1) of the Act, which defined a 'religious trust' for the purposes of the Act, was wide enough to cover within its ambit both private and public trusts recognised by Hindu law to be religious, pious or charitable and that the Salouna asthal did not come within any of the two exceptions recognised by the section, namely, (1) a trust created according to Sikh religion or purely for the benefit of the Sikh community; and (2) a private endowment created for the worship of a family idol in which the public are not interested. The High Court also held that the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p) means the property appertaining to a religious trust and the expression 'trustee' in s. 2(n) is defined in the following terms - 'trustee' means any person, by whatever designation known, appointed to administer a religious trust either verbally or by or under any deed or instrument or in accordance with the usage of such trust or by the District Judge or any other competent authority, and includes any person appointed by a trustee to perform the duties of a trustee and any member of a Committee or any other person for the time being managing or administering any trust property as such; . 7. The next important section for our purpose is s. 4 as amended by Bihar Act, XVI of 1954, which gives effect to certain amendments and repeals, Sub-section (5) of s. 4 is in these terms - The Religious Endowments Act, 1863 (XX of 1863), and section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall not apply to any religious trust in this State, as defined in this Act. 8. Chapter V of the Act contains a series of sections which delimit the powers and duties of the State Board of Religious Trusts. Section 28, the opening section of the chapter, states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be contrary to the wishes of the founder so far as such wishes can be ascertained. (2) A scheme settled, modified or substituted instead of another scheme under this section shall, unless otherwise ordered by the District Judge on an application, if any, made under sub-section (3) come into force on a day to be appointed by the Board in this behalf and shall be published in the official gazette. (3) The trustee of, or any other person interested in, such trust, may within three months from the date of the publication in the official gazette of the scheme so settled, modified or substituted instead of another scheme, as the case may be, make an application to the District Judge for varying, modifying or setting aside the scheme; but, subject to the result of such application, the order of the Board under sub-sections (1) and (2) shall be final and binding upon the trustee of the religious trust and upon every other person interested in such religious trust. (4) An order passed by the District Judge on any application made under sub-section (3) shall be final. It may be here stated that the expression person interested in religious trust is defined in s. 2(g). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest 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 (see the observations in Nabi Shirazi v. Province of Bengal) I.L.R. (1942) Cal. 211. The distinction in this respect between English law and Hindu law has been thus stated by Dr. Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition, pp. 392-396) : In English law charitable trusts are synonymous with public trusts and what is called religious trust is only a form of charitable trust. The beneficiaries in a charitable trust being the general public or a section of the same and not a determinate body of individuals, the remedies for enforcement of charitable tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to trusts created for public purposes of a charitable or religious nature. 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. Of the local Acts, the earliest was that of the Bombay Presidency of the year 1863. In more recent years were passed the Orissa Hindu Religious Endowments Act, 1939, the Bombay Public Trusts Act, 1950, and the Madras Hindu Religious and Charitable Endowments Act, 1951, all of which relate to public religious institutions and endowments. No local Act has been brought to our notice which clearly or unmistakenly sought to include within its ambit private religious trusts. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edundant so far as those private trusts were concerned for the earlier enactments never applied to them. The obvious indication is that all trusts defined in the Act are public trusts and, therefore, it became necessary to exclude the operation of earlier enactments which but for the exclusion would have applied to such trusts. If the intention of sub-s. (5) of s. 4 was to exclude some trusts only out of many included within the definition clause from the operation of the earlier enactments, as is contended for by the learned Advocate-General of Bihar, then the use of the word 'any' appears to us to be particularly inapt. Sub-section (5) of s. 4 was amended by Bihar Act XVI of 1954. Before the amendment it read as follows : S. 4(5). The Religious Endowments Act, 1863, and section 92 of the Code of Civil Procedure, 1908, shall not apply to any Hindu Religious Trust in the State of Bihar. 12. Prior to the amendment, sub-s. (5) made no reference to the definition clause; it merely said that two of the earlier enactments shall not apply to any Hindu Religious Trust in the State of Bihar. The amended sub-section, however, specifically refers to the definition clause an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e now turn to some of the other provisions of the Act, which we have earlier quoted. Section 29(1) which talks of supervision of a religious trust being vested in any committee or association appointed by the founder or by a competent court or authority is ordinarily appropriate in the case of a public trust only. Section 30(1) which embodies the doctrine of cy-pres permits any Hindu to make an application for invoking the power of the Board to determine the object to which funds, property and income of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achievement. This section is also inappropriate in the case of a private trust, the obvious reason being that any and every Hindu cannot be interested in a private trust so as to give him a locus standi to make the application. Further, it is difficult to visualise that a Hindu private debutter will fail, for a deity is immortal. Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist. Section 32 is an important section of the Act and confers power on the Board to settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould apply to private trusts as well, one would expect that that intention would be made clear by the use of unambiguous language. We find, on the contrary, that though the definition clause in s. 2(1) is expressed in somewhat wide language, sub-s. (5) of s. 4 makes clear what the true scope and effect of the definition clause is. 16. For the reasons given above, we hold that the definition clause does not include within its ambit private trusts and the Act and its provisions do not apply to such trusts. 17. Learned counsel for the appellant has in the alternative argued before us that if the Act applies to private trusts, several of its provisions will be violative of the fundamental right guaranteed to citizens under Art. 19(1)(f) of the Constitution inasmuch as the restrictions imposed thereby on trustees of private trusts, in which the public are not interested, cannot be justified as reasonable restrictions in the interests of the general public within the meaning of clause (5) of Art. 19. The High Court negatived this argument by adopting the rule of English law that in the case of a charitable corporation where the founder is a private person, he and his heirs become v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubtedly arisen if the Act were held to apply to private trusts as well. 20. On our finding that the Act does not apply to private trusts, the appellant is entitled to succeed in his appeal. The High Court has said that the materials on the record of the case are not sufficient to decide the question whether the Salouna asthal and the properties of the mahant constitute a trust of a public character. This question, however, was the subject of a contested litigation and the appellant had obtained a declaration in First Appeal No. 10 of 1941 that the Salouna asthal and the properties appertaining thereto did not constitute a public trust. The respondents were not parties to that litigation and may not be bound by that judgment; but on behalf of the respondents no affidavit was filed nor were any materials placed to show that the position is different from what was declared by the High Court. The High Court commented on the fact that the appellant did not produce before the court all the documents in his possession. A petition has been filed before us for taking in evidence the documents which were considered by the High Court in First Appeal No. 10 of 1941. We do not think that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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