IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.898 of 1972 THE BIHAR STATE BOARD OF HINDU RELIGIOUS TRUSTS THROUGH THE PRESIDENT, SINHA LIBRARY ROAD, P.S. KOTWALI, DISTRICT- PATNA,(PLAINTIFF IN THE COURT BELOW). .........APPELLANT. Versus 1.SRIKANT MISSIR. 2.SHIR GIRIJANANDAN MISSIR. 3.SHRI DILESHWAR MISSIR, TRUSTEES OF THE BENIPUR THAKURBARI, AT VILLAGE-BENIPUR, P.S.TEKARI, DISTRICT-GAYA. ......(DEFENDANTS IN THE COURT BELOW)....RESPONDENTS. ----------- For the Appellant : Mr. Shekhar Singh, Advocate For the Respondent : No one ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (11.03.2011) Mihir Kumar Jha, J. Heard Mr. Shekhar Singh, learned counsel appearing on behalf of the appellant Bihar State Board of Hindu Religious Trusts(hereinafter referred to as the Board). No one appears on behalf of the respondents. 2. This appeal arises out of a judgment and decree dated 29.05.1972 and 26.06.1972 respectively in Title Suit No. 53 of 1971/66 of 1965, whereby and whereunder the suit brought by the plaintiff- appellant, for declaring the order of the authority dated 27.02.1965 under Section-43 of Bihar Hindu Religious Trusts Act (hereinafteras the Act) as null and void as also the consequential declaration to the effect that the Thakurbari with its deities and its property, described in Schedule-A of the plaint are Hindu Public Trust Property, has been dismissed. 2 3. The case of the plaintiff-appellant Board in brief is that one Pandit Jaikishun Missir had installed deity of Saligram Bhagwan and Narmedshwarnath Mahadeo in his house in village- Benipur, in the district of Gaya. Pandit Jaikishun Missir according to the plaintiff-appellant was himself the Sebait and trustee, who had performed puja-path and Raj-Bhog of the deity and in the almost end of his life had executed a registered deed of Samarpannama dated 08.11.1946 dedicating the entire house and land property in the name of the deity for its continued puja-path and Rag-Bhog. It is the further case of the plaintiff-appellant that when certian complaints were received with regard to mis- management and alienation of the property of the trust, an inquiry was undertaken through an Inspector of the Board, whereupon it was found that there was an existing Thakurbari with the deities and the same was open to public for regular puja-path. The plaintiff- appellant Board in fact after receipt of the aforesaid report of its Inspector had filed an application under Section-4 of the Bihar Hindu Religious Trust Board for recovery of the alienated property of the trust, as also for declaring that the property so being alienated by the respondents were actually property of public religious trust. 3 4. It is the case of the plaintiff that on contest, the authority under Section-43 of the Act had passed an order on 27.02.1965, holding that the properties of Thakurbari includies deities intalled therein were in fact not part of any public trust and that the whole of it was out and out private trust property. The aforesaid order of the Authority dated 27.02.1965 under Section-43 of the Act was accordingly assailed in the suit in hand filed by the plaintiff appellant, wherein a consequential declaration was also sought for holding that Thakurbari with its deities and its property described in Schedule-A is part6 and parcel of Hindu Religious Public Trust. 5. From the written statement filed by all the three defendants respondents, who are the family member of Pandit Jai Prakash Missir, it would transpire that they had totally denied the case of the plaintiff with a specific pleading that Pandit Jai Prakash Missir had never installed any deity or constructed any Thakurbari rather he being by birth and caste Brahman, was performing puja-path in his own house which could not be given the colour of public religious trust property. In this context a specific plea was also taken by the defendant-respondents, that the house in question was residential house in which Jai Prakash Missir was living with his daughters as also wife of younger brother(bhavo)and after his 4 death, as he had left behind no male heir, and his two daughters also had died, the whole property left behind had been inherited by the two maternal grandsons namely defendant no. 1 and defendant no. 2, who having come in possession thereof had alienated part of it as per their own need. A further plea in the written statement taken by the defendant- respondents was that they were unaware of any registered Samarpannama created by Jai Prakash Missir in his lifetime and thus even if there be any such Samarpannama the same having been never acted upon, in view of the land and the house in question subsequently mutated in the name of the two defendant respondents, maternal grandsons of Jai Prakash Missir who were also paying rent to the State, must be held void and sham. 6. The trial Court in the light of the aforementioned pleadings had framed following five issues which are as follows:- (1) Is the suit as framed maintainable? (2) Has the plaintiff got any cause of action for the suit? (3) Whether the property in suit and the Thakurbari with its deities are Hindu Public Trust property? (4) Whether the decision in Case No. 29 of 1963 under Section 43 of the Bihar Hindu Religious Trust Act, 1950, decided by the Authority under the Act, dated 27.02.1965, is illegal and invalid and liable to be set aside? (5) To what relief or reliefs, if any, is the plaintiff entitled? 5 7. The Court below further in the light of both oral and documentary evidence led by the parties had held that there was no Thakurbari in existence and the Samarpannama even when it was executed and registered was never acted upon by Jai Prakash Missir himself. In this regard, a specific finding has been arrived at, that the suit property was not a part and parcel of any public religious trust and was the personal property of Jai Prakash Missir, which after his death was inherited by his two surviving maternal grandsons, the defendant to the suit. The Court below had also accordingly upheld the order of the Authority under Section-43 of the Act and had gone to dismiss the suit on contest against the defendant-respondents. 8. Mr. Shekhar Singh, learned counsel appearing on behalf of the appellant has first of all assailed the findings of the Court below as with regard to Samarpannama in question. Exhibit-1 is copy of registered Samarpannama executed on 08.11.1946 and a bare reading of the same would go to show that Pandit Jai Prakash Missir had dedicated his entire land property and house in the name of the deities. This registered Samarpannama of 1946 (Exhibit-1) would by itself would go to show that dedication made to the deities by way of the aforesaid Samarpannama was unconditional and unequivocal divesting all private and personal interest by Jai Prakash Missir inasmuch 6 as, it was clearly mentioned therein, that he was making such dedication for continued puja-path and Rag-Bhog of the deities installed by him for which earnings made from his land and the house would be the permanent source of income for meeting the expenses for upkeep and maintenance of the deities including regular Puja-Path and Rag-Bhog. The fifth cause of the aforesaid Samarpannama, in fact would go to show that such dedication as a devottar property was complete and final, inasmuch as, it was mentioned therein that no person could have any sort of personal interest in the property i.e. the land in house being dedicated to the deities. Thus, the last paragraph i.e paragraph no. 5 of the Samarpannama will leave nothing for speculation, that by the said document Pandit Jai Prakash Missir, the admitted owner of the land and the house had dedicated his entire land and house property to the deities which had left nothing for anyone including his family members to claim for its being acquired through inheritance. 8. The trial Court infact also did not disbelieve the existence of such Samarpannama but it has gone to record its finding on the basis of the contents of Samarpannama recording that since there was no endowment created in the name of general public, the property in question can not to be held to be the part of the public trust. Mr. Singh, in this 7 context has however submitted that the whole issue of property being part of public trust or private trust has to be decided by the Court by appreciating the intention of the maker of such endowment in the light of its content in Samarpannama and nature of dedication made under it. In this context, he has relied on the judgment of the Division Bench of this Court in the case of Ram Chandra Mishra vs Bihar State Board of Religious Trusts reported in AIR 1982 Pat. 59, relevant part whereof reads as follows:- “To sum up, in order to ascertain as to whether a trust is public or private one, the Court should infer that the trust is private one if the following conditions are fulfilled: (i) Whether the beneficiaries are ascertained individuals or uncertain and fluctuating individuals? If the answer comes that the beneficiaries are ascertained individuals, then it is a private trust; and if the answer comes that the beneficiaries are uncertain and fluctuating individuals, then it a public trust. (ii) If the grant has been made in favour of an individual and not in favour of a deity, the only irresistible conclusion is that the property or the temple is a private trust. (iii) If the revenue records or entries in the survey records suggest the land coming in possession of an individual person and not in the name of 8 a deity, then an inference can be drawn that the temple and the properties attached to it constitute a private trust. In the following cases, an inference can be drawn that the temple along with the properties attached to it is a public trust: (i) If the public visit the temple as a matter or right. (ii) If the endowment is in the name of the deity and the beneficiaries are uncertain individuals or the public, then it is public trust. (iii) If the management is made through the agency of the public or the accounts of the temple are being scrutinized by the public on the basis of the dedication deed then it is a public trust. 10. He has further relied on an another judgment of this Court in the case of Guput Nath Kahar & Ors vs Laxmi Narayan & Ors, reported in AIR 1989 Pat. 259, wherein following judgments of Apex Court it was held as follows:- “The real controversy between the parties is in respect of the nature of the properties involved in the suit. In other words, the material question which arises in this appeal is whether the property in dispute is a public trust or not. The principle of law for determination of the question whether an endowment is public or private are fairly well settled. In this connection, it would be useful to quote the observations of the Supreme Court in Deokinandan vs Murlidhar, 1956 SCR 576: (AIR 1957 SC 133) which are as follows( at Pp. 136-137):- “The distinction between a private and a public trust is that whereas 9 in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment…………………When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, when the endowment can only be regarded as public, intended to benefit the general body of worshippers.” (See also the State of Bihar vs Sm. Charusila Dasi, AIR 1959 SC 1002 AND RAMSWAROOP DASJI VS, S.P. SAHI, AIR 1959 SC 951) DR. Mukherjee in his Tagore Lecture on the Hindu Law Religious and Charitable Trust1970 Edn. at page 143 observed that “So far as Debutter endowment is concerned the essential test to distinguish a private from a public place of worship is, whether right of worshipping the idols is limited to the members of a particular family or group or extends to all persons professing the Hindu religion.” In this connection, some other decisions where the line of distinction between the public and private trust can be seen are AIR 1963 SC 1638, AIR 1971 SC 2057, AIR 1940 PC 7, AIR 1972 SC 57, AIR 1972 SC 1716 and AIR 1974 SC 1123. From the principles laid down in the various case laws referred to above, it is manifest that each case of endowment as to its character has to be considered on its own facts 10 and circumstances since it is not always possible to have all the features of a public trust in every case. 11. Thus in the light of the aforesaid settled provisions when the evidence on record is examined this Court will have no difficulty in accepting the submissions of Mr. Singh, learned counsel for the Appellant. The intention of the owner of the property Pandit Jai Praksh Missir in his registered Samarpannama, Exhibit-I has to be first gathered from his unequivocal and unconditional declaration stating that in his lifetime, he himself had installed the deity of Lord Saligram Bhagwan(Vishnu) and Mahadeo(Shiva) and was regularly doing puja-path and as such when he was at the end of his life he having consulted people of the locality, had decided to dedicate his entire property in the name of the deities. It is in this context that the content the last and fifth paragraph of the Samarpannama becomes very meaningful and relevant, where he had gone to exclude the rights of each and every person without any inhibition by declaring that he was dedicating his whole property for the deities installed and worshipped by him and as such no one will have any right or interest whatsoever in the dedicated property. 12. Thus from a clear analysis of the document, Exhibit-1, there would be little scope but to 11 hold that the property in question belonging to Pandit Jai Prakash Missir, in his lifetime had endowed in favour of the deities and it was for the use of all the people of the locality for doing puja-path and Raj-Bhog. What Samarpannama wanted to achieve was a permanent source of revenue through the land, so that its income could be used for the purpose of puja-path, Rag-Bhog etc. of the deities. 13. The trial Court below however, has discarded this most important document evidence i.e Exhibit-1 only on the ground that it did not specifically record creating of any right to general people for puja-path in the deities installed by Pandit Jai Prakash Missir. In the considered opinion of this Court such approach of the trial court is wholly erroneous. Unless the document by itself had created a right in the family members to the exclusion of the people at large, the natural presumption and execution of such Samarpannama with a clear wording of puja-path and Rag-Bhog by people at large (not by family members) would have left nothing else for speculation that the owner of the property namely Pandit Jai Prakash Missir had intended to create a public trust in the year 1947 which subsequently in terms of Bihar Hindu Religious Trusts Act, 1950 became the basis of its being treated as religious trust. In this context, it would be useful to useful to quote Section-2(l) of Bihar Hindu Religious 12 Trusts Act which reads as follows:- “ religious trust” means any express or constructive trust created or existing for any purpose recognized by Hindu Law to be religious, pious or charitable, but shall not include a trust created according to the Sikh community and a private endowment created for the worship of a family idol in which the public are not interested; 14. This Court must indicate here that the aforementioned definition of religious trust in the Act of 1950 was much after the deed of Samarpanama dated 08.11.1946, was executed and registered and yet no part of it can even remotely give it a colour of being a private endowment of family to the exclusion of the interest of general public. Thus on the basis of the contents of the documentary evidence it has to be necessarily held that the Samarpanama was fully covered by the defination of expression "religious trust" under Section 2(2) of the Act. 15. The approach of the Court below in this context again has been wholly misdirected, inasmuch as, even when in the pleadings, the specific assertion of the plaintiff-appellant that there was a Thakurbari in existence and puja-path and Rag-Bhog of the deties installed therein by Jai Prakash Missir was being done even after the death of the dedicated Pandit Jai Prakash Missir by the people at large was not specifically controverted by the defendant-respondents in their written statement a finding against the plaintiff/appellant has been recorded on mere ipse 13 dixit by accepting the case of the defendants. The defendants in fact without denying the specific case of the plaintiff of Puja-Path and Rag-Bhog of deities by general people of locality of Hindu faith after the death of Jai Prakash Missir had merely introduced the concept of inheritance of the entire suit property after the death of Pandit Jai Prakash Missir. 16. It is also quite disheartening to note that after the evidence of the plaintiff was closed, the defendants of a belated stage came out with an application for appointment of Pleader Commissioner to find out as to whether the Thakurbari in question was in existence over the plot in question. It has to be noted that the existence of such Thakurbari was never denied even by the Authority under Section 43 of the Act who had passed the order on 27.02.1965, nor to that extent, the specific averment of the plaintiff in the plaint was even denied by the defendants who in paragraph no. 12 of the written statement on the other hand had accepted the existence of the house in which the deity installed by Pandit Jai Prakash Missir was kept. 17. It is also interesting to note that on 05.01.1972, much after the plaintiff had closed their evidence, an application was filed by the defendants for appointment of a Pleader Commissioner and on 11.01.1972, when the defendant no. 3 came to examine 14 himself as DW-3, he had taken a plea that after the death of his father-in-law, Pandit Jai Prakash Missir some ten years back, he had brought the deity of Saligram Bhagwan and Narmedshwarnath Mahadeo from the village of his father-in-law at Benipur to his village Moore. This Court fails to understand that if the deities were already removed from the house in question whose existence was never denied in the written statement filed by them in the year 1966, how could the subsequent event of removal of deities after the death of Jai Prakash Missir become relevant for deciding that there was never such Thakurbari in existence or that Pandit Jai Prakash Missir never installed any deity. 18. There is no presumption or even requirement under Hindu Law that a Thakurbari must have a huge structure or be a big temple as has been recorded by the trial court in the impugned judgment. It can be also stationed in a small room and, it can be in the shape of a temple or as in several cases in different parts of India, it can be still found stationed in residential houses. Thus whenever the expression Thakurbari is used in the context of Hindu Law, it does not necessarily imply a huge structure of a temple but somehow the Court below has proceeded on a totally mistaken impression by assuming the concept of existence of huge structured temple for 15 establishment and existence of the Thakurbari in question. As noted above, the defendants had very cleverly got their application with a loaded question answered by a naive Pleader Commissioner who did not have even elementary idea of survey and from his evidence it becomes clear that he did not adopt the sufficient sageguard for finding out as to where the plot in question and the house could be situated. A bare perual report of Pleader Commissioner read with his deposition in the court would make it clear that he had done nothing to make an objective report and had submitted his perfunctory report on the dotted line of the defendants. 19. Thus the very basis for disbelieving the entire case of the plaintiff-appellant by the trial court being the Pleader Commissioner's report this Court will have no difficulty in reversing such finding and eventually it has to be held that such perfunctory report of Pleader Commissioner by itself cannot be the settler on the crucial issue, specially when the Court below had before it a duly executed registered Samarpannama creating the endowment in favour of the deities and excluding any private interest. 20. It is in this backdrop, that when the oral evidence is examined it can be found that the plaintiff has produced at least three of the witnesses 16 who were aged around 60 to 80 years and were competent to say so, about the existence of Thakurbari and performing puja on the basis of their own experience, being the villagers of Benipur itself. The rejection of evidence of PW-1, only on the ground that he being a Scheduled Caste had not been allowed in the temple and could not have known about the existence of Thakurbari or practice of performing puja and going therein is wholly misconceived, inasmuch as, even if it be assumed that PW-1 was not doing and performing puja in Thakurbari even then it had come in the evidence of DW-4 that one of the deity was in fact stationed outside the house. In such a situation, if PW-1 had made a statement regarding continued performing puja path of the deity installed by Pandit Jai Prakash Missir by other villagers after his death, it ought not to have been rejected only on the ground of his being a member of Scheduled Caste. 21. Similarly rejection of the evidence of PW-2 only on the ground of his weak eye sight does not inspire confidence, inasmuch as, he has given graphic details that it was in a room of the house of Pandit Jai Prakash Missir where the deities were installed and one of them was on the verandah. He has not only gone to give size and type of the deity but also withstood the test of cross-examination by clearly answering that he was for a long time personally going 17 and perforing puja in the Thakurbari in question. PW2 being a person of 80 years of age who had also stated that he was regularly feeding sadhus coming to the Thakurbari could not have been disbelieved only becasue he had answered that being an 80 year old man, he had weak eye sight. 22. As a matter of fact in the oral evidence of