Case: Mahant Ram Saroop Dasji  Vs. S. P. Sahi, Special Officer-In-Charge Of The Hindu Religious Trusts and Others

religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.Any other private religious trust must be very rare and difficult to think of.Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (11th edition)."Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."Obviously enough, the definition clause merely quotes the typical example of private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz.. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public trusts.10. We 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 veste 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 if cypres 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 it an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase two or more persons intersted in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analogous to S. 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of S. 92 of the Code of Civil Procedure from trusts as defined by the Act is the existence of provisions in the Act which are analogous to S. 92 of the Code of Civil Procedure. This section is also more appropriate to public trusts than to private trusts. In fact the Act contains provisions, as the preamble : states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments like the Religious Endowments Act, 1863, the Charitable Endowments Act, l890, the Charitable and Religious Trusts Act, 1920 and the Civil Procedure Code, 1908 have either been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In order to appreciate this argument it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest 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 privatethe 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, an 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, 1950and 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 religious2 (1) of the Act, we have pointed out, recognises two exceptions : first, a trust created according to the Sikh religion or purely for the benefit of the Sikh community; and, second, a private endowment created for the worship of a family idol, in which the public are not interested. It is not disputed that the second exception is an instance of a private trust, in which the public are nottrusts are public trusts, both under the English and Indian law; in England a religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.Any other private religious trust must be very rare and difficult to thinkenough, the definition clause merely quotes the typical example of private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz.. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public32 it an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follows closely the language of S. 92, Civil Procedure Code, so far as the phrase two or more persons intersted in any trust" is concerned. It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of "two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analogous to S. 92 of theCode of Civil Procedureand one of the reasons for excluding the operation of S. 92 of theCode of Civil Procedurefrom trusts as defined by the Act is the existence of provisions in the Act which are analogous to S. 92 of theCode of CivilThis section is also more appropriate to public trusts than to private trusts. In fact the Act contains provisions, as the preamble : states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments likethe Religious Endowments Act,the Charitable Endowments Act, l890,the Charitable and Religious Trusts Act, 1920and the Civil Procedure Code, 1908 have either been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would 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-(5) of S. 4 makes clear what the true scope and effect of the definition clausede not think that in the circumstances of this case it is necessary to consider that evidence afresh. As long as the declaration made by the High Court in First Appeal No. 10 of 1941 stands and in the absence of some evidence to the contrary, the appellant is entitled to say that the Salouna asthal and the properties appertaining thereto do not constitute a public trust and the Act and its provisions do not apply to it.attention has been drawn to S. 43 of the Act as amended by Act XVII of 1956. That section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on an application, by the authority appointed in this behalf by the State Government by notification in the official gazette. Without expressing any opinion as to the constitutional validity of S. 43 of the Act we merely point out that no decision has been given under S. 48 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna asthal and the properties appertaining thereto. It would be open to the respondents to take such steps as may be available to them in law to get it determined by a competent authority that the trust in question is a public trust.