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

1. This appeal on a certificate granted by the High Court of Patna is from a judgment of the said High Court dated September 13, 1954, in a writ proceeding numbered as Miscellaneous Judicial Case No. 39 of 1954 in that court, which the appellant had instituted on an application made under Art. 226 of the Constitution in the circumstances stated below.2. It was alleged that one Mahatma Mast Ramji, a Hind saint, owned and possessed considerable properties in the district of Monghyr in the State of Bihar. About two hundred years ago, he built a small temple at Salouna in which he installed a deity called Sri Thakur Lakshmi Narainji. This temple came to be known as the Salouna asthal. Mast Ramji died near about the year 1802. He was succeeded in turn by some of his disciples, one of whom was Mahant Lakshmi Dasji. He built a new temple in 1916 into which he removed the deity from the old 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 FebruaryBy 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 1959 S. C. D.F.60(2) and 61(1) trust within the meaning of the provision of the Charitable and Religious Trusts Act (XIV of 1920) and therefore he was not aecountable to any person. Mahant Ram Saroop Das also applied for and obtained permission under S. 5 of the aforesaid Act to institute a suit for a declaration that the Salouna asthal and the properties thereof did not constitute a public trust. Such a suit was brought in the Court of the Subordinate Judge of Monghyr who, however, dismissed the suit. Then, there was an appeal to the High Court of Patna and by the judgment and decree passed in First Appeal 10 of 1941 dated March 5, 1943, the High Court gave a declaration to the effect that the Salouna astha1 and the properties appertainining thereto did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act (XIV of 1920). Some eight years later, the Bihar Hindu Religious Trusts Act, 1950 (Bihar 1 of 1951), hereinafter referred to as the Act, was passed by the Bihar Legislature and received the Presidents assent on February 21, 1951. It came into force on August 15, 1951. The Bihar State Board of Religious Trusts (one of the respondents before us) was constituted under this Act to discharge in regard to religious trusts other than Jain religious trusts the functions assigned to it under the several provisions of the Act. On November 14, 1952, this Board, in exercise of the powers conferred on it under S. 59 of the Act, asked the appellant to furnish to the Board a return of the income and expenditure of the asthal. The appellant replied by a letter dated December 1, 1952, that the Salouna asthal was a private institution to which the Act did not apply, and also drew the attention of the Board to the judgment and decree of the High Court in First Appeal No. 10 of 1941. The Board, however, gave a reply to the effect that it was not bound by the declaration made by the High Court and asked the appellant to obtain a declaration in respect of his claim under the provisions of the Act or to submit a return. Thereafter, on January 22, 1954, the appellant made his application under Art. 226 of the Constitution in which he averred (a) that the Salouna asthal was not a religious trust within the meaning of the Act; (b) that the properties appertaining thereto did not constitute a religious trust and the appellant was not a trustee within the meaning of the Act; (c) that the Act did not apply to private trusts; and (d) that the demand made by the respondent Board amounted to an interference with the appellants 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 materials on the record were not sufficient to decide the question whether the Salouna asthal and the properties thereof constituted a religious trust of a public character; but proceeding on the footing that the Act applied to private trusts, it expressed the view that the restrictions imposed on the trustee by the several provisions of the Act were not violative of the fundamental right guaranteed under Art. 19(1)(f) of the Constitution, inasmuch as there was no legal reason why the State should not exercise superintendence and control over the administration of private trusts as in the case of public trusts. In a judgment dated October 5, 1953, dealing with the same question in some earlier cases, the High Court had, however, expressed a somewhat different view. It had then referred to the principle that when a Legislature with limited power makes use of a word of wide and general import, the presumption must be that it is using the word with reference to what it is competent to legislate, and adopting that principle it said that S. 2 (1) of the Act should be read in a restricted sense so as to include only Hindu religious or charitable trusts of a public character and the provisions of the Act would accordingly apply to such trusts only.

Reasoning:
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.