Case: Bihar State Board Of Religious Trust Vs. Palat Lall And Another

1. This is an appeal against the judgment of the High Court at Patna, dated January 15, 1964 affirming the decision of the Court of first instance. The case arose in the following circumstances:One Chaudhary Lal Behari Sinha, who was the uncle of the two plaintiffs (respondents in this appeal), made an endowment by a will executed by him on December 2, 1908, by which certain properties were endowed in favour of an Idol called Ram Janakiji" also known as Shri Thakurji installed in the family house of the testator. The testator said that his parents had installed this idol inside their house and they used to perform the puja and he had also been performing the puja since the time he had attained the age of discretion. The testator went on to say that he had married two wives but no son had been born to him from either of them, although he had a daughter and there was also a daughters daughter. When he made the will, he had his two wives living, two sisters sons, Babu Uma Kant Prasad and Babu Gouri Kant Prasad, and a daughters daughter Giriraj Nandini Kuari. By the will, he arranged for the sebapuja, ragbhog, samaiya, utsava of Thakurji, and for the festivals and expenses of the sadabart of the visitors, to be carried on, just as he had been doing. He nominated his two wives and his sister Ram Sakhi Kuari widow of Babu Gudar Sahai, as mutwallis, managers and executives; so long as they remained alive. He ordained that they should look after the management of the estate of Shri Thakurji with unanimous opinion, as had been done since long, that after their death, a son of a Srivastava Kayastha and Visnu upasak (worshipper of Lord Visnu) should be appointed mutawalli, manager and executive of the estate of Shri Thakurji, and that his wives and sister should appoint him during their lifetime with the advice of and in consultation with a certain Shri Jawharikh, resident of Baikunthpur, who was his guru. He divided the house into two parts. The inner apartment of the house was to remain in the possession of his wives and sister during their lifetime and the entire outer house together with the house situated at Sitamarhi, was to belong to the estate of Shri Thakurji, All money in cash and the movable properties belonging to him would remain in the custody of his wives. To the will was appended a schedule which showed the details of the properties. That included four villages in sixteen annas share, three villages in eight annas share, and one village in twelve annas share. The will also made certain bequests in favour of some of his other relations, but with them we are not concerned. They are minor as compared with the properties dedicated for the upkeep of Shri Thakurji.2. When the Bihar Hindu Religious Trusts Act, 1950, came to be passed, a notice was sent to the plaintiffs by the Board constituted under that Act, calling upon them to file certain particulars on the basis of the Act, in view, as the notice said, of the properties constituting a public Hindu Religious trust. The present suit out of which this appeal arises was thereupon filed by the plaintiffs after serving a notice under Section 78 of the Act upon the Board, for a declaration that the suit properties were not subject to the Bihar Religious Trusts Act and were private endowments.3. Vast oral evidence was tendered in the case on behalf of the plaintiffs, and certain documents were filed. On the basis of the evidence in the case, which was accepted by the learned trial Judge, it was decided that the endowment was private to which Act was not applicable. Before the learned trial Judge, reference was made to a decision of this Court, reported in Deoki Nandan v. Murlidhar, 1956 SCR 756  = (AIR 1957 SC 133 ). To that case, we shall come presently. The learned trial Judge distinguished that case and held that the endowment in the present case could not be held to be a public trust, because it was in favour of a family deity.4. An appeal was unsuccessful in the high Court. The High Court agreed with the learned trial Judge that the endowment created a private and not a public trust. The High Court did not consider the evidence in the case, which according to the learned Judges had been adequately summed up by the trial Judge and whose conclusion was accepted. Before the High Court also, the same case of this Court was cited. But it was also again distinguished on the grounds that this idol was a family idol and had not changed its character since the endowment or at the time of the endowment.

Reasoning: 11. In the present case, the idol was a family idol and the worshippers had all along been the members of the family. Indeed, the evidence is overwhelming on that score. The learned trial Judge mentions that very important and leading persons gave evidence in that behalf. In the judgment of the trial judge, a list is given which includes P. Ws. 3, 7, 12, 14, 15 and 16 of village Kusmari. In addition there are P. W. 17 who is an advocate of Sitamarhi, P. W. 6 who is a respectable witness, being a chemist, P. W. 8 who is also a pleader, and P. Ws 11 and 13 who are mokhtears and acquainted with Somari Kuer. These respectable persons had occasion to know the family of Chaudhury Lal Behari Singh, and therefore, were competent to speak on the fact that Shri Ram Janakiji were the family deities of Chaudhary Lal Behari Singh. In the case to which we were presently referring, the circumstances connected with the establishment of the temple were such that they could be only consonant with a public endowment. It was no doubt a private temple of which the sole proprietor was one Madrasi Swamij, but he, however, by the execution of the deed, decided to open the temple to the public. He was a man with no family and could not have installed the deity for the members of his family. It was pointed out in that case that the deed was of such a recent date that evidence of sub-sequent conduct would not alter nature of the endowment as determined from the deed and that the decision was on a question of fact. Even if we were to treat it as a question of law because whether the trust is public or private, partakes of both fact and law, and we are satisfied in the present case the evidence is entirely one-sided. There is not one circumstance to show that the endowment was public endowment, and this being the case, we do not see any reasons to differ from the decision already arrived at.12. On the whole, we have not been able to discover any reason why we should depart from the unanimous opinion of the High Court and the Court below. Both the Courts are agreed that the oral evidence as well as the documents indicate only a private trust and that there is nothing to show that the endowment enjoyed a public character at any time. The cases before this Court, which were cited earlier are easily distinguishable.In that case, emphasis was laid on two matters and they are decisive of the case we have here. The first no doubt was that the dedicator in that case had no male issue, and that it would be unusual for a person to tie up the property for the use of a deity without creating a public trust, but the second was that a ceremony of pratishtha (installation of the idol), which was equivalent to utsarg (dedication), was performed and, therefore, the idol itself became a public idol after the ceremonies. This is not the case here where an idol had existed from before as a family idol. In the earlier case of this Court the installation of the idol and the dedication were both done at the same time, and the installation was public. This, in our opinion, was a very cardinal fact in that case. This was emphasized not only by the trial Judge but also by the learned Judges of the High Court. The facts here are that the idol had been in the family for a number of years and only the family was doing thein the Thakur Dwara, and there is no mention any where that the public ever looked after this idol and were allowed a share in the worship as of right. Further, by the will also the author of the dedication did not make it clear that the public were to be admitted as of right thereafter. The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family, and it was only under the nomination of the family that a particular person of the Vaishavanava belief was to be incharge after the demise of the members of the family who were to become the mutawallis after the death of the testator. It is obvious that in this family there was no male issue and, therefore, there was nobody to carry on worship and make arrangements for theof the Thakurji, as had been done in the family. Some other kind of arrangement had to be made and this arrangement was made by the will. No more can be read into it than what is said there.