JUDGMENT
P.S. Mishra, J.
1. These two appeals arise from a common judgment deciding on the one hand that Kauria Hardia Math in Shahpur district Shahabad (now Bhojpur) is a public Trust and properties described in Schedule ‘A’ of the plaint belong to the said Trust and, thus, are properties belonging to a Public Trust, and on the other hand that the said Math is a branch of Nasirpur Math of the State of Uttar Pradesh.
2. The Board has appealed against the finding that the Math is a branch of Nasirpur Math. The Mahant has appealed against the finding that the Math is a public trust and that the properties appertaining to the said Math are public trust properties,
3. According to the Board the Math has got extensive properties The Math itself belongs to Dasnami Sanyasies. When the Bihar Hindu Religious Trust Act, 1950 was applied, the Board gave notice to the defendant Mahanth to submit returns in accordance with the provisions of the Act and the rules framed thereunder. The defendant Mahanth, although submitted his return eventually filed a petition before the authority appointed to determine the disputes under Section 43 of the Act. The said application under Section 43 of the Act was dismissed on the ground that the principal Mathia was at Nasirpur in the district of Balia (Uttar Pradesh). The Board thereafter instituted the suit for a declaration that the Math is an independent institution having properties in the district of Shahabad and the Act applies to it.
4. The defendant-Mahanth has, however, put forward a case that one Pratap Bharti, who had sufficient properties, established a Math at Nasirpur in the district of Balia and himself became the Mahanth. His properties at Kauria were also included therein. Pratap Bharti was succeeded by Hiraman Bharti, who was succeeded by Sharabjit Bharti. Sharabjit Bharti was succeeded by Sangram Bharti and Sangram Bharti was succeeded by Parmeshwar Bharti. On his death, his desciple Mahadeo Bharti succeeded to the Mahanthship. According to the written statement, the Gaddi or the office of the Mahanth at Nasirpur was followed at Kauria also and the properties were always held by the Mahanth as private properties without there being any public endowment or public nature thereof.
5. None of the parties adduced any documentary evidence relating to the creation of Math, establishment of the temples and consecration of the deities etc. The defendant, who has said that the trust was founded by one Pratap Bharti, has produced no document whatsoever to show the object and/or the intention of the foundation of the trust by Pratap Bharti. The defendant, who has examined himself as D. W. 16, has said that it was Pratap Bharti, who got the temple built in the Kauria Math for performing worship. He has, however, not been able to show that the temples were constructed and the deities were installed for the worship by the members of the family of Pratap Bharti or his successors. But it is established by the evidence that there are two temples, one with the idols of Thakurji, Laxmiji and Jankiji and the other with the idols of Lord Shiva and Parvati.
6. The learned 3rd Additional Subordinate Judge, Arrah has considered the oral evidence and has found that there is sufficient material for holding that the trust is a public trust and the properties are public trust properties. He has, however, taken notice of three judgments (Exts. D, D/1 and D/2) and oral evidence on the question of the parent Math being at Nasirpur and has held that Kauria Math is only a subsidiary of the said Math. Since, however, the parties are on contest on both the questions, I shall summarily but not dismissively refer to the evidence in this behalf.
7. Before, however, I do so, I feel that a reference to the law and the jurisdiction of the Board is necessary. A ‘religious trust’ has been defined to mean any express or constructive trust created or existing for any purpose recognised by the Hindu law to be religious, pious or charitable. Section 3 of the Act says that it shall apply to all religious trusts, whether created before or after the commencement of the Act, any part of the property which is situated in the State of Bihar. In State of Bihar v. Smt. Charusila Dasi 1959 B.L.J.R. 785 (S.C.) the Supreme Court has said that there is no constitutional invalidity in the law but has read the said provision to mean that the Act is applicable to all public religious trusts, that is to say, all public religious and charitable institutions which are situate in the State of Bihar and any part of the property of which is in the State. In other words, according to the Supreme Court, both the conditions must be fulfilled before the Act can apply. On the strength of this, if it is found that Kauria Math has no independent existence but is only an extension of Nasirpur Math, the Act cannot be applied to the Math or to its properties.
8. I have no doubt that the law has been candidly stated by the Supreme Court and the Act cannot be applied in a case in which the trust is situated outside the State but some properties are found belonging to such trust in the State of Bihar. Whereas in the reverse case the trust being found situated in the State of Bihar and some properties are also found in the State belonging to the trust, even if a major properties are situate outside the State, the Act shall apply. I have some difficulties, however, in accepting it as a proposition that there may be a parent body haying subsidiary bodies existing with a relationship inter se as subsidiary being controlled by the trust situate beyond the territorial jurisdiction of the State of Bihar that there will also be a case of a trust existing outside the State and beyond the control of the Act. My reasons for not accepting the said propositions are that for its existence as a juristic person, a trust has to exist independent of a parent or master trust existing elsewhere. It will be somewhat incongruous to say that a minor who may have properties belonging to himself shall not be affected by the law if his guardian is found living elsewhere, even though he may not have any concern with the properties whatsoever. On the parity of the same, X hesitate in accepting existence of a principal and a subsidiary relationship to exclude the application of law on the ground that the principal exists somewhere else. A law which is not ultra vires and has been made with the avowed object to provides for the better administration of the Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts, in my view, has to be applied to all such trusts which administer any trust properties and if administration is in the control of a trust existing in the State of Bihar, the said trust may look to any authority for guidance whether within or without Bihar, still for the purpose of this law, the trust shall be one which shall be found in the control of the management of the properties.
9. Having understood the law in this way, when I look to the evidence on the record, the real material is in the shape of a judgment by the District Judge of Shahabad in a title appeal (Ext. D). It was in a proceeding instituted by Mahadeo Bharti against Bhairo Bharti and others for a declaration that he was desciple of the ex-Mahanth, who was reigning the Math. In the said judgment it has been stated that Kauria Math is a branch of Nasirpur Math and the Nasirpur Math is the principal Math. In that suit the Board was not a party.
10. Learned counsel for the defendant-Mahanth has submitted that the said judgment, although not inter parties, is admissible in evidence as a relevant fact under Section 13 of the Evidence Act. Section 13 of the Evidence Act says that any transaction, by which the right or custom in question was created, claimed, modified, recognised, asserted, or denied, or which was inconsistent with its existence then, particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted, or deserted from, is relevant. It is worth while to notice that the findings recorded by the learned District Judge may amount to taking judicial notice or formation of opinion by a court of law on a question of fact, yet to treat the same as a transaction as to existence of any right or custom, is not possible, as the opinion recorded by the learned District Judge is not a business or dealing which was carried out or transacted between two or more persons. In fact those conclusions were arrived at on the basis of some transactions which were proved as evidence in the said case.
11. In this proceeding, particularly when the Board was not party in the earlier proceeding, the defendant-respondent is required to establish as a fact that Kauria Math is not independent in existence of Nasirpur Math. Even if the three judgments (Exts. D, D/1 and D/2) are admitted into evidence, they do not go beyond showing that in a certain proceeding, in which Mahadeo Bhatti was a party, he had asserted that he was the Mahanth who had succeeded to the ex Mahanth and Kauria Math is a branch of Nasirpur Math. It cannot on the basis of the said observation or finding in the judgments (Ext. ‘D’ series) be said that Kauria Math is not a trust in itself. The oral evidence adduced on behalf of the defendant shows that there has been some connection between the two Maths, Kauria Math and Nasirpur Math. D. W. 1 has deposed that he carried money from Nasirpur Math to Kauria Math. D. W. 9 has said that when he went to borrow water pumping set to irrigate his land from Kauria Math, he found that the said pumping set had been sent to Nasirpur Math and so he had to go to Nasirpur Math, from where he brought it. D. W. 12 has said that he was a plough-man, who at the instance of the defendant ploughed lands both at Kauria and Nasirpur. The evidence of the defendant on this question does not go beyond suggesting some sort of relationship, but to hold that the Kauria Math has not got any existence of its own in the absence of any evidence to the contrary, in my view, is not possible.
12. The plaintiff has led evidence to show that in the two temples at the Kauria Math public at large has got sufficient interest of worship without any let or hindrance by any Mahanth. Such witnesses are P. Ws. 1, 2, 3, 4, 6 and 7. The evidence on behalf of the defendant is no where near it or against it. Even the defendant’s witnesses have admitted that public at large participated in the worship.
13. The oral evidence has been considered by the learned Subordinate Judge, in my view, properly. Although learned counsel appearing for the parties have taken me through the oral evidence on the question, but they have not seriously questioned any consideration and/or pointed out any error in consideration of the evidence of the witnesses by the learned Subordinate Judge, I will be only repeating what the learned Subordinate Judge has noticed in his judgment and although as the first appellate court at the behest of the parties 1 may be required to record my own findings on the facts that are at issue, in my view, no useful purpose will be served in reiterating the evidence that has already been dealt with in the judgment of the learned Subordinate Judge, and repeating the findings recorded by him.
14. While there is sufficient evidence on the one hand to hold that the Math is public trust, there is little evidence adduced on behalf of the defendant to claim any personal right in the property. His sheet-anchor, it appears, is that the properties are recorded in some of the revenue records in his name. He has, however, admitted that his inheritance as a desciple alone entitled him to come in possession of the properties. He has no option but to accept that he succeeded to the ex-Mahanth as a desciple to a Guru and there has been no other right of his own in the properties. In others words, his succession alone will not make him absolute owner of the properties. If he got his name entered in the revenue records that be did for his own benefit, but such entries in themselves are not enough for creating any presumption of absolute ownership,
15. The defendant Mahanth has not been able to show that any right was given to him in the properties besides the right which he could get as the successor Mahanth. All such revenue entries are considered in the judgment of the learned Subordinate Judge. Since I find no merit in the contention of the defendant Mahanth in this regard, I do not propose only to repeat what the learned Subordinate Judge has said.
16. In the result, the First Appeal No. 679 of 1970 of the Board is allowed and the appeal on behalf of the defendant-appellant is dismissed The judgment and decree of the court of appeal below are modified to the extent indicated above. On the facts of this case, there shall be no order as to costs.