JUDGMENT
Shiva Kirti Singh, J.
1. The defendant is the appellant in this first appeal which arises out of a suit filed by Bihar State Board of Religious Trust, the plaintiff-respondent, for a declaration that the properties appertaining to the Pokharam Asthal are public trust properties to which the Bihar Hindu Religious Trusts Act 1950 applies and also for setting aside an order dated 25-2-1961 passed by the authority under Section 43 of the Act by which the authority held that properties as private and personal properties of the Mahanth and not of any public trust.
2. The aforesaid title suit bearing No. 54/ 10 of 1961/1966 was decreed by the judgment and decree under appeal dated 17-5-1967 passed by 1st Additional Subordinate Judge, Darbhanga mainly on the basis of law laid down by the Supreme Court in the case of Mahanth Sri Sri Niwas Ramanuj Das
v. Surajnarain Das reported in AIR 1967 SC
256.
3. For deciding this appeal the plaintiff’s and defendant’s case may be noted in brief. According to the plaintiff, there is a Math or Asthal at village Pokhram which is known as Pokhram Asthai of which the defendant is the Mahanth. This Asthal is in existence since long and it is a public institution belonging to Ramanand Vaishnav Sampradaya, There is a very old temple of Sri Ram Janki Jee in the said Asthal built long ago through public charity where Rag, Bhog, Utsav used to be performed. In course of time the temple became popular and attracted Sadhus, Sants, Atithis and Abhyagats. There is not mention in the plaint as to who was the actual founder of this Asthal but it is pleaded that properties were given to this Asthal to the founder of the Math as well as to the subsequent Mahanths for religious and charitable purposes and some properties were subsequently acquired by the Mahanths from the income of the properties. The Mahanths held those properties not as owners but as trust properties for religious and charitable purposes of public nature. The temple was a public temple and the public have been participating for Puja, Utsav etc. without any hindrance from the Mahanths. Hence, apparently the Pokhram Asthal is a public institution and the Mahanths held the Asthal properties as trust properties and the same being public in nature, the provisions of Bihar Hindu Reiigious Trusts Act, 1950 (hereinafter referred to as ‘the Act’) apply to properties of the Asthal and the decision of the authority under Section 43 of the Act (Ext. L) holding otherwise is fit to be set aside. Such decision was obtained by the defendant with bad motive after he had complied with notice from the plaintiff-Religious Trust Board and submitted accounts by accepting the Asthal properties as trust properties covered by the Act.
4. The case of the defendant as per his written statement is that there is no Asthal in the sense used in the plaint nor the alleged Asthal in a public institution belonging to Ramanand Vaishnav Sampradaya or any other Sampradaya. No temple was constructed long ago as alleged by the plaintiff and the averment that Utsav. Samaiya, Rag, Bhog etc. were performed by public charity
was also incorrect. No grant of property was made to the founder or the subsequent Mahanths as alleged by the plaintiff for religious and charitable purposes of public nature. The defendant Mahanth asserted that neither the defendant nor his predeces-sors-in-intercst ever held the property as trust property. The public never participated in the worship, Rag, Bhog, Utsav etc. as alleged by the plaintiff without any obstruction from the defendant. The defendant’s further case is that deities of Shri Ram Janki Jee and Shri Laxaman Jee were installed in the house of the defendant which are strictly private idols of the defendant and the public has no concern whatsoever with Puja, Utsav, Samaiya etc. of the aforesaid deities as a matter of right. The defendant allows Hindus to join festival according to his convenience. The earlier Mahanths as well as defendant possessed religious merits and as such they got income and acquired sufficient properties which remain their personal properties. The record of right was recorded in the name of Shri Mahanth Das Jee, the Guru of the defendant. Some properties were also acquired by inheritance by defendant from his Guru Bhai. Mahanth Kalyan Das Jee, Guru of Mahanth Ram Prasad Das Jee also got some properties, from his Guru Bhai. But irrespective of scries of acquisition, the properties always remained private properties and so also the deities and public had no concern with the same. As regards filing of return and accounts on receipt of notice from the Religious Trusts Board, the defendant stated that he submitted return due to fear of legal action, but on that basis alone the properties held by the defendant cannot be treated as trust properties. According to the defendant, he rightly moved the authority under Section 43 of the Act and the order passed thereunder is a correct one. No grant was made to the defendant or his ancestors as alleged by the plaintiff nor any trust was created as alleged by the plaintiff. The defendant and his ancestors spent income from the properties for good and noble purposes but the properties always remain their personal properties and the public had nothing to do with the same.
5. The main issue in the suit as well as in this appeal is as to whether the Pokhram Asthal and the properties appertaining thereunder are private properties of the defend-
ant or public trust properties. That was issue No. 9 in the suit. The other relevant issues were issue No. 8 — “are the properties in possession of the defendant trust properties and is the defendant a trustee” and issue No. 10 — “whether the provisions of Bihar Hindu Religious Trust Act are applicable to the properties of the Asthal in question”. All these issues were disposed of and decided together by the trial Court, as indicated earlier mainly on the basis of Judgment of the Apex Court in the case of Mahanth Sri Sriniwas RamanuJ Das, (AIR 1967 SC 256).
6. So far as the oral evidence is concerned, there are 50 witnesses on behalf of the plaintiff and 69 witnesses on behalf of the defendant. The trial Court rightly did not discuss all the aforesaid witnesses individually and separately and preferred to note down the gist of statement made by these witnesses to the extent relevant for deciding points in issue.
7. As per the plaintiff’s witnesses one Charan Das was the founder of this Asthal and the next Mahanth Turanti Das, was a Chela of Charan Das. But according to the defendant the Asthal, was founded by Turanti Das and not Charan Das. However, this dispute is not of much relevance in this case as will appear from the subsequent discussions. In order the prove Charan Das as the original founder of the Asthal the plaintiff has filed Ext. 5, a Sanad or grant by one Pran Chaudhary and others in favour of Charan Das. A perusal of this exhibit shows that no details of 1 1/4 Bighas of land is mentioned in the said grant and the same does not create a public trust by itself. By that document Charan Das was given the right to hold and cultivate the land for all generations with an obligation to do service of Sants. Though Gosain Charan Das, a Vaisnav was the beneficiary under Ext. 5 but there is no mention of any Asthal or Math or a temple or any deity in Ext. 5. The said document does not appear to create any endowment nor lays down any light on succession and is clearly not a document creating a trust much less a public trust. In absence of any details of the land covered by Ext. 5 it is difficult to hold that the said land forms part of the properties of the Pokhram Asthal, the suit properties. Hence, even if plaintiff’s case that Charan Das was founder of the Asthal is accepted, nothing of consequence emerges with regard to the main issue in this suit in view of
nature and contents of the main document. Ext. 5 which has been filed to show Charan Das as founder of the alleged public trust known as Pokhram Asthal.
8. The trial Court has noticed that almost all the 50 PWs excepting a few formal witnesses have claimed that there is a temple of which Mahanthji is the Malik and that they had Darshan of the deities without any hindrance or obstacles on behalf of the defendant-Mahanth. They further claimed that the defendant has no right to obstruct people from having Darshan of the deities and the income from the property is spent over religious and charitable purposes. As per trial Court statements of PW 20-Maksudan Das and PW 43-Lal Govind Chaudhary are of further consequence. According to PW 20, there is a Math at Pokhram of which he is a Chela and defendant is the Mahanth. The Math belongs to Ramanandi Sampradaya and all the Mahanths of this Math were Birakt Bairagi having no concern with their families. According to PW 43, he is also a Chela of this Math which is a public trust and Sadhu, Sant etc. come and stay there. He has further stated that, this Math has got about 90 Bighas of land and the records of right have been prepared in the name of his Guru-Ram Prasad Das Jee. He has further stated that the lands of this Math contain Fakirana and Brahmottar land.
9. Out of 69 witnesses examined on behalf of the defendant, 9 are formal witnesses and the rest have denied any temple in the Pokhram Asthal and according to them, all the properties are held by the defendant Mahanth as absolute owner and the deities are the personal deities of the defendant. The trial Court has noticed that some of the DWs have gone beyond the case of the defendant and have denied the existence of any Asthal at Pokhram and even denied the fact that the defendantis called a Mahanth.
10. DW 67 is Mahanth Subudh Narain Das, the original defendant. As per his statement in his examination in chief he has kept at his place the deities of Ram. Laxaman, Bharat and Shatrughan Jee. The deities are in his house. He belongs to Baudhdharmy Vaishnave Sampradaya. He has admitted that his Gurus were called Mahanth but has claimed that the deities and the properties are his absolute properties. He has denied Charan Das to be his ancestor. This defend-
ant has admitted in his cross-examination that he is also called Mahanth of the Asthal and the Asthal was founded about 150 years back and is limited to Baudhdharmy Ramanuj Vaishnav Sampradaya. It appears that he has tried to evade to answer regarding certain properties belonging to the Pokhram Asthal. He has stated that he does not remember if he had deposed in title suit No. 36 of 1947 that Adharpur Asthal is a Jhopra of Pokhram. His earlier deposition in that case is Ext. 8 which shows Adharpur Asthal Is a Jhopra of Pokhram Asthal and properties attached to Asthal at Adharpur are Debottar. This witness had attempted to conceal the various instruments or mode by which properties were acquired by him or by his predecessor Mahanths. He has categorically denied existence of any temple, although Ext. A/2, a sale deed executed by this defendant shows that the sale was for repair of a temple.
11. The plaintiff has filed some documentary evidence to support this case that the Asthal has sufficient land. Ext. 6 series are the certified copies of Khatian relied for this purpose. Some of the survey entries described the Guru of this defendant as Bishnu Prit and some lands are described as Fakirana. Exs. 2, 3 and 4 are the Budget Accounts, Return and letter of the defendant respectively which were filed before the plaintiff Board, According to the plaintiff, these papers amount to admission by the defendant that the Asthal is a public trust and the income from the property of this Math was spent over acts of worship as well as for Sadhus and Beggars,
12. The plaintiff as well as the Court below have led special emphasis upon Ext. 1 which is a certified copy of a will executed by the Guru of the defendant, Shri Ram Prasad Das Jee in favour of the original defendant. The recital In Ext. 1 shows that Pokhram Ashtal is a Math having certain Kutias and the income of the property is spent over Rag, Bhog, Samaiya, festivals, charitable works, Sadhus and Sants.
13. On behalf of the defendant also some documentary evidence has been adduced which include Ext. A series. Ext. H, Ext. F/ 1, Ext. I series. These are documents of purchase and grants in favour of the then Mahanths as well as sale deeds and mortgage deeds executed by the various Mahanths. Thus, the aforesaid documents
as well as the Khatians have been relied upon by the appellant to show that the lands are in the names of Mahanths and they have been dealing the properties all by themselves without any intervention of any member of the public. Ext. L is the order of statutory authority under Section 43 of the Act holding the properties in dispute to be private properties of the defendant Mahanth. As noticed earlier, this order is under challenge in the suit.
14. Learned counsel for the appellant submitted that since the order under Section 43 of the Act declared the immovable properties appertaining to the Asthal as belonging to the Mahanths and it was not a trust property, the initial onus lay upon plaintiff to prove its case that the properties belong to a different trust. He further submitted that in this case there is no evidence to hold that any public money was involved In creation of the property held by the defendant in his own name nor there is any evidence to show creation of any public trust at any stage and dedication of the properties to such a trust. According to the appellant, the Court below wrongly relied upon Judgment of the Supreme Court in the case of Mahanth Sri Sriniwas Ramanuj Das (AIR 1967 SC 256) (supra) by drawing inference not warranted by the evidence. According to him, the question of beneficiaries would arise only if there is an endowment in favour of the deities of a temple or in favour of a Math to show existence of a trust. In this case, according to learned counsel for the appellant, the facts established by evidence do not show that the public or a part of the public has acquired any right of user or any other beneficial interest with regard to the properties in dispute by way of right and hence, on the basis of law laid down by the Apex Court in the case of Bihar State Board of Religious Trust v. Mahanth Sri Bisheshwar Das, AIR 1971 SC 2057 and by a Division Bench of this Court in the case of Bihar State Board of Religious Trust v. A. M. Amrit Das, AIR 1974 Patna 95 it should be held that the plaintiff has failed to prove that the properties were held in trust for public purposes of a religious or charitable character.
15. On behalf of the appellant it was also submitted that the Court below should not have been unduly influenced by Mahanth filing returns under Religious Trust Act because such an Act was done by the Mahanth
under apprehension of penal action without being aware of his rights and hence, such act would not amount to admission or estoppel by conduct. For this proposition reliance was placed upon the earlier referred Division Bench judgment of this Court in the case of Bihar State Board of Religious Trust v. A. M. Amrit Das (supra). Learned counsel for the appellant placed further reliance upon the judgment of the Apex Court in the case of Bihar State Board of Religious Trust v. Bisheshwar Das (supra) to assail the trial Court judgment wherein adverse inference has been drawn against the Mahanth for his failure to produce all documents relating to the properties appertaining to the Asthal.
16. In my view, the stand of the appellant that the trial Court wrongly relied upon judgment of the Apex Court in the case of Mahanth Sri Sriniwas Ramanuj Das (AIR 1967 SC 256) for deciding this case appears to be correct. In that case the suit was instituted by the plaintiff Mahanth for setting aside order of Commissioner under Sub-section (ii) of Section 64 of the Orissa Hindu Religious Endowments Act, 1939 holding the institution to be a Math as defined in the Act and the property belonging to it endowed properties. In view of this fact, the Court held that the onus is, therefore, initially on the plaintiff to show that the order of the Commissioner is wrong and for this the plaintiff had to establish prima facie that the Math is not a Math as defined in that Act and that the various properties were not endowed properties. Besides that, as appears from paragraphs 22 and 23 of the said judgment, there were certain documents to favour the finding that the Math was a public Math and the various properties, though ostensibly acquired by the Mahanths, were really acquired for the Math. In that case a will in favour of succeeding Mahanth was examined and it was noted that there was no word in that document to show that the executant possessed any private property and sach private property was to go to the succeeding Mahanth. In this case two important documents relied upon by the plaintiff-defendant are Ext. 5, the grant in favour of Charan Das and Ext. 1 a will in favour of the defendant. As noticed earlier, there is no detail of lands covered by Ext. 5 to show those lands appertained to the Asthal. Besides that the grant is clearly in favour of Gosain Charan Das without there being any
creation of any Asthal or Math or a temple or any deity. Hence, on the basis of Ext. 5 it cannot be said that there was any endowment in favour of a trust much less a public trust. So far as Ext. 1, a wilt, is concerned, in that the executant has elaimed himself to be the absolute owner of the Asthal, its kutias and all the properties appertaining to the Asthal whether agricultural or Fakirana. Of course, in the will duty has been cast upon the succeeding Mahanth to look after the acts of worship as well as Sadhus, Sants etc. visiting the Asthal.
17. The mere fact that the previous Mahanth desired his Chela, the defendant to look after the acts of worship of deities belonging to the Mahanth cannot indicate the existence of a public temple or a public trust. In the same way, the obligation to visiting Sadhus and giving hospitality to the visitors cannot by itself indicate that the temple is a public temple or the properties are subject to a public trust. This view is supported by a Division Bench judgment of this Court in the case of Khub Narain Missir v. Ram Chandra, AIR 1951 Pat 340 where it was held that where an Asthal is founded by a Bairagai Sadhu and there is nothing to show that the founder dedicated the temple attached to it for public use, the mere fact that people used to attend festivals and ceremonial actions and made offerings and received Prasad cannot establish that the temple was a public institution. Feeding of Sadhus and distribution of alms and entertaining of guests were also not found sufficient to change the nature of private property into public property. It was also held that use of expression ‘Vishnuprit’ or ‘Shivprit’ etc. in a deed of gift to the Mahanth does not indicate that the gift was made for public purposes. In the case of Bihar State Board of Religious Trust v. Mahanth Sri Biseshwar Das (AIR 1971 SC 2057) (supra) also it was held by the Supreme Court that visiting of Sadhus and giving hospitality to wayfarers is not by itself indicative of temple being public trust or its properties being subject to a public trust. In that case also the Mahantha were Bairagi i.e. celibates and the temple built by the founder Mahanth was for the benefit of his followers but keeping in view the fact that the property was always held by the Mahanths in their individual capacity as there was no evidence of dedication of the Asthal or its properties to the public, it was held that the properties in
question were not stamped with a trust or public purposes. In para 15 of the said Judgment his Lordships considered the judgment of Privy Council in the case of Babu Bhagavan Din v. Gir Har Saroop, AIR 1940 PC 7 and quoted with approval the following abstract from the said judgment :
“Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not be in general consonant with Hindu sentiments or practice that worshippers should be turned away; and, as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity.”
18. In this case the oral evidence on behalf of the plaintiff is to the effect that there is a temple at the Asthal of which the Mahanth is the owner but the public has been visiting the temple and obtaining Darshan of the deities without any hindrance. Such evidence, in view of aforesaid discussion, does not prove the temple or the properties to be a public trust. There is no evidence worth the name to show that the Asthal in question was itself created as a public trust and further there is no evidence that at any later stage the properties of the Mahanths appertaining to the Asthal were ever dedicated for a public purpose of religious or charitable nature so as to create a right in the public or any section thereof.
19. On behalf of the appellant reliance was also placed upon judgments of the Supreme Court reported in AIR 1972 SC 57 and AIR 1986 SC 2139 in support of the earlier contention that on applying the relevant tests the temple existing at the Asthal or the properties in the name of the Mahanth cannot be held to be a public trust. The aforesaid judgments are however, not of such relevance as they were rendered in the facts peculiar to those cases.
20. So far as appellant’s contention that the trial court erred in law in relying upon Exts. 2, 3 and 4, the return and accounts etc. submitted by the Mahanths to the Religious Board, is concerned, it has to be held that those documents cannot change the nature of the property from private to public trust and as was held by this Court in the
case of Bihar State Board of Religious Trust v. A. M. Amrit Das (AIR 1974 Pat 95) (supra) the filing of returns etc. by the Mahanth will not constitute estoppel by conduct and the defendant Mahanth cannot be barred from denying the existence of any public trust. Such conduct can be explained as has been done in this case by the defendant.
21. The other criticism on behalf of the appellant that the trial Court should not have drawn adverse inference for non-production of documents of acquisition or other papers relating to the Asthal in question also arrears to be valid in view of judgment of the Supreme Court in the case of Bihar State Board of Religious Trust v. Bisheshwar Das (AIR 1971 SC 2057) (supra) wherein it was held that when burden to prove that the properties of the temple are held by the Mahanth in trust for public purposes of a religious or charitable character is on the Board of religious trust. Court cannot draw, an adverse inference for failure of Mahanth to produce certain documents by which properties had been gifted to the founding Mahanlh.
22. On behalf of the respondent reliance was placed upon Exts. 1 and 5 in support of his case that the properties of the Asthal and its properties are a public trust. Reliance was also placed upon the returns etc. submitted to the Religious Trust Board by the defendant. These have already been discussed above and it has been found that they do not establish the case of the plaintiff-respondent.
23. Learned counsel for the respondent relied upon a judgment of the Apex Court in the case of Deoki Nandan v. Murlidhar, AIR 1957 SC 133 to support the judgment of the trial Court. In that case there was an endowment in favour of idol itself and in such circumstances it was held that proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public. Further in that case it was found that there was evidence to establish all the necessary ceremonies such as Shankalps, Utsarg and Pratistha to show that the dedication had been to the public. There is no such evidence in this case. Lastly, learned counsel for the respondent referred to a Bench judgment of this Court in the case of Bihar State Religious Trust Board v. Mahanth Jaleshwar Gir, 1968 Pat LJR 507 to submit that Ext. L, the order of the
authority under Section 43 of the Act, was without jurisdiction. In that case the question was whether resort to Section 43 and determination regarding nature of the trust by the authority was essential for launching a prosecution by the Board against trustees of a public trust as determined by the Board Itself. In that context, it was held that Section 43 was not a bar to the launching of the prosecution by the Board against the accused persons. Further, in any view of the noting of, substance is dependant upon Ext. L in view of various findings arrived at in this case on the basis of other materials.
24. In the result, this appeal is allowed. The judgment and decree of the Court below are set aside and the suit is dismissed. In the facts and circumstances of the case, the parties shall bear their costs of the suit as well as of this appeal.
N. Pandey, J.
25. I agree.
