{"id":169154,"date":"1970-10-16T00:00:00","date_gmt":"1970-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bihar-state-board-of-religious-vs-palat-lall-and-another-on-16-october-1970"},"modified":"2016-05-15T05:21:20","modified_gmt":"2016-05-14T23:51:20","slug":"bihar-state-board-of-religious-vs-palat-lall-and-another-on-16-october-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bihar-state-board-of-religious-vs-palat-lall-and-another-on-16-october-1970","title":{"rendered":"Bihar State Board Of Religious … vs Palat Lall And Another on 16 October, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bihar State Board Of Religious … vs Palat Lall And Another on 16 October, 1970<\/div>\n
Equivalent citations: 1972 AIR 57, \t\t 1971 SCR (2) 650<\/div>\n
Author: M Hidayatullah<\/div>\n
Bench: Hidayatullah, M. (Cj)<\/div>\n
           PETITIONER:\nBIHAR STATE BOARD OF RELIGIOUS TRUST\n\n\tVs.\n\nRESPONDENT:\nPALAT LALL AND ANOTHER\n\nDATE OF JUDGMENT:\n16\/10\/1970\n\nBENCH:\nHIDAYATULLAH, M. (CJ)\nBENCH:\nHIDAYATULLAH, M. (CJ)\nRAY, A.N.\n\nCITATION:\n 1972 AIR   57\t\t  1971 SCR  (2) 650\n 1971 SCC  (1)\t 7\n\n\nACT:\nBihar  Hindu Religious Trusts Act, 1950-Public\tand  Private\nTrusts-- Distinction between--Requirements before  endowment\ncan be regarded as public.\n\n\n\nHEADNOTE:\nAn  uncle  of the two respondents made a will  in  December,\n1908  by  which certain properties were endowed\t by  him  in\nfavour\tof an idol which certain properties were endowed  by\nhim  in favour of an idol will that he had two wives and  no\nson  had been born to either of them. He nominated his\ttwo\nwives\tand  his  sister  as  \"Mutawallies,   managers\t and\nexecutives\"  to administer the endowment during their  life-\ntime  and also provided that in consultation with  his\tGuru\nthey  should  appoint a successor to themselves.   Upon\t the\ncoming\tinto force of the Bihar Hindu Religious Trusts\tAct,\n1950,  a  notice was sent to the respondents  by  the  Board\nconstituted under the Act calling upon them to file  certain\nparticulars  as required under the provisions of the Act  on\nthe  view  that the properties constituted  a  Public  Hindu\nReligious  Trust.  The respondents thereafter filed a  suit\nagainst the Board for a declaration that the said properties\nwere  not  subject to the Act and were\tprivate\t endowments.\nAfter considering substantial oral and documentary evidence,\nthe Trial Court held that the endowment was private to which\nthe Act was not applicable.  An appeal to the High Court was\ndismissed.\nIn  the appeal to this Court it was contended that it  could\neasily be inferred from the facts and circumstances that the\nendowment was a public one.  The testator was childless and,\ntherefore,  there  was\tno need for.  him  to  preserve\t the\nproperty  for  his  family;  that  he  had  dedicated  large\nproperties for the upkeep of the idol, and the largeness  of\nthe  properties\t indicated that it must have  been  for\t the\nbenefit\t of  the worshippers drawn from the public  and\t not\nfrom  the  family;  that on the extinction of  the  line  of\nshebaits  consisting of the two wives and the sister of\t the\ntestator,  the\tshebaitship  was  to go to  a  person  of  a\ndifferent  community ,on the advice of a stranger  and\tthat\nthere  was no mention in any of the ,deeds that\t the  public\nwere not to be admitted to the worship of the idol.\nHELD:\t  Dismissing the appeal,\n(i)  On\t the facts, it was clear that the idol had  been  in\nthe  family  for a number of years and only the\t family\t was\ndoing  its regular worship; there was nothing to show  that\nthe  public  ever looked after this idol or were  allowed  a\nshare in the worship as of right.  Nor did the author of the\ndedication by his will make it clear that the public were to\nbe admitted as of right.  The whole arrangement showed\tthat\nthe  further  looking  after   of the idol  was\t to  be\t the\nconcern of the family, and it was only under the  nomination\nof  the family that a particular person of  the\t Vaishavnava\nbelief\twas to be in-charge after the demise of the  members\nof the family who were to become mutawallis after the  death\nof  the\t testator., It was ,obvious that in this  family  as\nthere was no male issue and, therefore,, there was nobody to\ncarry on worship and make arrangements for the seba-puja\n 651\nof the idol, as had been done in the family for a long time,\nsome  other  kind  of arrangement had to be  made  and\tthis\narrangement was made by the will.  No more can be read\tinto\nit than what was said there. [654 C]\n(ii) There  was\t no  force in  the  contention\tthat  merely\nbecause an exemption was claimed in regard to the income  of\nthe   endowment\t as  being  for\t charitable  and   religious\npurposes, this would make the endowment a public one.\tWhat\na person does with a view to claiming exemption from  income\ntax  or\t agricultural  income-tax, is not  decisive  of\t the\nnature of the endowment.  The nature of the endowment is  to\nbe  discovered only from the tenor of the document by  which\nthe endowment is created, the dealings of the public and the\nconduct and habits of the people who visit such a temple  or\nThakur\tDwara.\t The claim to exemption was with a  view  to\nsaving\tsome income of the endowed property.  It might\thave\nbeen motivated from other considerations and not that it was\na public endowment. [655 A-C]\nBabu  Bhagwan Din and others v. Gir Har Saroop\tand  others,\nreferred to.\nDeoki  Nandan  v.  Murlidhar<\/a> [1961]  3\tS.C.R.\t220;  Sivami\nSaligrama. charya v. Raghavacharya and others, Civil  Appeal\n645 of 1964 decided on 4-11-65; distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 800 of 1967.
\nAppeal\tfrom the judgment and decree dated January 15,\t1964
\nof  the Patna High Court in Appeal from Original Decree\t No.
\n321 of 1959.\n<\/p>\n
D.   Goburdhun and R. Goburdhun, for the appellant.
\nR.   C. Prasad, for respondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nHidayatullah, C.J. This is an appeal against the judgment of
\nthe  High Court at Patna, dated January 15, 1964,  affirming
\nthe decision of the court of first instance.  The case arose
\nin the,following circumstances
\nOne Chaudhary Lal Behari Sinha, who was the uncle of the two
\nplaintiffs  (respondents in this appeal), made an  endowment
\nby  a  will  executed by him on December2,  1908,  by  which
\ncertain properties were endowed in favour of an Idol  called
\n‘Ram Janakiji’ also known as Shri Thakurji, installed in the
\nfamily\thouse of the testator.\tThe testator said  that\t his
\nparents had installed this idol inside their house and\tthey
\nused to perform the puja and he had also been performing the
\npuja  since the time he had attained the age of\t discretion.
\nThe  testator went on to say that he had married  two  wives
\nbut  no\t son had been born to him from either of  them,\t al-
\nthough\the  had a daughter and there was also  a  daughter’s
\ndaughter.When he made the will, he had his two wives living,
\ntwo sister’s sons, Babu Uma Kant Prasad and Babu Gauri\tKant
\nPrasad, and a daughter’s daughter Giriraj Nandini Kuari.  By
\nthe will, he ar-\n<\/p>\n
6 5 2
\nranged\tfor  the  seba-puja,  ragbhog,\tsamaiya,  utsava  of
\nThakurji, and for the festivals and expenses of the sadabart
\nof  the\t visitors,  to be carried on, just as  he  had\tbeen
\ndoing.\tHe nominated his two wives and his sister Ram  Sakhi
\nKuari widow of Babu Gudar Sahai, as ‘mutwallie, managers and
\nexecutives’  so\t long as they remained alive.\tHe  ordained
\nthat they should look after the management of the estate  of
\nShri Thakurji with unanimous opinion, as had been done since
\nlong, that after their death, a son of a Srivastava Kayastha
\nand  Visnu  upasak  (worshipper of  Lord  Visnu)  should  be
\nappointed  ‘Mutawalli, manager and executive’ of the  estate
\nof  Shri  Thakurji,  and that his wives\t and  sister  should
\nappoint him during their life-time with the advice of and in
\nconsultation  with  a certain Shri  Jawharikh,\tresident  of
\nBaikunthpur,  who was his guru.\t He divided the\t house\tinto
\ntwo  parts.  The inner apartment of the house was to  remain
\nin the possession of his wives and sister during their life-
\ntime  and  the entire outer house together  with  the  house
\nsituated  at Sitamarhi, was to belong to the estate of\tShri
\nThakurji.   All\t money in cash and  the\t movable  properties
\nbelonging  to him would remain in the custody of his  wives.
\nTo the will was appended a schedule which showed the details
\nof  the properties.  That included four villages in  sixteen
\nannas  share, three villages in eight annas share,  and\t one
\nvillage\t in twelve annas share.\t The will also made  certain
\nbequests in favour of some of his other relations, but with,
\nthem we are not concerned.  They are minor as compared\twith
\nthe properties dedicated for the upkeep, of Shri Thakurji.
\nWhen the Bihar Hindu Religious Trusts Act, 1950, came to  be
\npassed,\t a  notice was sent to the plaintiffs by  the  Board
\nconstituted  under  that  Act, calling\tupon  them  to\tfile
\ncertain particulars on the basis of the Act, in view, as the
\nnotice\tsaid, of the properties constituting a public  Hindu
\nReligious trust.  The present suit out of which this  appeal
\narises was thereupon filed by the plaintiffs after serving a
\nnotice\tunder  s. 78 of the Act upon the Board,\t for  a\t de-
\nclaration  that the suit properties were not subject to\t the
\nBihar Religious Trusts Act, and were private endowments.
\nVast oral evidence was tendered in the case on behalf of the
\nplaintiffs, and certain documents were filed.  On the  basis
\nof  the\t evidence  in the case, which was  accepted  by\t the
\nlearned\t trial judge, it was decided that the endowment\t was
\nprivate\t to  which the Act was not applicable.\t Before\t the
\nlearned\t trial\tjudge, reference was made to a\tdecision  of
\nthis  Court, reported in Deoki Nandan v.  Murlidhar<\/a>(1).\t  To
\nthat case, we shall come presently.  The learned trial judge
\ndistinguished  that  case  and held that  endowment  in\t the
\npresent case could not be held to be a public trust, because
\nit was in favour of a family deity.\n<\/p>\n
1[1961] 3 S. C. R. 220.\n<\/p>\n
653<\/span><\/p>\n
An  appeal  was unsuccessful in the High  Court.   The\tHigh
\nCourt agreed with the learned trial judge that the endowment
\ncreated\t a private and not a public trust.  The\t High  Court
\ndid not consider the evidence in the case, which,  according
\nto  the leamed Judges, had been adequately summed up by\t the
\ntrial  judge and whose conclusion was accepted.\t Before\t the
\nHigh Court also, the same case of this court was cited.\t But
\nit  was also again distinguished on the grounds.  that\tthis
\nidol-  was a family idol and had not changed  its  character
\nsince the endowment or at the time of the endowment.
\nIn  this appeal, the only question that has been  raised  is
\nwhether\t the  trust is a public trust, to  which  the  Bihar
\nHindu  Religious Trusts Act attaches, or is a private  trust
\nwhich  does  not come within the purview of that  Act.\t Mr.
\nGoburdhun,  who\t argued the case, pointed out  a  number  of
\ncircumstances  from  which,  he said,  it  could  be  easily
\ninferred  that the endowment was a public one and  that\t the
\nAct applied.  ‘According to him, the testator was  childless
\nand,  therefore, there was no need for him to  preserve\t the
\nproperty  for  his  family,  that  he  had  dedicated  large
\nproperties for the upkeep of the idol, and the largeness  of
\nthe  properties\t indicated that it must have  been  for\t the
\nbenefit\t of  the worshippers drawn from the public  and\t not
\nfrom  the  family,  that on the extinction of  the  line  of
\nshebaits  consisting of the two wives and the sister of\t the
\ntestator,  the\tshebaitship  was  to go to  a  person  of  a
\ndifferent  community  on the advice of a stranger  and\tthat
\nthere  was  no mention in any of the deeds that\t the  public
\nwere not to be admitted to the worship of Thakurji.  He also
\nrelied\tupon  the same case to which we have  referred,\t and
\nalso upon a decision of this Court in Swami  Saligramacharya
\nv. Raghavacharya and others(1).\n<\/p>\n
As  early as (Babu Bhagwan Din and others v. Gir Har  Saroop
\nand  others)  (2), the Privy Council  distinguished  between
\npublic\tand  private endowments of  religious  institutions,
\nparticularly, temples and idols, and Sir George Rankin\tlaid
\ndown  certain  principles to which attention may  be  drawn,
\nbecause\t they were referred to in that Supreme Court  ruling
\non  which Mr. Goburdhun strongly relies.  Sir George  Rankin
\nsaid that the dedication to the public was not to be readily
\ninferred  when\tit  was known that  a  temple  property\t was
\nacquired  by  grant  to an individual or  family.   He\talso
\nobserved that the fact that the worshippers from the  public
\nwere admitted to the temple was not a decisive fact, because
\nworshippers  would  not be turned away as  they\t brought  in
\nofferings,  and the popularity of the idol among the  public
\nwas  not indicative of the fact that the dedication  of\t the
\nproperties  was for public.  This ruling was referred to  in
\nthe case on which Mr. Goburdhunrelies.\n<\/p>\n
(1)  CA. No. 645 of 1964 decided on 4-11-15.\n<\/p>\n
(2) 67 I.A 1.\n<\/p>\n
654<\/span><\/p>\n
In that case, emphasis was laid on two matters and they\t are decis
\nive of the case-we have here.  The first no doubt  was
\nthat the dedicator in that case had no male issue, and that
\nit would be unusual for a person to tie up the property\t for
\nthe use of a diety with.out creating a public trust, but the
\nsecond\twas that a ceremony or pratishtha  (installation  of
\nthe idol), which was equivalent to utsarg (dedication),\t was
\nperformed and, therefore, the idol itself became; a  _public
\nidol after the ceremonies.  This is not the case here  where
\nan  idol had existed from before as a family idol.   In\t the
\nearlier case ,of this Court the installation of the idol and
\nthe  dedication\t were ,both done at the same time,  and\t the
\ninstallation  was public.  This, in our opinion, was a\tvery
\ncardinal fact in that case.  This) was emphasized not,\tonly
\nby  the trial judge but also by the learned Judges  of\tthe
\nHigh  Court.  The facts here are that the idol had  been  in
\nthe  family  for a number of *ears and only the\t family\t was
\ndoing  the  seba-puja in the Thakur Dwara, and there  is  no
\nmention anywhere that the public ever looked after this idol
\nand  were  allowed  a  share in the  worship  as  of  right.
\nFurther, by the will also the author of the dedication\tdid
\nnot make it clear that the public were ,to be admitted as of
\nright  thereafter.  The whole of the arrangement shows\tthat
\nthe  further  looking after of the Thakurji was\t to  be\t the
\nconcern of the family, and it was only under the  nomination
\nof  the family that a particular person of the\tVaishavanava
\nbelief\twas to be in-charge after the demise of the  members
\nof  the\t family who were to become the mutawalls  after\t the
\ndeath  of the testator.\t It is obvious that in\tthis  family
\nthere was no male issue and, there-fore, there was nobody to
\ncarry on worship and make arrangements for the seba-puja  of
\nthe  Thakurji, as had been done in the family.\t‘Some  other
\nkind of arrangement had to be made and this arrangement\t was
\nmade by the will.  No more can be read into it than what  is
\nsaid there.\n<\/p>\n
Now, if it was intended that this should have been a  public
\nendowment, it is quite obvious that when the testator  died,
\nthe testator would have thought of somebody from the  public
\ninstead of the ladies who could not carry on the puja except
\nthrough\t others.  It was after his own death and his  wives
\nand  sister were not available that a particular person\t was
\nto  be\tchosen for the seba-puja.  There is  no\t arrangement
\nhere that public were to look after or manage the  Thakurji.
\nAt  no\tstage  any  intervention of  the  public  is  either
\nintended or allowed by the will in question.
\nTwo other documents were brought to our notice, but they may
\nbe  disposed  of summarily.  The first is a  mortgage  deed,
\nexh.   B,  in which there is a recital\tabout  the  property
\nwhich  was the subject of the endowment.  But that  document
\nis  silent  about the nature of the endowment and is  of  no
\nsignificance.\tThe  other  document is a  judgment  of\t the
\nAssistant Commissioner of Agricultural
\n655<\/span>
\nIncome-tax,  exh.   C,\tin which exemption  was\t claimed  in
\nregard\tto  income  as\twas set\t apart\tfor  charitable\t and
\nreligious  trusts  in terms of the trust deed.\tThis  is  an
\nattempt\t to  show that the family regarded it  as  a  public
\ntrust.\tWhat a person does with a view to claiming exemption
\nfrom income tax or for that matter, agricultural income-tax,
\nis not decisive of the nature of the endowment.\t The  nature
\nof the endowment is to be discovered only from the tenor  of
\nthe document by which the endowment is created, the dealings
\nof  the public and the conduct and habits of the people\t who
\nvisit such a temple or Thakur Dwara.  The claim to exemption
\nwas  with  a  view  to saving some  income  of\tthe  endowed
\nproperty.    It\t might\thave  been  motivated\tfrom   other
\nconsiderations and not that it was a public endowment.
\nThis brings us to the second case which was cited before us.
\nBut  even in that case, a reference was made by the  learned
\nJudges to the earlier case and they have extracted a passage
\nfrom  the  earlier judgment, in which it was  observed\tthat
\n“when  property\t is dedicated for the worship  of  a  family
\nidol,  it  is a private and not a public endowment,  as\t the
\npersons\t who  are entitled to worship at the shrine  of\t the
\ndeity can only be the members of the family, and that is  an
\nascertained  group  of\tindividuals.  But  where  the  bene-
\nficiaries  are\tnot  members  of a  family  or\ta  specified
\nindividual,  then  the\tendowment can only  be\tregarded  as
\npublic,\t  intended   to\t  benefit  the\t general   body\t  of worsh
\nippers”.\n<\/p>\n
In  the\t present case, the idol was a family  idol  and\t the
\nworshippers  had all along. been the members of the  family.
\nIndeed,\t the  evidence is overwhelming on that\tscore.\t The
\nlearned trial judge mentions that very important and leading
\npersons\t gave evidence in that behalf.\tIn the\tjudgment  of
\nthe  trial  judge,  a list is  given  which  includes  P.Ws.
\n3,7,12,14,15  and 16 of village Kusmari.  In addition  there
\nare P.W. 17, who is an advocate of Sitamarhi, P.W. 6 who  is
\na respectable witness, being a chemist, P.W. 8 who is also a
\npleader, and P.Ws II and 13 who are mokhtears and acquainted
\nwith Somari Kuer.  These respectable persons had occasion to
\nknow  the  family  of  Chaudhury  Lal,\tBehari\tSingh,\tand,
\ntherefore, were competent to speak on the fact that Shri Ram
\nJanakiji  were\tthe family deities of Chaudhury\t Lal  Behari
\nSingh.\t In the case to which we were  presently  referring,
\nthe  circumstances connected with the establishment  of\t the
\ntemple\twere such that they could be only consonant  with  a
\npublic\tendowment.   It was no doubt at\t private  temple  of
\nwhich  the sole proprietor was one Madrasi Swamiji, but\t he,
\nhowever,  by the execution of the deed, decided to open\t the
\ntemple to the public.  He was a man with no family and could
\nnot have installed the deity for the members of his  family.
\nIt was pointed out in that case that the deed was of such  a
\nrecent\tdate that evidence of subsequent conduct  would\t not
\nalter  nature of the endowment as determined from  the\tdeed
\nand that the decision was on a
\n6 56
\nquestion of fact.  Even if we were to treat it as a question
\nof  law,  because whether the trust is\tpublic\tor  private,
\npartakes  of both fact and law, and we are satisfied in\t the
\npresent\t case the evidence is entirely one-sided.  There  is
\nnot  one circumstance to show that the endowment was  public
\nendowment,  and\t this  being the case, we  do  not  see\t any
\nreasons to differ from the decision already arrived at.
\nOn  the whole, we have not been able to discover any  reason
\nwhy we should depart from the unanimous opinion of the High
\nCourt and the court below.  Both the courts are agreed\tthat
\nthe  oral evidence as well as the documents indicate only  a
\nprivate\t trust\tand that there is nothing to show  that\t the
\nendowment enjoyed a public character at any time.  The cases
\nbefore\tthis  Court,  which were cited\tearlier\t are  easily
\ndistinguishable.\n<\/p>\n
The result is that the appeal fails.  The High Court in\t its
\norder  did not award costs to the plaintiffs.\tThe  reasons
\ngiven by the High Court for denying costs to the  Plaintiffs
\napply  here  also.  We, accordingly, order  that  the  costs
\nshall be borne as incurred.\n<\/p>\n
R.K.P.S.\t\t\t\t\t      Appeal\ndismissed.\n65 7\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bihar State Board Of Religious … vs Palat Lall And Another on 16 October, 1970 Equivalent citations: 1972 AIR 57, 1971 SCR (2) 650 Author: M Hidayatullah Bench: Hidayatullah, M. (Cj) PETITIONER: BIHAR STATE BOARD OF RELIGIOUS TRUST Vs. RESPONDENT: PALAT LALL AND ANOTHER DATE OF JUDGMENT: 16\/10\/1970 BENCH: HIDAYATULLAH, M. 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