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TMI Blog1959 (4) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ho were respondents to the petition under Art. 226 are the appellants before us. The trust in question was created by a trust deed executed on March 11, 1938. Srimati Charusila Dasi is the widow of one Akshaya Kumar Ghose of No. 3, Jorabagan Street in Calcutta. She resided at the relevant time in a house known as Charu Niwas at Deoghar in the district of Santhal Parganas in the State of Bihar. In the trust deed she described herself as the settlor who was entitled to and in possession of certain properties described in schedules B, C and D. Schedule B property consisted of three bights and odd of land situate in mohalla Karanibad of Deoghar town together with buildings and structures thereon schedule C property was Charu Niwas, also situate in Karanibad of Deoghar; and schedule D properties consisted of several houses and some land in Calcutta the aggregate value of which was in the neighborhood of ₹ 8,50,000. In a subsequent letter to the Superintendent, Bihar State Board of Religious Trusts, it was stated on behalf of Srimati Charusila Dasi that the total annual income from all the properties was about ₹ 87,839. In the trust deed it was recited that the settlor had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anniversary of the installation of the marble image); (b) Gurupurnima (full moon in the Bengali month of Ashar) ; and (c) Tirodhan (anniversary of the day on which Sri Balanand Brahmachari gave up his body) at a cost not exceeding ₹ 4,500 per annum ; and (4) to establish or cause to be established and run and manage in Deoghar a hospital for Hindu females only to be called Akshaya Kumar Female Hospital and an attached outdoor charitable dispensary for all out-patients of any religion or creed whatsoever and pay out of the income for the hospital and the outdoor dispensary an annual sum of ₹ 12,000 or such other sum as might be available and sufficient after meeting the charges and expenditure of the two temples and after paying the allowance of the shebait and trustees and members of the temple committee. It was further stated that the work of the establishment of the hospital and the out-door charitable dispensary should not be taken in hand until the construction of the temples and the installation of the deities mentioned above. It may be here stated that it is the case of both parties before us that the temples and the Nat Mandir have been construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and its provisions did not apply to it. Accordingly, the High Court allowed the application and issued a writ in the nature of a writ of certiorari quashing the proceedings under ss. 59 and 70 of the Act and a writ in the nature of a writ of prohibition restraining the Bihar State Board of Religious Trusts from taking further proceedings against Srimati Charusila Dasi in respect of the trust in question. The appellants then applied for and obtained a certificate from the High Court that the case fulfilled the requirements of Art. 133 of the Constitution. The present appeal has been filed in pursuance of that certificate. In connected Civil Appeals numbered 225, 226, 228, 229 and 248 of 1955 (1) judgment has been pronounced to day, and we have given therein a conspectus of the provisions of the Act and have further dealt with the question of the constitutional validity of those provisions in the context of fundamental rights guaranteed by Part III of the Constitution. We have held therein that the provisions of the Act do not take away or (1) Mahant Moti Das v. S. P. Saki, see P. 563, ante, abridge any of the rights conferred by that Part. In Civil Appeal No. 343 of 1955 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these have an important bearing on the question in issue. It is true that the settler said that she had installed the deity Iswar Srigopal in her house and she had been regularly worshipping the deity since such installation; if the trust had been created only for the purpose of continuing such family worship, the conclusion would no doubt be that the endowment was wholly of a private character in which the public had no interest. That was not, however, what was done. The settlor created the trust for the construction of two temples, in one of which was to be installed the deity Iswar Srigopal and in the other the marble image of her preceptor; the trustees consisted of persons three of whom were strangers to the family, though the settlor reserved to herself the power to remove in her absolute discretion any one or more of the trustees for misconduct by reason of change of religion, etc. One of the relevant considerations is if by the trust deed any right of worship has been given to the public or any section of the public answering a particular description. One of the clauses of the trust deed reads : The pronamis and perquisites to be offered to the deities and image i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sree Sree Balanand Trust created at Deoghar by the said Sree Balanandji Brahmachari Maharaj of sacred memory, and a third who shall be disciple of Sree Sree Balanand order, that is to say, any one of the disciples of the said Sree Sree Balanand Brahmachari Maharaj of sacred memory and his disciples and the disciples of the latter and so on if such a disciple is willing, eligible and capable of acting as a trustee of the said Trust hereby created, provided always that the full number of trustees shall at all times be five in number and no one shall be eligible to be a trustee unless he be adult male, pious, Bengali Hindu and provided also that the shebait of Sree Gopal and the shebait of Sree Baleshwari Devi of the Ashram Deoghar shall under no circumstances be eligible to be a trustee tinder these presents save and except in the case of the settlor who shall so long as she lives to both a trustee and a shebait. We may here draw attention to the formation of the temple committee as envisaged by the trust deed. It says that the temple committee shall consist of the Jugal Mandir shebait for the time being who shall be the ex officio member and president of the committee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onformity with such rules and regulation as may be made by or with the sanction of the Board of Trustees. The outdoor Charitable Hospital shall be run as the trustees shall provide by rules. In furtherance of these objects, its funds may be expended in subscriptions or contributions to convalescent and other similar institutions and to other special hospitals and in sending patients to and maintaining them in such institution and hospitals provided that the sum so expended in any one year shall not exceed rupees one thousand or such sum as may be fixed by the trustees from time to time. The learned Judges of the High Court have expressed the view that these provisions for the establishment of a hospital and charitable dispensary are merely incidental or ancillary to the other main objects of the trust. With great respect, we are unable to appreciate how the establishment of a hospital and charitable dispensary of the nature indicated in the trust deed can be said to be ancillary or incidental to other objects of the trust, viz., the construction of two temples and the installation of the deities therein. In clear and unequivocal terms the trust deed imposes a distinct and indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic, intended to benefit the general body of worshippers. One of the facts which was held in that case to indicate that the endowment was public was that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. We do not suggest that such a fact is by itself decisive of the question. The fact that the temple is outside the dwelling house is only a circumstance in favour of it being regarded a public temple, particularly in Madras (except Malabar); there are, however, private temples in Bengal which are built outside the residential houses of donors (see the Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by the late Dr. B. K. Mukherjea, 1952 edition, p. 188). In the case before us, the two temples were constructed outside the residential quarters, but that is only one of the relevant circumstances. We must construe the deed of trust with reference to all its clauses and so construed, we have no doubt that the trusts imposed constitute a public endowment. There is one other point to be noticed in this connexion. The deed of trust in the presept case is in the English for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the income of the trust as was not applied for the purpose of constructing an maintaining the female hospital was not exempt from tax under the provisions of s. 4(3) of the Indian Income-tax Act. This decision, it must be stated at once, does not wholly support the present respondent. So far as the hospital and the dispensary are concerned the trust was held to be a public trust. We are of the view that having regard to the main clauses of the trust deed to which we have already made a reference, the trusts in favour of the deity Iswar Srigopal and the image of Sri Balanand Brahmachari are also of a public nature. One of the points which was emphasised before the Calcutta High Court was the provision with regard to pronamis and perquisites to be offered to the deity and the image. The High Court said: This provision does not indicate the creation of a trust in favour of the public, but, on the contrary, it denies the right of any one, which must include any member of the public. having a right to the pronamis. In its terms, the deed negatives that benefit is conferred upon the public . The aforesaid observations appear to us, with respect, to be based on a miscon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar; he further contends that under s. 3 the Act is made applicable to all religious trusts, whether created before or after the commencement of the Act, any part of the property of which is situated in the State of Bihar; therefore, the Act will apply to a religious institution which is outside Bihar even though a small part of its property may lie in that State. It is contended that such a provision is ultra vires the power of the Bihar Legislature, and Parliament alone can make a law which will apply to religious institutions having properties in different States. Alternatively, it is contended that even if the Act applies to a religious institution in Bihar a small part of the property of which is in Bihar, the provisions of the Act can have no application to such property of the institution as is outside Bihar, such as the Calcutta properties in the present case. It is necessary first to determine the extent of the application of the Act with reference to ss. 1 (2) and 3 of the Act read with the preamble. The preamble states:- Whereas it is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer to the question must be in the affirmative. It is to be remembered that with regard, to an interest under a trust the beneficiaries only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situate or at the trustees place of residence: see Dicey s Conflict of Laws, 7th edition, p. 506. The Act purports to do nothing more. Its aim., as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer, the trust. Therefore, there is really no question of the Act having extraterrestrial operation. In any case, the circumstance that the temples where the deities are installed are situate in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground of extra-territoriality. We are of the opinion that the same principles apply in the present case and the religious endowment itself being in Bihar and the trustees functioning there, the Act applies and the provisions of the Act cannot be struck down on the ground of extraterritoriality. We proceed now to consider some of the decisions on which learned counsel for the respondent has placed reliance. These are (1) Sirdar Gurdyal Singh v. The Rajah of Faridkote ((1894) 21 I.A. 17r, 185.) ; (2) Commissioner of Wakfs, Bengal (1) [1958] S.C.R. 1355. V. Narasingh Chandra Daw and Co. (1); (3) Madangopal Bagla v. Lachmidas (I.L.R. [1948] 2 Cal. 455); and (4) Maharaj Kishore Khanna v. Raja Ram Singh (A.I.R. 1954 Pat. 164.). Those decisions, in our opinion, are not in point, as they related to different problems altogether. In Sirdar Gurdyal Singh s case (4) a Faridkote court passed an ex parte money decree against a defendant who had been a treasurer of Faridkode, but who at the time of suit had ceased to be such and was resident in Jhind of which State he was a domicile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eholder under a decree of the Original side of the Calcutta High Court was precluded from executing the decree by reason of certain proceedings which had taken place before the Special Judge, Banaras, under the United Provinces Encumbered Estates Act, 1934. The answer given was that the decreeholder was not so precluded and the decision proceeded on a construction of s. 18 of the United Provinces Encumbered Estates Act, 1934, read with ss. 7, 13 and 14(7) of that Act. It was held that the exclusive jurisdiction intended to be conferred on the Special Judge in supersession of those of civil and revenue courts extended,, as indicated by s. 7, only over debts enforceable through the courts within the province and the word creditor in s. 10 must be limited to those of them who would have to enforce their rights through such courts alone. In the Patna case the question for decision was if s. 14(7) of the U. P. Encumbered Estates Act, 1934, should be construed to mean that the decree of a Special Judge is to be deemed to be the decree of a civil court of competent jurisdiction even beyond the territorial jurisdiction of the State Legislature. It was held that the decree passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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