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TMI Blog1971 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent mahant resisted the Board s demand for production of accounts and other particulars and in consequence the Board took out criminal proceedings against the respondent. The respondent thereupon filed a suit of which this appeal is the outcome. In the suit, the respondent claimed that the said asthal and its properties were his personal properties, the gifts of lands having originally been made personally to the founding mahant, and thereafter, to the mahants succeeding him, and that therefore, the properties were not religious trusts as defined by S. 2(1) of the Act. That sub-section defines a religious trust to mean any express or constructive trust created or existing for any pur- pose recognised by Hindu Law to be religious, pious or charitable but shall not include a trust created according to Sikh religion or purely for the benefit of the Sikh community and a private endowment created for the worship of the family idol in which the public are not interested . The Board took the stand that the asthal and the properties belonging to it were not the personal properties of the manant or his predecessors, that the, gifts to them were not personal gifts but to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration of the asthal properties, and (3) certain revenue records. The issue which the Trial Judge considered to be, the most crucial one was framed by him as follows : Whether the temple and the properties in suit are the personal properties of the plaintiff or are trust properties under the provisions of Act 1 of 1951 ? The issue was framed by him in these terms partly because the respondent had claimed these properties as his personal properties, and partly because the Trial Judge was under the impression, because of the High Court s decision in Mahant Ramsaroop Das Ji v. S. P. Sahi(1955 B.L.J.R. 88) that the definition in s. 2(1) of the Act also covered private religious trusts. That decision was however, reversed on appeal to this Court and as reported in Mahant Ramsaroop Das ji v. S. P. Sahi([1959] Supp. 2 S.C.R. 583) the correct position is that private trusts do not fall within the ambit of the definition in that section. It was because the Trial Judge was under the belief that private religious trusts also fell within the definition that he also placed before himself only two alternatives, namely, whether the properties were personal properties of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the temple and the other properties were the private properties of the mahants, all the factors from which the Trial Judge, raised the presumption of a public trust were constent with the properties constituting a private religious trust. On this view the High Court reversed the judgment of the Trial Judge and decreed the respondent s suit, holding that the Act did not apply to the properties in suit. Counsel for the appellant-Board challenged before us the correctness of the High Court s judgment and supported the Trial Court s judgment. It is true that the respondent-mahant did not produce the original sanads whereunder certain lands had been gifted to the founding mahant by the various zamindars. They were not produced because, as the respondent deposed, they could not be traced, but, as stated earlier it was not impossible for the Board also, if it wanted to rely on them, to produce the record, such as that of Dharbhanga Estate, and show therefrom the nature and the terms of those gifts. The Trial Court, however, was not entitled, as we shall presently. show, from the mere failure of the mahant to produce the original sanads to draw an adverse inference which it did aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edicated the temple or the properties to the public or to those who used to attend the temple for worship and darshan. In these circumstances, the appellant-Board had to fall back upon certain circumstances and the conduct of the mahants to establish that these properties were properties of a public trust.The circumstances and the conduct relied on were : (1) the fact that the mahants were vaishnav bairagis who were life long celibates; (2) that sadhus and others were given food and shelter when they visited the temple; (3) that festivals and other important Hindu dates used to be celebrated; (4) that the members of the public came to the temple for darshan without any hindrance and as of right; (5) that in the deeds and wills, whereby reigning mahants appointed or nominated their successors, the properties were described as appertaining to the asthal, and that the temple being the dominant part of the asthal and maintained for the worship and puja of the presiding deities installed therein, the properties belonged to the temple, and therefore, they were properties of a trust for religious and charitable character. In Parmanand vs. Nihal Chand([1938] I.L.R. 65 I.A. 252) the Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temples. It is against Hindu sentiments to turn away persons who come to do worship and darshan. The mere fact, therefore, that no instance had occurred when persons from the public were asked to go away or the absence of proof that they were allowed on permission or invitation only cannot be conclusive of the temple being one in which the public have by user acquired interest. The case in point is of Babu Bhagwan Din vs. Gir Har Saroop (67 I.A. 1) . The original grant there was to the respondent ancestor, one Daryao Gir, by the then Nawab of Oudh. The property in question comprised of land on which stood the temple, the presiding deity of which was Bhaironji, certain houses and shops. ,The respondents, who claimed to be the descendants of the original grantee, were grahastha fakirs, i.e., both goshains and house holders. There was no proof that there had been any interference with the management of the properties. The revenue records showed the properties in the names of the descendants of Daryao Gir. The shops were let out and in the leases concerning them the goshains were referred to sometimes as owners and sometimes as owners of the asthan Sri Bhaironif . There was eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the asthal. Relying on these words counsel argued that what the founding mahant Gaibi Ramdasji established was the asthal of Kamlabari for the propagation of Sri Sampradaya where his disciples and the other adherents of Sri Sampradaya could receive instruction in the doctrines of that Sampradaya at the hands of the mahant and that the temple was only part of the asthal as its adjunct. The argument was that the asthal was to support the sadhus and other followers of Sri Sampradaya, the temple being only an instrument for propagating and teaching the doctrines held by the Sampradava. In support of the argument, reliance was placed on Mahant Puran Atal v. Darshan Das([1912] I.L.R. 34 All. 468). There was in that case also no evidence of any original grant for a charitable purpose from a donor, nor was there in evidence any instrument expressly creating a charitable trust. The High Court of Allahabad, however, held that the mahant held the properties in trust for a charitable purpose relying on the mode of the user of the property and declarations made from time to time by the mahants. Those declarations were to the effect that the properties were held for the purpose only of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, such a purpose is not to be deemed an independent charity in which the public or a section of it has an interest. Such charities, as already stated earlier, appertain to a private debutter also. (see B. K. Mukherjea, Hindu Law of Religious Charitable Trusts. (3rd /ed.), 303, 304). The existence of a private mutt, where the property was given to the head of the mutt for his personal benefit only, has in the past recoginised. (see Matam Nadipudi v. Board of Commissioners for Hindu Religious Endowments, Madras(A.I.R. 1938 Mad. 810) and Missirv. Ras([1949] I.L.R. 28 Pit. 890). In such cases there is no intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted. In each case the court- has to come to its, conclusion either fromthe grant itself or from the circumstances of the case whether the grant was for the benefit of the public or a section of it, i.e., an unascertained class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties. have been dealt with as also other establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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