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Dhoribhai Dadabhai Patel Vs. Pragdasji Bhagwandasji - Court Judgment

LegalCrystal Citation
Decided On
Case NumberFirst Appeal No. 273 of 1935
Reported inAIR1938Bom471; (1938)40BOMLR1041
AppellantDhoribhai Dadabhai Patel
RespondentPragdasji Bhagwandasji
religious institution-property acquired by founder and his successors-user of property for benefit of institution and not for private purposes of acquirers- presumption where property descends from chela to chela-user of temple by public for long period-suit to remove mahant-civil procedure code (act v. of 1908), section 92.;on the evidence in the case, that the suit properties belonged to the mahant of the institution for the time being, but the ownership of the properties was so restricted by the obligation to maintain the institution for purposes which could only be regarded as public charitable purposes that a trust had been created for such purposes within the meaning of section 92 of the civil procedure code, 1908.;pujari lakshmana goundan v. subramania ayyar (1923) 29 c.w.n. 112,.....broomfield, j.1. this appeal arises in a suit brought under section 92 of the civil procedure code relating to the temple of karunasagar at sarsa in the kaira district. the plaintiffs are persons claiming to be interested in the temple, being trustees appointed by the will of bhagwandasji, the last maharaj or mahant of the temple who nominated defendant pragdasji to succeed him. the plaintiffs seek to remove the defendant from the office of mahant not on the basis of the will, though that gave the trustees power to remove the mahant under certain circumstances, but under the provisions of the code relating to public religious and charitable trusts. the reason given for this is that they seek reliefs such as accounts and the framing of a scheme which they could not get under the will. the.....

Broomfield, J.

1. This appeal arises in a suit brought under Section 92 of the Civil Procedure Code relating to the temple of Karunasagar at Sarsa in the Kaira district. The plaintiffs are persons claiming to be interested in the temple, being trustees appointed by the will of Bhagwandasji, the last Maharaj or Mahant of the temple who nominated defendant Pragdasji to succeed him. The plaintiffs seek to remove the defendant from the office of Mahant not on the basis of the will, though that gave the trustees power to remove the Mahant under certain circumstances, but under the provisions of the Code relating to public religious and charitable trusts. The reason given for this is that they seek reliefs such as accounts and the framing of a scheme which they could not get under the will. The defence inter alia is that the temple is a private one and that there is no trust for public purposes. The trial Court has decided this point in favour of the defendant on a preliminary issue and dismissed the suit.

2. The District Judge framed the issue in this form : ' Whether the temple and the properties in suit are public charitable properties ', and he finds that they are private properties. Having regard to the language of Section 92, however, the question should really be whether in respect of the temple and properties in suit a trust has been created for public purposes of a charitable or religious nature.

3. The temple was built about 1872 by one Kuberdas, who was also called Karunasagar (Ocean of Pity). He was a Dharala by caste who renounced the world and became a sadhu and wandered about expounding a new religion, the principal tenet of which was that God is infinite and formless and that the knowledge of God which is necessary to salvation can only be attained through the medium of a guru or master. This new cult came to be called kaivalya panth (path of salvation), gnyan marga (way of knowledge) and sometimes kayam panth or samaj (path or society of permanence). Kuberdas was revered as a saint and gathered a large following. He received gifts of money and land and with the means so obtained built and maintained a small temple. By a will made in 1878 he appointed his chela Naran-das to succeed him. Narandas built the temple as it now is, a substantial domed building in the ordinary form of Hindu temples. In this he was assisted by the villagers of Sarsa and the neighbourhood. People lent their carts and fetched stone from Champaner and worked personally in the construction of the building. Narandas also borrowed a considerable sum of money for the work. The original temple apparently contained no idols. But Narandas installed in his temple an image of Kuberdas who was now known as Shri Karunasagar and two other images. It is a matter of dispute whether these are the images of the deities Nar Narayan or those of Kuber-dasji's attendant staff-bearers (chhadidars). The trial Judge has found in favour of the latter view and this finding is not very seriously challenged and seems to be correct. There are references in the evidence to an alleged idol of a deity called Lalji having been in the temple at one time and to an idol of the God Hanuman. But no great importance seems to attach to these.

4. The Mahants after Narandas were Baldevdas, Bhagwandas and finally Pragdasji, the defendant. Each was the eldest chela of his predecessor and appointed by a will. Kuberdas, it should be mentioned, had a natural son who brought a suit in 1880 claiming the properties of his father. The defendants in the suit were Narandas and two other chelas of Kuberdas. Narandas contended that Kuberdas was an ascetic, having retired from the world, that he had established a mandir (temple), that in his monastic life he had acquired with the assistance of the other sadhus properties worth thousands of rupees and that he as the chela of Kuberdas and not the plaintiff as his son was entitled to the properties. The Court held that as the properties had been acquired by Kuberdas after he became a sadhu and had belonged to the religious institution founded by him, they passed on his death to his chela and not to his son. The judgment in the case is exhibit 19. There has been no dispute since that time as to the right of the Mahant to appoint his chela to succeed him.

5. In course of time the Mahants have acquired more lands by gift or purchase. Narandasji's will mentions forty fields and two houses in addition to the temple, Baldevdasji's mentions seventy-eight fields and Bhagwandasji's eighty. The income is now admitted to be Rs. 2,000 to Rs. 2,500. The plaintiffs say it is much more. Many of the sale-deeds and gift-deeds are on record, exhibits 146 to 171. The gift deeds and some of the sale-deeds (in which the price was nominal) describe the transaction as dharmada (charitable). All the documents, however, are in the name of the Mahant for the time being, not in the name of the temple, though there is one gift of land to Baldevdas, exhibit 215, in which the donor said that he was carrying out the wishes of his deceased brothers who had wished to give the land to the Gurudwar i.e. the institution. In the Government land records the Mahant for the time being has almost always been shown as the owner and occupant of the said lands either as purchaser, or, in the case of gifted lands, as donee for charitable purposes (dharmada). In two instances only (see exhibit 99) Baldevdas was entered as purchaser in the capacity of manager of the Karunasagar Maha-raj's that, the that being one of the temple funds.

6. Much of the oral evidence is taken up with disputes about doctrine. Plaintiffs and their witnesses assert that the image of Kuberdas is worshipped as that of a God. Defendant and his witnesses say that the kaivalya panth does not accept the doctrine of incarnation. Defendant says ' God cannot become incarnate because even without incarnation he is all powerful and does what he likes.' But the position he takes up is not very consistent or easy to understand. He says in one place ' According to our belief Krishna was an aunsh (part) of God and so was Karunasagar.' But elsewhere he says ' I do not worship Kuberdas in the same way in which a devotee of Krishna would worship Krishna.' He has also admitted in cross-examination that Karunasagar is the ishta dev of the institution, this expression meaning, according to the dictionaries, the deity of one's choice or tutelary deity. But in re-examination he explains this away rather lamely by saying ' When I said that Karunasagar Maharaj was our ishta dev I meant that we have full faith in him as our guru. We have more faith in him than in God.' All the religious books of the panth, with the exception of one, were written by Kuberdas himself. The language he used is mystical and rather obscure. Several of the witnesses for the plaintiffs frankly admit that they do not understand it and in all probability that is the position of the average member of the panth in these days. Whatever the esoteric doctrines of the faith may be, the evidence suggests that there is very little difference in regard to worship and ceremonial between this and the ordinary Hindu temple.

7. The images of Karunasagar and his two satellites are objects of public worship. In the ceremony called arti they are worshipped first, then the pictures of Karunasagar which are in the temple, the gadis of former Mahants and lastly the Mahant for the time being. Food is offered to the images (thal) and at times they are decked with ornaments. On a certain day in the year a small idol of Karunasagar is taken in procession. There are religious readings and hymn singing (kathas, kirthan and bhajan) open apparently to all who care to attend. On the anniversary of the installation of the images in the temple there are festivals or congregations called samaiyas to which the devotees come in hundreds. Many of them are accommodated in the temple at these times.

8. Gifts of money and grain are made by members of the panth and sometimes by others as in the time of Kuberdas. Plaintiffs' and defendant's witnesses are in conflict as to whether these offerings are given to the institution or to the Mahant himself. There is nothing to show, but it would seem that the object of the donors must usually be to support the institution. In the account books maintained by the kothari (treasurer) the Mahant has an account of his own, but there are also separate accounts for various temple services. A parabdi (place for feeding birds) has been endowed by a devotee. Fees are paid at the time of marriages and the bridegroom's party puts up in the temple on payment of a fixed sum. Fees are also paid on the death of a devotee. In defendant's time a sabka mandap or public hall has been constructed. There is some evidence that the public helped with this as they also did with the building of the temple itself. It is used sometimes for secular functions, no doubt with the permission of the Mahant.

9. That there is practically free public access for purposes of worship the evidence clearly shows. Defendant asserts that he has technically a right to exclude anybody and even to close the temple. But he admits that unless a person misbehaves he would have no reason to evict him from the temple and that he has never closed the temple for the whole day. One of his witnesses Trikambhai says the Mahant may prevent an objectionable person from entering the temple. Otherwise he does not prevent anybody nor has he got a right to do so. The use of the temple is not apparently restricted to persons professing the kaivalya panth, but even if it were, the temple might still be a public temple. It was held in Mahant Puran Atal v. Darshan Das I.L.R. (1912) All. 468 that although the main purpose of the trust was to support fakirs of a particular sect, viz. the Nanakshahi fakirs and to spread the religion founded by Nanakshah, nevertheless it should be held to be a trust for public purposes within the meaning of Section 92.

10. The temple has always been closely associated with sadhus. Kuberdas was a sadhu himself and so have been all his successors. From the very beginning numbers of sadhus have been maintained on the temple premises. According to the defendant's witness Dhiramdasji the temple is bound to maintain them. In former times there were as many as one hundred or more sadhus, but the defendant has had disputes with them and the number has decreased. These sadhus go into the village and collect ghee for the lighting of the temple. Some of them have themselves founded smaller temples in various places in Gujarat where the cult of Karunasagar is followed. It is said that there are now about fifty of these subordinate temples and it is rather remarkable that defendant admits that two-thirds of them are public temples. The total number of members of the panth is said to be about 10,000.

11. That, I think, is the substance of the evidence in the case, apart from the wills of Kuberdas and his successors. These are so important that they must be referred to in some detail. Kuberdas' own will is short and may be given in full. It is exhibit 32 :-

I, Sadhu Kuberdasji Karsandasji residing at Mouje Sarsa, Taluka Anand, occupation that of preaching religion. To wit. I have become old and I have no confidence of life or living. Hence I state in this will all my property as mentioned below :-

1. A temple is situated to the north of the vav (step-well) in the Sarsa village. A kot (wall) has been constructed on its four sides. In the inside of the hot there are havelis, well and the furniture and the pots and pans etc., in my name. All the same and the bag out of the field Sarsai and the said field and the vadi and the well and the land that is going on in my name and in the name of my other disciple in the Government record and all the lands, received in charity and purchased and taken in mortgage and the carriages and horses and oxen and buffaloes, etc., i.e. all the animals have been entrusted (sompeli) to my eldest disciple Narandas after my death. The manner in which all my disciples and devotees are maintaining my prestige at present they should observe the same in the like manner. And after him, they should maintain the honour and prestige of Vishnudas accordingly. And each should sit on the gadi one after the other accordingly. And all the devotees and all the persons of honour of the village should meet together and entrust the gadi to that disciple out of my disciples who is taken to be learned and fit for the same unanimously. All the above properties have been acquired by myself. And the same, of my possession, have been entrusted in the possession of Narandasji after my death. And after his death, the same should be entrusted in the possession of Vishnudasji. I have passed this will in writing in the presence of all the honourable people of the village of Sarsa and my devotees and my disciples and in their conscious state of mind. I admit the same. And any claim of my other disciple, over all my property mentioned above, beyond the above-mentioned tharao (direction) is void. I have passed in writing the above-mentioned document with my free will and pleasure and in sound state of my mind and understanding and according to the opinion of all to which I agree.

12. Narandasji's will is exhibit 33. The preamble is this : 'In order that my property may not be wasted after my death and that it should be managed as I desire, I pass in writing this will. My moveable and immoveable properties are situated ;' and he then proceeds to give a description of the properties, several of which are mentioned as charitable (dharmada) gifts. In the list of properties he includes ' the temple in which Karunasagar Maharaj is installed ' and also ' the right to manage the said temple and the right to receive its income.' The will then says :-

All the above property is in my possession and enjoyment at present. I may manage the same as I like till I live. And after my death, in order that my property may not be wasted and in order to maintain the prestige of all the devotees by properly conducting the gadi, I entrust my sole authority to my vadil sishya (disciple) Baldevdasji Narandasji and appoint him as an heir to my gadi. After my death, he should take in his possession all the property mentioned above accordingly and should take in charge the worship of God in my mandir and the sudhu sants (followers and devotees) and should properly maintain the prestige. And acting in harmony with all the sadhus and sants etc., he should act in such a manner as to enhance the honour of my mandir and the samprodayan (i.e., doctrine or faith). Through God's grace, a disciple or disciples who may occupy the gadi after him may perform such acts as may be harmful to my doctrine by misbehaviour. In order to avoid the same I appoint eighteen trustees belonging to this village and elsewhere.

Then the names of the trustees are given, and the will goes on :-

If my disciple having acted contrary to my principles should do acts injurious to my doctrine, I authorise the above trustees to cause another disciple to occupy the gadi dethroning the said disciple being unanimous. But all the said trustees should act at this time by votes of the majority.

The will concludes with these words :-

I myself have personally built now the above-mentioned Karunasagar Maharaja's temple. And all the property mentioned in this will is of my possession and enjoyment. None else has got a right over the same.

13. The will of Baldevdas, exhibit 34, contains almost precisely similar recitals. Thirty-eight trustees were appointed for the same purpose as before. The passage dealing with the powers of the trustees is this :-

If my said disciple or disciples who may succeed to the gadi after him, acting contrary to the principles of my doctrine, may act in a way harmful to my doctrine, I authorise the above trustees jointly and severally either to give the gadi to another disciple or to make changes seeking the opinions of all the sadhus of my temple, unanimously, having removed him from the gadi. And at the time when new Mahants are to be enthroned on the gadi all should act by a majority, taking the unanimous opinion of all the sadhus of our temple and all the trustees mentioned above and the Mahant who may be occupying the gadi at that time.

14. The will of Bhagwandas, exhibit 35, follows the same pattern but contains some recitals which should be mentioned. After giving a description of the lands by survey numbers the testator said that certain of the lands were mortgaged with him but the rest of the lands belonged to him. He went on to say :-

I have got the right to do all acts, viz., to manage all the temples established in my native place or outside, in whatever villages, in the name of Shri Karunasagar Maharaj and to appoint sadhus, or to dethrone that sadhu who does not appear to be fit.

Further on he says :-

I have got all the moveable and immoveable properties as stated above. I am. the owner and possessor thereof. And I have got a right and liberty to manage all the properties as I like during my lifetime. I am conducting the management accordingly. I am to manage all the property accordingly as long as I live. And I have selected to-day my disciple Pragdasji as an heir of all my moveable and immoveable property after my death according to the custom of our institution in the presence of our sadhus. The said Pragdas is the heir after my death. Hence after my death he should take all the properties in his possession and he should make use of the same as an owner as I am doing and he should protect the sadhus of my religion and should live in harmony with them and should act sensibly following the religion. Having put a firm faith in the true religion and being engaged in devotion to God, he should so act as to enhance the reputation of my religion. And' the said immoveable property cannot be encumbered in any way without the consent of the trustees.

Eighteen trustees were then appointed by him and the will provided as follows :-

they should keep a watch on the conduct of my disciple. And if the conduct of the disciple be harmful in any way to my religion and the faith, I authorise the said trustees to dethrone the said disciple and having taken the opinion of the trustees and the sadhus and the leading harijans (devotees) should select a pure sadhu as a new disciple and enthrone him on the gadi entrusting to him. the authority of the gadi.

15. The assertion of ownership which is contained in all these wills and which becomes rather more emphatic as time went on and the fact that the wills were publicly announced and approved by the principal members of the panth are the main foundation of the trial Court's finding that the temple and the properties in suit are private properties. But it is very clear that what is asserted is not ownership for ordinary private purposes. Without laying undue stress on the use of the word ' entrusted' in Kuberdas' will, his intention in making Narandas his heir instead of his natural son and in directing that the succession should go thereafter to the chela found by the devotees and elders of the village to be most learned and fit for the office was evidently to maintain the institution in the form in which he had founded it. That idea, the idea that the maintenance of the new faith is the paramount consideration, is expressed even more fully and clearly in the later wills and is emphasised by the appointment of trustees to keep a watch on the conduct of the Mahant and to remove him in case of misconduct. ' Conduct harmful to the samprodayan ' would presumably include any use of the properties for purely private purposes, and the will of Bhagwandas contains an express prohibition against alienation except with the consent of the trustees. In the case of an absolute devise such a prohibition would have to be disregarded as repugnant to the grant. But notwithstanding some references to the Mahant's absolute power of management, the general tenor of the wills is inconsistent with the idea of an absolute devise of private property. Obligations are insisted on at least as much as rights and the right of the trustees and sadhus and leading devotees to be consulted is recognised as an essential part of the constitution of the panth.

16. That the temple properties must be used for the maintenance of the faith is frankly admitted by the defendant himself. In 1924 in some inquiry relating to the record of rights he made a statement in which he said :-

In Sarsa there is a temple of Shree Kuberdasji alias Karunasagar Maharaj. This temple has been completed by Shree Kuberdasji Maharaj and Narandasji Maharaj. The land in Sarsa is for the maintenance of the temple only. As this land is not entered in the name of Karunsagar I cannot say whether it is appurtenant to this temple of the ownership of Karunasagar Dev. This land is meant only for the expenses, i.e., for feeding the sadhus and thakor seva (idol worship). The entries with regard to this land are the same as those originally made when the record was made and it is not necessary to make any changes. The land of this temple is entered in the name of the Maharaj who comes on the gadi according to law. It is the same now also. We are not prepared to have our names entered as managers of Karunasagar Maharaj. No Maharaj has disposed of any land of the temple. It is not to be done. We will not do so. Any Maharaj who comes on the gadi tries to increase the properties. But no one reduces it. Therefore no change remains to be made.

No doubt the defendant objected to being described as a mere manager of the temple but he did not claim, the lands as being of his private ownership, far from it. In his deposition he has admitted the restrictions on his powers of disposition even more clearly. He says :-

By the will of Bhagwandasji I became the owner of the temple properties. As an owner of the temple properties I can use those properties in any manner I like for the benefit of the temple. We mahants have not got to use the property against the benefit of the temple, but I do say that if I fall ill I would spend Rs. 2,000 on a doctor for improving my health. Out of the property I would repair the temple properties and look after the sadhus. There will be no other object for spending those properties. I would also use these properties for treating the sadhus and harijans also.

He also says this :-

If there is any mismanagement of the properties or if the properties are likely to be wasted away then only have the trustees been empowered to take over the control thereof. I have given the same powers to the trustees as my predecessors used to do. If I mismanage the properties or waste them away the trustees can take over charge thereof. First of all I decide whether there is any mismanagement of the properties. If I am not able to do so the trustees decide. All the properties of the temple are included in the expression 'gadi'. We have got to maintain that gadi permanently. Those properties are to be used in the interest of the temple, in the interest of sadhus, in the interest of the mahant and so on. As far as possible the properties are to be preserved.

Evidently the defendant himself does not countenance the exaggerated claims made on his behalf by some of his witnesses.

17. Looking at the matter apart from authority the position seems to me to be this. It would be unreasonable to hold that the suit properties belong to any idol, or to the temple or to the members of the panth or to anybody except the Mahant for the time being. But though the legal title must be regarded as being in him, that does not dispose of the matter in issue. A trust according to the definition in the Indian Trusts Act means an obligation attached to the ownership of property. Section 92 of the Civil Procedure Code is not limited to trusts in that sense but must certainly include them. The general effect of the evidence is that the ownership of these properties is so restricted by the obligation to maintain the institution for purposes which can only be regarded as public charitable purposes that it may fairly be said that a trust has been created for such purposes within the meaning of Section 92.

18. The authorities to which we have been referred, although not one of the cases is precisely on all fours, seem to me on the whole to support this view. There is a Privy Council case, Pujari Lakshmma Goundan v. Subramania Ayyar (1923) 29 C.W.N. 112 : [1924] A.I.R.P.C. 44. The facts found by their Lordships as stated in the judgment were as follows (p. 117) :-

Lakshmana Goundan, the grand-father of the first Defendant, lived in a small house which belonged to him in the village of Kalipatta. He was a devout Hindu and originally a poor man. He maintained in his house an idol of the goddess Amman which was the private idol of his family. He was also a devout worshipper at the public temple at Palni, at which there was an idol of the god Subramanyan-swami, and he made yearly pilgrimages to Palni with offerings to that god. It is said, and probably with truth, that he dreamed that he should install at his house at Kalipatta an idol of the god Subramanyaswami and that the god would come to Ms house and enable him to foretell events. He did install that idol at his house, adopted the ritual which was followed at Palni and allowed Brahmins and other Hindus of various castes to worship the. idol as if it was a public idol. He acted as the pujari of the idol, and received as the pujari offerings made to the idol by worshippers and fees which he charged in respect of processions and other religious services. He obtained a great reputation as a holy man and as being enabled by the god to foretell events. The number of Hindu worshippers increased and with the offerings and fees he purchased some jewels for the idol, built for himself another house in the village to which he and his family removed, and he extended the house in which the idol was and added to it covered rooms for the accommodation of the worshippers during the ceremonies of worship. He also constructed a circular road round the place where the idol was for religious processions and he provided the car used in such processions. He also built in the village a rest-house for the use of worshippers of the idol. On certain days in each week the Hindu public was admitted by him free of charge to worship in the greater part of the temple, to one part only on payment of fees, and to the inner shrine apparently not at all. With the income which he derived from offerings and fees at the temple he efficiently maintained the temple as if it were a public temple and discharged all the expenses connected with the temple and the worship of the idol there. That may be assumed from the reputation which the temple acquired amongst Hindus, No accounts have been produced, probably he kept none, but it may be assumed that he applied the balance of the income he so obtained to the support of himself and his family and in acquiring for his own benefit and that of his family some immoveable property which he possessed before he died.

19. The conclusion which their Lordships drew from these facts is thus stated in the judgment (p. 117) :-

On those facts which their Lordships have found they can come to no other conclusion than that Lakshmana Goundan, the grandfather of the first defendant, held out and represented to the Hindu public that the temple was a, public temple at which all Hindus might worship, and that the inference is that he had dedicated the temple to the public. They have come to that conclusion notwithstanding the facts that respectable local witnesses have stated that the temple was a private temple and that on three occasions since this dispute arose the tahsildars reported to the Collector of the District that the temple was not a public temple.

20. Jugalkishore v. Lakshmandas I.L.R. (1899) 23 Bom. 659 : 1 Bom. L.R. 118 Narsidas v. Ravishankar : (1930)32BOMLR1435 and Mundancheri Roman v. Achuthan Nair are other cases in which public user for a long period without objection has been relied on as strong evidence of a public trust. In Ghansham Das v. Anant Singh air[1927] Lah. 757 it has been held, following Indar Singh v. Fateh Singh I.L.R. (1920) Lah. 540 that when properties have been acquired by a sadhu and have descended, as the suit properties have, from chela to chela, there is a presumption that they have been dedicated to religious uses.

21. The learned Counsel for the respondent has mainly relied on Chhotabhai v. Jnan Chandra Basak . In that case their Lordships were dealing with a cult or religion called the Radha Swami Satsang founded by Swami Shiv Dayal in 1861. The object of the religion was to attain true and perfect salvation by the liberation of the spirit from the bondage of mind and matter, which can only be achieved by following the practices prescribed by the religion. The founder of this religion and his successors known as Sant Sat Gurus are regarded according to one view as incarnations of the Supreme Being in human form and according to another view as the representatives of and in communion with the Supreme Being. In 1902 a sort of council of the followers of the faith was formed with the object of helping the Sant Sat Guru in the management and in 1904 some of the members of the council including the Sant Sat Guru executed a trust deed the objects of which were (p. 156) :-

To collect, preserve, administer, and if necessary, alienate the properties, moveable or immoveable, that have been or may hereafter be dedicated to the Supreme Being, Radha Swami Dayal, or that may be acquired for or presented to the Radha Swami Satsang and its branches, in accordance with such directions as may, from time to time, be issued in this behalf by the said Council or the Sant Sat Guru for the time being, if any, who is recognised as the representative of the Supreme Being Radha Swami Dayal, and as such is the sole master of all moveable and immoveable properties of the aforesaid Satsang, provided that Samadhs and places of public worship of the Radha Swami Satsang shall at no time be alienated.

In the constitution of the council it was provided that the Sant Sat Guru as the representative of the Supreme Being should have full and unquestionable power in every matter, and' that his mandate should be paramount and absolute. The trust deed provided that the administration of the trustees over the properties should be in accordance with the directions of the Sant Sat Guru for the time being whose powers, as I have said, were described as absolute.

22. The question was whether there was an express or constructive trust created or existing for a public purpose of a charitable or religious 'nature within the meaning of a special Act which employs practically the same language as Section 92 of the Civil Procedure Code. It was held that there was not, Theif Lordships laid down certain criteria for the determination of this question (p. 158) :-

In the first place it is material to ascertain the author or authors of the alleged trust. Next the intention to create a trust must be indicated by words or acts with, reasonable certainty. The purpose of the trust, the trust property, and the beneficiaries must be indicated and in such a way that the trust could be administered by the Court if the occasion arose.

It was held that these requirements were not satisfied because neither the original donors of the gifts by means of which the properties of the institution had been acquired nor the Sant Sat Gurus who had dealt with the properties had indicated any intention to create a trust. The original donors did not concern themselves with the manner in which the gifts would be used and as they made their gifts to a spiritual head who was regarded as the incarnation of the Supreme Being or at any rate his representative, they could not, have had any idea of creating a trust. So far as the Sant Sat Gurus themselves were concerned, there was no trace of the creation of any trust prior to 1902 and as it was then provided at the very outset that the council was to do the things mentioned in the declaration ' in accordance with the directions of the Sant Sat Guru for the time being, if any, who is recognised as the representative of the Supreme Creator and whose mandates shall be paramount and absolute ', it was also held that no trust had been created by them.

23. It appears that the doctrines of the Radha Swami Satsang are in some respects similar to those of the kaivalya panth, but there are material differences and in my opinion there is no very close analogy between the facts of the two cases. As I have pointed out, the evidence in this case is by no means clear as to the position claimed by Kuberdas or ascribed to him by his followers. But certainly, so far as his successors are concerned, they are not regarded as incarnations of the Supreme Being or even as his representatives. They are at most, to use the language of learned Counsel for the respondent, the imparters of knowledge which leads to salvation. There is no inherent improbability, therefore, in the idea that they hold the property subject to a trust, and the wills, which are the best evidence of the intentions of the founder of the panth and his successors, do not, when read as a whole, support the idea of paramount authority which was the main foundation for the decision in Chhotabhai v. Jnan Chandra Basak. I find no difficulty here in applying the criteria laid down by their Lordships. The authors of the trust were Kuberdas and his successors whose acts and declarations showed that the properties acquired by them were to be used, not for their own purposes but for the benefit of the institution. The purpose of the trust is the maintenance1 of the institution as a means of perpetuating, the teaching of its founder. The beneficiaries are primarily the followers of the panth and in addition all Hindus who by the custom of the institution from the beginning have been permitted to use the temple of Shree Karunasagar as a public temple.

24. We must, therefore, find on the preliminary issue in the affirmative. We do not think the evidence justifies any distinction being made between the various properties which are the subject of the suit. We hold that the Mahant for the time being receives and holds all the properties, movable and immoveable, subject to the obligation to use them for the benefit of the temple and the faith. This finding is perfectly consistent with a wide discretion being allowed to the Mahant as to the manner of dealing with the properties to that end and perfectly consistent with the maintenance of the prestige and privileges which he has always enjoyed by the custom of the institution. As regards the further course of proceedings reference perhaps may usefully be made to the judgment of Abdur Rahim J. in Puraviya Goundan v. Poonachi Goundan : (1921)40MLJ289 . Nothing which has been said in this judgment should be taken to prejudge in any way the other issues in the case which are yet to be decided. The case must go back to the trial Court for decision on the merits. The appellants are entitled to their costs in this appeal from the funds of the institution.

Sen, J.

25. I agree.

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