(1) This is an appeal under S. 72 of the Bombay Public Trusts Act, 1950, by the Administrator of the Shringeri Math of His Holiness Jagatguru Shringeri Shankaracharya against an order for registration of the Math at Nasik. There are three properties in Nasik city bearing city survey numbers 5241, 5242 and 5244-B. They are partly buildings and partly open spaces. The two predecessors of the Shankaracharya had attained 'Nirvana' at Panchavati, Nasik, and the then rulers i.e., the Peshwas, offered some open space of land to His Holiness of Shringeri for erecting 'Samadhis' of the deceased. Accordingly the 'Samadhis' were constructed in this land. Attached to the 'Samadhis' there is a Mandap and the image of Adya Shankaracharya is installed therein. Surrounding these buildings some other constructions have also been made. The expenses for the upkeep of these 'Samadhis' are met from the income of the structures, loans and from the fund of the 'Math' at Shringeri. There are some grants also.
(2) It appears that the then Shankaracharya requested the Mysore government in 1952 to take charge of the 'Math' at Shringeri and all its properties because of his ill-health. In pursuance to that request, Mysore Government took over all the properties of the 'Math' by a notification of 12th January 1953 under its management under S. 25 (iii) of the Mysore Religious and Charitable Regulation of 1927, and at the same time appointed one N. Shesu Iyer to be the Manager of the institution. After the Bombay Public Trusts Acts, 1950, came into force for two years no application was made for registration of the Nasik institution as in previous inquiry under the Bombay Public Trusts Registration Act of 1935 these properties were held to be the private properties of Shri Shankaracharya. Some members of the public at Nasik made a grievance about the same and therefore an enquiry was started by the Charity Commissioner, Poona Region, and it was numbered as Application No. 99 of 1954. At this enquiry though a public notice was issued, no one appeared and offered evidence.. Only the officer in management of the Shringeri Math gave evidence. The Assistant Charity Commissioner declared the Nasik properties to be public trust and ordered accordingly. It seems that simultaneously an enquiry was commenced by the Charity Commissioner, Belgaum, in respect of some properties which fell within his jurisdiction. There were also held to be public trust properties and an order was made accordingly. being aggrieved by both these orders, the officer made an appeal to the Charity Commissioner, which was heard by the Deputy Charity Commissioner, Ahmedabad, with Appellate Powers, sitting at Bombay. He confirmed the findings made by the Assistant Charity Commissioners. An application was the made under S. 72 of the Bombay Public Trusts Act, 1950, to the District Judge at Nasik for setting aside the orders made by the Deputy Charity Commissioner and the Assistant Charity Commissioners. He also failed in the District Court and that is why he comes here in appeal.
(3) Mr. Amin has raised three contentions before us. He argues that the properties at Nasik, which are loosely called a 'Math', is not a public trust and therefore is not within the Act; Secondly, in view of the decisions of the authorities under the Bombay Public Trusts Registration Act No. 25 of 1935, the question is barred by the doctrine of res judicata and therefore the decision under appeal is erroneous; and thirdly in any case, it being property appurtenant to the main Math at Shringeri, the Bombay Public Trusts Act, 1950 will not apply and the Charity Commissioners in Bombay will have no jurisdiction to deal with the affairs of this institution. An attempt was made to contend relying on the decision in Chhotabhai v. Jnan Chandra Basak , that the Shringeri Math itself is a private institution and the properties appurtenant to the Shringeri Math must also be regarded as private properties. This point was never taken at any stage in this enquiry and the only evidence that was offered was in respect of Nasik properties. It would therefore be hardly fair to us to give any decision on the question as to whether Shringeri Math itself is a public trust. In view of our decision on the third point it really is not necessary for us to determine whether or not Shringeri Math is the private property of Shri Shankaracharya. For the purposes of this enquiry it may be assumed that it is a public trust even without deciding it. We will consider the second and the third contentions of Mr. Amin first.
(4) The second contention, which was raised by Mr. Amin, is founded on the doctrine of res judicata. Under the Bombay Public Trusts Registration Act, 1935, it was held that the properties at Nasik were not public trust properties. Section 3 (3) defined 'Public trust' to mean 'an express or constructive trust created or existing for public purposes of a religious or charitable nature'. The powers were given to the Registrar under S. 6 to decide after an enquiry whether a trust is a public trust, whether any property is the property of such trust etc. Enquiry was to be held according to the procedure provided by the rules under the Act. Section 10 provided that the entries made by the Registrar in the Register of Public Trusts in accordance with the provisions of Ss. 6 and 8 shall, subject to provisions of S. 11, be final for the purposes of the Act. Section 11 requires amendments to be made in accordance with the decision of a Civil Court of competent jurisdiction in relation to any matter entered in the Register of Public Trust. If one compares the definition of the words 'Public trust' as contained in this Act with the definition of those words as contained in the Bombay Public Trusts Act, 1950, it would be abundantly clear that the definition under the present Act (of 1950) is very much wider than the definition under the old Act. Apart from this, S. 10 gives finality to the decisions only for the purposes of the Act and not for all purposes unlike the present Act. In our view, the decision of the then Registrar produced at Exh. 19-A that the Bombay Public Trusts Registration Act, 1935, did not apply because it was not a public trust cannot be binding for ever. It is no doubt true that the doctrine of res judicata is of wide application but so far as we are able to ascertain, it is essentially confined to decisions of Courts and not to other administrative decisions. In any case, decision under the Act of 1935 was not of such a nature as to attract he application of the doctrine of res judicata irrespective of future legislation. In the present case in view of the disparity between the two provisions it is impossible to give finality to the decision of the Registrar under the Bombay Public Trust Registration Act, 1935.
(5) The third question is whether the institution at Nasik is liable to be registered under the Bombay Public Trusts Act, 1950. The preamble to the Act says that it is an Act to regulate and to make better provisions for the administration of public, religious and charitable trusts in the 'State of Bombay'. (The underline- (here put in ' ' marks-Ed.)- is ours). From the nature of the power exercisable by the legislature it is clear that the Act can only apply to public trusts situated in the State of Bombay and not elsewhere. This must mean necessarily that substantial portion of the trust properties must be situated in the State of Bombay and the purpose of the trust must indicate that it in intended for the benefit of the inhabitants of the Bombay State. By S. 18 a duty is cast on the trustees of the public trust to make an application for the registration of the public trust which again necessarily mean that the trustees are residents within the territory of the State or at least from the nature of the trust must be deemed to be residents of the Bombay State. Section 22 requires that any change in any of the matters required to be entered in the register, to be communicated by the trustees or trustee to the Charity Commissioner. Section 66 of the Act creates offences and provides for penalties and says that whoever contravenes any provision of any of the sections mentioned in the first column of the table shown therein shall, on conviction, for each such offence be punished with fine which may extend, to the amount mentioned in that behalf in the third column of that table. These provisions indicate that the control on the trustees is 'in personam'. It would, therefore, mean that in order that the trustees should be amenable to the jurisdiction of the various Charity Commissioners in the State, they must also be subject to their process which can be effectively enforced against them and this could effectively be done only if the trust is substantially situated within the State of Bombay in which case alone it can be said that the trustees would be amenable to the process of either the Charity Commissioner or of the Court within the State of Bombay. The scheme of the Act suggests that only such trusts were intended to be governed by the Act.
(6) In this connection we may refer with advantage to two decisions of the Supreme Court in State of Bihar v. Sm. Charusila Dasi, : AIR1959SC1002 , and the State of Bihar v. Bhabapritananda in the same volume at p. 1073. In both these cases some of the provisions of Bihar Hindu Religious Trusts Act, 1950, were challenged as being ultra vires the powers of the legislature. In the first case the trust was created under a trust deed by one Charusila Dasi for the worship of an idol and it was contended that it was a Public Trust and that the Bihar Hindu Religious Trusts Act, 1950, applied to it. The properties which were the subject-matter. of the trust consisted among others of some properties in Calcutta out of Bihar State. A contention was taken before the Supreme Court that inasmuch as the Bihar Act would extend in the governance on Calcutta property also, the Act had extra territorial application and was therefore invalid. In repelling that argument their Lordships said:
'The question, therefore, narrows down to this: in so legislating, has it power to affect trust property which may be outside Bihar but which appertains to the trust situate in Bihar. In our opinion, the 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 trust 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 extra-territorial 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 in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust.'
Their Lordships applied the doctrine of territorial connection or nexus which was applied by them to Income-tax and Sales-tax legislation. Their Lordships also observed in deciding the validity of the Act as follows:
'It cannot be disputed that if the religious endowment is itself situated in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory; indeed, the religious institution and the property appertaining thereto from one integrated whole and one cannot be dissociated from the other. If, therefore, any liability is imposed on the trustees, such liability must affect the trust property.'
Similar view was expressed in the second case relating to Baidyanath temple situate in town of Deoghar within the limits of Santhal Parganas in the State of Bihar.
(7) From these two cases it would appear that Shringeri Math which is the primary and the main institution being situated in Mysore territory, the provisions of any Act in relation to public trust obtaining in that State will enable the authorities under that Act to supervise this subordinate institution at Nasik. As a matter of fact the Manager of the Institution appointed by the Government of Mysore State is at present exercising that control under the Mysore Act. To hold now that the Charity Commissioner in Bombay will also have controlling powers over the Nasik Institution will create large number of anomalies as to accounting and as to the general control of the institution. Several major and minor questions of dispute might arise as a result of conflicting jurisdictions and would hamper proper administration of the institution. Very often orders that may be made by the Charity Commissioner in Bombay would be impossible of enforcement against Shri Shankaracharya or the Manager who cannot be subject to the control of the Charity Commissioner. In order to rationalise the management of public trusts whose main institution is in one State and has subordinate institutions in other States, it would be proper to hold that the authorities at that place only have jurisdiction over the properties distributed in the other States. This will facilitate and simplify the administration of the various properties of the trust. In our view, therefore, in order that a trust should be required to be registered under the Bombay Public Trusts Act, 1950, substantial part of the trust property ought necessarily to be situated within the State of Bombay for the benefit of the residents of the State of Bombay. If a portion of he property of a main trust outside the State of Bombay is situated within the State, the Act will not apply and the Charity Commissioner will have no jurisdiction in the matter.
(8) It is argued by the learned Government Pleader that in any case a Manager has been appointed for the Nasik Institution and since the definition of the word 'trustee' includes Manager, we must hold that the trustee is resident within State of Bombay. It is impossible to accept this argument. Section 2 (18) defines the word 'trustee' to mean a person in whom the trust property is vested and includes a Manager. It is clear that even though a Manager is included within that definition, it must only mean the Manager in whom the trust property vests in the absence of the legal trustee as such and not want is loosely called a Manager. This is made clearer by the definition of the word 'Manager' contained in S. 2 (8) which defines him to mean a person or persons who administer the trust property. This must necessarily mean that all the discretionary power is vested in him and not someone else who orders him to do what he desires to be done. In the present case the evidence discloses that the so-called Manager at Nasik holds a Power of Attorney; he is merely a Supervisor appointed by Shri Shankaracharya or the Manager of the Shringeri institution and has no discretionary power in the matter of management of the Nasik property. He cannot be called a 'Manager' within the meaning of the Act. That being so, it is impossible to hold that he is a trustee who is residing within the territories of the State. It is not necessary to consider whether mere residence of a trustee or trustees within the State of Bombay would make the Act applicable even if the substantial properties of the trust are outside Bombay.
(9) It is argued by Mr. Kotwal that the Nasik Institution must be regarded as an independent public trust within the Act. He says that there is sufficient evidence to show that the Nasik Institution falls within the definition of the words 'public trust' and must therefore be held to be within the Act. The question whether it is an independent trust is a difficult matter which must depend upon a variety of circumstances. The matters to be considered would be (10 How and under what circumstances the institution was founded; (2) What was original source of money from which the institution was built; (3) How it is maintained; (4) Who are the beneficiaries; (5) How is the management done. If the institution is founded by an outside agency substantially with the aid of fund belonging to the agency and is maintained wholly or partly with the funds of that agency and is controlled by such outside agency then it would be difficult to hold that it is an independent public trust even if substantially the local people take the benefit. For this institution the land was donated no doubt by a resident of this State but substantially the buildings and other constructions were made by Shri Shankaracharya with funds of Shringeri Math; it is also maintained partly by funds belonging to that Math and is controlled by the head of that Math. We have therefore no hesitation in holding that it is not possible to hold that it is an independent trust.
(10) It is not really necessary for us to consider the contention of Mr. Amin that the Nasik Institution is merely private property of Shri Shankaracharya and is not 'public trust'. We may however shortly deal with the point. This question depends upon the provisions of the Act. Section 2 (13) which defines a 'public trust' is as follows: It means 'an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a Math, a wakf, Dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Society's Registration Act, 1860'. The definition is not happily worded since a suggestion may be made that even private temple, Math or wakf or religious or charitable endowment would be included within the definition since the word 'public' does not precede any of these. However one cannot read only this clause. It must be construed with due regard to the purpose and the scope of the Act and other provisions of the Act. In order that a 'temple' and a 'Math' should be within the definition they must fall within the definitions in Cls (9) and (17). Clause (9) defines a 'Math' to mean an institution for the promotion of Hindu religion presided over by a person whose duty it is to engage himself in imparting religious instructions or rendering spiritual service to a body of disciples or who exercises or claims to exercise headship over such a body and includes places of religious worship or instruction which are appurtenant to the institution. This definition is a reproduction in simpler form of the notions conveyed by the word 'Math' in Hindu Law. Similarly 'temple' is defined to mean by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu Community or any section thereof as a place of public religious worship. This definition clearly brings out that the temple must be dedicated to the public use or it must be used by the Hindu community or a section of it as of right. In other words public nature of the temple is sine qua non. Similarly the definition of the word 'wakf' in clause 19 excludes wakfs known as private wakfs. True it is that as to 'religious or charitable endowments' no such distinction is made. But the very fact that Maths, temples and wakfs even if private are religious endowments and yet are excluded must show that religious or charitable endowments intended to be covered by the definition must be public and not private. This would be evident from the preamble which recites that the Act is enacted as it is expedient to regulate and to make better provision for the administration of public religious and charitable trusts in the State. This conclusion is further supported by the other provisions of the Act regarding the power of the Charity Commissioner over these trusts. In our view, therefore, the enumeration following the word 'includes' in the definition of 'public trust' in Clause (13) is illustrative and was not intended to extend the definition to private institutions. These are enumerated to avoid a possible argument that they are not express trusts nor constructive trusts. In our view, in order to amount to a 'public trust' within the Act the institution must be for the benefit of the public or a section of it.
(11) The evidence consists only that of an officer of the Shringeri Math who holds a general Power of Attorney from Shri Shankaracharya. It may be summarised thus: The principle Math is situated in the State of Mysore and as His Holiness is a Sanyasi he generally names the house properties with temples as 'Maths'. The properties at Nasik, Panchavati are known as properties of Shringeri Math. The Samadhis have been constructed to look like temples, there is Sabha Mandap in which an image of Adya Shankaracharya is installed. All the expenses have been incurred by His Holiness from the income of the Shringeri Math and some money was borrowed from Nasik creditors. Here religious instruction are not imparted and no spiritual service is rendered to anybody of disciples. Sometimes people come there and if they are given admission they stay there for a short time. Their being 'Samashis' in these premises, there are some idols and occasional festivals but it is not a temple for purposes of public worship. No member of the public is allowed to enter the place of worship but it is carried out by the Pujaris according to Vedic usage. This property is being maintained by the Principal Math from the very beginning. The income consists of (1) rent earned by letting the property; (2) offerings made before the Samadhis; (3) grant from Nasik Treasury of Rs. 289 per year and (4) yearly grant of Rs. 460-1-0 from village Pimpalgaon Funji in Ahmednagar District.
(12) One of the Sanads regarding the income of Pimpalgaon village is on record and it shows that the grant of the income of the village is made to Shri Shankaracharya clearly mentioning it to be for the expenses of the 'Sansthan' but the tenor of the document shows that the offering is made to the Shankaracharya himself.
(13) Since the institution must have been dedicated for the public benefit in order to be a public trust. the usual test that is laid down by decided cases must be applied. Dedication as such is not proved and in order that dedication may be inferred it must be shown that members of the community use the institution as of right even if it is to be regarded as a temple. The evidence is that no one is allowed to enter the institution as of right. The evidence also shows that religious instruction is not imparted in this institution to disciples and hence it is not a Math. Mr. Kotwal, however, very emphatically argued that inasmuch as occasional festivals are held and there is religious worship of the deities by the Pujari, it must necessarily be regard as a public trust. It is not unknown that even in private trust religious worship is carried out and yet they cannot be regarded only on that ground to be public trust.
(14) It was also argued by Mr. Kotwal that in any case it must be regarded as a 'Math' or a property appurtenant to a 'Math'. From the definition of the word 'Math' it is clear that if no religious instruction is imparted at the place and no disciples are admitted for religious instruction, it does not satisfy the first part. Emphasis is however laid on the second part and it is argued that in any case it is a place of religious worship appurtenant to the Shringeri Institution. Now, when this part of S. 2 (9) was enacted, it was intended to apply properties which were appurtenant to the main institution. i.e. the 'Math' which was situated within the Bombay State. This property does not satisfy the main part of the definition and is being not attached to an institution which is 'Math' within the Bombay State, even the second part is not satisfied. It is, therefore, difficult to regard it as a public trust.
(15) However, if the main Shringeri Math is to be regarded as a public trust either under this Act or under the Trust Act applicable to the State of Mysore or by the general law, then this property belonging as it does to that Math and as the expenses are met from that Math must also be regarded as public trust property. We cannot therefore, uphold the contention of Mr. Amin that it is the private property of Shri Shankaracharya.
(16) We, therefore, set aside the order made by the Assistant Charity Commissioner as confirmed by the Deputy Charity Commissioner and by the District Court and hold that the Nasik Institution is not liable to be registered under the Bombay Public Trusts Act, 1950. Taking into account the peculiar nature of the case, we direct the parties to bear their own costs throughout.
(17) Appeal allowed.