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Smt. Sarjoo and ors. Vs. Pandit Ayodhya Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 65 of 1976
Judge
Reported inAIR1979All74
ActsHindu Law; Religious Endowments Act, 1863 - Sections 14; Code of Civil Procedure (CPC) , 1908 - Sections 92
AppellantSmt. Sarjoo and ors.
RespondentPandit Ayodhya Prasad and ors.
Appellant AdvocateV.K. Tiwari, Adv.
Respondent AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
DispositionAppeal allowed
Excerpt:
family - endowment - section 14 of religious endowment act,1863 - temple alleged to be public endowment on grounds of public being allowed to worship - offerings shared by defendants - no 'pujari' appointed to conduct worship - circumstances suggest the endowment to be private - mere allowing of public to worship does not give endowment public nature - no endowment in land made for temple hence religious endowment act not applicable. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the.....m.n. shukla, j.1. in this case the six plaintiffs, who described themselves as religious minded men and worshippers of the idol devi annapurna ji installed in the temple in dispute situate on the western side of the tank known as 'paniwali dharamshala' in the city of jhansi, instituted a suit under section 14 of the religious endowments act, 1863 (hereinafter referred to as the act) with the allegations that it was a very ancient temple in which they had made various improvements, that the defendants who claimed to be the managers of the deity did not care to do seva poojah or clean the space in front of the temple, that it was a public temple and the plaintiffs had got it constructed anew, that they had spent money on utsavas, bhog parshad and other matters connected with the temple in.....
Judgment:

M.N. Shukla, J.

1. In this case the six plaintiffs, who described themselves as religious minded men and worshippers of the idol Devi Annapurna Ji installed in the temple in dispute situate on the western side of the tank known as 'Paniwali Dharamshala' in the city of Jhansi, instituted a suit under Section 14 of the Religious Endowments Act, 1863 (hereinafter referred to as the Act) with the allegations that it was a very ancient temple in which they had made various improvements, that the defendants who claimed to be the Managers of the deity did not care to do Seva Poojah or clean the space in front of the temple, that it was a public temple and the plaintiffs had got it constructed anew, that they had spent money on Utsavas, Bhog Parshad and other matters connected with the temple in suit, that the plaintiffs requested the defendants to enter all the offerings in the account books and spend the same on matters connected with Seva Poojah of the temple in question but they misappropriated the offerings and they also put obstacles to the worship of the deity by the public and performance of Utsavas. Hence, they were alleged to be guilty of misfeasance, breach of trust and negligence in the performance of their duties. In the circumstances an application under Section 18 of the Act was moved by the plaintiffs before the District Judge and it was allowed by him. On these allegations the reliefs claimed by the plaintiffs were (a) that the defendants be ordered to do proper Seva Poojah of the temple and also arrange for Utsavas as and when they fell due, (b) that the defendants be ordered to keep proper accounts of offering or other income and to spend out of it on matters of Bhog Byari, Utsavas and other matters connected with the temple, (c) that the defendants be ordered to render accounts and in default (d) the defendants he removed from the management.

2. The defendants Nos. 1, 3 and 4 contested the suit on a number of grounds, alleging that the temple was not a public one and as such the plaintiffs were not entitled to file the suit, that they had nothing to do with the management or Seva Poojah of the deity, that the temple was constructed by the Pandas who were the ancestors of the defendants 350 years ago, who had regularly managed thetemple and thereafter the defendants who were their descendants had been properly managing it and doing Seva Poojah and management of the temple, and that it was a private temple and Pacca constructions had been made by the defendant! therein with the help of the offerings.

3. The trial court came to the conclusion that it was a public temple, that the suit was maintainable as the provisions of the Act were applicable to the facts of the case, that the defendants were mismanaging the affairs of the temple and were guilty of breach of trust and negligence of duty. The suit was accordingly decreed and the defendants were ordered to do the proper Seva Poojah of tha temple, to arrange and celebrate Utsava as and when they fell due every year, and to keep proper accounts of the income and to spend at least 75 per cent of the income on Bhog Byari, Utsavas and other matters connected with the temple. It was also held that if they did not comply with any of the above directions they would be liable to be removed from the management of the temple in suit.

4. The appellants have challenged thedecree in this appeal and three contentions were raised before me on their (behalf). Firstly, it was argued that tha temple in dispute was a private temple. Secondly, it was submitted that its affairs were not being mismanaged by the defendants. Thirdly, it was contended that the provisions of the Act were not applicable to the case and consequently tha suit was not maintainable.

5. The foremost question, therefore, which arises for determination is as to whether the temple in suit was a publio or private endowment. The plaintiffs came with specific allegations in the plaint and the burden was entirely on them to establish that it was a publio temple, that it was governed by the provisions of the Act and that the suit was maintainable. They had also to prove that it was being mismanaged by the defendants and the latter had committed misfeasance or breach of trust or had neglected their duties. I have carefully scanned the entire evidence in the case and in my opinion the plaintiffs' evidence is highly discrepant and was, not worthy of credence. I am also of the view that it is impossible to characterise any single circumstance as conclusive of the fact as to whether the temple is private or public. The question when itarises must be answered on the totality of circumstances and on an over-all consideration of the entire evidence in the case. Several circumstances have been upheld by Judges to be material for the purpose of deciding that question. The plaintiffs' case would stand on a very solid foundation if it were possible to furnish any documentary evidence relating to the dedication of the temple. If it is shown that the endowment was created in favour of an idol or temple, that would be incontestable proof of its public character. In the present case, however, there is no such documentary or other evidence available. In fact, it is not known as to when the temple was actually founded. The only thing which has come on record is that it is very old, its origin being lost in antiquity. Thus, the plaintiffs' case suffers from a major handicap by their inability to prove the precise nature of the endowment and therefore the matter will have to be decided on the strength of general inferences drawn from the material having a bearing on the question.

6. The plaintiffs came with a definite assertion that they had formed a small committee which raised subscription from the public which was utilised for the purpose of maintaining and managing the temple. It was also their case that they maintained a register in which money realised as subscription was regularly entered and receipts were issued to the donors. This would have been a very material consideration pointing to the public nature of the temple but the evidence adduced on those points is most unreliable. Ayodhea Prasad (P. W. 1) admits that there is no registered Committee of the public of the Annapurna temple. He also admits that it was the defendants themselves who did the Seva Poojah of the deity but they did so with the consent of the public. This rider added by the witness appears to be the product of his own fancy. The register for subscription was produced on behalf of the plaintiffs but it indicated a sorry state of affairs. When subjected to cross-examination the witness had to admit that the said register was not in chronological order, the pages were not numbered, the total amount of subscription raised in the preceding year was not noted therein, that he was unable to say in whose hand the accounts noted in this register were written. Baji Nath (P. W. 2) is ignorant of the duties discharged by the alleged Committee. Jai Dayal (P. W, 3) betrayscolossal ignorance by stating that he did not know as to who were the Secretary and the President of the Committee. Sheo Kumar (P. W. 4) deposed that there were absolutely no written proceedings relating to the formation of the Committee, of the election of its office-bearers, that the committee had no rules, that only two or three meetings of the Committee had been held, that no election of office-bearers had taken place since the year 1968, that there was no writing to the effect that any meetings of the Committee had taken place, and that no agenda had been prepared. The same witness also conceded that the alleged register of accounts did not contain any index nor the number of pages, that the account noted was not in any sequence or order and that it included loose papers. From this evidence I have no hesitation in coming to the conclusion that the plaintiffs' claim of managing the affairs of the temple and forming any Committee for the purpose is absolutely without foundation. I also find it impossible to believe that the plaintiffs had cared to realise any subscription from the public for the support of the temple or that they had kept any such accounts. The register produced by them appears to be nothing more than a medley of loose leaves hurriedly strung together. This is a very serious dent in the case of the plaintiffs and when these three witnesses have perjured themselves on these vital aspects of the case I am put on my guard when I examine their testimony on other points as well.

7. I have already adverted to the admission of Ayodhia Prasad (P. W. 1) that the defendants performed the Seva Poojah of the temple. Another very important fact is the admission of Jai Dayal (P. W. 3) to the effect that there is no Pujari in the temple at present nor had any Pujari been ever appointed in the temple. In a public temple one would normally expect a Pujari to perform the regular worship, The fact that there was no need of ever appointing a Pujari is more consistent with the endowment being! private rather than public.

8. Yet another major test applied ill this connection is the acceptance and the division of the offerings made to the deity. On this point again the evidence is overwhelmingly in the defendant's favour. Ayodhia Prasad (P. W. 1) is evidently distorting the facts when he states that the offerings (Chartaut) madeat the temple used to be handed over by him to Shanker defendant and then the latter shared it with the other three defendants. The witness added that Shanker defendant was always found seated in the temple of Lord Shanker and therefore he used to deliver the offering to him. The witness pleaded ignorance of the fact as to whether the ancestors of the defendants used to appropriate the offerings made at the various temples situate at Paniwali Dharamshala. Sheo Kumar (P. W. 4) also admitted that for the last six or seven years offerings of the temple were being given to the defendants. He added that prior to this period there were no offerings made at all, though he was contradicted on this point by Ayodhia Prasad (P. W. 1). As agaiast this Nathu Ram Sharma (D. W. 1) deposed that the offerings at the Annapurna temple were consistently taken by the Pandas (defendants) and a part of the same was spent on the repairs and upkeep of the temple. The witness is independent and unbiased and I find no reason to disbelieve him. In fact, on the whole the defendants' evidence in the case is far more cogent and consistent than that of the plaintiffs. Nathu Ram Sharma (D. W. 1) gave full particulars of the Pandas who had managed the temple. He stated that the present Pandas were the defendants, namely, Smt. Sarjoo, Smt. Bhagawati, Smt. Kasturi, and Shanker alias Sullu and prior to them their ancestors were Pandas who managed the temple. According to him Smt. Bhagwati was preceded by her mother Smt. Mula who was the Panda, that she died about five or seven years ago, that Shanker alias Sullu defendant No. 4 was preceded bv his father Pannu alias Panna Lal who had died fifteen or twenty years ago, that Smt. Kasturi defendant No. 3 was preceded by her father Chhota Panda who passed away twenty-five years ago, that Smt. Sarjoo defendant No. I was preceded by her mother-in-law Pandan Kaki This impressive scroll of the heirarchy of Pandas shows that the witness has full knowledge of the facts on which he has deposed and he is a competent witness on this point. Kashi Prasad (D. W. 2) fully corroborated Nathu Ram Sharma (D. W. 1), with regard to the offerings. Murli Dhar (D. W. 3), who is a retired Draughtsman of the Municipal Board, also supported the other defence witnesses and deposed that the offerings were appropriated by the defendants who divided them among themselvesaccording to their fixed turns. Smt Kasturi (D. W. 4), one of the defendants, said that the temple was a private one founded by her ancestors and that is why no account of the income or expenditure had ever been maintained, that the offerings were received by the defendants and divided among themselves according to their fixed turns. She added that sufficient offerings received on the occasions of festivals resulted in some savings otherwise it was all spent on the temple. The consistent appropriation by the defendants of the offerings made at the temple is in my opinion a very important circumstance which shows that the dedication was for the benefit of tha family and not the public.

9. The learned trial Judge seems to have been greatly influenced by the admission made by Nathu Ram Sharma (D. W. 1) that the four defendants belonged to different families. In my opinion it does not militate against the creation of a private endowment. It is possible, for a few persons drawn from different families of pandas inter-related with each other, as in the present case, to get together and choose to make a private endowment. If they provide for the management and maintenance etc. of the temple by themselves and thereafter by their own descendants, it retains the character of a private endowment.

10. One of the important factors to be taken into account is as to whether the founders of the temple ever held it out to be a public temple. If they did so, there would be a strong presumption of such dedication. The conduct of the founder and his descendants is very relevant, I am unable to perceive any such conduct in the instant case which may fortify the inference of the temple being a public one. If the temple was founded by a cluster of well-known Pandas and meant to be their temple alone and of their successors it cannot be said that strangers were associated with the management of the institution so as to make it a circumstance suggesting that the beneficiaries were the public. The entire conduct of the founders of the temple and their successors in the instant case strongly bears out that it was a private endowment. There is no reliabla evidence to suggest that repairs and additions in the temple were made with public subscription. Ayodhya Prasad (P. W. 1) has unequivocally admitted that the temple had been installed with electricpower about eight or ten years ago in the name of Sullu Panda, defendant No. 4, who had been meeting the expenses of power consumption. The defence witnesses have consistently stated that the new constructions in the temple were made by the Pandas out of the income derived from the offerings. Murli Dhar (D. W. 3) categorically stated that the Chabutra in the temple had been constructed by the Pandas out of the money received as Charhaotri. As against this the plaintiffs have led evidence that the said Chabutra was constructed by the public. There is, however, no documentary evidence on behalf of the plaintiffs to prove this allegation and considering the unreliable nature of the plaintiffs' evidence I am not inclined to believe that the said Chabutra was built with the aid of public funds.

11. Even the festivals in the temple are performed by the defendants. Nathu Ram Sharma (D. W. 1) stated that the temple celebrated many festivals which were all arranged by the Pandas. Kashi Prasad (D. W. 2) corroborated him. Murli Dhar (D. W. 3) also deposed that at present the festivals in the temple were managed by the present Pandas while in the past they used to be arranged by their ancestors. This is also a circumstance which suggests that it was not a public endowment. The defendants' evidence was not properly considered by the court below. I find no reason to disbelieve this evidence.

12. The last circumstance, however, on which alone the trial court appears to have based its entire decision is that the public was allowed to worship in the temple and also perform the Shringar on the occasion of every Navratra in the year. Ayodhiya Prasad (P. W. 1) deposed to that effect and it was also admitted by Kashi Prasad (D. W. 2) who stated that he had seen Ayodhia Prasad plaintiff doing Shringar in the temple, although he added that the arrangement was made by the Pandas alone. He also admitted that the temple was used by the public for worship. Similar admission about Shringar was made by Murli Dhar (D. W. 3), Smt. Kasturi (D. W. 4) also admitted that she had seen Ayodhia Prasad doing Shringar of Annapurna Ji and the public were allowed to worship in the temple. Thus, in short, the evidence shows that the public were allowed to worship in the temple and also perform the Shringar. But is this fact conclusive on thepoint whether the temple was a public endowment In my opinion it does not clinch the matter. It is only one of the relevant factors to be taken into account and so far as the instant case is concerned this circumstance is completely outweighed by a host of other material circumstances to which I have already adverted which show that it was a private temple.

13. It is true that in Deoki Nandan v. Murlidhar : [1956]1SCR756 it was emphasised 'that the true beneficiaries of a religious endowment are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers.' 'The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.' Learned counsel for the respondents strongly relied on these observations and submitted that the evidence with regard to the user of the temple by the public in the present case left no room for doubt that the intention of the founders was that the temple should be a public endowment. I am, however, of the opinion that a careful studv of Deoki Nandan's case (supra) would reveal that such user is only one of the many other salient factors which have to be taken into account in determining whether the endowment had been private or public. It cannot also be too strongly emphasised that in the case of a private temple also it is often very difficult to deter religiously enthusiastic people from either worshipping in the temple or participating in the periodical Shringar held during the course of the year. It is too much to expect the founder or the Manager even of a private temple to launch a crusade against people overflowing with religious fervour and preclude them from worshipping in the temple. That is a heresy which can bescarcely expected in Hindus who are by and large constitutionally reverent and prone to worship. To prevent any person from having his worship at the idol would be a highly irreligious act which the conscience of an average Hindu would not permit him to perpetrate, because he looks upon the worship of God, whether by himself or by others, as a holy and meritorious act which should suffer no inhibition. The Privy Council perceived this important truth in Babu Bhagwan Din v. Gir Har Saroop which is an authority for the proposition that 'the mere fact that public is allowed to visit a temple or Thakur Dwara cannot necessarily indicate that the trust is public as opposed to private.' It is true that in Deoki Nandan's case (supra) the Supreme Court noticed this Privy Council decision and distinguished it on the ground that in Babu Bhagwan 'Din's ease the properties had been dedicated not in favour of the Idol but in favour of one Daryao Gir who was maintaining the temple and to his heirs in perpetuity. Nevertheless it would be appreciated that the facts of the Supreme Court case are clearly distinguishable from those of the present case.

14. In the first place, in Deoki Nandan's case (supra) it was laid down that in order to record a finding of public endowment it was necessary that there should be evidence that the public worshipped at the temple as a matter of right and such allegation must also be expressly made in the pleadings. In that case the plaintiff had expressly pleaded that the temple was dedicated for the worship of the general public, In the Instant case, however, there was no such pleading by the plaintiffs. All that was stated in para 5 of the plaint was 'that the plaintiffs are religious minded persons and have faith in all the Hindu deities and are the worshippers of Devi Annapurna and are interested in the welfare of the temple. The said temple is a public temple.' This is materially different from the averment that the temple was dedicated for the worship of the general public. Secondly, there is no allegation in the plaintiffs' evidence either that Ayodhia Prasad or other persons worshipped in the temple as a matter of right. As the Privy Council underlinedthe fact, such user by the public can also be by the sufferance of the founder or the manager of the private temple, ormay be out of an irresistible deference forworship or an intrinsic love of worship.It should not be stretched too far so asto infer the existence of a public endowment, particularly when it was categorically pleaded on behalf of the defendantsin the present case that their ancestorsbuilt this temple three hundred fiftyyears ago for the gratification of theirown selves LokUr% lq[kk; that the defendants as the heirs and successorshad been managing the temple and therehad never been any intervention by anoutsider in any manner,

15. Secondly it should not be overlooked that the Supreme Court decision in Deoki Nandan's case : [1956]1SCR756 (supra) turned mainly on the interpretation of the will. In the present case admittedly there was no formal dedication. It is not even known as to when the temple in dispute was founded. It is only known that it is very old. In Deoki Nandan's case (supra) there was evidence on record regarding the intention of the testator and the scope of dedication in the shape of the will Exhibit A-1 in which the testator began by stating that he had no male issue. It was held that the word 'family' in its popular sense meant 'children' and when the testator recited that he had no children, it was an indication that the dedication was not for the benefit of the family but for the public. Thirdly, Clause (2) of the aforesaid will appointed a Committee of four persons to look after the management of the temple and its properties and of these two were not the relations of the testator and belonged to a different caste. I have already discussed in detail the evidence in the present case which belies the claim of the existence of any Committee of management at the instance of the plaintiffs. On the other hand, as I have already pointed out, in the present case the defendants have proved by cogent evidence that the founder had envisaged a Committee comprised of Pandas which did not include any person of a different caste. This is a strong circumstance which shows that the intention was to create a private endowment.

16. Thus, the general effect of the evidence in the instant case is that the Pandas had treated the temple as a family property dividing the offerings among themselves by turns, they performed the Poojah and festivals in the temple, they had made the repairs and reconstruction from time to time, they managed all itsaffairs, they defrayed the expenses of its maintenance and paid for consumption of electric energy, they appropriated the offerings after spending them on the i maintenance of the temple, and they did not employ any Pujari. In my opinion all this evidence is more consistent with the temple being a private endowment. The dedication to public is not to be readily inferred merely because they are allowed to worship in the temple. As remarked by the Privy Council in Babu Bhagwan Din's case (supra).

'Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol, they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust.'

My, conclusion, therefore, is that the temple in suit is a private temple and Act XX of 1863 is applicable to public endowments only. Private endowment either Debuttar or of any other kind is outside the scope of the Religious Endowments Act, 1863. The suit was consequently not maintainable.

17. The second point canvassed on behalf of the respondents was that the defendants were grossly mismanaging the affairs of the temple and were therefore liable to be removed in the event of their failure to comply with the directions sought from the court. In my opinion the plaintiffs have failed to prove the alleged maladministration by adducing any reliable evidence. It is significant that not only the defendants have asserted proper and regular discharge of their duties with respect to the temple but the plaintiffs' evidence itself lends support to this assertion. Thus, Baij Nath (P. W. 2) stated that for the last eight or ten years the condition of the temple was better than what it has been earlier and that it had not further deteriorated. Ayodhia Prasad (P. W. 1) also admitted that there was absolutely no defect in the management of the temple except that Pooiah was not properly performed. The defendants have, of course, in their pleadings completely denied the allegations of the plaintiffs and the plaintiffs' evidence fails to establish that the defendants had mismanaged the affairs of the temple or that they were guilty of breach of trust and negligence of duty.

18. Lastly, there is another reason why the plaintiffs' suit is not covered by theprovisions of the Religious Endowments Act and it must be held to be barred under Section 92 of the Civil P. C It was vehemently urged on behalf of the appellants that Act XX of 1863 was not applicable to the present case and the plaintiffs' suit under Section 14 of the Act was not maintainable. Learned counsel for the respondents submitted that since this plea had not been raised by the defendants in the court below it should not be allowed to be raised for the first time in appeal. There is no force in this objection. Apart from other circumstances it was definitely averred in the written statement that the suit was barred under Section 92 of the Civil P. C. and an issue also struck on that point. The trial court has noticed the argument made on behalf of the defendants that the temple in dispute was not covered by the provisions of the Act, and hence Section 92 of the Civil P. C. applied to the case and since the suit had been filed, without obtaining the consent in writing of the Advocate General, Uttar Pradesh the suit was not maintainable. It is therefore, necessary to examine this argument on merits. For this purpose a brief reference to the previous history of the Act and its Preamble would be essential. In Central Bank of India Ltd. v. P.S. Rajagopalan : (1963)IILLJ89SC , before dealing with the question of construction of Section 33C of the Industrial Disputes Act, the Supreme Court considered it material to refer to the legislative history of the enactment. In S.T. Swamiar v. Commr. for Hindu Religious and Charitable Endowments : AIR1963SC966 , the Supreme Court held that in interpreting an enactment, the court should refer not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose, and the mischief it seeks to suppress. I am inclined to hold that where a statute does not innovate, but comes in the wake of preceding legislations, or where it has been arrived at after undergoing changes by way of amendments or otherwise, it would be not only permissible but positively useful to examine the legislative history of the provision. The validity of this proposition is manifestly reinforced by an express reference in the Preamble of the present statute to the provisions of the law which had preceded it. In fact, the Preamble may sometimes be utilised to restrict the meaning of the general words used in the Act. As observed by the Supreme Court in Burrakar Coal Co. Ltd. v.Union of India : [1962]1SCR44 , where a very general language is used in an enactment which, it is clear, must be intended to have a limited application, the Preamble may be used to indicate to what particular instances the enactment is intended to apply. These are the principles which must be remembered in interpreting the provisions of the Religious Endowments Act, 1863.

19. The Act must be perceived in its proper historical perspective as a sequel to the two earlier Regulations. An analysis of the provisions of the Act demonstrates that it is inseparably connected with those Regulations and has come in the natural course of evolution of a machinery devised for the management of religious endowments. The various provisions of the Act clearly show that they refer to the religious establishments to which the provisions of either Regulation 19 of 1810 of the Bengal Code or Regulation 7 of 1'817 of the Madras Code are i applicable. Thus, for instance, Section 3 expressly provides that 'in the case of every mosque, temple, or other religious establishment to which the provisions of either of the Regulations specified in the Preamble to this Act are applicable .....the State Government shall ..... makespecial provision as hereinafter provided'. Sections 7, 8, 9 and 11 of the Act also relate back to the cases covered by Section 3. Likewise, Section 12 establishes a clear link with the provisions of the Regulations by providing that on the appointment of a committee as contemplated by Section 7, the Board of Revenue shall transfer to such committee all the landed or other property which at the tone of the appointment was under the superintendence of the said Board, etc. The very object of the Religious Endowments Act, as stated in the heading is, 'An Act to enable the Government to divest itself of the management of religious Endowments.' The Preamble is as follows :--

'Whereas it is expedient to relieve the Boards of Revenue ..... in the Presidency of Fort William in Bengal and the Presidency of Fort Saint George, from the duties imposed on them by Regn. 19 of 1810 of the Bengal Code (for the due appropriation of the rents and the produce of lands granted for the support of mosques, Hindu temples, colleges and other purposes ..... and Regn. 7of 1817 of the Madras Code for the due appropriation of rent and produce of lands granted for the support of mosques,Hindu temples, colleges or other public purposes ... ... ...) so far as those dutiesembrace the superintendence of lands granted for the support of mosques or Hindu temples and for other religious uses; the appropriation of endowments made for the maintenance of such religious establishments ... ... ... and the appointment of trustees or managers thereof ... ... ... It is enacted as follows ... ... ...'

Thus, the Preamble which affords the keynote to the Act clearly shows that it was intended to replace certain provisions of the two Regulations so as to relieve the Board and the local agents of the duty imposed under the said Regulations. The duties imposed by these Regulations on the Boards of Revenue were limited to such mosques, temples, colleges, and other religious establishments to which were endowed rents and produce of lands for their support and which the Boards of Revenue managed and administered under the above mentioned Regulations. Section 14 must, therefore, be held to refer to such mosques, temples and other religious establishments as would have come under the control and management of the Boards of Revenue in pursuance of the provisions of the two Regulations had these Regulations been still in force. It follows that where no lands have been granted for the support of the temple, etc., Section 14 of the Act would not be attracted. That is why it was ruled by the Calcutta High Court in Jan Ali v. Ram Nath Mundul, (1882) ILR 8 Cal 32, that the Act would not apply to any mosque, but only to a mosque for the support of which endowments in land had been made by the Government or private individuals. The same view was expressed by Collin, C. J. and Parker, J. in Muthu v. Gengathara, (1884) ILR 17 Mad 95 who observed that Act XX of 1863 was not applicable to a temple unless it was admitted or proved that the endowment was one which would have fallen under the provisions of Regulation VII of 1817. A similar view was expressed by the Patna High Court in Ram Prasad Gupta v. Ram-kishun Prasad, (1932) ILR 11 Pat 594 : (AIR 1932 Pat 177). I may also respectfully refer to the well considered Full Bench decision of the Oudh Chief Court in the case of Kedar Nath v. Pearey Lal AIR 1932 Oudh 152 for the dictum that the provisions of Section 14 of the Act were inapplicable to temples for the support ofwhich no endowments in land had been made. That decision had been followed by a Division Bench of this Court in Fateh Chand v. Daulat : AIR1952All358 . In that case a suit had been brought for the recovery of a sum belonging to the temple and being in deposit with the defendant and made a charge on the property of the defendant. It was held that the suit would not be covered by Section 14 of the Act as the Bengal Regulation 19 of 1810 would not apply to such a case, there being no land granted for the support of the temple. It was observed that the charge was not an endowed property nor land within the meaning of the Regulation. Learned counsel for the respondents however, relied on another Division Bench decision of this Court viz. Ram Narain v. Jai Narain : AIR1961All125 . That case is distinguishable because the proposition, laid down therein rested on the finding of fact recorded by the trial court that the shops and the nohra and the other buildings along with the land upon which they stood had been endowed. In the instant case there is not an iota of evidence to indicate that there was any endowments of land in respect of the temple nor has any such finding been recorded. In fact, there was no documentary or oral evidence to show precisely as to when and by whom the temple in dispute was founded. The evidence merely disclosed that it was a very old temple and its foundation was shrouded in the misty past. I am, therefore, of the opinion that the provisions of Section 14 of the Religious Endowments Act were not applicable to the facts of the present case and the suit as framed was not maintainable. If it be assumed that Section 92 of the Civil P. C. applied to the present case, then also since the suit had been instituted without the consent in writing of the Advocate-General it was not maintainable and was barred under Section 92. of the Civil P. C

20. In the result this appeal is allowed with costs, the decree of the trial court is set aside and plaintiff's suit is dismissed.


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