1. This is an appeal by the defendant in a suit under Section 14 of the Religious Endowments Act XX of 1863. The plaintiff in the suit was In the line of the founders of the endowment in favour of the temple of Sri Mahadevji and Hanumanji. It was alleged in the plaint that the properties, detailed in the foot thereof and comprising -- (1) a Dharamshala and temple of Mahadevji and Hanumanji and a well including a Sahdari and garden, (2) one Nohra including Khatties, two shops now converted into two garages, and one house, (3) Rs. 15,385/4/- standing in the Khata of the Dharamshala on the 16th of August, 1932 and (4) other articles belonging to the Dharamshala such as utensils, beds, carpets etc., -- were dedicated to the said temple in Sambat 1953, but as there was no formal deed, disputes relating to the said endowment were referred to arbitration on the 20th of August 1933 when a scheme for the management and upkeep of the deities and its properties was settled by the Arbitrators. Under the said scheme, the plaintiff was appointed the President of the endowment and defendant No. (1) was appointed its Secretary and defendant No. (2) was appointed as its Trustee. The defendant No. 1 it was alleged mismanaged the affairs of the Trust and conducted himself contrary to the specific terms and conditions of the scheme and was liable to removal from trusteeship.
2. The amended reliefs prayed for were:--(1) the defendant No. (1) be ordered to render and explain accounts of the Trust property from 20th August 1932, (2) the defendant No. (1) be removed from the Trusteeship. It may be noted that the deleted reliefs asked that a decree for damages for the amount due be passed against defendant No. (1) and for the appointment of another Trustee and the ordering of defendant No. (1) to deliver possession of the Trust property to the plaintiff and defendant No. (2).
3. Defendant No. (1), the appellant L. Ram Narain, filed a written statement. There was a denial that there had been mismanagement of the Trust or that the defendant No (1) had acted contrary to the terms and conditions of the scheme aforesaid. It was pleaded that the accounts had been regularly maintained and that the Trustees have been seeing and examining the accounts and no objection was ever taken to the same. In the additional pleas it was denied that there was any such temple as was alleged by the plaintiff or that any trust of a public character had come into existence.
It was pleaded that there was no endowment, the trust was neither public nor a religious trust, but that it Was a private and charitable trust, instituted by the parties and their ancestors, that the provisions of Act XX of 1863 were not applicable to the endowment nor was the defendant No. 1 a trustee or manager within the meaning of Section 14 of Act XX of 1863. It was therefore pleaded that the court had no jurisdiction. It was pleaded that the proceedings should have been taken under Section 92 C. P. C. and no sanction having been obtained as required therein, the suit was bad. Other pleas were also taken with which we need not concern ourselves.
4. The court below came to the conclusion that a valid public and religious Trust, as alleged by the plaintiff, had come into existence and that the Dharamashala and the temple were constructed for the benefit of the public and the properties detailed at the foot of the plaint were dedicated to them. It was held that the plaintiff would be entitled to maintain the suit. It was held that defendant No. 1 had been mismanaging the affairs of the Trust and had fully disqualified himself for the post he held and that he, and not defendant No. 2, was liable to render accounts.
It was held that it was one of the duties of the defendant No. (1) as Secretary to maintain accounts, to get them audited and to have them passed by the Committee after satisfying it about their correctness and that the court had ample power under Section 14 of the Religious Endowment Act XX of 1863 to order the Secretary to producethe accounts before the trustees and satisfy them about their correctness. It was held that the suit was not barred by the three years' rule of limitation in view of Sec, 10 of the Limitation Act and the court had power to direct defendant NO, 1 to render accounts.
5. It was further found that the Tabela and Nauhra were on land and both the land and structures were dedicated to the temple and Dharmashala and therefore it could not be said that there was no endowment of 'land', and Act XX of 1863 was applicable. It was found that the reliefs prayed for in the suit did not come under Section 92 C. P. Code. It was also held that Section 14 of Act XX of 1863 also applies to Trust which had come into existence after 1863 but which could be said to be Trust under the Act. In the end the court passed the following order:--
'The suit is decreed with costs against defendant No. 1, who is ordered to render accounts, of the trust property since the date of his appointment as trustee and secretary, to the commissioner appointed by the court and he is further ordered to be removed from the office of the Secretary. He shall however continue to act as trustee along with others and it will be open to the committee of the trustees to appoint any one of them as secretary. The persons entitled to the office of trustees under the award may also be appointed as trustee or secretary. The commissioner shall take account from the defendant No. 1 in the presence of the other two trustees and shall submit his report within two months of this date. If the defendant No. 1 does not produce any account books, the commissioner shall collect such materials from the trustees and others which will enable him to find the profit and expenditure and shall report what amount would be due from the defendant no. 1 to the trust.'
6. In this appeal several points are urged by the defendant No. 1, with which we shall deal seriatim.
7. The first contention advanced was that the Religious Endowments Act XX of 1863 would not apply to the facts of this case because the trust was not in existence in 1863. It has been held by this Court in Bhagwan Das v. Moti Chand Ram : AIR1949All612 by a Division Bench that the Religious Endowments Act (Act XX of 1863) applies even to religious institutions founded :after the commencement of that Act. That was a case where a District Judge had made an order under the provisions of Section 18 of the Act in respect of an institution which had come into existence in 1907.
It was held that the District Judge had jurisdiction. In Diljan Ali v. Akhtari Begum, AIR 1925Pat 544 also it has been held that Section 14 of theAct is general and it applies to endowments created both before and after 1863. We are bound bythe Division Bench decision of our own Court,with which we respectfully agree, and which isalso supported by the Patna case. Accordingly thisobjection of the appellant cannot prevail and isrefected.
8. The second contention is that Act. XX of 1863 is only applicable if it is established thatlands have been granted for the support of the temple etc. It is contended that no land was granted for support, in this case and that the Nohra, Khatties, the garages, and the house, which are described and detailed at No. (2) at the foot of the plaint cannot be said to constitute 'land'. It is also said that the land on which the Dharamshala and temple are situate cannot be said to be endowed to the temple and the Dharamshala because it is appurtenant to the same.
In the view that we are taking it is not necessary to deal with the second part of this objection. No doubt Act XX of 1863 shows that it is applicable only where ''land' has been granted for the support of the temple etc. We are, however, of the view that the word 'land'' has a wide connotation. Act XX of 1863 was passed when the administration of this country was in the hands of the British and it may be assumed that terms used in legislation, unless anything to the contrary was shown, were being used to convey the contemporary meaning which they conveyed under English Law.
9. There is a restrained meaning given to the word 'land' and there is also a broader meaning. 'Land' has been defined in Wharton's Law Lexicon, XIV Edition at page 564 and it is stated there as follows:--
'Land, in its restrained sense, means soil, but in its legal acceptation it is a generic term, comprehending every species of ground, soil Or earth, whatsoever, as meadows, pastures, woods, moors, waters, marshes, furze, and heath; it includes also houses, mills, castles, and other buildings for with the conveyance of the land, the structures upon it pass also. And besides an indefinite extent upwards, it extends downwards to the globe's centre hence the maxim, Cujus est solum ejus est usque ad coelum et ad inferos; or, more curtly expressed, Cujus est solum ejus est altum'.
Wharton continues as follows;--
'In an Act of Parliament passed after 1850 'land' includes messuages, tenements and hereditaments, houses and buildings of any tenure. --Interpretation Act, 1889, Section 3. By the Law of Property Act. 1925, Section 205(1) (ix), 'land' for the purposes of the Act includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way), and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; but not an undivided share in land. A conveyance of land does not pass to the rent charge by implication (Public Trustee v. Duchy of Lancaster, (1927) 1 KB 516)'.
It may therefore be assumed that when the word 'land' was used in Act XX of 1863 it was meant to include houses and buildings etc. also. We may invite attention to the case Muhammad Siraji-ul-Haq v. Imam-ud-Din, ILR 19 All 104 where it was held that Act XX of 1863 was applicable to an endowment whereby certain shops had been dedicated to the 'Support of a mosque.
In the present case also the shops and the Nohra arid the other buildings with the land uponwhich they stand., according to the finding of the learned Additional District Judge, were endowed. This finding has not been challenged before us. It may be pointed out, that there is evidence that the Nohra and the Tabela could be let out for a considerable sum of money per year. We are, therefore, of the view that Act XX of 1863 is attracted in this case and reject the contention of the learned counsel for the appellant. The term land in the Act has a wide meaning and includes buildings.
10. The next point taken is that there is a difference between a relief for damages and a relief for accounts and that inasmuch as no relief for damages' has been claimed, an order for rendering and explaining accounts of the trust property from 20th of August 1932 could not be granted. This contention is based on the language of Section 14 of Act XX of 1863 (which we have quoted Fully towards the end of our judgment). Section 14 only gives jurisdiction to order damages, direct specific performance of duties by trustees and order their removal.
11. It will be observed that so far as the plaint is concerned there is no allegation that any loss has been caused to the trust by virtue of the trustee's misconduct making him liable for a decree for damages. In the course of the evidence it was attempted to be shown that he had caused a loss by using a part of the property and not letting it; that may be considered to be in the nature of an allegation that the defendant No. (1) would be liable for damages for use and occupation. So far as money realised by the trustee is concerned, there could be a suit for recovery of the same. The claim for damages having been given up, it seems to us that relief (a) as it now stands that defendant No. 1 be ordered to render and explain accounts of the Trust property from 20th August '1932 could not be granted under the power to grant 'damages.
12. The view of the learned Judge however is that it was one of the duties of the defendant Secretary to maintain accounts, to get them audited and to have them passed by the Committee after satisfying it about their correctness and presumably what the court below was intending, to do was to pass a mandatory direction against defendant No. 1 to submit his accounts and to have them passed by the Committee after satisfying it about their correctness. No mandatory direction could be issued which would retrospectively compel the Secretary to maintain accounts though prospectively he might be directed to do so.
He could also be directed to produce such accounts as he had and have these audited. The question, however, is how such a direction that accounts be submitted in accordance with the scheme of 1932 so that they may be passed by the Committee after satisfying about their correctness could be enforced in this case. It is to be noted that the plaintiff has alleged that 'defendant No. 1 has not maintained any account. It is true that defendant No. 1 in his written statement has said that the accounts of the Trust have been regularly maintained, but in his examination-in-chief he said, 'The account books of Dharamshala were maintained at the firm Nand Ram and Ram Dayal until August 1948.
They were then maintained at Shankar Ice and Oil Mills which was owned by me, Basant Lal and my wife and Ram Gopal. The old books, of account were also sent to the latter firm. Basant Lal had taken possession of the account books and I had summoned them from him.' He then goes on to say that he has filed a separate account book of the Dharmshala which he maintained after the old account books were taken away by Basant Lal. These account books are from the 3rd of November 1948 to the 24th of March 1949 which he has already produced and they were proved to be in the writings of his Munim.
13. It would appear from the evidence of Ram Narain, therefore, that such account books as he had, have already been produced in court in the case and the other account books were not with him but were with L. Basant Lal, defendant No. (2). The net result, therefore, is, that according to the statement of defendant No. 1, such account books as were in existence with regard to this Trust, are not with him, except those he has already filed. It would, therefore, appear that passing a mandatory order for their production against Ram Narain would be futile, because he would not be able to carry out the order. The order if at all should have been passed as against defendant No. 2 if Ram Narain's evidence was believed.
If the plaintiffs case is true that there are no accounts at all, even then a direction to produce accounts under Section 14 would seem to lie not justified so far as defendant No. 1 is concerned. We are further unable to see with what object the Commissioner has been appointed and why he has been ordered to find out what amounts are due from defendant No. 1 to the trust when no damages are claimed whatsoever in this suit and when damages alone could be claimed in the suit and not a decree for such amount as would be found due on the rendering of account and even such a decree has not been claimed. The latter would be a relief which would fall under Sec 92 C. P. C. and is a different relief to that which can be claimed by way of damages under Section 14 of Act XX of 1863. It would, therefore, be necessary to set aside, that part of the learned Judge's order.
14. The next point urged is that Section 14 of the Act XX of 1863 does not in express terms authorise the removal of an official styled as Secretary but only a Manager can be removed thereunder. We see no force in this point. There is no difference between a manager and a secretary having regard to the latter's duties under the scheme settled. It is contended that the appellant has not been removed from trusteeship and yet he has been removed from secretaryship and that this creates a peculiar position. It appears that the secretary under the Scheme has certain express duties which the court below is of the view that the defendant No. 1 will not faithfully perform. It may be that the court below was satisfied with depriving the defendant No. 1 of the express powers of secretary and we are not inclined to interfere with that part of the order.
15. Now we will deal with a preliminary objection raised by respondents' counsel, that an order passed under Section 14 of Act XX of 1863 does not amount to a decree and is not appealable. In this connection it is necessary to quote Self 14 of the Act;
'Any person or persons interested in any mosque, temple or religious establishment, or in the performance of the worship or o the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other personsinterested therein, sue before the Civil Court the trustee, manager or superintendent of such mosque, temple or religious establishment or the member of any committee appointed under this Act, for any misfeasance, breach of trust or neglect of duty, committed by such trustee, manager, superintendent or member of such committee, in respect of the trusts vested in, or confided to them respectively and the Civil Court may direct the specific performance of any act by such trustee, manager, superintendent or member of a committee, and may decree damages and costs against such trustee, manager, superintendent or member of a committee, and may also direct the removal of such trustees, manager, superintendent or member of a committee.'
It may be observed that under this section of the Act the Civil Court may direct specific performance of any act by the persons named in the section and may decree damages and costs against the persons designated and may also direct the removal of the persons designated. The words 'Civil Court' and the word 'Court' have been defined in the Act by Section 2 as meaning the principal Court of original Civil Jurisdiction in the district in which the mosque, temple etc. are situate. By Section 16 in any 'suit' or proceeding under the Act, reference may be made to the arbitrators by the Civil Court. By Section 18 there has to be a preliminary application for leave to the Civil Court to institute the ''suit''. It, will be apparent therefore that jurisdiction is conferred Upon the 'Civil Court' to determine matters which fall to be determined under Act XX of 1863.
So far as Section 14 is concerned, it expresslyuses the word 'decree' in regard to the claim for damages and costs. No doubt the word 'decree'is not used when referring to the power of the Civil Court to direct specific performance, or todirect removal, but it is obvious that both theorder or removal and the direction for specific performance have not been put on any different footing than a decree for damages or costs, and, therefore the failure to use the word 'decree' before 'specific performance* or before 'removal' does not have the effect of making the final adjudication in regard to these matters anything else except a decree.
The C. P. C., defines 'decree' by Section 2 Sub-section. (2) as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the partieswith regard to all Or any of the matters in controversy in the suit. The reliefs which can begranted under Section 14 of Act XX of 1863 would conclusively determine the rights of the parties.
16. It may be observed that Section 14 uses the word 'sue' from which the word 'suit' is derived. The proceeding under the section is, therefore, a suit. Inasmuch as an order for specific performance or for removal of trustees involves necessarily a final determination of the rights of parties, those orders are clearly decrees within the meaning of the C. P. C. It is to be noted that Act XX of 1863 does not create any special Court for, the adjudication of the matters covered by the Act but the adjudication is to be obtained from the existing Civil Court. We are, therefore, of the view that the orders passed under Section 14 constitute a decree of a civil court and is, therefore, appealable under Section 96 C. P. C. It is to be noted that there is no denial of an appeal in Act XX of 1863 nor is there any section creating any other appellate or other type of revisional authority or court.
17. No other point was urged before us.
18. The result, therefore, is that we allow this appeal to this extent that we set aside the order of the court below except to the following effect; defendant No. 1 is ordered to be removed from the office of Secretary. He will however continue to act as trustee along with others and it will be open to the Committee of the trustees to appoint any one of them as Secretary. The persons entitled to the office of trustees under the award may also be appointed as trustee or Secretary; this part of the order is maintained. In the circumstances parties will bear their own costs.