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Shadi Ram and anr. Vs. Ram Kishen and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1948P& H49
AppellantShadi Ram and anr.
RespondentRam Kishen and ors.
Cases ReferredIn Trikumdas Damodar v. Haridas Morarji
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....achhru ram, j.1. this judgment will dispose of two cross-appeate nos. r.f.a. 115 and 116 of 1948. these appeals have arisen under the following circumstances.2. madho parshaa, the father of ram kishan defendant 1 in the suit out of which these appeal have arisen and husband of mt. chhoti defendant 2, and khushi ram, the father of om parkash and. hari parkaeh defendants 3 and 2 and husband of mt. pan bai defendant 5, were members of a joint hindu family. khushi ram was a son of madho parshad from another wife mt. bbagirthi but was adopted as a son by mani ram, the real brother of the aforesaid madho parshad, manj ram fend madho parshad being the sons of sham lal and grandsons of one gopal chand. the family originally belonged to the village eanod also called lohindargarbr in patiala state......
Judgment:

Achhru Ram, J.

1. This judgment will dispose of two cross-appeate Nos. R.F.A. 115 and 116 of 1948. These appeals have arisen under the following circumstances.

2. Madho Parshaa, the father of Ram Kishan defendant 1 in the suit out of which these appeal have arisen and husband of Mt. Chhoti defendant 2, and Khushi Ram, the father of Om Parkash and. Hari Parkaeh defendants 3 and 2 and husband of Mt. Pan Bai defendant 5, were members of a joint Hindu family. Khushi Ram was a son of Madho Parshad from another wife Mt. Bbagirthi but was adopted as a son by Mani Ram, the real brother of the aforesaid Madho Parshad, Manj Ram fend Madho Parshad being the sons of Sham Lal and grandsons of one Gopal Chand. The family originally belonged to the village Eanod also called lohindargarbr in Patiala State. Gopal ChanS, the grand-father of Madho Parshad, migrated Jo Delhi and set up business there under the nasie and style of Gopal Chand Sham Lai. Rttev the death of Gopal Gband, the business was carried on by Sham Lal and after the latter's death by his sons Madho Parshad and Mani Ram. There was a disruption of the joint Hindu feinily consisting; of Madho Parshad and Khushi Ram in 1927 when they divided the joint, family property. On 4-1-1927 they executed two documents EX. D 1, the partition deed, and Ex. p. 1, a deed of endowment. By means of the latter they purported to create a public trust of four properties, namely. (1) a Dharamsala situate near Nahar Saadat Khan in Delhi, (2) a house property situate in the town of Kanod also known as Mohindargarh in Patiala State, (3) a shop situate in the town of Moga and (i) fifty preference shares of the value of Rs. 1000 each in Messrs Raj Nath & Co. Ltd; having its registered office in Cloth Market, Delhi, and one deferred share of the said Company. They appointed seven trustees for the purpose of carrying out the trust. It was provided that the income of the properties mentioned above was to be used and applied, in the first instance, in establishing a Sanatan Dbaram College or School in Delhi to prepare students for Oriental Faculty of Sanskrit in case the Delhi University accepted their proposal to found such a faculty. It was further provided that in case such a faculty was not founded within a period of one year from the date of the execution of the document, the trustees were to have the right to use the trust property for advancement of medical aid to human beings or for other charitable purposes in accordance with their ab--solute discretion.

3. Madho Parshad died in the same year a short time after the execution of the above-mentioned two documents. The trustees appointed fcy means of the deed of endowment seem to faave taken possession of the trust properties and to have had the shares in Messrs Raj Nath & Co. Ltd. registered in their names.

4. On 22-4-1932 Mt. Chhoti defendant 2 as the next friend of her son Ram Kishan defendant 1, a minor, brought a suit against the above mentioned trustees for recovery of possession of the properties mentioned above and also for accounts of the income realized by the defendants from those properties during the period of their possession alleging that the deed of endowment, also called the trust deed, was void and unenforceable. It was alleged that the property which formed the subject-matter of the trust was joint family property and Madho Parshad, the father of the plaintiff, had no right to create a trust thereof to the prejudice of the plaintiff, and that, in any case, the trust was void for vagueness and uncertainty. It was admitted that the Dharamsala had been dedicated by Madho Parshad and Khushi Ram before the execution of the deed of trust and was, therefore, trust property. It was, however, alleged that the original trust being complete and having been acted upon, Madho Parshad and Khushi Ram shad no right to re-dedicate the said property and to vest the samf in the trustees even if the trustdeed of 1927 was otherwise held to be valid. Khushi Ram was not made a party to the suit and died in 1934 while the suit was still pending, The suit was finally disposed of by a Subordinate Judge of Delhi by means of judgment dated 25-2-1937 (Ex. D-3/4 printed at p. 176 of the paper book). The learned Subordinate Judge held that the Dharamsala had been dedicated by Madho Parshad and Khushi Ram and was, therefore, trust property before they partitioned joint family property. He, however, held the trust purporting to have been created by means of the trust-deed dated 4-1-1927 to be illegal and void by reason of the vagueness of the object of the trust. In view of this finding the possession of the trustees was held to be wrongful. The plaintiff was, in the result, granted a decree declaring the so-called trust to be invalid and unenforceable and permanently restraining the defendants from interfering with the management of the Dharamsala at Nahar Saadat Khan and the house in Chhetar at Mohindargarh and from realizing the rent of the Moga shop. The defendants were also directed to transfer the shares in Raj Nath & Co. Ltd. to the plaintiff. A preliminary decree mm also passed for rendition of accounts in respect of the income from the properties forming the subject-matter of the trust-deed for the period during which the defendants had been receiving such income. A commissioner was appointed for the purpose of taking the accounts. Before, however, the commissioner could submit his report, on 20-5-1987 the parties entered into a compromise as a result whereof the plaintiff was paid by the defendants a sum of Rs. 590-11-0 in cash and also received a G.P. note of the value of Rs. 7000 and a fixed deposit of Rs. 65,564 with the Chartered Bank, Delhi, the trustees having purchased the aforesaid G.P. note out of the income of the so-called trust property and having deposited out of that income the aforesaid sum in the fixed deposit account with the Bank mentioned above.

5. On 25-8-1987 Om Parkash and Hari Parkash defendants 3 and 4, the minor sons of Khushi Ram, through their mother Mt. Pan Bai defendant 5 as their next friend, brought against Ram Kishan and Mt. Chhoti and the trustees a suit for partition of the properties mentioned above and for accounts of the income of the said properties and recovery of the plaintiffs' share therein. On certain preliminary pleas raised by the defendants the learned Subordinate Judge to whom the suit was made over for trial held that the Court at Delhi could not entertain result for partition of immovable: property; situate in Patiala State and in Moga, that the Dharamsala property situate in Delhi being admittedly Dharamsalft could not be partitioned by metes and bounds and that other reliefs by way of injunction etc., claimed by the plaintiffs could also not be granted to them. In view of this order, the suit proceeded only in respect of the relief regarding accounts of the income of the properties covered by the trust deed. On 20-2-1989 the plaintiffs were granted a preliminary decree for accounts (vide Ex. D-3/6 printed at p. 204 of the paper book.) Both parties feeling aggrieved from the decree went up in appeal to the High Court at Lahore. A Bench of that Court disposed of the two appeals by means of their judgment dated 26-5-1941 {vide Ex. D-3/5 printed at p. 21 of the paper book.) Both the appeals were allowed and in lieu of the decree passed by the learned trial Judge the plaintiffs were granted a preliminary decree declaring that they and Ram Kishan defendant 1 were owners in equal shares of the shop at Moga Mandi, the amount realized by defendant 1 on account of the shares in Raj Nath and Company and the amount paid by the trustee to him in pursuance of the decree mentioned above; declaring further that an account be taken of the rents and profits of the shop at Moga Mandi and of the sums received by defendant 1 on account of the shares in Raj Nath and Company and from the trustees, and directing the shop and the amount found due to be divided amongst the plaintiffs and defendant 1 in equal shares. The plaintiffs were also granted a decree declaring that the Dharamsala at Nahar Saadat Khan was endowed property and impartible. The decre e further directed that the Dharamsala should be under the joint management of the mothers of the plaintiffs and defendant 1, their natural guardians, under the supervision of the District Judge of Delhi; that the aforesaid guardians should keep regular accounts and file them quarterly in the Court of the District Judge; that if at any subsequent time by reason of one of the minors attaining majority or for any other cause the arrangement became impracticable, the District Judge, Delhi, should, after taking appropriate proceedings, frame a new scheme for management of the Dharamsala, and that an account of the income and expenditure of the Dharamsala be taken from defendant 1 from the date when he assumed charge from the trustees till the commencement of the joint management by Mt. Chhoti and Mt. Pan Bai and the amount so found due be invested in proper securities for the benefit and the purposes of the Dharamsala. The suit in respect of the house at Kanod was dismissed and so also the claifi for account against the trustees.

6. The suit out of which these two appeals have arisen was filed on 19-11-1941 by Shadi Kam and Nagarmal, two residents of Delhi, who claimed to be members of the Marwari community of Delhi, on behalf of themselves and of the aforesaid community, for a declaration that the Dharamsala situate at Nahar Saadat Khan in Delhi, the house situate in the village Kanod also known as Mohindargarh in Patiala State, the shop situate in Moga Mandi, half portion of an undivided Ghat on the bank of the river Jamna near Kudsia gardens, Delhi, the sum of Rs. 73,154-14 or thereabouts received by Ram Kishan and Mt. Chhoti, defendants 1 and 2 from the trustees as a result of the compromise in the suit filed by the latter as the next frienat of the former in 1932, and the sum of Rs. 62,550 or thereabouts received by the aforesaid defendants from the liquidator of Messrs. Raj Nath and Company, Limited on account of fifty preference and one deferred share of the said Company were trust properties and were otherwise properties dedicated to charity and that the defendants could not use the same for their private purposes. The suit was resisted by defendants & to 5. Defendants land 2 for all practical purposes-supported the plaintiffs' claim. On the pleadings of the parties, the learned trial Judge framed the following issues;

1. Are properties Nos. 1, 2 and 4 mentioned in Schedule A appended with the plaint not dedioated for oharitable purposes?

2. Is property No. 8 mentioned in Sehedule A appended with the plaint dedioated for charitable purposes 1

3. Is the sum of Rs. 78,154-14-0 referred to is para. 17 of the plaint and mentioned at No. 5 of Schedule A upspent income of dedicated property?

4. Were fifty preference and one deferred sbsJa of Messrs. Baj Nath and Company, Limited, dedicated for oharitable purposes?

5. Was the trust-deed, referred to in para. 9, of the plaint, void and not binding on the defendants, for reasons given in para. 9 of the written statement filed by defendants 3 to 5?

6. Is the present suit barred by the principle of res judicata by reason of findings given in the previous suits?

7. Have the plaintiffs no locus standi to sue?

8. Is property No. 1 mentioned in Sehedule A appended with the plaint dedioated in the form of private trust? If so, what is its effect?

9. To what relief the plaintiffs are entitled?

7. On the first issue it was heldthat, property No. 1, i.e., the Dharamsala situate afe Nahar Saadat Khan alone had been proved to have been dedicated for charitable purposes and'. that the two other properties, namely, the house at Kanod and one-half portion of the Ghat on the bank of the river Jamna had not been proved to have been so dedicated; On the second issue, it was held that the property mentioned therein, namely, the shop situate at Moga Mandi had not been proved to have been dedicated for any oharitable purposes. On the third issue it was held that out of the sum of Rs. 73,154-14-0 banded over to defendants 1 and 2 by the trustees, a sum of Rs. 30,164-16-3 only represented the unspent inoome of the dedicated property i.e., the Dharamsala. The fourth issue was decided against the plaintiffs. On the fifth issue it was held that the trust-deed was void and not bind, ing on the defendants by reason of the property covered thereby being joint Hindu family property of defendants 1, 3 and i and their respective fathers at the time of its execution and being too large a fraction of the entire joint family property to be validly dedicated to charitable or religious purposes by the managing members of the family. The other ground on which the validity of the trust-deed was attacked, namely, the vagueness and uncertainty of the object of the trust, was found against the con-testing defendants and it was held that the trust was not void on that ground. The sixth issue was decided against the defendants. On the seventh issue, it was held that although the plaintiffs had failed to prove themselves to be the collaterals of the founders of the trust, they had a locus standi to maintain the suit by reason of being as Hindu citizens of Delhi interested in the subject-matter 01 the trust. The eighth issue' was decided against the defendants. In the result, the plaintiffs were granted a decree de-Glaring that the Dharamsala at Nahar Saadatr Khan in Delhi was a public dedicated property and that out of the sum of Rs. 73,154-14-0 received from the trustees by defendants 1 and 2 in accordance with the terms of the compromise arrived at in the suit brought by the latter as the next friend of the former in 1932 a sum of Rs. 80,154-15-3 represented the unspent income of dedicated property on the date when the afore, said money was handed over to the aforesaid defendants and was, therefore, to that extent dedicated to publio charity. The rest of the plain-tiffs' suit was dismissed. Both parties feeling aggrieved from the decree of the learned trial Judge have come up in appeal to this Court. The plaintiffs are the appellants in B. F. A. 115 of 1943 and pray for their claim being decreed in its entirety. Defendants 3 to 5 are the appellants in R.F.A. 116 of 1943 and claim the dismissal of the plaintiffs' suit in ita entirety.

8. After hearing the learned Counsel for the parties, I am of the opinion that the trust purporting to have beer created by means of Ex. p-1 must be held to h& void and unenforceable on account of vagueness and uncertainty of the object of the trust and thau the learned Subordinate Judge has gone wrong in holding to the contrary.

9. The object of the trust was stated in the trust-deed as follows:

Interest to be used and applied in the first instanoe, if the Delhi University aoeept our proposals to open an Oriental Faculty of Sanskrit, to establish a Sanatan Dharam College or a School in Delhi to prepare students for the said faoulty and to maintain the same. The trustees shall in this respect appoint from among them-selves, or from outside or partly from each, a committee of not less than 11 members to manage the said College or School. Should, however, the said Oriental Faoulty be not ereated within a period of one year, the said trustees shall have the right to use the said trust property for advancement of medical aid to human beings or for other charitable purpose in accordance with their absolute discretion.It is not disputed that the Delhi University did not set up any Oriental Faculty of Sanskrit within one year of the date of the execution of the deed of trust. In fact, it is admitted that, even up to the present moment no such faculty has been set up. Under these circumstances, the question, of the income of the so-called trust property being applied to the first object mentioned in the deed does not and cannot arise. It was urged by the learned Counsel for the appellants that there was evidence to show that correspondence had been passing between the University and some others in the matter of setting up an Oriental Faculty of Sanskrit and that there was yet the possibility of such a faculty being set up by th& aforesaid University. It was urged that the period of onejear within which such faculty had to be set up in order to make the provision for the income of the alleged trust property being utilized for the-purpose of establishing a Sanatan Dharam College or School in Delhi becoming operative was not of the essence of the trust-deed and that such income could be utilized for the said purpose consistently with the provision contained in the trust-deed even if the faculty was set up by the University aftee the expiration of the aforesaid period and even at some time hereafter. Ho such faculty having so far been set up, it does not become necessary for Us to decide whether the period within which, according to the express terms of the trust-deed,, the faculty had to be set up in order to make the first part of the provision contained in the trust-deed to be applicable or operative was of the essence of the deed of trust or was merely recommendatory in its character, the trustees-retaining the power tp apply the income of the trust property to the establishment of a Sanatau Dharam College or School even if an Oriental Faculty of Sanskrit were set up by the University long after the expiration of the aforesaid period. The fact remains that no such faculty has so far been set up and the income of the trust property cannot accordingly under any circumstances be utilized for the purpose of establishing a Sanatan Dharam College or SchooL If and when such a faculty is set up by the: University, the plaintiffs or any other wsom interested may by instituting proper proceedings obtain from the Courts a decision on the subjeet, and if time is held to be not of the essence of the trust deed, may still succeed in enforcing; the trust for the establishment of a College or a School in Delhi. For the purposes of the present litigation, it has to be assumed that the first object mentioned in the trust-deed does not exist and has failed. The trust-deed must, therefore, standi or fall with the second object mentioned therein, namely, using the trust property for advancement of medical aid to human beings or for other charitable purposes in accordance with the absolute discretion of the trustees.

10. If the trust-deed had simply provided for he trust property being used for the advanoement of medical aid to human beings, I have no doubt that the object of the trust could not be held to be either vague or uncertain. The authors of the trust, however, have distinctly provided that the trust property could be used either for the advancement of medical aid to human beings or for any other charitable purpose according to the discretion of the trustees. The other charitable purposes are not defined and the deed leaves it open to the trustees not to use any part of the trust property for the advancement of medical aid to human beings and to use the whole of it for any other charitable purpose, it also being left to them to select the charitable: purpose for which to use the trust property. I do not find it possible to distinguish this case from the case Bunchordas Vandravandas v. Parvatilai decided by their Lordships of the Privy Council whose judgment in the aforesaid case is reported as (1999) 23 Bom.725. In that case, the bequest purported to be for making Dharamdan which expression was understood to connote charitable or religious gifts. The bequest was held to be void for vagueness and uncertainty. In support of their decision their Lordships relied on the following dicta by Lord Eldon in Morice v. Bishop of Durham (1804) 10 Ves. 522 at p. 539:

As it is a maxim, that the execution of a trust shall be under the control of the Court, it must be of such a nature that it can be under that control; so that the actministration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust; a trust, therefore, which, in case of maladministration, could be reformed and a due administration direoted; and then, unless the subject and the objcots oan be ascertained, upon principles, familiar in other cases, it must be decided that the Court oan neither reform maladministration nor direct a due administration.Reference was also made by their Lordships to the judgment of Lindley, L.J., in In re Macduff (1896) 2 Ch.451 in which case the words of the bequest were 'purposes charitable or philanthropic.' The principle enunciated by Lord Eldon in the first mentioned case was applied by Lindley, L.J., to the cf 3e which he was called upon to decide and was held by him to be the correct principle governing cases of ihat type. Applying this principle to the present case, it is obvious that if the trustees in the exercise of their absolute discretion used the trust properties for any purpose which they considered to be charitable, the Court could not exercise any, control over the administration of the trust by them; could not determine whether or not the purposes for which the trust property was used were in fact charitable purposes and could not compel them to use any part of the trust properties for the advancement of medical aid to human beings.

11. In Narain Das v. Brij Lal 20 A.I.R.1933 Lah.833, one Devi Dial, a resident of Bhera, who had established a Dharamsala in Bhera called Dharamsala Devi Dial, executed a will in respect of his movable and immovable property. He appointed three gentlemen as the executors or trustees of the will and directed them to apply after his death in such a manner as they considered proper the money and property bequeathed to them for Dharanwth, the Dharamsala and Sanskrit education. Although out of the three objects of the trust created %y the will two, namely, the Dharamsala and Sanskrit education were held to be quite definite and by no means vague, the whole bequest was held to be void and inoperative because of the third object of the trust being vague and uncertain and it having been left to the trustees to apply the trust funds to any of the three objects and in such proportion as they thought fit. Jai Lal, J. who wrote the judgment of the Bench, was personally inclined to take the view that a bequest for Dharamarth could not be regarded as suffering from the defect of vagueness or uncertainty He was, however, definitely of the opinion that the case before him was clearly covered by the Privy Council judgment mentioned above which was binding on him although he thought that in the aforesaid judgment the true significance of the expression 'Dharamarth' as understood among the Hindus had not been fully taken into consideration. This decision seems to me to be on all fours with the facts of the present case.

12. The learned Counsel for the appellants drew our attention to certain passages in the judgment of the House of Lords in Blair v. Duncan (1902)1902 A.C.37 quoted at pages 834 and 835 of the report in Narain Das v. Brij Lal 20 A.I.R.1933 Lah.833 in which it was stated that if in the impugned devise the word 'charitable' had stood alone and had not been followed by the words 'or public,' the devise would have beei sufficiently definite and valid. It was urged that according to the view taken by the House of Lords, a bequest ob a trust for charitable purposes could not be held to be void for vagueness or uncertainty and that accordingly the trust in the present case, which was created for charitable purposes only and in which the word 'Dharamarth' had not been used, could not be regarded as invalid and unenforceable and could not be held to be governed by the judgment of their Lordships of the Privy Council in ('99) 23 Bom. 725. This argument of the learned Counsel overlooks the fact that a bequest for charity in England comes within the recognized technical meanirfg of charity and it is for this reason that bequests for charity or charit-able purposes in that country have been held to be not void for vagueness. The preamble to 43 Eliz. c. 4 defined what the English Law recognized as a charity and the consolidating Mortmain and Charitable Uses Act, 1888 (81 and 52 Viet, c. 52) which purported to repeal the former, in Sub-section (2) of Section 13, after reciting this definition at length provides that whereas in divers enactments and documents reference is made to charities within the meaning of the said Act, references to such charities shall be bonstrued as references to charities within the meaning of the said preamble. In England and Wales under the provisions of the various Charitable Trusts Acts, Charity Commissioners are appointed with powers and duties to be found in those Acts. They exercise very extensive powers of management and control over charities, including power to authorise sales, exchanges, leases and mortgages of charity property; to frame new schemes where the original terms gf the trust can no longer be literally or beneficially complied with; to investigate the accounts pf charitable trusts; to sanction proceeding by the trustees and give them advise, and many other powers. Under the circumstances, a trust expressed to be created for charity in England will be regarded as a trust created for one of the purposes falling within the technical meaning of charity as understood in English Law the administration of which will be supervised and controlled by the Charity Commissioners appointed under that law for the purpose. A person executing a deed of trust in that country and founding an endowment for charity may thus be reasonably understood to have in contemplation whatever is regarded by the law of his country as charity and the trust purporting to have been created by him cannot, therefore, be regarded as void for vagueness. In Bhai Gurdit Singh v. Sher Singh (1912) 78 P.R.1912 a Division Bench of the Punjab Chief; Court presided over by Sir Henry Eattigan and Robertson, J. took the same view as to the implications of English cases which had upheld bequests for charity. That was a case is which the testator by one part of the will had left considerable property for being employod on Dharamarth. Following the Privy Council judgment in (1999) 23 Bom.725 the learned Judges held the bequest to be void. In distinguishing the case from the English authorities they made the following observations:

A bequest tor 'charity' in England which conies within the recognized technical meaning of 'charity' is not void for vagueness nor probably would a bequest in this country for any special charity.13. The learned Counsel for the appellants drew our attention to Section 2, Charitable Endowments Act, vi of 1890, and contended that, like the English Law, the Indian statute had also defined charitable purposes and, therefore, any bequest made or trust created for charitable purposes must be deemed to have been made or created for the purposes covered by that definition and cannot, therefore, be held to be void for vagueness. The Act referred to by the learned Counsel was passed in order to provide for the vesting and administration of property held inttrust for charitable purposes. Section 2 of the Act runs as follows:

In this Act 'charitable purpose' includes relief of the poor, education, medical relief and the advancement of any other object of general publio utility, but does not include a purpose which relates exclusively to religious teaohing or worship.The language of the section clearly shows that the Act has not given and was not intended to give an exhaustive and comprehensive definitiott of what was to be regarded as a charitable purpose. It only provides that certain purposes-amongst others which are left undefined should also for the purposes of the Act be regarded as charitable purposes. It is noteworthy that according to this section the advancement of any object of general public utility is also to be regarded as a charitable purpose. According to the judgment of the House of Lords in Blair v. Duncan (1902)1902 A.C.37 relied on by the learned Counsel for the appellant the addition of the words 'or public' to the word 'charitable' had the effect of rendering the bequest void for vagueness. In Trikumdas Damodar v. Haridas Morarji ('07) 31 Bom. 583 although Chandavarkar, J. and on Letters Patent Appeal Sir Lawrence Jenkins C.J. and Beaman J., relying on English authorities, appeared to be inclined to hold that a bequest or trust merely for purposes of charity would not be void for vagueness, held that a bequest 'for purposes of popular usefulness or of charity' was void. If the words 'charitable purpose' have to be construed with reference to the provisions of Section 2,; Charitable Endowments Act 6 [VI] of 1890, it follows that 'the advancement of objects of general, public utility' must also Be deemed to be included in them and there can be no manner of doubts at all that even according to the authorities relied on by the learned Counsel for the appellants, on that construction of the charitable purposes the trust must be deemed to suffer from the defect of vagueness and uncertainty.

14. I cannot accept the contention of the learned Counsel for the appellants that the Privy Council judgment in (1999) 23 Bom.725 can only apply if the gift or bequest sought to be impugned is made for Dharam or Dharamarth and that in the absence of use of the words 'Dharam' or 'Dharamarth' the gift or bequest cannot be said to be hit by the judgment of their Lordships. As I read that judgment, it lays down the principle that the trust in order to be valid must be of such a nature that its execution and administration can be controlled by the Court land that for that purpose it is necessary that both the Subject and the object of the trust must be such as can be ascertained by the Court. If the subject or object cannot be ascertained from the deed of trust itself, the Court cannot enforce the trust. If the trust-deed has left, the object of the trust undetermined or has left it to the trustees to determine the same, it cannot be said that the object for which the trust was created by its author is capable of (being ascertained by the Court. If the Court has got to find out the object of the trust outside the trust-deed or if it is left to the trustees appointed by the deed to determine what the object of the trust should be, the object determined by the Court or by the trustees cannot be regarded, by any stretch of imagination, as the object of the trust as created by the author and a Court enforcing the administration of the trust for such an object cannot be said to be securing the administration of the trust as created by the founder, but will, in effect and in substance, be creating a strust in his name, and on his behalf which the law does not seem to contemplate. If I am right in my interpretation of the implication of the Privy Council judgment, there is little doubt that the principle underlying that judgment is clearly applicable to the present case and the trust sought to be created by Ex. P-1 cannot but be held to be void for vagueness and uncertainty.

15. It was next urged by the learned Counsel for the appellants that the words 'for other charitable purpose' as occurring in the deed must be construed to mean other charitable purpose ejusdem generis with what precedes those words, namely, advancement of medical aid to human beings and it was contended that construed in that way the object of the trust was definite enough and could not be considered to be vague or uncertain. This contention of the learned Counsel, however, overlooks the concluding words of Clause (2) of the deed of trust. According to these words, the trustees were given an absolute discretion in determining to what charitable purposes the income of the trust property was to be applied in case the same was not applied to the advancement of medical aid to human beings. According to the plain language of the deed, the trustees were not bound to apply such income to only such charitable purposes as were ejusdem generis with advancement of medical aid to human beings and had a perfect right to select any other, charitable purpose for applying such income.

16. Amongst Hindus the words 'charitable purpose' have such a diversity and variety of connotations that what one set of persons may regard as a charitable purpose may not be regarded as such by another set and may even be regarded as sinful by a third set. In the fold of Hinduism there are a very large number of sects taking diametrically opposite views as to what is and what is not meritorious or charitable A trust by a Hindu, therefore, expressed to have been created for charitable purposes without any further attempt to define the purpose or object of the trust cannot but be regarded as vague and uncertain,

17. I am accordingly of the opinion that the trust purporting to have been created by means of Ex. p-1 must be held to he void and unenforceable on account of vagueness and uncertainty of the object of the trust. In this view of the case, it does not appear to be necessary to enter into any discussion of the other ground on which the trust has been held to be invalid by the learned trial Judge, I must, however, say that the decision of the learned Subordinate Judge on that subject also does not appear to be open to any serious criticism. Even assuming that Madho Parshad and Khushi Ram had ceased to be memoers of a joint Hindu family before the execution of Ex. p-1, and that the actual disruption of the family had preceded and did not synchronize with the execution of the aforesaid deed, the only effect of such disruption could be to split up the family into two units, each unit constituting a joint Hindu family in itself. In spite of the separation between themselves, Madho Parshad and Khushi Ram continued to be members of joint Hindu families with their own son or sons and such son or sons had, therefore, an undoubted right to object to any disposition of the joint family properties by them on the ground of its being prejudicial to their interests as coparceners. As pointed out by the learned trial Judge, the properties which formed the subject-matter of the trust were obviously of much greater value than the properties that were left with each of the two units on partition and, therefore, the creation of the trust could not but be regarded as prejudicial to the interests of Ram Kishan defendant 1 in so far as the trust created by Madho Parshad was concerned and to the interests of Om Parkash and Hari Parkash defendants 3 and 4 in so far as the creation of the trust by their father Khushi Ram was concerned.

18. If the trust-deed Ex. p-1, is once eliminated from consideration and the trust, purporting to have been created thereby is held to be invalid and unenforceable, I cannot see how the plaintiffs can be said to have any locus standi to maintain a suit for a declaration that the properties in Kanod and Moga are trust properties and had been dedicated by Madho Parshad and Khushi Ram or by Sham Lal and Mani Ram to charitable purposes. In order to have such a locus standi they must have an interest in the subject-matter of the trust. The plaintiffs claimed an interest in the subject-matter of the present suit as the collaterals of the founders of the trust and also as members of the Marwari community for whose benefit the trust was alleged to have been created. It has been held, and that finding was not contested before us in appeal, that the plaintiffs have failed to prove their alleged collateral relationship with the alleged founders of the trust. It has further not been found that he trust was created for the benefit of the Marwari community. There is no evidence at all that it was created for that purpose. The learned trial Judge has held that the plaintiffs have a locus standi to sue on the ground that they were Hindu residents of Delhi and as such interested in the subject-matter of the trust. According to the provisions contained in the trust-deed Ex. p-1, the bulk of the income of the trust property indeed if not the whole of such income, was to be spent for the establishment and maintenance of a college or school in Delhi. If that trust had not been held to be void, the plaintiffs could certainly claim that as Hindus residing in Delhi they were interested in the subject-matter of the trust because the trust had been created and was to be administered for the benefit generally of Delhi Hindus. If however, the trust-deed is left out of account and the plaintiffs seek to establish a dedication of the properties in suit to charitable purposes independently of the deed, they, merely as Hindu residents of Delhi, cannot claim to have any interest in the Chhetar at Kanod or the shop in Moga Mandi of which the income it is alleged, was being used for the maintenance of the said Chhetar. It is well-settled that in order to be entitled to maintain a suit for the preservation of or for any other relief respecting trust property, the plaintiff must show that he has got an interest which is more than a purely sentimental interest in the subject-matter of the trust. While as Hindu residents of Delhi the plaintiffs may claim such an interest in the Dharamsala situate in Delhi and the bathing ghat which is also situate in the same place, they cannot be said to have such an interest in the Chhetar at Kanod or the property the income whereof was being used for the maintenance Of that Chhetar. I am accordingly of the opinion that the plaintiffs had no locus standi to maintain the suit in so far as the property in Kanod and Moga is concerned. Their suit in respect of those properties must, therefore, be held to have been rightly dismissed even without going into the question whether those properties were ever actually dedicated.

19. The suit in respect of the property in Kanod was liable to dismissal on another ground as well, namely, want of jurisdiction in this Court to make any declaration in respect of property situate in Patiala State.

20. The shares in Messrs. Raj Nath and Company have been rightly held not to have been proved to be dedicated to any religious or charitable purpose. The learned Counsel for the appellants laid considerable stress on the fact that the money spent on the acquisition of these shares had come out of the dharmada khata. In the absence of any evidence and even of any suggestion that the money in the dharmada khata had been dedicated to any particular purpose that money could not be regarded as trust money. This the learned Counsel for the appellants had to concede. I do not see how under these circumstances the mere fact of a part of that money having been used for the acquisition of, the shares could make the shares trust property. The learned Counsel for the appellants had to concede that if Ex. p-1 were eliminated from consideration and could not be enforced, it was not possible to tell what the object of the alleged dedication of the shares was. It was admitted that the shares or the income thereof did not appear to have been dedicated to any particular or specified purpose before the execution of Ex. p-1. Under these circumstances, I do not see how those snares can be held to be trust property or can be deemed to have been dedicated as such property. The utmost that can be said is that Madho Pershad and Khushi Ram intended to use the money which was held by them in the dharmada khata for charitable purposes and that they invested a part of that money in the acquisition of these shares of which the income was also intended to be used for some charitable purposes. However, neither the money in the dharmada khata nor the shares purchased with such money could be deemed to have become trust property till they were actually dedicated. Till such dedication, the title remained in the aforesaid Madho Parshad and Khushi Ram. I am, therefore, of the opinion that the plaintiffs' suit in respect of the shares has been rightly dismissed. I am not, however, able to endorse the finding of the learned trial Judge in respect of the bathing ghat. It was admitted by Mr. Bishambar Dial, the learned Counsel for defendants 3 to 5 in the trial Court, that the aforesaid ghat had been used as a bathing ghat by the Hindu public. The ghat was admittedly constructed in the year 1920 by Madho Parshad and Khushi Ram and an outsider who is said to have contributed one-half of the expenses. The ghat was constructed on the bank of the Jamna and it has never been suggested that the land on which it was constructed belonged to Madho Parshad and Khushi Ram or their joint families. Evidently it was public land. Whatever might have been the position, if the aforesaid Khushi Ram and Madho Parshad had constructed a bathing ghat on their private land and had allowed the Hindu public to use it for bathing purposes, the position is quite different in the present case. In the former case, it might be that in spite of the use by public or a section of the public of the ghat for the purpose of bathing, it continued the private property of the persons constructing the ghat subject to some kind of customary right in the public to use it for the purpose of bathing. In the present case, the ghat having been constructed on land which never belonged to Khushi Ram and Madho Parshad but which was public property, and having been used by the Hindu public generally as a bathing ghat, evidently without any permission being obtained from Madho Parshad and Khushi Ram, and to all appearances as of right, cannot be regarded as the private property of the aforesaid Khushi Ram and Madho Parshad or of the plaintiffs.

21. For the reasons given above, I would allow the plaintiffs' appeal only to the extent of modifying the decree passed by the learned trial Judge in their favour by including in it a declaration to the effect that the bathing ghat in dispute is wakf or trust property and not the private property of the defendants. In all other respects, I would maintain the decree of the learned trial Judge.

22. As regards the appeal of defendants 3 to 5, I feel no hesitation in saying that it is wholly devoid of force. It was admitted by their counsel in his. statement recorded before the framing of the issues that the dharamsala had been built for public use and had in fact been so used. He, however, added that the same had not been actually dedicated. If it was built for use by the public and had been actually so used without any let or hindrance, it could not be held to be otherwise than property dedicated to use by the public although the act of actual formal dedication was not proved to have taken place. There is abundant evidence on the record to show that ever since its construction the dharamsala has been used as a public place by the Hindu public residing in that locality as of right and that travellers have been staying there without seeking any permission from anybody. In the previous litigation relating to this property it has been held to be public or trust property. Indeed, in arguing the appeal the learned Counsel for defendants 3 to 5 did not deny its being trust property. He simply contended, that it was not a public but a private trust. I, however, am unable to appreciate the distinction sought to be drawn between a private and a public trust in so far as a dharamsala admittedly used by the public generally for public purposes is concerned. One may have a private idol or a private temple in one's house and any endowment made for the maintenance of that temple or idol to which the public are not admitted as of right may be regarded as a private trust. The case of a dharamsala which by its nature is meant for use by the public is, however, different. Our attention was not drawn by the learned Counsel to any decided case in which a dharamsala had been held to be a private trust.

23. It was half-heartedly urged by the learned Counsel for defendants 3 to 5 that the trial Court had erred in allowing expenses incurred by the trustees in the maintenance of the pathshala as valid charges on the income from dharamsala property. The contention is, how-ever, wholly devoid of force. The pathshala was started by Madho Parshad and Khushi Ram in the dharamsala, has all along been regarded as a part of the dharameala, and has throughout been maintained out of the income of the property attached to the dharamsala. The expenses on this pathshala incurred by the trustees during the period they remained in charge thereof have, therefore, been rightly allowed as a valid charge on the dharamsala income.

24. It was also contended by the learned Counsel for defendants 3 to 5 that the suit was barred by the provisions of Section 92, Civil P.C. and could not proceed in the absence of the sanction of the Advocate-General or of the Collector. The suit was evidently not one of the type of suits contemplated by Section 92. There was no allegation of breach of trust by any trustee and no relief was claimed against any trustee. The suit was merely for a declaration that the property which was claimed by that defendants to be their private property was not in fact so but was trust property. Such a suit does not all within the purview of Section 92 and no sanction either of the Advocate-General or of the Collector was necessary to make it competent.

25. For the reasons givan above, I see no force in the appeal of defendants 8 to 5 and would dismiss the same. In the circumstances, I would leave the parties to bear their own costs in both the Courts.

Khosla, J.

I agree.


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