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Jathedar Sadhu Singh and ors. Vs. Charan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1497 of 1965
Judge
Reported inAIR1972P& H347
ActsCourts Fees Act - Sections 7; ;Land Acquisition Act - Sections 17(2); Punjab Village Common Lands (Regulation) Act, 1961 - Sections 4
AppellantJathedar Sadhu Singh and ors.
RespondentCharan Singh and ors.
Cases ReferredCode. In Fakir Mahomed Nanji v. Agha Khan
Excerpt:
.....section 92 could be brought. kailash, air 1966 j & k 31. the plaintiffs had on an earlier occasion filed a suit for declaration and consequential relief of a permanent injunction but as the value of the subject-matter of the dispute was found to run into astronomical figures of very nearly half a crore of rupees and the court fee was payable ad valorem under section 7(iv)(c) of the courts fees act, the appellants had let their plaint be rejected under order 7, rule 11(b) of the code because of their failure to make good the deficiency in the court fee. the relief claimed by the appellants in their plaint clearly seeks to prevent a breach or conversion or diversion of the trust by the person at present in charge of the management, control or administration of the trust. one's love for..........surviving plaintiff could not continue the proceedings in a suit falling under section 92 of the code. shri mittal argues that the objection about the abatement of the proceedings had not been raised in that case. it is obvious that the objection was considered not worth raising. i, therefore, do not agree with shri mittal that the appeal has abated with the death of appellant no. 1 or respondents nos. 3 and 4, when both sides are litigating in a representative capacity.15. shri mittal then contends that the shamilat lands have vested in the gram panchayat under section 4 of the punjab village common lands (regulation) act, 1961 and that only the panchayat can utilize or dispose of the land for the benefit of inhabitants of the village and that the appellants have no right to sue......
Judgment:

1. This second appeal by the plaintiffs arises out of a dispute between the parties over the proper administration of an institution situated in village Balsarai near Beas in Amritsar District and variously known as Dharamsala, Dera or Gurdwara of Baba Jaimal Singh. Shri Charan Singh defendant-respondent No. 1 is at present in charge of the control and management of the institution. The property attached to the institution and in the occupation of respondent No. 1 is shown in a plan filed with the plaint. A very small portion of this area, shown by green colour in this plan, has been described by the plaintiff-appellants as Darbar Sahib and is said to house the holy book (Guru Granth Sahib) of the community professing the Sikh religion. The suit was originally instituted by five Sikh proprietors of village Balsarai but two other proprietors of the village belonging to the same community were added as plaintiffs in an amended plaint filed later on. Three persons claiming to belong to the Radhaswami faith or sect had been impleaded as defendants Nos. 2 to 4 on their application under Order 1, Rule 10 of the Code of Civil Procedure. Plaintiff-appellant No. 1 and defendant-respondents Nos. 3 and 4 have died during the pendency of this appeal had no steps have been taken to bring their legal representatives on record within the time allowed by law. The question how far the proceedings have thereby abated would be discussed further on in this judgment.

2. The suit, as now framed, is for the grant of a permanent injunction seeking to restrain defendant No. 1 from removing the Guru Granth Sahib from the institution and from interfering with the rights of the Sikh community of maintaining the holy book in the Darbar Sahib and of offering religious worship and reciting Guru Granth Sahib and holding religious congregations and Sat Sang in the premises. It has been alleged in the plaint, amongst other things, that in the year 1897 A. D. the proprietary body of the village had gifted and dedicated 11 kanals and 16 marlas of shamilat land to a sage by the name of Bhai Jaimal Singh who used to practice spiritual sadhna at this place. He was a man with great spiritual attainments and was held in high esteem by the residents of the village. The dedication was in the name of Guru Granth Sahib and was for the purposes of a Dharamsala to be run and managed by Baba Jaimal Singh. Mutation order, copy Exhibit P-5, had been duly attested on 14-6-1897. The devolution of the office of the head of the institution has been by will from the last holder to the next and Baba Charan Singh, respondent No. 1, is the fourth head of the institution in the line of succession. He is described to be a man of the world, lacking in dedication and true spirit of his predecessors. He is described to have started using the Dera in general and Darbar Singh in particular for the purposes for which these had not been originally dedicated. He is giving out that the maintaining of Guru Granth Sahib and access to the institution of persons professing the Sikh religion depends on his sweet will and discretion. He has started interfering with the rights of these persons to recite Granth Sahib and to hold religious congregations in the institution. Hence this suit seeking to original purposes and objects of the dedication.

3. Defendant respondent No. 1 had denied in the written statement filed by him that Guru Granth Sahib had ever been installed in the institution. The mutation order attested in 1897 was said to have wrongly described the dedication to be in favour of Guru Granth Sahib and the necessary correction of entries was described to have been made in 1921 without objection by any one concerned. A mutation about the correction of these entries, copy Exhibit D-1/P-3, was said to have been attested in an open gathering of the village on 16-5-1921. Thereafter the institution is being described in the revenue records as Gurdwara of Baba Jaimal Singh dedicated to the Radhaswami faith. In the Revenue Officer's order sanctioning the mutation of entries, it is mentioned that the people gathered there were unanimous in saying that the institution was wrongly described to have the name of Guru Granth Sahib and that it had connections with the Radhaswami faith. The institution had been acquiring further lands in later years by exchange, purchase and bequests etc. vide mutation orders, Exhibits P-4 (Exchange, 1911-12), D-2 (Sale, 1938), D-3 (Will, 1951) and D-5 (Dedications by respondent No. 1) in favour of the registered charitable society, 1959 etc. etc. It is admitted that Sat Guru Maharaj Baba Jaimal Singh was a great pious saint with high spiritual and intellectual attainments. It is, however, denied that he had ever recited Guru Granth Sahib or had allowed that holy book to the installed anywhere in the institution. He was preaching the Radhaswami faith and was the Supreme head of the Math. He was holding Sat Sangs according to the views and beliefs of this faith. Defendants Nos. 2 to 4 who had been impleaded on their own application had filed a separate written statement in which they had claimed that they were professing the Radhaswami faith.

4. The pleadings of the parties had given rise to about two dozen issues and the first seven issues related to certain legal or technical objections taken by the defendants. These issues have been treated as preliminary issues. The two Courts below have upheld the legal objection that the suit was not competent in the absence of the Advocate General's sanction under Section 92 of the Code of Civil Procedure. It may appear that the appellants had at one stage applied for that sanction but that it had been declined by the Advocate General. A certified copy of the application filed by the appellants seeking the Advocate General's permission under Section 92 of the Code of Civil Procedure may appear to have been placed on the record as mentioned in paragraph 11 of the judgment of the learned Court of first appeal.

5. To bring a case within the four corners of Section 92, three or four conditions have to be satisfied as observed in a long string of rulings namely Budree Dass Mukim v. Chooni Lal Johurry, (1906) ILR 33 Cal 789; Ramdas Bhagat v. Krishna Prasad Tewari, AIR 1940 Pat 425; Gheevarghese Koshy v. Chacko Thomas, AIR 1963 Ker 191; Balkishan Dass v. Parmeshri Dass, AIR 1963 Punj 187=65 Punj LR 236 and Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, AIR 1952 SC 143=1952 SCA 281. Shri Bhagirath Dass, the learned counsel for the appellants, concedes that the institution is a public trust of religious or charitable character and that the first condition laid down is satisfied in the present case. He, however, contends that the other two conditions, namely that the suit should have been filed in a representative capacity and that the relief claimed must fall within one or more clauses enumerated in sub-section (1) of Section 92 of the Code, do not exist in the present case.

6. In support of his contention that the suit has not been filed in a representative capacity, Shri Bhagirath Dass mainly relied on the Division Bench ruling of this Court in AIR 1963 Punj 187=65 Punj LR 236. That was a suit by some of the trustees against their co-trustees who had been called upon to render accounts. This suit between the trustees inter se was held not to be a suit in a representative capacity. Reliance was placed on the Supreme Court Case in Raje Anandrao v. Shamrao, AIR 1961 SC 1206. The view finds further support from the Division Bench ruling of the Madras High Court in P. R. Aiyanachariar v. U. Sadagopachariar, AIR 1939 Mad 757. Ours is, however, not a case between the trustees inter se and Shri Bhagirath Dass's reliance on these rulings may appear to be rather fortuitous. Advantage is sought to be taken of some obiter remarks in Balkishan Dass's case, AIR 1963 Punj 187 (supra) which run. 'In other words, if suit under Section 92 is brought, these three conditions must be present. It is far from saying that if these three conditions are present, no action but a suit under Section 92 can be brought'. These obiter remarks have found a prominent place in a head-note in the All India Reporter. If these remarks are read in the true context, it would be found that the plea of the counsel for the appellants in that case that the suit fell within Section 92 of the Code was held to be untenable in view of the fact that a suit between the trustees inter se was not a representative suit and that the Supreme Court ruling relied upon by the counsel did not say that when the three conditions were found to have been satisfied, no action but a suit under Section 92 could be brought. It was obviously not the intention of the Hon'ble Judges to override the statutory provisions of sub-section (2) of Section 92 of the Code or the observations of the Supreme Court in Chairman Madappa v. M. N. Mahanthadevaru, AIR 1966 SC 878, which run as follows:--

'The main purpose of Section 92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate General or two or more persons having an interest in the trust with the consent in writing of the Advocate General. The object is that before the Advocate General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court.'

7. There is again a long string of rulings laying down that where a suit falls under Section 92, the Advocate General's sanction is absolutely essential. This would imply that no suit could be filed without that sanction. As observed by the Hon'ble Judges of the Supreme Court in AIR 1952 SC 143, the suit under Section 92 is a special remedy. It would follow that where resort could be had to the special remedy, the general remedy would be impliedly barred. Reference could in this connection be also made to Subramania Pillai v. Krishnaswami Somayajiar, AIR 1919 Mad 159(DB); Haji Mahammad Nabi Shirazi v. Province of Bengal, AIR 1942 Cal 343(DB) and I. E. Aboo v. G. H. S. Aboo, AIR 1939 Rang 254.

8. Coming now to the question whether the present suit falls within the four corners of Section 92 of the Code, there is no dispute with the proposition laid down in Mulchand Bassarmal v. Devigir, AIR 1931 Sind 87; Ganpat Pujari v. Kanaiyalal Marwari, AIR 1933 Pat 246; Annappa Ramchandra Pai v. Krishna Narayan Prasad, AIR 1936 Bom 412, Mulchand Bassarmal v. Devigir Motigir, AIR 1936 Sind 179; Ramdas Bhagat v. Krishna Prasad Tewari, AIR 1944 Pat 425; Haji Mohammad Nabi Shirazi v. Province of Bengal, AIR 1942 Cal 343 and Gheevarghese Koshy v. Chacko Thomas, AIR 1963 Ker 191, that the allegations in the plaint are to determine the form of the suit. One has, however, to look to the substance and not to the language alone. Provisions of Section 92 cannot be allowed to be avoided by the addition of some inconsequential relief as was laid down in Arjun Nath v. Kailash, AIR 1966 J & K 31. The plaintiffs had on an earlier occasion filed a suit for declaration and consequential relief of a permanent injunction but as the value of the subject-matter of the dispute was found to run into astronomical figures of very nearly half a crore of rupees and the Court fee was payable ad valorem under Section 7(iv)(c) of the Courts Fees Act, the appellants had let their plaint be rejected under Order 7, Rule 11(b) of the Code because of their failure to make good the deficiency in the Court fee. We have, however, to see through a guise and not allow a subterfuge or camouflage to succeed. It has no doubt been held by some High Courts for example in AIR 1933 Pat 246, that a suit for declaration or for permanent injunction cannot fall under Section 92 of the Code but a contrary view has been taken in AIR 1966 J & K 31 and AIR 1931 Sind 87. We have, therefore, to look to the substance of the pleadings and not to the mere form or the phraseology employed.

9. The trial Court had found that the suit could fall within the general clause (h) of sub-section (1) of Section 92 of the Code. The finding has been left undisturbed by the learned Court which dismissed the first appeal filed by the plaintiffs. The conclusion to be drawn is that this aspect of the case was either not argued before the lower appellate court or that it had agreed with the trial court on the point. I find it difficult to accept the argument of Shri Bhagirath Dass that this point had been decided by the lower appellate Court in his favour.

10. Shri Mittal, the learned counsel for the respondents, has no fault to find with Shri Bhagirath Dass's submission that the rule of ejusdem generis should be applied while interpreting the general Clause (h) of Section 92(1) of the Code. Before one can apply this rule, it is to be seen what common trait runs through the earlier clauses to make them belong to one class or genus. It was observed by a Full Bench of this Court in Printers House Pvt. Ltd. v. Misri lal Dalip Singh, AIR 1970 Punj and Har 1(FB), that this rule would be hardly applicable where there was no coupling together of words or clauses giving them the same sense or meaning. The question had arisen while dealing with the argument that clause (c) of sub-section (2) of Section 17 of the Land Acquisition Act was ejusdem generis with the earlier clauses (a) and (b) of the said sub-section. It was found that there was no common trait running between the clauses and that there was no room or scope for the application of the doctrine of ejusdem generis in the construction of clause (c) of Section 17(2). We have, therefore, to see whether the specific clauses (a) to (g) of Section 92(1) of the Code of Civil Procedure have a common trait which would make them belong to a systematic order of things. We have to feel the heart beat that pulsates through this system or scheme of things and then to judge whether the relief claimed in the suit in land has the same pulse beat, synchronizing in timing and frequency, so as to fit in to that system or order. The body of the sub-section cradles the heart which established the timing and frequency of the pulse beat that runs through the later part of the sub-section in which the various clauses have been enumerated. The words 'alleged breach of any trust' and 'directions of the Court for the administration of any such trust' may seem to provide the clue as to where we should feel for the pulse running through these clauses. Looked at from this point of view, the common trait that runs through the clauses is that the section has been placed on the Statute Book to prevent any breaches of public trusts of religious and charitable character and to see that these trusts are properly administered. Having placed our fingers on this heart beat, we have hardly any difficulty in applying the rule of ejusdem generis for the construction of the general clause (h) of Section 92(1) of the Code. The relief claimed by the appellants in their plaint clearly seeks to prevent a breach or conversion or diversion of the trust by the person at present in charge of the management, control or administration of the trust. What is sought to be prevented is a malfeasance or misfeasance in the administration of the trust and its property by the person who is managing the trust either as a de jure trustee or trustee de son tort. The specific clauses (a) to (g) of Section 92(1) of the Code may appear to have the same object or purpose in view. What the plaintiffs seek to prevent is the utilization of the trust funds or property for secular objects or to prevent a conversion or diversion of the funds or property to objects or purposes which were different from those for which the original dedication was said to have been made. What the plaintiffs seek to do is to prevent the manager or trustee to go astray from the original intentions of the persons making the endowment or dedication.

11. I am fortified in my view by a number of rulings. In AIR 1942 Cal 343, a Division Bench of the Calcutta High Court held that a suit for declaration that the waqf was for the benefit of the shia community and that it was of a representative capacity, came within the purview of Section 92 of the Code. The doctrine of ejusdem generis was applied and the essence of the specific clauses was found to concern the management of the trust. A direction that in the administration of the trust, the trustee should do certain things or abstain from doing certain things was found not to be alien to a scheme of management. The relief was found to be akin to the reliefs contemplated in clauses (e) and (g) of Section 92(1) of the Code. In Fakir Mahomed Nanji v. Agha Khan, AIR 1930 Sind 204, the Additional Judicial Commissioner had held that sanction under Section 92 was necessary where the relief sought was an injunction restraining the defendants from preventing the plaintiffs from enjoying the uses and objects to which the properties had been dedicated. A similar view was taken by another Judicial Commissioner in AIR 1931 Sind 87. An appeal filed from this decision was dismissed by two Judicial Commissioners sitting together and the case is reported as AIR 1936 Sind 179. One of the reliefs claimed in this case was that the trustees may be restrained from alienating the land or any portion thereof. The relief was found to fall within clause (h) and sanction under Section 92(1) was considered necessary.

12. It is not open to the appellants to argue that as they had applied for the sanction of Advocate General and that the sanction had been declined, the bar created by sub-section (2) of Section 92 of the Code had been removed or relaxed. Such a submission had been made in AIR 1939 Rang 254, and had been negatived. The same conclusion can be drawn from the observations of the Hon'ble Judges of the Supreme Court in Chairman Madappa's case. The observations have been reproduced earlier in this judgment.

13. I, therefore, agree with the learned Courts below that the case falls within the ambit of Section 92 of the Code and that the sanction of the Advocate General was essential before the suit could proceed. The said sanction having been declined, the suit was rightly dismissed by the Courts below.

14. Shri Mittal had argued that the appeal has abated in view of the death during the pendency of this appeal of appellant No. 1 and respondents Nos. 3 and 4. The suit was in a representative capacity and all these persons were claiming the right to worship in the institution. This right was being claimed in a representative capacity for a class of persons professing a particular faith or religion. The right to worship is a civil right as was held in AIR 1939 Mad 757, but it would be too much to say that this right can be described as an appendage of the ownership of any movable or immovable property so as to go always with that property. One's religious views and beliefs are a personal attitude which is not heritable or transferable. Such a right would come to an end with the death of the person and would last only for his lifetime. Father and son can own property one after the other but there may be no continuity or community of religious views and beliefs. The son would have a right of worship according to his own views and beliefs and this right can be independent of the views and beliefs of his forefathers. There were, however, persons on either side to continue this litigation in a representative capacity. In AIR 1952 SC 143, eight out of nine plaintiffs had died and nobody had come forward with the objection that the sole surviving plaintiff could not continue the proceedings in a suit falling under Section 92 of the Code. Shri Mittal argues that the objection about the abatement of the proceedings had not been raised in that case. It is obvious that the objection was considered not worth raising. I, therefore, do not agree with Shri Mittal that the appeal has abated with the death of appellant No. 1 or respondents Nos. 3 and 4, when both sides are litigating in a representative capacity.

15. Shri Mittal then contends that the shamilat lands have vested in the Gram Panchayat under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 and that only the Panchayat can utilize or dispose of the land for the benefit of inhabitants of the village and that the appellants have no right to sue. According to exception (ix) to the definition of 'shamilat deh' in clause (g) of Section 2 of the said Act, land which is used as a place of worship or for purposes subservient thereto would not be included within the definition. Shri Mittal now contends that this institution is not 'a place of worship'. I cannot help using the oft repeated but apt saying that Shri Mittal is trying to blow hot and cold. He could plead the bar of Section 92(2) of the Code only if the institution was a trust of a religious or charitable character. The bar created by Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 would, however, apply only if Shri Mittal were to take just the opposite position. Care has been taken in the drafting of the written statements but it is conceded that Baba Jaimal Singh was a pious saint. He has been described as Sat Guru Maharaj and use of the word 'ji' may suggest that he was held in veneration. He is described to have been a person of high spiritual and intellectual attainments. The use of the words 'saint', 'sat sang', 'shabad', 'simran', 'math', 'bhajan' and 'dyan' in paragraph 6 of the written statement may suggest that the Radhaswami activities going on in the shrine were not devoid of all religious significance. Even otherwise the word 'worship' could not always have a religious connotation. According to Corpus Juris Secundum, Volume 101 on pages 630-631 (1951 Reprint), the word 'worship' can have a religious sense and also a non-religious sense. In its latter connotation, it would mean civil deference, courtesy or reverence paid to merit or work. It can simply mean honour or respect. According to Webster's International English Dictionary, 'worship' may simply mean courtesy or reverence to character, dignity or worth. A place where a select few dedicated to a particular faith congregate to pay homage to their leader or head or to discourse their views and beliefs or to sing hymns would be a shrine or place of worship whether we choose to call it a Dera or a Dharamsala or a Gurdwara. Even certain secular activities could go on with such devotion or fervour as to amount to worship. One's love for lucre can be deified and worshipped as a goddess. A farmer looking at his parched fields may so supplicate nature as to put an certain means of irrigation on a pedestal as the rain God. Cupid as the God of earthly love can figure in the holiest of shrines and religious books. People are even known to have worshipped Bacchus; the God having a two way spirituous appeal, secular as well as devotional. Shri Mittal is, therefore, not being fair to the Radhaswamis if he means to suggest that their devotion to their faith or its head is so lacking in real feeling that it falls short of 'worship'. The institution is, therefore, excepted from the definition of 'shamilat deh' and there was no question of its vesting in the Gram Panchayat under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961.

16. The appeal fails and is dismissed. As both sides have raised untenable contentions, there are no orders as to costs in this Court.

17. Appeal dismissed.


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