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Ram Parshad Chela Sarwan Das and ors. Vs. Shankar Das Chela Nathu Das and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Socities
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H64
AppellantRam Parshad Chela Sarwan Das and ors.
RespondentShankar Das Chela Nathu Das and anr.
Cases ReferredIn Subramania Aiyar and Ors. v. Lukshmana Goundan and Ors. A.I.
Excerpt:
.....the owner of certain land in the bevenue papers, (3) that the samadh was worshipped by all hindus, who visited it on every full-moon day, lighted lamps thereon and made offerings, (4) that the income of the dera was used for feeding the poor and the sadhus, and (5) that the samadh was open to all hindus. it cannot be disputed that the plaintiff can be defeated only if the defendants establish affirmatively that a trust of a public character was imposed upon the property. 8 of the plaint that the samadh of baba sri ram das stood in a double-storeyed pucca house and that the same was worshipped by the residents of the village petwar and other neighbouring villages as well as by dadupantbi sadhs. 1 admitted that freshly married couples-belonging to rich families were taken to the samadh,..........objections of the contesting defendant, the trial court framed the following issues:1. whether the dera samadh bawa ram das of village petwar is a public charitable trust?2. if so, wbat is the rule of practice regarding succession to the office of mahant of this dera 13. whether this dera is a branch of the dharamsala bhiwani and what is its effect on this suit?4. is there at present any validly appointed mahant of the dera?5. if so, are there any grounds justifying his removal?6. if not, who should be the fittest person for this office?7. what, if any, directions are needed for the administration of the said trust?3. the first issue was found against the plaintiffs and the third against the contesting defendant. in view of the finding on issue no. 1 the second issue was left undecided......
Judgment:

Teja Singh, J.

1. This is a plaintiffs' first appeal arising out of a suit under Section 92, Civil P.C.

2. There is a dera of Dadupanthi Sadhs in village Petwar in the District of Hissar. It is known by the name of Smadh Baba Sri Ram Das. Out of the six plaintiffs two are Dadupanthi Sadhs while the remaining four are Jats and claim to be the worshippers of the dera.

3. Their allegations were that the dera was public and a charitable trust, that according to the custom of the Bhekh of Dadupanthi sect and the practice of the dera, the management of the dera was in the hands of a mahant, who was appointed either by his predecessor during his lifetime or by the Bhekh and the residents of the village Petwar, that to the dera was attached considerable property consisting of agricultural land, a house and a nauhra etc, and that though Shankar Das defendant 1 had been duly appointed mahant by his Guru and predecessor Mahant Ganesh Das, he ceased to occupy that office becuase of a suit which Jai Ram Das defendant 2 brought against him some time ago.

4. On these allegations the plaintiffs prayed that a fit and a valid mahant of the dera be appointed and he be directed to keep the account of the income of the property attached to the dera and utilize that income for the purposes of the dera that the property of the dera be entrusted to him; that a proper scheme be formulated for the mangement of the dera and that any other relief additional or alternative which the Court might deem proper be granted. Shankar Das defendant 1 supported the plaintiff's case. His position was that he was duly appointed mahant of the dera, and if the Court confirmed him in that office he would be willing to take up the duties of the office; but if this was not deemed proper, he joined with the plaintiffs in praying that any other person whom the Court considered fit may be appointed with the consultation of the Bhekh and the residents of the village.' Jai Ram Das defendant 2 contested the case on various grounds. First of all he denied the plaintiffs' locus standi to maintain the action and urged that the suit was neither properly framed nor correctly valued for purposes of court-fee. He also maintained that the suit was collusive and had been brought foe the benefit of Shankar Das. On merits he admitted that the property mentioned in para. 8 of the plaint was attached to the dera and was wakf, but he denied that the dera was a public and a charitable trust. He also denied that there existed any custom or practice. about the succession of the mahants of the dera, or that the Dadupanthi sect or the residents of the village, in which the dera was situate, had any hand in the appointment of the mahant. According to him the dera in question was a branch of the dharatnsala Bhiwani and the entire management was in the hands of the mahant and karkun of the said dharamsala, who alone was competent to appoint the mahant of the dera. After disposing of the technical objections of the contesting defendant, the trial Court framed the following issues:

1. Whether the dera Samadh Bawa Ram Das of village Petwar is a public charitable trust?

2. If so, wbat is the rule of practice regarding succession to the office of Mahant of this dera 1

3. Whether this dera is a branch of the Dharamsala Bhiwani and what is its effect on this suit?

4. Is there at present any validly appointed Mahant of the dera?

5. If so, are there any grounds justifying his removal?

6. If not, who should be the fittest person for this office?

7. What, if any, directions are needed for the administration of the said trust?

3. The first issue was found against the plaintiffs and the third against the contesting defendant. In view of the finding on Issue No. 1 the second issue was left undecided. Issue No. 4 was also decided against the plaintiffs and consequently the suit was dismissed, but the parties were left to bear their own costs.

6. The most important question in the case is whether the plaintiffs had succeeded in proving issue No. 1. The view of the Court below was that there was a trust but the plaintiffs had not succeeded in establishing that it was a trust of public or charitable nature. The Court was inclined to think that the following five facts have been established by the plaintiff's evidence: (1) that the dera included a samadh, (2) that the samadh was shown to be the owner of certain land in the Bevenue papers, (3) that the samadh was worshipped by all Hindus, who visited it on every full-moon day, lighted lamps thereon and made offerings, (4) that the income of the dera was used for feeding the poor and the sadhus, and (5) that the samadh was open to all Hindus. With all this it held that it was not a public and charitable trust. This is what it observed in the judgment, after enumerating the five points mentioned above:

All this I am afraid does not constitute a public trust of charitable nature. The plaintiffs have not only to prove that it is a trust but they have to prove that it is a public and charitable trust. There is no documentary evidence to show that it is a public trust. It has been held in Parmanand v. Nihalchand that 'To constitute a trust created or existing for public purpose of a charitable or religious nature, the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated, by words or acts with reasonable certainty. Moreover, the purpose of the trust, the trust property, and the beneficiaries must be indicated so as to enable the Court to administer the trust if required.' In the present case the author of the trust, his intention to create a trust, the purpose of the trust and the beneficiaries are not at all indicated.

7. Now there is ample authority for the proposition that the existence of a trust for public or charitable purposes can be proved either by direct evidence of dedication or by user extending over a long period and the conduct of the parties concerned. In a recent case decided by a Division Bench of the Lahore High Court, Puj Maya Bishi v. Ramchand and Ors. A.I.R. 1946 Lah. 31 the property in suit consisted of a religious institution of the Jains. One of the parties claimed that the institution was dedicated to the Jain community. The contention of the other side was that it was secular property. The evidence showed that the property had been acquired by one Puj Keaar Bikh and after him it descended to his chela Labhchand. The trial Court relying on the fact that ever since the property had been acquired by Puj Kesar Bikh it had been used as an Upasara, i.e., a Jain religious institution and had been resorted to by the Jain community for religious instruction and worship, held that it was the property of the Jain community who were entitled to possession as against the defendants. The District Judge without taking into consideration the use to which the property had been put held that it was a religious property merely because it passed from guru to chela. The learned Judges of the High. Court accepted the defendants' appeal and setting aside the decree of the District Judge remanded the case to him with the following observations:

Before this case can be finally disposed of, it appears to me that the lower appellate Court must consider the evidence and decide whether or not the property acquired in 1908 was ever dedicated to the Jain community. It is true that there is no direct evidence of dedication, but dedication could be inferred from the conduct of Puj Kesar Rikh and Labh Chand and from the user of these premises. Whether such a dedication can be inferred must depend upon the evidence. Mr, Bhagat Singh has rightly pointed out that dedication is usually only inferred from user when the evidence covers a very long period of time. There is force in that contention, but on the other hand much depends upon the nature of the user. If the nature of the user over a comparatively short period of time is such as to lead inevitably to the inference of dedication, then dedication must be inferred.

8. As regards the Privy Council decision Pandit Parmanand v. Nihalchand and Anr. A.I.R. 1988 P.C. 195 relied on by the lower Court, there is nothing in it which militates against the proposition that the public nature of a trust can be inferred from long user etc. The dispute therein related to a property variously described as Baghichi Thakaran situate in the town of Gujranwala, The plaintiffs alleged that the Baghichi was a public endowment for religious and charitable purposes. The defendant, who was in possession of the property denied the plaintiffs' allegations. The history of the property as proved in the case showed that it had been founded by one Baba Kulla in 1800 and since then it had descended from guru to chela. The question was whether it was dedicated for the use and benefit of the public. Their Lordships observed that there was no documentary or oral evidence to show that the property was expressly dedicated for the use and benefit of the public and then tried to find, out whether there were any circumstances from which the dedication of the property to a public trust could be implied. After that they discussed the evidence and concluded by making the following observations:

Their Lordships do not think that any user or treatment of the property has been proved, such as would justify the conclusion that it was a public, and not a private trust. It cannot be disputed that the plaintiff can be defeated only if the defendants establish affirmatively that a trust of a public character was imposed upon the property. To constitute a trust 'created or existing for a public purpose of a charitable or religious nature', within the meaning of Act (XIV [14] of 1920), the author or authors of the trust must be ascertained, and the intention to create a trust mint be indicated by words or acts with reasonable certainty.

9. These words, in my opinion, are not cap-able of the construction which the trial Sub-Judge has placed upon them. As I read them, their Lordships appear to me to mean that the public nature of a trust could be established by user and treatment, but when it is sought to prove it otherwise, the author or authors of the trust must be ascertained and it must further be proved by words or acts that the intention of the author was to create a public trust and for a Charitable purpose. Any other construction would make the establishment of a trust by user or treatment simply impossible.

10. So the question is whether the way in which the suit property has been used and treated can justify the conclusion that it was dedicated to charitable and public purposes. To start with, it has been proved that after Baba Sri Ram Das, Whose samadh is the central place of worship, the management of the property passed on to his chela Patram Das. After Patram Das came his chela Ganesh Das. On 29th April 1916 Ganesh Dae transferred the entire land that stood in his name to tbe samadh. The Patwari entered the mutation on Ganesh Das's report (Ex. D-4) and a Revenue Officer sanctioned it. In the statement that Ganesh Das made before the Revenue Officer on 4th May 1916 he made it clear that his chela who was to occupy the gaddi after his death would only act as the manager of the land and would not be competent to mortgage or sell it. There is no evidence on record to show when the samadh became the owner of the property other than the land, but both parties are agreed that it was wakf It was mentioned in para. 8 of the plaint that the samadh of Baba Sri Ram Das stood in a double-storeyed pucca house and that the same was worshipped by the residents of the village petwar and other neighbouring villages as well as by Dadupantbi sadhs. Jai Ram Das defendant, who contested the plaintiffs' suit, admitted that what was stated in para. 3 of the plaint was correct. In addition, the plaintiffs' witnesses also deposed that the samadh was open to all Hindus, that they visited it on the puranmashi day and made offerings of milk etc. as a token of worship. The position of the defendant's witnesses was that only the Dadunanthi sadhs worshipped the samadh. But certain facts brought out in the cross-examination of some of them disclosed that they did not speak the truth on this point. For example, P.W. 1 admitted that freshly married couples-belonging to rich families were taken to the samadh, obviously for worship. He also admitted that some people made offerings to the samadh. Mani Ram D.W. 7 deposed that the income of the dera was spent on Dadupanihi sadhus or on any other sadhu or any other charitable purpose. It was held in Prakash Chandra Nag v. Subodh Chandra Nag and Ors. : AIR1937Cal67 that it is the extensiveness of object which affords some indication of the public nature, of a trust, and the test to determine is if the charity is for a large and extensive section of the community. Lewin in his well-known book 'Practical Treatise on the Law of Trusts' (14th. Edn., p. 15) observes that by public trusts must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. 'A public or charitable trust,' says the learned author

has for its objects the members of an uncertain and fluctuating body, and the trust itself is of a permanent and indefinite character, and is not confined within the limits prescribed to a settlement upon a private trust.

11. In Mahant Puran Atal v. Darshan Das and Anr. 34 All. 468 it was established by evidence that the suit property had been held for very many generations for the purpose of supporting and maintaining fakirs, entertaining visitors and for the giving of alms, and there was no evidence that the property was ever held for any other purpose. The learned Judges held that on this evidence not only the Court was entitled to presume but ought to presume the existence of a charitable or religious trust. As regards the question whether the trust was for a public purpose within the meaning of the Civil Procedure Code, the learned Judges observed that since the property was held for the support of fakirs, entertaining visitors act giving alms and generally for charitable purposes, even assuming that the main purpose of the trust was to support Nanakshahi fakirs and to spread the religion founded by Nanak, the trust was for a public purpose.

12. In Subramania Aiyar and Ors. v. Lukshmana Goundan and Ors. A.I.R 1920 Mad. 42 Seshagiri Aiyar, J. while differentiating the consecration of a temple for public worship from an endowment of property to the temple observed that what has to be shown in the latter case is that the property ceased to, belong to the individual and was given up for the use of the temple, while in the former class of cases it will generally be sufficient to show that there has been free access to the temple and that there have been public worship and public celebrations. Now, in the present case, both requirements are satisfied. As regards the temple it has been proved by evidence that it was used for public worship and there were public celebrations and so far as the property is concerned the evidence is that it ceased to be the private property of the Mahant, if it was so at one time, and was dedicated to the temple for its use.

13. For all these reasons I am of the opinion that the finding of the Subordinate Judge on issue 1 was erroneous and the dera Samadh Baba Ram Das was a public and charitable trust. (His Lordship further considered the evidence on issues 4 and 3 and holding that the trial Court did not appreciate it properly and in the former case had wrongly put the onus on the plaintiff, answered issue 4 in the negative and affirmed the findings on issue 3. His Lordship then concluded.)

14. The result in my opinion is that this appeal must be allowed, the decree of the Sub-ordinate Judge must be set aside and the case remanded under Order 41, Rule 28, with the direction that it be readmitted under its original number in the register of civil suits and be re-decided on the remaining issues and in the light of the observations made above. The costs will abide the event. The parties' counsel have been directed to cause their respective clients to appear in the trial Court on 26th July.

Khosla, J.

15. I agree.


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