1. (6th August 1936).-This is an appeal by five of the defendants in a suit under Section 92, Civil P.C. In connexion with the appeal there is a cross-objection by the plaintiffs. The suit related to an Asram known as the Asram of Baba Lokenath Brahmachari in Borodi in the District of Dacca, said to be an endowment for public, religious and charitable purposes. The plaintiffs are residents of village Barodi and other villages adjacent to it. They claim to be entitled to perform, and allege that they do perform, the worship of Baba Lokenath who lived and died in the Asram, and to have contributed funds for its improvement and maintenance; and some of them were also on a committee which was in existence for its administration at the time when the cause of action arose. The Asram is situate on a piece of land of which the superior title belongs to one set of co-sharer zamindars, the Nag Babus, the said set of co-sharers being known as the Madhyam Hisya or Panch Hisya, the other two sets of co-sharers going by the name of Pub Hisya and Paschim Hisya. In the suit, as originally filed, there were eighteen persons as defendants, the first seventeen of whom were some of the Madhyam Hisya or Panch Hisya co-sharers. It was alleged that while the committee which was appointed by the public and of which some of the plaintiffs were members was functioning, fourteen out of the defendants wrongfully and illegally constituting themselves a committee of management with defendant 1 as its President, collected funds over their signatures', obstructed the performance of an annual utsab attached to the institution, committed breach of trust and acted in various ways in disregard of the religious sentiments of the public who perform sheba and puja at the Asram and to the detriment of the public trust which the Asram represents, thus necessitating a suit for reliefs under Section 92 of the Code for its preservation and upkeep. The defendants were impleaded on the footing that they had assumed the position of trustees de son tort.
2. The contesting defendants ranged themselves into two sets: one consisting of defendants 2 and 3; and the other of defendants 6, 7, 8 and 11. Those of the other defendants, who originally entered contest, eventually withdrew therefrom or ultimately supported the plaintiffs. Both sets of contesting defendants denied that the Asram was an endowment or trust for public, religious or charitable purposes, or that its site, structures or appurtenances had ever been dedicated for use as such. They alleged that the Asram was the private property of the Panch Hisya Maliks; that on the death of Baba Lokenath who as a holy saint had been allowed to remain at the place and live in huts built for him by the said Maliks, the said Maliks in order to perpetuate his memory introduced the worship of his Asan and his Sandals and also inaugurated an annual Utsab; and that although the public were allowed to make offerings and participate in the worship and although they contributed to the expenses of the annual Utsab and also effected certain improvements in the place at their cost, they had acquired no rights to or in the Asram or in its management. It was admitted that in later years, as the Utsab grew in importance and dimensions, the assistance of persons who were not members of the Panch Hisya was taken by constituting a sort of an advisory body with some such persons as members thereof, in order that its functions might be more satisfactorily organized and accomplished. Such details as regards all these matters as are relevant for the purposes of the case, in the stage at which it now is, will be given at their proper places hereafter. The Judge has decreed the suit. The decree runs in these words:
It is ordered and decreed that the suit be and is hereby decreed; that a scheme will be settled by the Court for the administration and management of the Asram of Baba Lokenath Brahmachari which has been found to be a public trust or debuttar of a religious and charitable nature; that provision will be made in the scheme for the appointment of a committee which will be trustees of the Asram: that the management and the administration of the Asram and its properties and appurtenances will be vested in the committee which will be formed according to the provisions in the scheme; that the three Hisyas of the Nag family and the general body of disciples, worshippers and devotees will be entitled to representation on the committee, the proportion of which will be determined at the time of the framing of the scheme; that the defendants will be removed from the management of the Asram after the committee is constituted in accordance with the Scheme. In view of the very substantial moral and material help which the Panch Hisya has so long rendered to the Asram and with a view to restoration, of good feelings between the parties to this unfortunate litigation for securing good management of the Asram, I order that the parties do bear their own costs in this suit.
3. From this decree the appeal has been taken. Defendant 8, Prakas Chandra Nag, originally preferred the appeal; and later on Sasanka Mohan Bose, Sudhansu Mohan Bose, Bidhubhusan Nag and Brahmananda Nag, defendants 6, 7, 11 and 3 respectively, have joined him as co-appellants. The cross-objection by the plaintiffs is for the costs which the Court below has disallowed. The first and most important question in the case is whether the Asram is a 'trust created for public purposes of a charitable or religious nature' within the meaning of that expression in Section 92 of the Code. To deal with this question the history of the Asram, beginning from its origin and tracing it down to the present times, will have to be carefully considered, as the learned Judge has done. As regards the origin of the Asram, it is necessary to set out somewhat in detail the pleadings of the parties on the point, including therein their respective contentions as developed in the course of the trial, and also the findings which the Judge has come to. In the plaint the property was described as
permanently settled nishkar rent-free land, being debuttar Lokenath Brahmachari appertaining to Settlement Khatian No. 801 of Mouza Barodi No. 5, area 1.22 acres, inclusive of kutcha and pucca temple, muth, rooms, tank, indara (well), tube well, etc., thereon;
and it was said that the Asram, consisting of the said property, its site, structures and appurtenances, had been dedicated for use as an endowment for public, religious and charitable purpose. It was also stated in the plaint that Baba Lokenath Brahmachari, who was an ascetic and devout saint, came to village Barodi about 72 years ago and put up for about a year in the house of one Dengu Karmokar and lived upon alms; that within this time his devotion and saintliness having attracted the people of the locality, he was granted nishkar right in the plot of land aforesaid, which was then part of a public cremation ground, by the Panch Hisya Nag Babus to whom the land belonged and that the public of the locality created for him on a portion of the land a hut and a cook-shed where he lived as a recluse, giving himself up to devotion and meditation. It was also said in the plaint that the Asram thus founded was maintained and improved out of the income of the land and the offerings made by the public. In para. 5 of the plaint it was said:
The fame of Baba Lokenath spread far and wide and he came to be worshipped as an incarnation of God and the number of his worshippers and disciples went on fast increasing. In course of time the area of the Asram proper was enlarged and improved with public contributions and the offerings made thereat into its present condition.
4. In para. 6 of the plaint it was stated:
Baba Lokenath lived a totally detached life and since then both himself and the public treated it as debuttar of a public, religious or charitable nature.
5. These pleadings in the plaint were understood by the Court below as meaning that the Panch Hisya maliks made a sort of a debuttar grant in favour of Baba Lokenath treating him as a deity incarnate; at least, that appears to have been the way in which the pleadings were pressed in the said Court. It was not alleged in that plaint, nor is it anybody's case, that there was any deity installed in the Asram, but it was sought to be made cut on behalf of the plaintiffs that Baba Lokenath used to carry on meditation and religious observances there and to give away in charity almost everything that he received, reserving to him what was necessary to meet his barest wants. This, as far as one can make out, was the plaintiffs' case as regards the origin of the trust for public, charitable or religious purposes. The contesting defendants denied any nishkar or debuttar grant and any dedication or endowment whatever, repudiated all suggestions that the Asram was ever a seat of learning or religion, and denied that it was ever an institution for charity. They alleged that the Asram was only the private residence of Baba Lokenath, who had no right of ownership in it, that it was built for him by the Panch Hisya maliks to enable him to remain there and carry on his meditations, that it was they who bore the expenses of the Asram and kept it up in repairs and that on his demise the Asram reverted to their own possession as maliks. The learned Judge has held that the Panch Hisya Nag Babus made an absolute grant of the land to Baba Lokenath for the purpose of making a hermitage there; and that it was a debuttar grant made with the intention of enabling him to make his Asram there and carry on his work of spiritual and religious uplift of his devotees and disciples and of charity among the poor of the locality. He has ultimately recorded his conclusion in these words:
I am clearly of opinion that the land of the Asram was granted in debuttar in favour of the Baba by the Panch Hisya and that both the grantor and the grantee and the public treated the Asram as a public, religious and charitable institution. The Baba so long as he lived, in fact treated and regarded himself as a trustee of the Asram for his devotees and disciples and the poor. The original grant of the land by the Panch Hisya was in essence a grant for religious and charitable purposes which the Baba represented.
6. From the evidence adduced on both sides there is no doubt whatever that Baba Lokenath was regarded as a Siddha Mahapurush (one who had attained the highest spiritual perfection) or a superman, that his meals were such as are offered to Hindu deities and that his prosad (remnants of his meals) were distributed amongst his disciples, the visitors and the poor who used to assemble in the Asram. (Their Lordships then proceeded to consider the evidence and continued.) The learned Judge seems to have been of opinion that the burden of proving that there was no endowment or that there was no trust for public purposes of a charitable or religious nature was upon the defendants. In proceeding on this view he has been entirely in error, for in a suit under Section 92 of the Code, just as much as in all other suits, the onus of establishing a case for the reliefs asked for is on the plaintiffs. We shall not refer to this matter again, for the facts will have to be found by us on the materials, such as there are, on the record; and at this stage, after the parties have adduced all the evidence that they desired, the question of onus of proof hardly matters. But here, on this question, the Judge has complained that Panaulla has not been examined by the defendants, though he was cited as a witness on their behalf. How Panaulla's evidence could have thrown any light on the question of the original grant, if any, is not at all clear. The learned Judge has also found, but we can find no clear evidence on which such a finding may be made, that two huts were built for him by his numerous devotees and disciples and not merely at the cost of the Panch Hisya Babus. (Their Lordships again on considering evidence proceeded.) We hold that the plaintiffs have failed to prove that there was any grant of the character they had pleaded, or any of the nature that the learned Judge has found. The learned Judge having thus found that an endowment or a trust for public purposes, the objects of which were religion and charity, having been created during the lifetime of Baba Lokenath, that endowment or trust continued to exist and flourish ever afterwards. To quote from his judgment:
The public and religious and charitable character of the asram in suit was maintained in the time of Janoki Brahmachari and the other Brahmacharis and Pujaris who succeeded at the Asram. The whole of the evidence shows that the Baba was raised to the Godhead after his demise and that the Asram thenceforth became to all intents and purposes a temple for his worship and a place of pilgrimage sacred to his memory.
In the time of Janoki Brahmachari, the worship of the Baba in the shape of his Ashan and Sandals was perfected and reduced to a system. He was the man in sole authority at the Asram, as the Baba had been before him.
8. In these findings the learned Judge was persisting in the double capacity that, in his view, Baba Lokenath fulfilled, namely, first, a Godhead and second, a trustee. It is very difficult to evolve a clear idea of the nature of. the trust in which such double character of an individual at the head of its management is involved, and Mr. Bose, appearing on behalf of the plaintiffs, found it very inconvenient to support such a theory. He preferred in the end to put his case on the basis of a gift to a religious foundation, so common in other countries, but of which there is hardly any parallel in any part of Bengal. But, be that as it may, we have already ex. pressed our view of the matter and it will suffice for us to repeat that there is, in our judgment, no foundation whatever for a supposition that there was any trust created for religious or charitable purposes or that Baba Lokenath was meant to be the beneficiary as well as the trustee in respect of any such trust. In this view that we have taken it is clear to us that the plaintiffs' case, as laid, should fail. But it is not right that we should dispose of the suit on this finding that we have come to: because the allegation is that there was a trust for public purposes and therefore having regard to the special jurisdiction that Courts have in matters of public trust and which they must exercise in suitable cases in order to protect the interest of the public where the public stand in need of the Courts' interference, we have to examine the case thoroughly in order to see whether any other public trust is disclosed.
9. Baba Lokenath died in Jaistha 1297(=May-June 1890). Janoki Nath Brahmachari, who had his home elsewhere, was a man of excellent spiritual parts and an ardent devotee and a favourite disciple of the Baba. Early in life he fell under the influence of the Baba, adopted celibacy and almost renounced the world. In saintliness of character and asceticism he was next only to the Baba himself and he was highly respected everywhere and by everybody. Formerly he used to live in his home and to take his meals at the Asram at the request of the Baba. About a week before his demise, he was brought to the Asram by a woman who used to go by the name of Goalini mother, because the Baba used to call her mother, to look after and tend the Baba as he was ill. The plaintiffs endeavoured to make out a case that Janoki was appointed by the Baba as his successor to stay at the Asram and manage the trust, and that on the Baba's demise, the devotees and disciples of the Baba, amongst whom also were the Nag Babus of Panch Hisya, inaugurated in the Asram the worship of the Ashan and Sandals of the Baba and Janoki undertook that worship and carried on the trust as the successor of the Baba, much in the same way as the Baba had used to do.
10. The case of the contesting defendants, to put it shortly, was that on the Baba's demise it was the Panch Hisya Babus to whom the land and everything else on it belonged, inaugurated the sheba puja of the Ashan and the Sandals of the Baba and invited or permitted Janoki to remain on the premises and carry on the worship and do such acts of charity in the shape of distribution of the prosad and feeding of the poor, etc., out of such income as might be coming in, supplemented by financial help from themselves, but it was understood that all acts of management on the part of Janoki would be subject to their own supervision and control. (Their Lordships again considered evidence and proceeded.) We do not think it can be said upon the evidence referred to above that the part which the Panch Hisya Nags took in the inauguration of the worship of the Ashan and the Sandals was quite the same as that taken by the other two Hisyas or by the devotees and disciples in general who were present at the cremation or even at the deliberations, as the learned Judge has held. It is quite true that some members of the other two Hisyas and a number of the other devotees and. disciples of the Baba as well were present when the proposal was mooted, and it may as well be that the idea itself originated with people other than the Panch Hisya Nag Babus.
11. But all this, in our judgment, has very little to do with the question. Indeed, it seems to us impossible that anybody else than the Panch Hisya Nags could have given effect to the proposal when it was resolved upon. The land admittedly belonged to them and on the demise of the Baba it was they who were entitled to take khas possession of it, the earthly belongings of the Baba, i. e., the Sandals, if they at all devolved on anybody, did so on Janoki Brahmachari, his favourite disciple, for whose retention at the Asram the Baba had left his last wishes. The Ashan was the place which it was within the rights of the Panch Hisya Nag Babus only to consecrate for religious use. Whether the Panch Hisya Nag Babus ordered Janoki to carry on the worship or Janoki consented to do so of his own accord, to our mind, makes no difference; and in all likelihood there was no order at all, but only a request which Janoki, in deference to the memory and wishes of the Baba, gladly complied with. It was thus, in our judgment, that the worship was inaugurated, and the foundation was laid of an institution the character of which, judging from its object as also its activities. which have been described in great detail by numerous witnesses, must be held to be that it was an institution for religious and charitable purposes. The character of this project, in essence, was the foundation of a worship and a dedication to religious and charitable uses. (After considering evidence their Lordships proceeded) Janoki Brahmachari died on 29th Chaitra 1320 (12th April 1914). He too was cremated in the Asram and his Ashan also began to be worshipped at the instance of his disciples. There is no evidence specifically relating to the circumstances under which this worship was started, and the circumstances indicate that it was out of reverence for Janoki that his worship was inaugurated as a matter of course, because he was a favourite disciple of the Baba and had carried on the worship of his Ashan and Sandals and had run the Asram in a manner worthy of the cause and was himself a man of high spiritual culture and attainments.
12. After the death of Janoki Brahmachari several other persons were appointed in succession: one Benode Mukherji who had been asked by Janoki a few days before his death to carry on the work; then one Gnanananda who was sent to the Asram by one Chandra Kishore Chakravarti, another disciple of the Baba to perform sheba puja and cook the bhoge etc.; thereafter one Sitanath Brahmachari; after him, one Abani Thakur, who worked for about a year and half and has been examined as P.W. 26 in this case and has deposed that neither he nor his predecessors worked under the control or direction of anybody nor gave hishab to anyone; and lastly one Monananda who worked down to some date in 1331 (=1924-25) according to the plaintiff or Aswin 1333 (=September-October 1926) according to the defendant. The Judge has expressed the view that there is no sufficient evidence to show that the appointments of these persons were made exclusively by the Panch Hisya Nags, and he has held that such active part as they took in the matter is attributable to the fact that they were devotees and disciples of the Baba and also the maliks of the land on which the Asram stood and so were persons who were more interested in its affairs than others. But judged from a true perspective the effect of the evidence bearing upon the matter, to our mind, is that there is no sufficient evidence showing that anybody else than the Panch Hisya Babus made the appointments of these persons. It is perfectly true that they did so, at times, on the suggestion or the recommendation of outsiders, but that only shows that they allowed such outsiders as were also interested in the Asram to have a voice in the matter. Their conduct, in this respect, cannot, in our opinion, be interpreted as indicating any want of authority on their part to make these appointments. The evidence is clear and definite that it was they who dismissed two of these persons from their posts, namely, Gnanananda for having misappropriated some money and articles belonging to the Asram, and Monananda for having behaved improperly with some visitors to the Asram. These persons, as shebaits of the Asram, were no doubt given a free hand in the administration of its affairs and it is possible, as P.W. 26, Abani Thakur, has said, that no such interference used to be made as could be understood as meaning control and that no hisab was given by them as might indicate subordination, Speaking of this period, which the learned Judge, not inappropriately, has designated as the period of Brahmacharis or Shebaits, he has said:
Evidence coming from both sides shows that during the Shebaitship of the Brahmacharis who succeeded Janoki, sheba puja, making of pronamis and offerings in cash and kind at the Ashan, distribution of prosad, giving of alms to the poor and other religious and charitable usages of the Ashram continued to be observed as before, and the religious and charitable character of the institution was fully maintained. Then, as before, the Ashram was maintained out of offerings in cash and kind at the Ashan (cash offerings were latterly put by worshippers into a collection-box which was hung up in the Ashan Ghur).
13. This, in our judgment, is a correct summary of the situation such as it was at this period. The learned Judge has gone on to observe that the Shebaits were not accountable to any for the money spent by them; but this could hardly be correct, for at least Gnanananda was turned out for committing misappropriation. And it would be more correct to say that no accounts used to be taken from them. The learned Judge has also held that there is no evidence that there was any deficit at the Asram which was made up by the Panch Hisya; and this we think is a correct finding. There is the evidence of D.W. 2, Brahmananda Nag, that the Asram used to be maintained by Akas Britti (chance of offerings) and that he often felt curious as to the source from which the expenses used to be met and often found that some offerings came just in the nick of time through Baba's grace There is no reason to doubt the evidence, for good causes often thrive in this way And in any event, as far as we can see, there was no scale definitely fixed for expenditure on any particular head and so there could be no difficulty in adjusting the expenses to the income. Of course the Panch Hisya Nag Babus also, just a numerous other devotees and disciples used to do, used to make these offerings and went on paying their annual contribution of Rs. 20 for the utsab.
14. After the death of Janoki a tin-shed was erected over the place where his Samadhi was situate; khas possession was taken of the land on which stood the jote of Panaulla and two small tanks were excavated on the spot at a total cost of Rs. 100 or a little more. There is no reliable evidence as to who paid the costs. On the Utsab day of 1324 (1917-18) when Gnanananda was the Shebait, a Mandhir which had been erected on the place of Samadhi (cremation) of the Baba was consecrated. It is not disputed that the costs of construction and consecration of the Mandir were met by subscription raised from the public.
15. After the period of the Brahmacharis or Shebaits began the era of Pujaris, of whom the first to be appointed was Saroda Charan Chakravarti who has been examined as D.W. 14. There was a controversy as regards the date and year on which he was appointed as such; but this controversy, as the learned Judge has pointed out, is not very material. Saroda Charan Chakravarty was sent to the Asram by P.W. 29, Mathura Mohan Chakravarti, in the latter part of 1331 (=1925) or the beginning of 1332 (==1926) at the request of a committee which was then functioning and about the origin of which we shall presently investigate. The learned Judge has found that it was about that time that Saroda was appointed as Pujari by that committee and we see no reason to dissent from this conclusion. We may observe that Saroda was examined in this case as a witness on behalf of the defendants, but his deposition has not been printed in the paper-book and neither side has referred to it. Possibly, his evidence, which has not been believed by the learned Judge, is worthless.
16. We come now to an era which has played a very important part in the history of this institution. The significance of the mode in which the administration of the institution has been carried on during this period has been a matter of great controversy between the parties. It has already been stated that the first death anniversary of the Baba took place in 1298 B. Section (=1891), and that this utsab became an annual function. The utsab gradually gained in importance till the year 1319 (=1912) when D.W. 28, Nabadwip Chandra Roy, one of the partners of a wealthy firm of merchants at Chittagong, performed the utsab at the Asram at his own cost. It was performed by him on a more magnificent scale than hitherto fore and since then this annual function became a big and important affair. This witness is respectable, independent and reliable, and although he was subjected to a cross-examination, which we must deprecate, he has given evidence which is thoroughly trustworthy. The learned Judge, we regret to have to observe, has entirely misappreciated his evidence when he has observed:
On a careful consideration of the entire evidence of Navadwip Babu, I do not think it comes to much.
17. It is true that the evidence does not help the defendants in so far as they have sought to maintain that the Asram is their private and personal property, but it does throw a good deal of light upon the exact nature of the rights of the Panch Hisya Nag Babus in the institution. For one thing, Nabadwip had to take the permission of some of the Panch Hisya Nag Babus for performing the utsab and singing Eknam Kirtan there. The learned Judge has brushed aside the importance of this permission by saying that the Nag Babus were men of great influence and so it was impossible for Nabadwip, a stranger, to hold the utsab or have the Kirtan without their permission, and that is why the permission was asked for. But that remark hardly disposes of the matter because it was only of the Panch Hisya Nag Babus and not of the other hisyas that the permission was obtained. The evidence of this witness, read carefully, establishes beyond doubt that while the institution could not have been the private and personal property of the Panch Hisya Nag Babus, they, as founders of the institution, had certain rights in themselves which had to be respected. This aspect of the matter appears to have been overlooked by the learned Judge. The witness has deposed:
I understood the land of the Asram as belonging to the Panch Hisya. I also understood that it was only the members of the Panch Hisya who claimed the right of management (Kartirtwa) and no other people * * I did not understand them as claiming the Asram as their private temple.
18. As regards the manner in which these annual utsabs were organised and performed, we shall say a few words hereafter, but now, to pursue the thread of our narrative. (Their Lordships then went on with the narrative and proceeded.) The learned Judge has been inclined to the view that this committee was formed at a public meeting and that the formation of this committee sufficiently indicates that all the Hisyas of Nag Babus as well as the general public had equal rights in the management of the Asram and that the committee was 'forced on the Panch Hisya' because it 'had become a necessity.' He was inclined to take this view because he came to be of opinion that:
The increasing interference of the Panch Hisya with the management of the Asram, in the latter part of the period of the shebaits who succeeded Janoki Brahmachari was resented not only by the other two Hisyas but also by the outside public and that consequently the appointment of a committee had become a necessity and was forced on the Panch Hisya;
The annual utsab * * * had with the march of years acquired increasing importance and popularity and it was next to impossible to perform it smoothly and successfully without the co-operation of the Panch Hisya, the Paschim Hisya and the general public of the locality and that the Panch Hisya therefore made a 'virtue of necessity by agreeing to the appointment of the committee.
20. We do not see on what foundation these conclusions of the learned Judge can rest. These conclusions, in our opinion, are mere suppositions in support of which there is no evidence. There was no regular meeting, far less any public meeting, at which the members of the other two Hisyas or the public in general were invited to be present. The evidence, such as it is, does not satisfy us that any member of the public as such was present. In this connection we may refer in particular to the evidence of such outsiders present at the meeting as P.W. 20, Harish Chandra Chakravarti and P.W. 30, Kanak Chandra Biswas. It is also noteworthy that plaintiff 1, Subodh, in his deposition has said that there were only four outsiders present at the meeting, namely the two witnesses just named and Abani (who, although examined as P.W. 26 has not spoken about it) and one school teacher, unnamed. He has also said that the committee of 1335 could not hold any sitting but the members used to meet informally. It is idle to suggest that the committee was formed at the instance of the public, when it is sot suggested that the meeting was held on any representative or electoral basis. There is no indication of any increasing interference such as the learned Judge speaks of, nor of any resentment felt by the other Hisyas or the public at such interference. The only conclusion at which we are prepared to arrive upon such materials as we have on the record is not that there was any assertion of a right on the part of the other two Hisyas or of the public but that the leading members of the Panch Hisya, as well as of the other two Hisyas and possibly a few outsiders also, put their heads together and formed a committee so that the works might be satisfactorily performed, not that the formation of the committee was indicative of assertion or negation of rights on the part of anybody.
21. There is evidence, into the details of which we do not consider it necessary to enter, of a split amongst some of the members of the committee during the time that the committee aforesaid functioned; and naturally the other members must have ranged themselves, some on one side, some on the other, and some at least remained indifferent. So in Baisakh 1338 (=April 1931) the question arose as to how the Utsab of the 19th Jaistha of that year, which was near at hand, should be managed. Fortunately as regards this period the evidence that we have is less indefinite: there is a body of oral evidence, more or less clear, and there is also some documentary evidence. The plaintiffs' case was on the expiry of the life of the committee with the close of the year 1337 B.S., and in view of the approaching utsab and pending fresh election of a committee the old committee was authorized, at a public meeting held for the purpose, to conduct and manage the ensuing utsab and that committee, of which, as has been already stated, plaintiffs 1, 2' and 3 were members, took in hand the preliminary arrangements. Their case further is that when the committee was thus engaged in making preparations for the celebration of the annual utsab, the first 14 defendants, wrongfully and illegally constituting themselves as a managing committee and appointing defendant 1 as their President, and ignoring the provisional committee appointed by the public as aforesaid, issued appeals for subscriptions over their own signatures and offered obstruction to the provisional committee in managing the Asram and the utsab.
22. The case of the contesting defendants was that the formation of such committees as used to be formed from time to time did not in any way affect the exclusive right of the Panch Hisya to the Asram, that the committee of 1335 B. Section (=1928-1929), just as much as its predecessors, was merely an advisory body: and that on the expiry of the life of the committee of 1335 B. Section (=1928-29) a fresh committee was formed consisting of defendants 1, 4, 8, 11, 12 and 14 and Babu Suresh Chandra Nag as members and with defendant 1 as President, and that this committee, notwithstanding the obstruction and opposition of plaintiffs 1 and 2 and their party, managed the utsab of that year with the assistance of the police. There is on the record a copy of a resolution purporting to have been passed on 15th Baisakh 1338 B.S. at a conference at which some 11 persons were present, all of them members of the Panch Hisya, and they were described there as 'maliks' or proprietors of the Asram of the Baba. The resolution shows that the old committee of 1335 B. Section (=1928-29) was cancelled and a fresh committee consisting of the Seven persons aforesaid, with defendant 1 as its President and defendant 4 as Secretary, were appointed a fresh committee for a year. Several other resolutions appear to have been passed on the same day, one of which was that the President and Secretary of the old committee be asked to submit accounts for the period of their management to the new committee, and another was that one Upendra Chandra Sinha, an officer of the Panch Hisya maliks, be appointed cashier. It is a point of importance to note that plaintiffs 1, 2 and 3 were amongst the members of the old committee who were excluded from the committee newly formed as above. One of the points upon which there was some controversy between the parties was: which of the two rival committees first took the field, or rather whether the old committee had resolved upon carrying on before the new committee came into being. Plaintiff 2, Dinesh, as P.W. 9, has deposed that the meeting at which the old committee resolved to act provisionally until a new committee was formed was held in the latter part of Baisakh 1338 and that it was held in a playground to the south of the Asram. He has deposed:
About 25 or 30 men were present at the meeting. The proceedings were recorded but not in a proceeding book. It was decided at the meeting that the previous committee would manage the utsab of 1338. The paper in which the proceedings of the meeting were recorded was kept with plaintiff 1. There were sittings of the committee 14 or 15 days before the utsab. No proceeding of that sitting was recorded.
23. Plaintiff 1, Subodh, puts down the date of the meeting at about the middle of Baisakh 1338, but he makes it clear that a meeting for forming the new committee had already been held, though he says that at that meeting the attendance not being large no new committee was in fact appointed. He then says:
Our committee accordingly began to make preliminary arrangements for the utsab. A few days after, the rival Committee also began to make preliminary arrangements.
24. Speaking of the meeting at which the old Committee is said to have resolved to carry on provisionally until a new Committee was formed, the said witness has also said:
The meeting of 1338, as mentioned by me, was held in the Asram. The attendance was very poor, only 10 or 15 persons being present. The proceedings of that meeting were not recorded, There was no president of that meeting appointed.
25. P.W. 14. Sashikanta Nag, who is defendant 12, has deposed that the meeting at which the new Committee was formed was held in the 16 as. Cutchery ghur of the maliks and he was taken there by defendant 1, Bhujanga, and that he subsequently came to know that plaintiffs 1 and 2 also formed a Committee and finding that two rival Committees were appointed he became indifferent and ceased to work. D.W. 11, Bidhubhusan Nag, defendant 11, has deposed that the Committee of 1335 (=1928-29) ceased to exist after three years; that the Panch Hisya Nags became suspicious of its conduct and so they dismissed it. Upon the oral evidence to which we have referred, taken in conjunction with the documentary evidence in the shape of the resolutions of the 15th Baisakh (=14th April 1931) to which also reference has been made, there is little doubt that the new Committee was formed before some members of the old Committee, either because it did not consider that the new Committee was properly constituted or because of the ill-feeling that its members entertained against the Panch Hisya or because there was bitterness owing to various Causes as between the plaintiffs 1 and 2 on the one hand and defendant 8 on the other or because the new Committee had been formed as consisting of Panch Hisya members and excluding the first three plain tiffs, met and resolved to continue. In any event, in para. 17 of the plaint, it has been expressly said that the resolution of the plaintiffs' Committee was only a resolution to carry on tentatively until a new Committee was properly formed.
26. There followed, as might easily have been anticipated, a tussle between the two Committees; and the Ustab of 1338 B. Section (=June 1931) was performed with Police assistance. The nature of the trouble that arose has been described by a Sub-Inspector of Police, Abdul Sobhan, in a report (Ex. B.). (Their Lordships then considered evidence and proceeded). In these circumstances, the suit came to be instituted on 22nd December 1931, and its result in the Court below has already been detailed and as we have already stated, the first and most important question in the case is whether the Asram is a trust created for public purposes of a charitable or religious nature within the meaning of that expression in Section 92 of the Code. We have already held that though the Baba himself used to give his all to charity, such charity was his own and was not in connection with any institution which he had founded; that his meditation and devotion and religious teachings or advice were only those of a great saint such as the Baba was and not appurtenant to any institution which had come into existence; and that on his death the land and huts of which he was in use and occupation reverted to the Panch Hisya Malik. We have also indicated that on the death of the Baba, by inaugurating the worship of his Ashan and Sandals and by resolving to continue the Baba's religious and charitable works with the help of Janoki Brahmachari as the head of the institution the Panch Hisya Maliks founded an institution which partook of the character of a debuttar and was to all intents and purposes a religious and charitable institution. The question is whether this institution was but the private and personal property of the Panch Hisya Maliks as the contesting defendants have claimed in this case or an institution in the nature of a trust for public purposes.
27. It does appear that a claim to the Asram as private property of the Panch Hisya maliks has from time to time been set up on behalf of the latter. Amongst instances too numerous to mention such claim appears in the written statements of the contesting defendants and in the arguments addressed to the Court below which the learned Judge in his judgment was at great pains to deal with and overrule. It also pervades the depositions of some of the witnesses who have been examined as witnesses on behalf of the defence and it has been suggested in cross-examination to some of the plaintiff's witnesses but only to be repudiated and repelled. It appears also in a document to which we have already referred, namely the proceedings of the meeting held on Baisakh 15, 1333 B.S. which are headed 'Conference of the Maliks (Sattadhikari) entitled to or having proprietary rights in the Asram.' Materials to which we have referred so far do not establish any such right, if by it private ownership is meant and that we have already said at other places. Dr. Sen Gupta in arguing the case of his clients, the appellants, in one part of his argument seemed to rely upon some such right as a private right of ownership on the part of the Panch Hisya by referring to the fact that several of the other devotees and disciples of Baba Lokenath have started similar Asrams in other parts of the country, but if he meant to advance such a contention we must say we cannot regard it as well founded. His main arguments however showed an endeavour to establish not that his clients or the Panch Hisya Nags have any rights of ownership therein but that the institution is in the nature of a private endowment. This distinction is very material but it seems to have been overlooked by the learned Judge. The learned Judge has very definitely rejected, and we think quite rightly, the defence that the Asram is the private property of the Panch Hisya Maliks and he has held that the land is a debuttar and its belongings and appurtenances too are not such property. Having come to that conclusion he has found it as the next step that it was not the Panch Hisya Maliks but that the public including the Maliks of all the three Hisyas are entitled to claim the right to its management. We do not think that the last mentioned conclusion really follows from the first. When the contention as to private ownership is overruled and it is held that the institution represents a foundation or endowment, the next thing to be considered is whether it is such for a private purpose or for public purposes. And only if it is the latter and not the former that it can form the subject matter of a suit under Section 92 of the Code. Dr. Sen Gupta's arguments have been directed to showing that it is of the former and not of the latter type. On the other hand, Mr. Bose has relied upon the finding of the Court below by which the defendants' claim as regards ownership has been rejected and he has argued that the very fact such a claim has been set up on behalf of the defence is sufficient for the removal of the defendants from their position as trustees de son tort, because a claim which is adverse to the trust amounts to a breach of trust. While agreeing with Mr. Bose in his contention, in so far as it represents a proposition of law, we are unable to hold that in this case there has been, in fact, any claim adverse to the trust or any breach of trust, because it is not suggested that the Panch Hisya Babus have appropriated a pice out of the proceeds of the Asram or have dealt with any properties belonging to the Asram in any way detrimental to its interests.
28. On the question, whether the purpose of the institution was private or public, there is a mass of materials to be considered and it is really upon the proper inference to be drawn from the facts, most of which are practically undisputed, that the answer to this question depends. As regards the worship of the Ashan and the Sandals, there is no evidence suggesting that it was not open to all and sundry, or that at any time any intending worshipper was refused permission or any fee was charged for darshan, and it seems to be an admitted position that the public in general have always been allowed free and unrestricted right of worship at the place. It also appears that all offerings made at the place have all along been collected and expended for the benefit of the poor of all castes and creeds not excluding Mahomedans who flocked to the place to get prasad, etc. There is evidence that during the time of Janoki, a big Mahotsab was hold in which some four or five thousand people were fed, the costs being met from the collections made at the Ashan. Babu Rai Mohan Karmokar, a disciple of Janoki, used to contribute yearly Rs. 300 or Rs. 350 according to the plaintiffs, and Rs. 240 or so according to the defendants for the maintenance of the Asram. Presents of an oil painting of the Baba and a miniature image in stone were accepted from Rajani Brahmachari and from Mathura Mohan Chakravarti and kept at the place in Janoki's time. A tiled hut was constructed by one Madhab Kaibarta at a cost of Rs. 350. One Gurudayal Kaibarta had a tin hut constructed over the Samadhi of Janoki at his own cost. The pucca plinth and floor of the Ashan ghur were constructed at the cost of one Krishna Daroga.
29. In 1917-18 a pucca Math or Mandir was constructed over the Samadhi of the Baba at a cost of about Rupees 3,400 with subscriptions raised from the public by starting a fund named 'Barodi Lokenath Brahmachari Samadhi Prathisthan Fund.' The Mandir was consecrated at a regular ceremony to which the public were invited, and a photograph of the Baba presented by Babu Mathura Mohan Chakravarti was installed on the platform, and on the walls of the Mandir it was inscribed that it had been built with public subscriptions. A masonry well was constructed by a wealthy devotee of the Baba named Rebati Lal Banerjee which cost about Rs. 2,000 and there was a regular Utsarga or dedication ceremony in connection with it on the occasion of the Utsab in 1334 B. Section (1927) at a cost of Rs. 300, the name of the donor being inscribed on the wall. In the same year Babu Mathura Mohan Chakravarti got a pucca flight of steps built for the Asram at a cost of about +. 300. About the same time a reservoir was constructed; but as far as one can gather that was done with the surplus funds at the disposal of the Asram. There is evidence that a store house was built, but as to who paid the costs the evidence is in a dubious state as the learned Judge has observed. In 1930 the Narainganj Local Board constructed a tube well there for the use of the general public. Upon all these facts, while on the one, hand it is clear that there is nothing to indicate that the Panch Hisya Nag Babus ever abandoned such rights as they had in the Asram from its inception, they never objected to the public in general from effecting improvements on it and making it more serviceable and of greater utility to the public, and on the other hand they suffered subscriptions to be raised from the public and costs being incurred by individual members of the public as well as by public bodies for its maintenance, upkeep and improvement. It is quite true that if some particular stranger chooses to make a gift to a private endowment or institution for his own spiritual benefit or mental satisfaction, receipt of such gifts does not alter the character of the endowment or the institution itself and make it a public one, if at its inception or in reality it was not so. But the number and nature of the gifts received, as aforesaid, are matters which have their importance. In addition to all this there is also evidence that in recent years collection boxes were introduced to raise subscriptions for the expenses of the Asram, and the public have also been invited to subscribe for its repairs.
30. The Utsab is an annual function attached to the Asram, and having been started in 1297 B.S. has continued for nearly 50 years and so has become an integral part of it. There is hardly any dispute, certainly none as regards those that have been held since the one that was performed by Nabadwip Chandra Roy in 1319 B. Section (=1912-13), that the costs of the Utsab have been borne by the public supplemented by such scanty contributions as the surplus of the income at the Ashan could afford to make. These subscriptions have always been given by the public not of their own accord but on invitations and appeals issued to them by those who had the management in their hands. The learned Judge has, in his judgment, given a table showing the amounts of contributions received from the Ashan, the amounts received from the public, and the total expenditure in some of the more recent years. This table is not quite accurate in its details, but it is quite correct in so far as it purports to make out that the public contributed to the bulk of the expenses. And it is also proved that such contributions have been received from all sorts and conditions of people and from different parts of India. The public also helped in the utsab in various other ways; donations in kind also used to be received, people making gifts, either free or at concession rates. Appeals for funds are sent out broadcast and the enthusiasm that the utsab evokes is hardly of a nature commensurate with a private religious or charitable function. In recent years, when the function grew in proportion and was more organized, manifestoes and invitations have been issued over the signatures or in the names of the Bhaktas of the Brahmachari Baba, asking people of all descriptions to contribute and take part. After the utsab is over, the accounts are exhibited at public places for their information and to let them know how their money has been spent.
31. From all these facts the conclusion seems irresistible that the purpose of the institution was public and not private. It is the extensiveness of the object which affords a sure indication of the public nature of a trust. In Attorney-General v. Pearce (1740) 2 Atk 87, Lord Chancellor Hardwick observed that each particular object of a charity may be private, but it is the extensiveness which will constitute it a public charity. As Smith, J. in Hall v. Derby Sanitary Authority (1885) 16 Q B 163 at p. 173 observed:
It is clear to me that there can only be two classes, viz. 'private' and 'public' charities. I ask myself: Is this a 'private charity'? Of course it is not. Then even apart from any decided cases, I should have been prepared to hold that not being a private, it was a public charity.
32. The same may be said of the present case taking of course the word 'charity' in its broad sense, as explained in Commissioners for the special purposes of Income Tax v. John Frederick Pemsel (1891) A C 531. Or as Manisty, J. observed in Hale's case Hall v. Derby Sanitary Authority (1885) 16 Q B 163 (supra), the test is whether the charity is not for a large and extensive section of the community: see also (1915) 2 K B 170 Shaw y. Halifax Corporation (1915) 2 K B 170 at p. 181. Or again, as observed in Verge v. Somerville (1924) A C 496: 'Whether it is public, whether it is for the benefit of the community or of an appreciably important class of the community.' So far as the question of extensiveness is concerned there is hardly any ground for supposing that the founders of the institution and those who have managed it ever since, at any time entertained the idea of keeping its activities, either religious or charitable, confined to any particular sect or division of the public. We have therefore no hesitation in concluding that the Asram represents a religious and charitable trust for public purposes. The contention such as has been put forward on behalf of the appellants, namely, that the feeding of the poor which goes with the worship of the Ashan and the Sandals, which was private and personal with the Panch Hisya Babus, its founders, is not an independent charity in which any class of the public had a direct and independent interest, as explained in Satharrayar v. Periasami (1891) 14 Mad 1 and Prasad Das Pal v. Jagannath Pal : AIR1933Cal519 , cannot be upheld.
33. In the absence of a deed of dedication, the question whether the Asram was ever dedicated to the public must depend upon inferences which could legitimately be drawn from facts not in dispute and from unambiguous evidence adduced in the suit, regard being had to the principles of Hinduism applicable to the institution: See Lakshmana Govinda v. Subramania Ayyar AIR 1924 P C 44. In the case just referred to, their Lordships have observed that it would be a legitimate inference to draw that the founder had dedicated the temple to the public, if it was found that he had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship. Similar inference may well be drawn from the use which the public have made of the shrine as a place for devotion or worship, the receipt of votive offerings from the public, and the fact that a section of the public have taken the benefit of its attached Sadabrata for a long period of time: Chintaman Babaji Dev v. Dhondo Ganesh Dev (1891) 15 3 612 at p. 622 and Jugal Kishore v. Lakshman Das (1899) 23 Bom 659, at p. 664. In our judgment, from the course of conduct on the part of the parties concerned, such inference should be drawn in the present case.
34. We hold that it has been established with sufficient clearness in this case that on the demise of Baba Lokenath, when the + was founded as a religious and charitable institution by the Panch Hisya Babus, the intention was to create a trust for the use and benefit of the public and that it has all along been treated and administered as a religious and charitable trust for public purposes. This, however, does not mean that the Panch Hisya Babus as founders of the trust, have ever relinquished their rights as such founders. Indeed, all such evidence as we have on the record points unmistakeably to the conclusion that they have never meant to give up such rights at any time. There is evidence that a proposal to set them to relinquish their ownership of the Maliki right to the land in favour of the public did not materialise. Such evidence as we have of their allowing others to associate themselves with the management is perfectly consistent with the supposition that they desired to avail of the co-operation of outsiders in order to the more satisfactory administration of the affairs of the Asram.
35. The benefactions subsequently received do not make those who have made them joint founders with the original founders, and the benefactions are not to be regarded as anything beyond an accretion to the existing foundation: (see Ananda Chandra v. Brojolal AIR 1923 Cal 142, and the decisions therein referred to). It is well settled that when the worship of an idol has been founded, the shebaitship is vested in the founder and his heirs, unless he has disposed of it otherwise, or there has been some usage or course of dealing which points to a different mode of devolution: see Goswami Sri Giridhariji v. Romanlalji (1888) 17 Cal 3. That this principle applies to private as well as to public trusts has also been well settled by judicial decisions: Sheoratan v. Ram Pargash (1896) 18 All 227, Sital Das v. Pratap Chandra (1910) 11 C L J 2, Raj Krishha v. Bipin Behari (1913) 40 Cal 251, Hori Dasi v. Secy of State (1880) 5 Cal 228, and Ananda Chandra v. Brojolal AIR 1923 Cal 142. Call them shebaits or call them trustees, if any relief is to be granted in a suit under Section 92 of the Code, ordering their removal or interfering with their rights as founders, something substantial will have to be shown justifying the removal or the interference.
36. Section 92 of the Code does not say that as soon as you find a religious or charitable trust for public purposes and as soon as you find a suit instituted by two or more persons with the requisite consent, you may make a decree granting the plaintiffs the reliefs detailed in the different clauses of the section or any of them. The section lays down that one of two conditions must be satisfied before the Court can proceed to grant any of the reliefs: (1) there must be an alleged breach of trust, or (2) the direction of the Court should be deemed necessary for the administration of the trust. As regards the former of these two conditions, the allegation that has been made on that head is contained in para. 22 of the plaint. It is a curious and unmeaning statement. It says:
As some of the members of the acting committee is breach of the trust have been siding with the committee set up by the principal defendants, it has become impossible for that committee (meaning the plaintiffs committee) to discharge their function properly.
37. No breach of trust in respect of the Asram was suggested anywhere in the plaint, nor is there a word in the evidence even faintly making such a suggestion. So far as the second condition is concerned, much was said about the defendants having been guilty of misfeasance and malfeasance; it was said that the defendants' committee was not properly framed, that it was illegally constituted, that it had acted in various ways to the detriment of the trust, and in disregard of the religious sentiments of the worshippers and that the public were suffering great inconvenience. We regret to have to say that we do not find that the said committee had done anything on which an action for a relief under Section 92 of the Code may be founded. We have already said that the Panch Hisya Nags, as founders of the Asram, were fully entitled to take proper steps for its management; and we think that when on the expiry of the life of the previous committee in Baisakh 1338 they appointed a fresh committee, they were perfectly within their rights in doing so. We cannot approve of the course of action adopted by those members of the old committee who formed themselves into a rival committee in order to retain hold over the administration of the Asram. For this conduct on their part, it is not they themselves but some of their elders were responsible: vide Ex. 8 and 8 (a). But whatever that may be, the Asram, as far as we can make out, went on smoothly and happily, until the plaintiffs' committee for the formation of which we can find no justification whatever came upon the scene and created the troubles which were the precursor of the present action. We can find no materials on which we can uphold the decree which the Court below has made. The appeal is allowed and it is ordered that the suit be dismissed with costs in both the Courts. The cross-objection is dismissed.
38. (19th August 1936). On a representation made to us on behalf of the plaintiffs-respondents by Mr. H.D. Bose as regards the order for costs made in our judgment, we have heard the parties further and the conclusion at which we have arrived is that it would be proper having regard to the circumstances of the case to vary the said order in the following way, namely, that the appellant will be allowed his costs of the appeal in this Court but the order for costs as made in the Court below will stand, and we order accordingly.