Hari Sharan Singh And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 4612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. -92
 
Case :- MATTERS UNDER ARTICLE 227 No. - 5156 of 2022
 
Petitioner :- Hari Sharan Singh And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Kunal Ravi Singh,Manjari Singh
 
Counsel for Respondent :- C.S.C.,Abhishek Sharma,Rajiv Sharma
 

 
Hon'ble Vipin Chandra Dixit,J.

1. Heard Sri Rahul Jain, Advocate holding brief of Sri Kunal Ravi Singh, learned counsel for petitioners, Sri Rajeev Sharma and Sri Abhishek Sharma, learned counsel for respondent nos.2 to 4, learned Standing Counsel for respondent no.1 and perused the record.

2. This Misc. Civil Petition under Article 227 of the Constitution of India has been filed by the petitioners for quashing of order dated 13.5.2022 passed by District Judge, Mirzapur in Misc. Case No.02 of 2017 (Hari Sharan Singh and another Vs. State of U.P. and others).

3. The brief facts of the case are that one temple of Thakur Ji was constructed by Dhaneshwari and Bageshwari sons of Devraj and deity Thakur Laxmi Narain Ji was installed therein. Dhaneshwari and Bageshwari both were unmarried. They donated their agricultural land situated in Village Bairaini Kewtabeer and Semari, Pargana Kasiwar Taluka Majhwa, Tehsil Sadar, District Mirzapur through registered deed on 3.2.1932. It is provided in the deed that during the life time they manage the agricultural land which was donated to the temple Thakur Laxmi Narain Ji and after their death the maintenance and management of temple was conducted by Thakur Shisht Narain son of Ram Kumar Singh, Thakur Mata Prasad Singh son of Kalika Singh, Batuk Singh son of Babulal Singh Gautam and Pt. Shivbaran son of Thakur Dayal Upadhaya, all residents of the same village. It is also provided that one Chandrika son of Rajnarain Upadhaya, resident of aforesaid village will perform the worship. It is also provided that worship will be performed by Chandrika son of Rajnarain Upadhaya and his family members and in absence of any family members of Chandrika, Shisht Narain Singh, Mata Prasad and others were authorized to appoint Pujari of the temple. It is further provided in gift deed that no person is authorized to sale out or mortgage the land donated to Temple.

4. Batuk Singh, one of the trustee had moved an application in the year 1965 that all the trustees appointed by Dhaneshwari and Bageshwari except Batuk Singh died and now he is 80 years old and prayer was made that Ramadhar Singh son of Murat Narayan Singh, Indra Bahadur Singh son of Daya Ram Singh, Thakur Prasad Singh son of Sharda Prasad Singh and Vishwanath Singh son of Gudri Singh, all resident of village Baraini may be appointed as trustee as he became very old and the application was registered as Misc. Case No.13 of 1965 which was allowed vide order dated 4.12.1965 and aforesaid persons were appointed as trustees.

5. Indra Bahadur Singh, one of the trustee appointed in the year 1965 had moved an application under Section 73 of Trust Act that he is aged about 82 years and only alive trustee with the prayer to appoint his son Hari Sharan Singh and Vinod Kumar Singh son of Onkar Nath Singh, as trustee and the application was registered as Misc. Case No.27 of 2015. During the pendency of Misc. Case No.27 of 2015 Indra Bahadur Singh died on 6.2.2015 and the Misc. Case No.27 of 2015 was dismissed on 15.12.2016.

6. The petitioners had moved an application under Section 73 of Indian Trusts Act, 1882 to appoint them as trustee on the ground that earlier application was filed by the trustee Indra Bahadur Singh to appoint the petitioners as trustee but on account of his death that application was dismissed and prayer was made to appoint them trustee as it was the wish of last alive trustee Indra Bahadur Singh and case was registered as Misc. Case No.02 of 2017.

7. The respondent nos.2 to 4 had moved an application for impleadment, which was allowed on 23.5.2017. They filed a detailed objection stating therein that application filed by petitioners is not maintainable as the property which was donated by Dhaneshwari and Bageshwari to the temple is a public trust and the Civil Court has power under Section 92 of Civil Procedure Code regarding administration of the public trust. It is pleaded by the respondents that there was no provision in the trust deed that it is a private trust whereas the trust was created to manage the property of temple and as such it was a public trust. It is also pleaded that it is apparent from the perusal of gift deed that the land was donated to the temple and trust was created to manage and maintain the temple. The trustees appointed by Dhaneshwari and Bageshwari were not belonging to their family and even Chandrika, who was appointed as Pujari was also not belonging to their family and as such from the creation of trust it is apparent that it was a public trust for Dharmarth of temple and any dispute regarding appointment of trustee can be revoked under Section 92 of C.P.C. It is also pleaded that last trustee Indra Bahadur Singh had no right to appoint his son as a trustee and it can be decided by the civil court under Section 92 of C.P.C.

8. Learned court below after considering the rival submissions of learned counsel for the parties and on material which are available on record, had recorded the finding that in the deed which was executed by Dhaneshwari and Bageshwari in the year 1932 there was no provision that the trustee can appoint any other person as a trustee and only four persons were appointed by Dhaneshwari and Bageshwari at the time of deed and there is no averment in the deed that any of the trustee can appoint any new trustee and only it was provided that worship was conducted by Chandrika Upadhaya and his family members and if Chandrika Upadhaya or his family members did not perform the worship only then Pujari will be appointed by trustee Shiv Narain Singh and Mata Prasad Singh and others and there is no provision to appoint any new trustee by the trustees.

9. Learned court below has also recorded the finding that from the perusal of deed executed in the year 1932, that it was not a private trust but it was created in respect of Dharmarth of temple as a public trust and any trustee of public trust can be appointed under Section 92 of C.P.C. and since the present case has been filed by the applicants without prior permission under Section 92 of C.P.C., the application is not maintainable.

10. The application (Paper No.3-Ka) filed under Section 73 of Indian Trusts Act was accordingly rejected vide judgment and order dated 13.5.2022, which is impugned in the present writ petition.

11. It is submitted by learned counsel for the petitioners that learned court below had erred in dismissing the application (3ka) filed by petitioners under Section 73 of Indian Trust Act, 1882 (hereinafter referred to as ''Act, 1882'). It is further submitted that learned court below had also erred in accepting the trust as a public trust, whereas the trust created by late Dhaneshwari and Bageshwari was a private trust and the provisions of Act, 1882 is applicable in the present case. Indra Bahadur Singh was the last trustee who had moved an application under Section 73 of the Act, 1882 on 28.8.2014 to appoint the petitioners as trustees but the said application was dismissed on account of his death. After the death of late Indra Bahadur Singh, the present petitioners had moved the application to appoint them as trustees. It is further submitted that there is no evidence with regard to any public activity being conducted in the Temple and the private respondents had not led any evidence that the trust was made for public use.

12. Learned counsel for the petitioners relied on a judgment of this Court at Lucknow Bench in the case of Devendra Kumar Mishra Vs. Ramendra Kumar and others, reported in AIR 2006 (All) 82. The relevant paragraph 20 is quoted herein below:-

"20. In Ram Dularey v. IVth Additional District Juge, Varanasi and Ors.: 1996 (29) (SIC): Ram Dularey v. IV Additional District Judge, Azamagarh 31, it has been held by this Court after following certain decisions of the Supreme Court that whether a 'Matth' or a temple is a public religious institution depends upon the finding as to whether the public has right in such religious institutions. The basic test is who are the beneficiaries of the endowed property. If the beneficiaries are the general public or the section of the same and not an independent body of individuals, it can be treated as public trust. In case, where there is temple and the public is permitted by the Shivayat to worship or make their offerings to the deity that by itself may not create any right in the public, it has to be established that the public has a right and the endowment was made for the benefit of the public. A perusal of the trust deed goes to show that there is nothing to show that the public was given any right in any capacity or the public was the beneficiary of this temple. Mare management in consultation with certain persons, who do not belong to the caste or family of the creator of the trust is not sufficient to infer that trust is a public trust."

13. Learned counsel for the petitioner further relied on a judgment of this Court in the case of Sarjoo and others Vs. Ayodhya Prasad and others reported in AIR 1979 (All) 74. The relevant paragraphs 5 and 7 are reproduced herein below:-

"5. The foremost question, therefore, which arises for determination is as to whether the temple in suit was a public or private endowment. The plaintiffs came with specific allegations in the plaint and the burden was entirely on them to establish that it was a public temple, that it was governed by the provisions of the Act and that the suit was maintainable. They had also to prove that it was being mismanaged by the defendants and the latter had committed misfeasance or breach of trust or had neglected their duties. I have carefully scanned the entire evidence in the case and in my opinion the plaintiffs' evidence is highly discrepant and was, not worthy of credence. I am also of the view that it is impossible to characterise any single circumstance as conclusive of the fact as to whether the temple is private or public. The question when it arises must be answered on the totality of circumstances and on an over-all consideration of the entire evidence in the case. Several circumstances have been upheld by Judges to be material for the purpose of deciding that question. The plaintiffs' case would stand on a very solid foundation if it were possible to furnish any documentary evidence relating to the dedication of the temple. If it is shown that the endowment was created in favour of an idol or temple, that would be incontestable proof of its public character. In the present case, however, there is no such documentary or other evidence available. In fact, it is not known as to when the temple was actually founded. The only thing which has come on record is that it is very old, its origin being lost in antiquity. Thus, the plaintiffs' case suffers from a major handicap by their inability to prove the precise nature of the endowment and therefore the matter will have to be decided on the strength of general inferences drawn from the material having a bearing on the question.

7. I have already adverted to the admission of Ayodhia Prasad (P. W. 1) that the defendants performed the Seva Poojah of the temple. Another very important fact is the admission of Jai Dayal (P. W. 3) to the effect that there is no Pujari in the temple at present nor had any Pujari been ever appointed in the temple. In a public temple one would normally expect a Pujari to perform the regular worship, The fact that there was no need of ever appointing a Pujari is more consistent with the endowment being! private rather than public."

14. It is submitted by learned counsel for the petitioners that mere creation of a trust from different people would not make the trust to the public trust and most important aspect of the matter to be considered that who are the beneficiaries of the trust. It is further submitted that there is no endorsement in the deed that the Temple was constructed for use of public in general.

15. On the other hand, learned counsel appearing for the contesting respondents had submitted that late Dhaneshwari and Bageshwari had constructed a temple and deity of Thakur Laxmi Narain Ji was installed therein. They donated their agricultural land through registered deed on 3.2.1932 to the temple. Both Dhaneshwari and Bageshwari were unmarried and it was provided in the deed that during the life time they manage the agricultural land and after their death the maintenance and management of the temple was conducted by Thakur Shisht Narain, Thakur Mata Prasad, Batuk Singh and Pt. Shivbaran, who are resident of the same village. One Chandrika and his family members were authorized to perform the worship and in absence of any family members of Chandrika the Pujari was appointed by Thakur Shisht Narain, Thakur Mata Prasad and others. All the trustees appointed by the creators of deed were not belonging to their family and there was no provision in the religious endowment that the temple was constructed only for his family members and there is no restriction to the effect that only family members of creators may perform the worship in the temple. It is further submitted that all the trustees appointed through religious endowment were strangers and not belonging to the family of donor and as such the religious endowment by which the trust was created was a public trust and the learned court below has rightly passed the order impugned rejecting the application of the petitioners. It is further submitted that the Act, 1882 is defined and amend the law relating to private trust and trustees and it is not applicable to the public trust and since the trust was a public trust, the provisions of Act, 1882 is not applicable in the present case.

16. Lastly, it is submitted that since the trust is a public trust and as such the provisions of Section 92 of Civil Procedure Code is applicable and the trustee can be appointed to the leave of the Court before the Civil Court by filing a suit.

17. Considering the rival submissions of learned counsel for the parties and on perusal of record, it is apparent that gift deed dated 3.2.1932 which has been filed as Annexure-2 to the writ petition, does not describe that only family members can use the temple for worship or only family members of the creators may be appointed as trustee whereas the trustees appointed by the donor were not belonging to the family of creators of trust and they are strangers which itself shows that it was not a private trust.

18. The Hon'ble Apex Court in the case of Sri Radhakanta Deb and another Vs. Commissioner of Hindu Religious Endowments, Orissa, (1981) 2 SCC 226 has laid down that endowment is public or private can be inferred on the intention of donors and under the circumstances when an endowment is created by a person who has no issue and after installing the deity entrusts the management of temple to the members of the public or strangers which clearly proves the intention to dedicate the temple to the public and not to the members of the family. The relevant paragraphs 7 and 8 are quoted herein below:-

"7. The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple. In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier. It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment, as may appear from the facts proved in each case. The essential distinction between a private and a public endowment is that whereas in the former the beneficiaries are specified individuals, in the latter they are the general public or class of unascertained people. This doctrine is well-known and has been accepted by the Privy Council as also by this Court in a large catena of authorities. This being the essential distinction between the nature of a public or a private endowment, it follows that one of the crucial tests to determine the nature of the endowment would be to find out if the management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their descendants. Other factors that may be considered would be the nature of right of the worshippers, that is to say, whether the right to worship in the temple is exercised as of right and not as a matter of concession. This will be the strongest possible circumstance to indicate that the endowment was a public one and the beneficiaries; are the worshippers and not particular family. After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity. If the main worshippers are the members of the public who worship as a matter of right then the real purpose is to confer benefit on God.

Some of the circumstances from which a public endowment can be inferred may be whether an endowment is made by a person who has no, issue and who after installing the deity entrusts the management to members of the public or strangers which is a clear proof of the intention to dedicate the temple to public and not to the members of the family. Where, however, it is proved that the intention of the testator or the founder was to dedicate the temple merely for the benefit of the members of the family or their descendants, the endowment would be of a private nature.

8. The mere fact that members of the public are allowed to worship by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple. In Deoki Nandan Vs. Murlidhar this Court observed as follows:-

"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.

The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers."

19. From the perusal of trust deed it is apparent that the deed was executed by the donors and the strangers were appointed as a trustee who are not belonging to the family of donors which clearly indicate the intention of the donors that it was created for public purpose.

20. The religious endowment created in the year 1932 did not restrict the public or villagers for worship in the temple and all the trustees appointed were strangers and as such it was an intention of the creators to create a public trust and the provisions of Act, 1882 does not apply to public trust and charitable trust and only procedure prescribed under Section 92 of C.P.C. for appointment of trustee, as held by Delhi High Court in Smt. Shatni Devi and another Vs. State and others, AIR 1982 Delhi 453, the relevant paragraphs 13 and 14 are reproduced herein below:-

"13. We would emphasis what has often been overlooked that the Indian Trusts Act of 1882 does not apply to public trusts and charitable trusts. As the preamble of the Act states it is "an act to define & amend the law relating to private trusts & trustee."Section 1 of the Act says that nothing herein contained "applies to public or private, religious or chanitable endowments". Therefore, all charitable trusts are excluded from the operation of the Act. Admittedly, Shri Gopal Singh founded "an express trust for public purposes of a charitable nature", to use the language of section 92, Civil Procedure Code The object of the trust clearly show that it is a charitable turst. All charitable trusts are public trusts. Public trusts and charitable trusts are synonymous expression. They are essentially different from private trusts in that the beneficiaries are uncertain. at charitable trusts are for the benefit of the public and they are enforceable by the Advocate General suing on behalf of the public or more persons having an interest in the trust with the leave of the court. Section 92 is the special remedy for "public charities". In the case of a breach of trustor where the direction of the court is necessary for the administration of a public charity a suit can be instituted in the court of the district judge for one or more of the reliefs mentioned in the section.

14 The Act applies to private trusts only. The most fundamental distinction between private & public trusts depends upon the character of the proson for whose benefit they are created. The essential difference between a private and public trust that in the former the beneficiaries are defined and ascertained individuals who within a definite time can be definitely ascertained but in the latter he beneficial interest must be vested in an uncartain and fluctuating body of persons eithar the public at large or some considerable portion of it answering particular description."

21. From the perusal of record it is apparent that beneficiaries are not members of a family or a specific individuals, the endowment can only be regarded as public, intended to benefit the general body or worshipers and since there was no restrictions to the public of the locality for worship in the temple and no family members were appointed as trustee, it cannot be said that it is a private trust and it is apparent from the intention and language of the deed religious endowment that it is a public trust. It is also apparent from the perusal of trust deed that there is no provision for appointment of trustees by the trustee and it only provides appointment of Pujari.

22. In view of the aforesaid discussions, it is evident from the materials which are available on record that the trust created by Dhaneshwari and Bageshwari was a public trust and the provisions of Indian Trust Act, 1882 is not applicable in the present case. The judgment and order passed by the learned court below is based on evidence and materials, which are available on record and there is no illegality in any manner. No grounds for interference is made out. The petition is devoid of merit and is accordingly dismissed.

23. It is open for the petitioners to approach the competent civil court under Section 92 of Civil Procedure Code for appointment of trustees.

Order Date :-13.02.2023

Kpy