# Champi @ Sundar Lal v. Addl. District Judge 9 Court Room No. 13 Lko. & Ors

- **Citation:** (2023) 8 ILRA 365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-30
- **Case number:** Writ A No. 1000017 of 2012
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/champi-sundar-lal-v-addl-district-judge-9-court-room-no-13-lko-ors-50639
- **Pages:** 11

## Headnote

Sujata
Srivastava,
Appoli
Srivastava,
Deepika Srivastava, Mamta Singh, Prashant
Jaiswal, Sujata Srivastava

A. Civil Law - Indian Trusts Act, 1882 -
Section - 73 - Private Trust Vs Public
Charitable Trust - Determination

Held: The nature of a trust is determined by the
trust deed and tests laid down in Radhakant
Deb Vs Commissioner of Hindu Religious
Endowments, Orissa, (1981) 2 SCC 226. Where
the trust deed retains control with the founder,
his family, or nominated trustees, excludes
public management, and lacks provision for
public contributions, it is a private trust. The
respondent trust's deed vested control in the
founder, his wife, and named trustees, with no
public
participation.
An
application
under
Section 73 of the Indian Trusts Act, 1882, for
trustee appointment further confirmed
its
private nature. The courts below erroneously
held it a public charitable trust based solely on
its charitable hospital activities, rendering their
findings perverse. [Paras 9-14, 19-27]

B. Landlord and Tenant - Eviction -
Jurisdiction under U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972

Held: As the respondent trust is a private trust,
the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972, applies. The
ejectment suit filed before the Small Causes
Court
was
not
maintainable,
as
eviction
proceedings should have been initiated under
the Act before the prescribed authority. The
courts below erred in assuming jurisdiction, and
their orders were unsustainable. [Paras 5, 38,
40]

C. Landlord and Tenant - House Tax
Payment by Tenant - Adjustment Against
Rent

Held: Under Section 108(g) of the Transfer of
Property Act, 1882, read with Sections 149
and 177 of the U.P. Municipalities Act, a
tenant paying house tax, primarily the
landlord's liability, may deduct it from rent if
recoverable against the leased property. The
petitioner paid Rs. 1500/- towards house tax
demanded
by
Lucknow
Nagar
Nigam,
exceeding the alleged rent arrears of Rs.
1260/-. The courts below wrongly held that
this payment could not be adjusted, and the
petitioner was not a defaulter. [Paras 4, 2837]

Result: Writ petition allowed. Orders dated
09.02.2012 (Additional District Judge, Court
Room No. 13, Lucknow in SCC Revision No. 39
of 2011) and 05.05.2011 (2nd Additional Judge,
Small Causes, Lucknow in SCC Suit No. 222 of
2001) set aside. [Para 41]
366 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition allowed.

Cases Referred:

## Text

8 All. Champi @ Sundar Lal Vs. Addl. District Judge 9 Court Room No. 13 Lko. & Ors.
365
by the disciplinary authority as well as
appellate authority dated 25th January,
2016 and 2nd August, 2016 are hereby
quashed. The petitioner is held entitled to
all consequential benefits treating him to in
service in the same pay grade and pay scale
in which he was at the time of passing of
the order dated 25th January, 2016 and all
consequential benefits in terms of pay
fixation etc. and arrears of pay. Further the
amount
already
recovered
from
the
petitioner under the order dated 25th
January, 2016 shall also be refunded to
him.
----------
(2023) 8 ILRA 365
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2023

BEFORE

THE HON'BLE ALOK MATHUR, J

Writ A No. 1000017 of 2012

Champi @ Sundar Lal ...Petitioner
Versus
Addl. District Judge 9 Court Room No. 13
Lko. & Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar Saxena, Ankit Srivastava,
Shafiz Mirza

Counsel for the Respondents:
Sujata
Srivastava,
Appoli
Srivastava,
Deepika Srivastava, Mamta Singh, Prashant
Jaiswal, Sujata Srivastava

A. Civil Law - Indian Trusts Act, 1882 -
Section - 73 - Private Trust Vs Public
Charitable Trust - Determination

Held: The nature of a trust is determined by the
trust deed and tests laid down in Radhakant
Deb Vs Commissioner of Hindu Religious
Endowments, Orissa, (1981) 2 SCC 226. Where
the trust deed retains control with the founder,
his family, or nominated trustees, excludes
public management, and lacks provision for
public contributions, it is a private trust. The
respondent trust's deed vested control in the
founder, his wife, and named trustees, with no
public
participation.
An
application
under
Section 73 of the Indian Trusts Act, 1882, for
trustee appointment further confirmed
its
private nature. The courts below erroneously
held it a public charitable trust based solely on
its charitable hospital activities, rendering their
findings perverse. [Paras 9-14, 19-27]

B. Landlord and Tenant - Eviction -
Jurisdiction under U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972

Held: As the respondent trust is a private trust,
the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972, applies. The
ejectment suit filed before the Small Causes
Court
was
not
maintainable,
as
eviction
proceedings should have been initiated under
the Act before the prescribed authority. The
courts below erred in assuming jurisdiction, and
their orders were unsustainable. [Paras 5, 38,
40]

C. Landlord and Tenant - House Tax
Payment by Tenant - Adjustment Against
Rent

Held: Under Section 108(g) of the Transfer of
Property Act, 1882, read with Sections 149
and 177 of the U.P. Municipalities Act, a
tenant paying house tax, primarily the
landlord's liability, may deduct it from rent if
recoverable against the leased property. The
petitioner paid Rs. 1500/- towards house tax
demanded
by
Lucknow
Nagar
Nigam,
exceeding the alleged rent arrears of Rs.
1260/-. The courts below wrongly held that
this payment could not be adjusted, and the
petitioner was not a defaulter. [Paras 4, 2837]

Result: Writ petition allowed. Orders dated
09.02.2012 (Additional District Judge, Court
Room No. 13, Lucknow in SCC Revision No. 39
of 2011) and 05.05.2011 (2nd Additional Judge,
Small Causes, Lucknow in SCC Suit No. 222 of
2001) set aside. [Para 41]
366 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition allowed.

Cases Referred:

1. Radhakant Deb Vs Commissioner of Hindu
Religious Endowments, Orissa, (1981) 2 SCC
226 [Paras 10, 22-27]

2. Kuldip Chand Vs Advocate General to Govt. of
H.P., (2003) 5 SCC 46 [Para 11]

3. Deoki Nandan Vs Murlidhar, AIR 1957 SC 133
[Paras 21, 38]

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Brijesh Kumar Saxena,
learned counsel for the petitioner; Sri
Prashant Jaiswal, learned Advocate for the
opposite party nos. 2 and 3, and perused the
record.

2. By means of the present writ
petition the petitioner has assailed the order
dated 05.05.2011 passed by the IInd Addl.
Judge, Small Causes Court, Lucknow,
thereby decreeing the suit of ejectment
filed by the respondents.

3. The facts in brief are that the
petitioner was a tenant in respect of
premises situated at 253/103 Nadan Mahal
Road, Yahiaganj, Lucknow at the rent of
Rs. 45.00 per month. The said premises are
owned
by
Sriman
Thakurji
Maharaj
Virajman Thakurdwara Lal Shanker Lala
Dosar Vaish Trust. The petitioner did not
pay rent from July 1999 to October 2001
amounting to Rs. 1260.00 and consequently
notice in this regard was also given by the
respondents on 24.09.2001, but despite the
notice the rent was not paid and, hence, the
said suit for ejectment was filed.

4. The petitioner put in appearance
before the Trial Court. It was submitted that
he had in fact deposited an amount of Rs.
1500.00 towards House Tax on the
aforesaid property for the benefit of the
landlord in pursuance to recovery notice
issued by the Lucknow Nagar Nigam. It
was further stated that as per Section
108(g) of the Transfer of Property Act the
said amount, which was paid towards the
House-Tax, could have been appropriated
by the tenant towards the outstanding
amount of rent and accordingly the entire
rent was paid and, hence, he was not a
defaulter.

5. Learned counsel for the petitioner
has further submitted that the said suit itself
was not maintainable before the Judge,
Small
Causes,
in
as
much
as
the
plaintiff/respondent is a Private Trust and
according to the provisions of Uttar
Pradesh Urban Building (Regulation of
Letting Rent and Eviction) Act 1972
(hereinafter referred as 'Act no.13 of
1972'), Section 2(bb), the operation of the
said Act does not bar any dispute pertaining
to any building belonging to/vested in a
Private Charitable Trust. The findings of
both the courts below holding that the
respondent is a of 'Public Charitable Trust'
is perverse and contrary to record and
therefore requires interference. It has been
accordingly submitted that the proper
remedy for the respondent was by filing an
application for eviction under the Act no.
13 of 1972 before the prescribed authority,
and the proceedings not having been
initiated under the Act no. 13 of 1972 were
without jurisdiction.

6. The Trial Court while deciding the
said suit had framed seven issues. Amongst
others, Issue Nos. 3 and 4 related to the
nature of Trust and as to whether the
provisions of the Act of 13 of 1972 would
be applicable in the present case. It was
considered that the said Trust was involved
8 All. Champi @ Sundar Lal Vs. Addl. District Judge 9 Court Room No. 13 Lko. & Ors.
367
in working for the benefit of poor children,
providing education and scholarships to
such students, providing for wedding of
poor persons and other welfare related
activities and it also does not take any
donations from the State Government. It
was further stated that the said Trust is
running a Homeopathic Hospital and no
money is charged from the patients, except
Rs. 1/-, that is charged towards registration
and accordingly the Court was of the
considered view that the respondent was a
Public Charitable Trust. Issue No. 5 was in
relation to the amount paid by the petitioner
towards House Tax, which was due on the
respondents and the Trial Court was of the
considered view that the payment of the
said amount could not be appropriated
towards the outstanding amount of rent and
decided the issue in favour of the
respondents.

7. The petitioner has confined his
arguments to Issue Nos. 3, 4 and 5, which
have been dealt with by the Trial Court.

8.

Sri
B.K.
Saxena,
Learned
Advocate, has vehemently submitted that a
perusal of the Trust Deed would indicate
that the nature of the said Trust is a Private
Trust, rather than a Public Trust.

9. A perusal of the Trust-Deed, which
has been annexed alongwith the Short
Counter Affidavit, and a Hindi Translation
of the original Urdu Version, indicates that
the creator of the Trust was one Shankar
Lal S/o Narayan Das, who had created the
said Trust, with the following objects-

(1) Shankar Lal would continue
to be absolute owner and in control of the
entire Trust and its properties.

(2) After his death, the entire
properties of Trust would vest in his wife,
who will own the same on the same terms
and conditions, as the original Trustee.

(3) Instructions were given to the
wife that whatever amount is received, she
should spend first on herself. Whatever
money is left, the Thakurdwara will be
maintained,
and
if
anything
is
left
thereafter, the same would be deposited in
the name of Thakurdwara;

(4) It was indicated that after his
death, it will be duty of his wife to maintain
Thakurdwara for its development,;

(5) His wife would be entitled to
run the trust according to her wishes. She
can use a part of the rental income for
daan-punya, i.e. charity, and nobody will
have any objection;

(6) After his death, his cremation
shall be carried out from the income earned
from Thakurdwara;

(7) After the death of his wife, the
entire property shall be owned and
possessed by Thakur Ji Maharaj and he
gave instructions to the Trustees from No. 3
to 7 to look after the properties in the
manner he wished and keep the account of
income and expenditure; and

(8) It was also provided that in
case his wife, after his death, does not
implement the terms of this Trust-Deed,
then in that condition the Trustees No. 3 to
7 shall be entitled to keep possession, use
income for purposes indicated by him, i.e.,
in case his wife do not implement the terms
of this Trust Deed, which he has provided
and does not agree with his wishes, then
Trustees No. 3 to 7 shall be entitled to takeover the control.

10. It was submitted that a bare
perusal of the Trust-Deed would indicate
that the intention of Creator of the Trust
was to create the same for benefit of
Thakur Ji Maharaj Virajman and during his
lifetime he was to retain the entire control
368 INDIAN LAW REPORTS ALLAHABAD SERIES
of the said Trust. After his death, his wife
would have the similar control and after her
death he had nominated certain persons,
who were to have full control over the said
Trust. In case any of the Trustees dies, then
the other Trustees would have a right to
nominate a Trustee in his place. It was
urged that in the aforesaid circumstances
the Trust-Deed would be determinative of
the fact that the said Trust was a Private
Trust, rather than a Public Trust. In support
of his contentions, he relied upon a
judgment of the Supreme Court in the case
of Radhakant Deb & anr. v. The
Commissioner
of
Hindu
Religious
Endowments, Orissa, (1981) 2 SCC 226.
He submitted that guidelines have been
framed by the Supreme Court in para-14 of
the said judgment, from which it would be
determined as to whether any Trust would
be classified as a Public Trust or a Private
Trust.

11. It was further submitted that
Clauses 2 & 3 of paragraph-14 of the
aforesaid judgment are applicable in the
facts of the present case. It was stated
that neither the Management vests with a
large body of persons and the Founder
and Trustees retained control over the
Management and, therefore, as held by
the Supreme Court, the aforesaid facts
would be conclusive proof to show that
the endowment was of a private nature.
He further argued that to answer the
question as to whether the said Trust
would be a Public Trust or a Private
Trust, it has to be demonstrated that the
Founder has totally ceased control over
the said Trust, and only then such a Trust
can be called a Public Trust. He further
relied upon the judgment of the Supreme
Court in the case of Kuldip Chand & anr.
v. Advocate General to Govt. of H.P. &
ors.,
(2003)
5
SCC
46,
relevant
paragraphs 37 and 38 of which read as
under-

"37.
From
the
materials
brought on record by the parties, as
noticed hereinbefore, the following facts
emerge: (1) That the shops were let out to
other people. (2) People could come and
stay in the Dharamshala but for stay of
more than three days, only upon seeking
permission therefor. (3) Rent received
from the shops was being used by the
owners for their own purpose. (4) The
Dharamshala
was
being
managed/maintained from the personal
funds of the owner. (5) The management
and control of the Dharamshala was all
along with the owners. (6) A school was
opened
in
the
Dharamshala.
(7) A
chowkidar was appointed by Ranzor Singh
to look after the Dharamshala and his
salary used to be paid by the owner from
his own pocket. (8) The Dharamshala could
be used for marriage purpose but only with
the permission of the owners. (9) The firstfloor rooms could be used only by the
officers or by others with the permission of
the owner. (10) The Dharamshala was
ordinarily being used by the pilgrims only
during
fair.
(11)
The
public
never
contributed anything for maintenance of
the Dharamshala. (12) No member of the
public had any say as regards management
of the Dharamshala and had no legal right
to use the same. (13) No member of public
the ever participated in the management of
the Dharamshala. (14) No manager had
ever been appointed to look after and
manage
the
property.
(15)
The
Dharamshala was not registered under the
Sarais Act. (16) There is no evidence to
show that the owners acted as shebaits or
trustees.

38. A dedication for public
purposes and for the benefit of the general
8 All. Champi @ Sundar Lal Vs. Addl. District Judge 9 Court Room No. 13 Lko. & Ors.
369
public would involve complete cessation of
ownership on the part of the founder and
vesting of the property for the religious
object. In absence of a formal and express
endowment,
the
character
of
the
dedication may have to be determined on
the basis of the history of the institution
and the conduct of the founder and his
heirs. Such dedication may either be
complete or partial. A right of easement in
favour of a community or a part of the
community
would
not
constitute
such
dedication where the owner retained the
property for himself. It may be that right of
the owner of the property is qualified by
public right of user but such right in the
instant case, as noticed hereinbefore, is not
wholly unrestricted. Apart from the fact that
the public in general and/or any particular
community did not have any right of
participation in the management of the
property nor for the maintenance thereof any
contribution was made is a matter of much
significance. A dedication, it may bear
repetition to state, would mean complete
relinquishment of his right of ownership and
proprietary. A benevolent act on the part of a
ruler of the State for the benefit of the general
public may or may not amount to dedication
for charitable purpose."

12. It is in the aforesaid circumstances
that the learned counsel for the petitioner
has vehemently submitted that a perusal of
the Trust-Deed indicates that the said Trust
was of a Private Nature as the Creator of
the said Trust had retained control with
themselves at all stages and subsequently,
the trustees were mere successors of the
Original Trustee and, hence, there is no
doubt that the said Trust Deed pertain to a
Private Trust.

13. The nature of the Trust being a
Private Trust is also demonstrated by the
fact that for the appointment of the Trustee
Hori Lal, an application was made by the
respondent-Trust invoking the provisions of
Section 73 of the Indian Trust Act 1882. He
stated that had the respondent been a Public
Trust, they would have filed an application
under Section 92 of the Code of Civil
Procedure (C.P.C.) and the aforesaid
application could have been filed by the
Advocate General, or two or more persons
having interest in the Trust, having
obtained the leave of the Court. He submits
that the Indian Trust Act applies only to
private trust and an application for
appointment of a trustee was moved under
Section 73 of the Indian Trust Act which
clearly
shows
that
the
respondent
themselves have held themselves to be a
private trust and cannot be permitted to
resile from the said stand. The said
application was filed by the Trustees
seeking to fillup the vacancy arising
amongst
themselves
and
the
present
application was filed by one Gaya Prasad
Gupta, one of the Trustees of the Trust. He
submits that the respondents have all along
considered themselves to be a Private Trust
and,
accordingly,
had
invoked
the
provisions of Section 73 of the Trust Act
for appointment of a Trustees.

14. It was further submitted that
though a perusal of the said Trust-Deed
may indicate to be a Private Trust, but now
the Trust is being run by the Trustees, who
are involved in Public related activities and,
hence, now the said Trust can be said to be
a Public Trust rather than a Private Trust.

15. The writ petition has been
opposed by Mr. Jaiswal, learned Counsel
appearing for the respondents. He has
submitted that the respondent Trust is a
Public Trust and is working for the welfare
of the Public at large. He has submitted that
370 INDIAN LAW REPORTS ALLAHABAD SERIES
the Trust is running a Hospital and no
money is charged from the patients and the
Trial Court has adequately considered the
material before it and correctly come to the
conclusion that the Trust is a Public Trust.
He further submitted that the nature of the
respondent cannot be considered in such
proceedings. Lastly with regard to the
question as to whether the petitioner had
paid rent, when they deposited outstanding
amount of dues towards the house-tax
recovery by Lucknow Nagar Nigam, he
submitted that the payment of the said
amount cannot be appropriated towards the
rent. He submitted that it was the duty of
the landlord to pay the House Tax and if the
tenant has voluntarily paid the said amount,
the same cannot be adjusted towards his
rent, and prayed for dismissal of writ
petition.

16. In this writ petition, the first
important
question
that
falls
for
consideration is whether the respondent is a
private charitable trust as alleged by the
petitioner or a Public Trust as alleged by
the respondents.

17. In pith and substance, the
argument of the learned counsel for the
respondent is that the Trust in question is
maintained by the trust money which put
therein "Thakur ji Maharaj Virajman" and
that money is used to maintain "Hospital"
which is meant for public. Only Rs.1/- is
charged
from
the
patients
towards
registration and it is actively working for
the welfare of general public and, hence,
the said trust would qualify as "Public
Charitable Trust".

18. Needless to mention that concept
of a private endowment or a private trust is
unknown to English law where all trusts are
public trusts of a purely charitable and
religious nature but in India, the Trusts are
divided into private Trust or Public Trust,
as observed by Dr. Mukherjee in his Tagore
Law Lectures on the Hindu Law of
Religious and Charitable Trusts (1952
Edition) p.12 that-

"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.

19.

Accordingly,
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 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 decendants.

20. 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
8 All. Champi @ Sundar Lal Vs. Addl. District Judge 9 Court Room No. 13 Lko. & Ors.
371
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.

21. 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, AIR 1957
SC 133, Hon'ble Apex Court observed as
follow:

"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."

22. The counsel for petitioner relied
on the judgment of the Hon'ble Supreme
Court in the case of Radhakant Deb & anr
(Supra) where the test has been laid down
as
providing
sufficient
guidelines
to
determine on the facts of case whether an
endowment is of a private or of a public
nature. The test can be summarized in the
context of present case.

The guidelines framed in the said
judgment in para-14 are quoted hereunder:

"(1)
Where
the
origin
of
endowment cannot be ascertained, the
question whether the user of the temple by
members of the public is as of right.

(2) The fact that the control and
management vests either in a large body of
persons or in the members of the public
and the founder does not retain any control
over the management. Allied to this may be
a circumstance where the evidence shows
that there is provision for scheme to be
framed by associating the members of the
public at large.

(3) Where, however, a document
is available to prove the nature and origin
of the endowment and the recitals of the
document show that the control and
management of the temple is retained with
the founder or his descendants, and that
extensive properties are dedicated for the
purpose of the maintenance of the temple
belonging to the founder himself, this will
be a conclusive proof to show that the
endowment was of a private nature.

(4) Where the evidence shows
that the founder of the endowment did not
make any stipulation for offerings or
contributions to be made by members of the
public to the temple, this would be an
important intrinsic circumstance to indicate
the private nature of the endowment."

23. In the first test in order to
determine the nature of the trust, it is to be
ascertained as to whether the user of the
temple by members of public is as of rights.
The Trust deed by which the trust in
question came into existence nowhere
provides that user of temple by the
members of the public will be as of right.
Even otherwise the public has no say in the
user of temple in question as of right.

24. In the second test, it has to be
ascertained as to whether the control and
372 INDIAN LAW REPORTS ALLAHABAD SERIES
management vests in large body of persons
are members of the public or the founder
did not retain any control over the
management. A perusal of the Trust deed
would
show
that
the
control
and
management was retained by the founder in
himself
and
his
own
family
and
subsequently the named trustees. Thus in
view of the second test the trust in question
is only a private trust.

25. The third test as laid down is to
see from the document, the nature and
origin of the trust and if the control and
management of the temple is retained with
the founder and his descendants, and that
extensive properties are dedicated for the
maintenance of the temple belonging to the
founder himself. It will be a conclusive
proof to determine that the trust is a private
trust. In the present case, a perusal of the
Trust deed shows that the control and
management of the temple was retained by
the founder in himself and after his death
his wife and subsequently with the named
trustees.

26. The fourth test is where the
founder of the trust did not make any
stipulation for contribution to be made by
members of the public. It will be an
important circumstance to indicate the
private nature of the trust. A perusal of the
trust deed by means of which the trust in
question came into existence reflects that
no stipulation for offering or contributions
to be made by the members of the public
was made by the founder in the deed.

27. Thus on examining the nature of the
trust by applying the aforementioned tests it
would be crystal clear that the trust in
question is a private trust. As per the trust
deed the control of the trust at all times vested
initially with the creator / founder of the trust,
and subsequent to his death his wife and
thereafter the trustees. The management of
the trust accordingly vested with the founder
and subsequently with the trustees. No
member of the public could be associated or
appointed as a trustee, and coupled with the
fact that the members of the trust have all
along been running the same is a private trust,
due to which for appointment of the trustees
they had approached the court of District
Judge under Section 73 of the Indian Trust
Act and of themselves treated to be a private
trust and accordingly this Court is of the
considered view that due to the aforesaid
reasons the trust would fulfill all the
qualifications to be recognized as a private
trust. Both the courts below have failed to
examine the nature of the trust in light of the
law propounded by Hon'ble Supreme Court
and, therefore, have not dealt with the said
issue correctly and merely on the basis that
the said trust was running a charitable
hospital, have held the trust to be a public
trust. As discussed above elaborately, the said
finding is perverse and is accordingly set
aside.

28. The other question with which we
are concerned in this writ petition is whether
the defendant appellant was entitled to claim
deduction of the amounts paid by him to the
Municipal Board in pursuance of the
demands made by the Municipal Board upon
the defendant for taxes. The Courts below
took the view that the defendant appellant
was not entitled to deduct those amounts with
the result that the plaintiffs' suit for
possession by ejectment of the defendant
stands decreed on the finding that the
defendant appellant had failed to comply with
the notice of demand served upon-him by the
plaintiff.

29. Learned counsel for the appellant
has urged that according to the findings
8 All. Champi @ Sundar Lal Vs. Addl. District Judge 9 Court Room No. 13 Lko. & Ors.
373
recorded by the ourt below, the defendantappellant's claim that he was entitled to
deduct the amounts paid by him to the
Municipal Board was not liable to be
adjusted towards the outstanding amount of
rent, but the court below erred in taking the
contrary view.

30. There is no controversy that the
defendant-appellant is a tenant of a portion
only of a large building. The finding of the
court below is that a total, sum of Rs.
1500/- was paid by the defendant-appellant
to the Municipal Board and that the receipt
as proof of payment made by the appellant
to the Municipal Board pursuant to the
notices of demand. It is also clear from the
findings that the Municipal Board had
served upon the appellant demands for
payment of taxes in relation to the portion
of which the appellant was a tenant.

31. Learned counsel has founded his
contention in trial the appellant/defendant
was entitled to deduct the amounts covered
by the receipts from the rent due from him
to
the
plaintiff-respondents
as
per
provisions of clause (g) of Section 108 of
the Transfer of Property Act, read with the
provision contained in Section 177 of the
U.P. Municipalities Act. Section 108 of the
transfer of Property Act is in two parts viz.
rights and liabilities of the lessor, and rights
and liabilities of the lessee. Clause (g) falls
within the latter portion embodying the
rights and liabilities of the lessee, and runs
as follows:--

"If the lessor neglects to make
any payment which he is bound to make,
and which, if not made by him, is
recoverable from the lessee or against the
property, the lessee may make such
payment himself, and deduct it with interest
from the rent, or otherwise recover it from
the lessor."

Section
177
of
the
U.P.
Municipalities Act runs as follows:--

"All sums due on account of a tax
imposed on the annual value of building or
lands or of both shall, subject to the prior
payment of the land revenue (if any) due to
Government thereupon be a first charge
upon such building or lands."

32. Learned counsel for the petitioner
has urged that, under the provision
contained in Section 177 of the U. P.
Municipalities Act, the Municipal Board
has been invested with the authority to treat
arrears of taxes as constituting a charge
upon the entire property, including the
portion which was in the possession of the
defendant-appellant as a tenant, with the
result that those arrears of taxes were
recoverable against the property in the
possession of the defendant-appellant as a
lessee, as contemplated by Clause (g) of
Section 108 of the Transfer of Property Act.
His
contention
is,
that
in
these
circumstances,
the
defendant-appellant
having made the payment himself, was
entitled to deduct the same from the rent.

33. Learned counsel for the petitioner
has also relied upon the provision contained
in Section 149 of the U.P. Municipalities Act
whereunder
an
occupier
who
makes
payment of tax for which the lessor is
primarily liable, is entitled, in the absence of
any contract to the contrary, to be
reimbursed by the lessor who, according to
the provisions contained in Section 149
aforesaid, is the person primarily liable to
pay the taxes. I have heard learned counsel
for the parties. In my opinion the contention
of the learned counsel for the appellant is
sustainable on both the grounds.
374 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The provisions contained in
Section 177 of the U. P. Municipalities Act
make it clear that the powers with which
the Municipal Board is invested for the
purpose of recovering Municipal dues
includes the power to sell the property in
respect of which taxes may be due, and for
that purpose the tax due constitutes a first
charge upon the building. It is, therefore,
clear that the Municipal Board could, if it
so liked, recover the tax due by sale of the
property which included the property in the
possession of the defendant-appellant. That
being so, and there being no controversy
that the lessor had neglected to make
payment of the total amount of Rs. 1500/-
paid by the petitioner to the Municipal
Board, that amount was recoverable against
the property in the possession of the
defendant-appellant.
The
defendantappellant was, therefore, entitled to make
the payments himself and deduct the same
from the rent, in exercise-of his rights
under Clause (g) of Section 108 of the
Transfer of Property Act.

35. Section 149 of the U. P.
Municipalities Act runs as follows :--

(1)
Except
when
otherwise
provided by rule, every tax other than a
scavenging tax or tax for the cleansing of
latrines and privies on the annual value of
buildings or lands or of both shall be
leviable primarily from the actual occupier
of the property upon which the said taxes
are assessed, if he is the owner of the
buildings or lands or holds them on a
building
or
other
lease
from
the
Government or from the board, or on a
building lease from any person.

(2) In any other case the tax shall
be primarily leviable as follows, namely:--

(a) if the property is let, from the
lessor;

(b) if the property is sub-let, from
the superior lessor

(c) if the property is unlet, from
the person in whom the right to let the same
vests.

(3) On failure to recover any sum
due on account of such tax from the person
primarily liable, the board may recover
from the occupier of any part of the
buildings or lands in respect of which it is
due that portion thereof which bears to the
whole amount due the same ratio as the
rent annually payable by such occupier
bears to the aggregate amount of rent
payable in respect of the whole of the said
buildings or lands, or to the aggregate
amount of the letting value thereof in the
authenticated
assessment
list
(4) An
occupier who makes any payment for which
he is not primarily liable under the
foregoing provisions shall in the absence of
any contract to the contrary, be entities to
be reimbursed by the person primarily
liable."

36. There is no controversy that the
taxes demanded did not include scavenging
tax or tax for the cleansing of latrines and
privies. From the above provision it is clear
that, so far as the personal liability of the
petitioner was concerned, it was confined,
under Clause (3) of Section 149, to the
proportionate amount of tax due in respect
only of the portion which was in the
occupation of the petitioner as a tenant.
Under Clause (4), however, the right of
reimbursement embodied therein is not
confined to the extent of the personal
liability of the occupier, but extends to any
payment made by him so long as it is
payment of an amount for which the
plaintiff respondents were primarily liable.
The substance of a right to be reimbursed a
such of money implies, to my mind, a right
to deduct that sum from monies which the
8 All. Reeta Gupta Vs. Astt. General Manager Personal Oriental Bank of Commerce
375
person entitled to reimbursement may owe
to the person liable to reimburse. The view
that the expression 'any payment' in Clause
(4) should be interpreted to include
payment of any tax for which the lessor
was primarily liable, even though under
Clause (3) the Board may have been
entitled to recover only part thereof from
the occupier, seems also to be in accord
with the rule of equitable construction, for,
if it were held that the occupier is entitled
to pay and be reimbursed only to the extent
of the proportionate liability in respect of
the portion in his occupation, it would lead
to anomalies and hardship on the occupier.
The Municipal Board may refuse to accept
part payment and deprive the occupier of
municipal amenities enjoyed by him in
common with other occupiers.

37. Therefore, keeping in view the
provisions
of
Section
149
of
the
Municipalities Act, the petitioner cannot be
held to have defaulted in payment of any
arrears of rent when the appellant has
established that he had paid an amount of
Rs.1500/- which exceeded Rs.1260/- in
respect of which he was alleged to have
defaulted had been paid by him to the
Municipal Board under notices of demand
served upon him in respect of taxes due
against property including the portion of
which the he was the tenant.

38. The Hon'ble Apex Court has
already observed in the case of Deoki
Nandan (supra) that the mere fact that
members of the public are allowed to
worship by itself would not make an
endowment as public. Thus, it appears that
the present Trust is a Private Trust and the
concurrent finding recorded by the lower
courts are erroneous and liable to be
interfered. Consequently, the trust in
question is not exempted from and the
provisions of Sec 13 of Act,1972 and the
same are applicable to it.

39. Moreover, the petitioner himself
has admitted that there is relationship of
tenant and landlord between him and the
opposite-party no.3 The petitioner is
regularly paying the rent. Thus, there is
undisputed relationship of the landlord and
tenant between them.

40. In view of the above the
concurrent findings of the courts below are
erroneous and the provisions Section 13 of
the Act of 1972 are applicable in the instant
case. Hence, in this regard, the orders of the
lower courts are hereby set aside.

41. In these circumstances, the writ
petition is allowed and the impugned order
dated 9.2.2012 passed by Additional
District
Judge,
Court
Room
No.13,
Lucknow in SCC Revision No.39 of 2011
as well as the judgment dated 5.5.2011
passed by 2nd Additional Judge, Small
Causes, Lucknow in SCC Suit No.222 of
2001 are set aside.
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(2023) 8 ILRA 375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J

Writ A No. 2000700 of 2003
And
Writ A No. 2000699 of 2003

Reeta Gupta ...Petitioner
Versus
Astt. General Manager Personal Oriental
Bank of Commerce ...Respondent

Counsel for the Petitioner: