# Jagdish Narain Tandon v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 1188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-27
- **Case number:** Second Appeal No. 470 of 2003
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-narain-tandon-v-state-of-u-p-ors-48641
- **Pages:** 12

## Headnote

A. Civil Law - Indian Trust Act, 1882 -
Charitable and Religious Trusts Act, 1920 -
Charitable
Endowment
Act,
1890
-
'Tandon Trust' created in the memory of
the grandparents of the Authors of the
Trust - By judicial order, High court held
that the 'Tandon Trust' was not a
charitable and religious trust - there was
no
element
of
charity in
the
deed
created/executed by the Author of the
Trust - thus the provisions of Charitable
and
Endowments
Act,
1890
&
and
Charitable and Religious Trusts Act, 1920
not applicable - Notification of 1972 will
have no bearing upon the status of the
trust - judicial order of High Court will
prevail
over
the
Administrative
Notification issued by the State - Once,
the declaration was there, neither the
defendants nor the Courts below had the
right to disregard it (Para 61, 62, 64, 65)

B. Civil Law - 'Judgment in rem', meaning
of - judgment in personam refers to a
judgment
against
a
person
as
distinguished judgment against a thing,
right or status and judgment in rem refers
to judgment that determines the status or
conditions of property which operates
directly
on
the
property
itself
-
A
declaration of the status is always in rem
and not in personam - The relief of
declaration is for the world to know about
the status of the person in favour of whom
the declaration has been made - In the
present case, the Court while decreeing
the Suit of K.N. Shivpuri declared the
status of the 'Tandon Trust', not being a
charitable and a religious trust covered
under the Act of 1920 - declaration made
by the Court as to the status of the trust is
to the world at large and not to any
particular party in a suit, as it affects
people at large - judgment rendered in
second
appeal
was
binding
on
the
defendants-respondents even though they
were not the party, as the said judgment
was in rem (51, 52 53, 54, 55)

Allowed. (E-5)

List of Cases cited:

## Text

1188 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)06ILR A1188
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.06.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Second Appeal No. 470 of 2003

Jagdish Narain Tandon ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Manoj Misra, Sri Anjani Kumar Mishra,
Sri Ashwani K. Mishra, Sri O.P. Lohia, Sri
Raghuvansh Misra, Sri Rahul Agarwal, Sri
Vageesh Pandey, Sri Vrindavan Mishra

Counsel for the Respondents:
S.C., Sri Narendra Mohan, Sri Anil Sharma
(Senior Adv.), Sri R.M. Saggi, Sri P.K. Giri
(Addl. C.S.C.)

A. Civil Law - Indian Trust Act, 1882 -
Charitable and Religious Trusts Act, 1920 -
Charitable
Endowment
Act,
1890
-
'Tandon Trust' created in the memory of
the grandparents of the Authors of the
Trust - By judicial order, High court held
that the 'Tandon Trust' was not a
charitable and religious trust - there was
no
element
of
charity in
the
deed
created/executed by the Author of the
Trust - thus the provisions of Charitable
and
Endowments
Act,
1890
&
and
Charitable and Religious Trusts Act, 1920
not applicable - Notification of 1972 will
have no bearing upon the status of the
trust - judicial order of High Court will
prevail
over
the
Administrative
Notification issued by the State - Once,
the declaration was there, neither the
defendants nor the Courts below had the
right to disregard it (Para 61, 62, 64, 65)

B. Civil Law - 'Judgment in rem', meaning
of - judgment in personam refers to a
judgment
against
a
person
as
distinguished judgment against a thing,
right or status and judgment in rem refers
to judgment that determines the status or
conditions of property which operates
directly
on
the
property
itself
-
A
declaration of the status is always in rem
and not in personam - The relief of
declaration is for the world to know about
the status of the person in favour of whom
the declaration has been made - In the
present case, the Court while decreeing
the Suit of K.N. Shivpuri declared the
status of the 'Tandon Trust', not being a
charitable and a religious trust covered
under the Act of 1920 - declaration made
by the Court as to the status of the trust is
to the world at large and not to any
particular party in a suit, as it affects
people at large - judgment rendered in
second
appeal
was
binding
on
the
defendants-respondents even though they
were not the party, as the said judgment
was in rem (51, 52 53, 54, 55)

Allowed. (E-5)

List of Cases cited:

1. Natha Singh & anr. Vs Heet Singh & ors. AIR
1980 All 358

2. Booz-Allen & Hamilton Inc Vs SBI Home
Finance Ltd. & ors. 2011 (5) SCC 532

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Anil Sharma, learned
Senior Counsel, assisted by Sri R.M. Saggi,
learned counsel for the appellant and Sri
P.K.
Giri,
learned
Additional
Chief
Standing Counsel for the respondents.

2. This case has a long chequered
history. A brief narration of the case is
necessary for better appreciation of the
case, which are as under:-

3. On 06th June, 1946, Baijnath
Tandon, Kedarnath Tandon and Rajnath
6 All. Jagdish Narain Tandon Vs. State of U.P. & Ors.
1189
Tandon sons of one Lala Lallumal created a
trust named ''Tandon Trust' in memory of
Smt. Hira Devi and Lala Lallumal
consisting of immovable properties with
the object of encouraging education,
culture,
study
of
Hindu
Religion,
Philosophy and Social Service in order to
perpetuate the memory of the grand mother
and father of the Authors of the Trust.

4. The Trust consisted of the original
nine trustees who were to manage the
properties of the Trust. Para 7 provided for
the vacancy caused in case of a trustee is
removed, the same was to be filled
according to the provisions of Indian Trust
Act, 1882.

5. On 29.01.1966, two of the trustees,
Dr. Govardhan Das Agarwal and Manohar
Lal Shahaney applied to the Court of
District Judge, Jhansi under Section 3 of
the Charitable and Religious Trusts Act,
1920 (hereinafter called as "Act of 1920")
claiming the opposite parties, who were the
other trustees, to furnish to the Court the
full particulars as regards the nature and
objects of the Trust, of the value, condition,
management and application of all Trust
properties, of the income that has arisen
from the said property so far, directing
Accounts of the Trust properties and
money to be taken, examined and audited.
The said case was registered as Case No.32
of 1966.

6. In the said Suit, opposite party
no.8, Kailash Narain Shivpuri moved an
application under Section 5 (3) of the Act
of 1920 and gave an undertaking for
instituting a suit for declaration before the
Civil Court. The District Judge, on
17.08.1968, passed an order staying the
proceedings of Case No.32 of 1966 and
granted time for filing declaratory suit.

7. Kailash Narain Shivpuri, thereafter,
filed an Original Suit No.1268 of 1968 in
the Court of Munsif, Jhansi seeking a relief
of declaration to the effect that the Trust in
Suit (Misc. Case No.32/66-67 of the Court
of District Judge, Jhansi) is not one to
which the Act, 1920 applies. In the said
Suit, both Dr. Govardhan Das Agarwal and
Manohar Lal Shahaney, who were the
plaintiffs in Case No.32 of 1966 were
arrayed as the defendants. The said Suit
was contested and the trial Court vide
judgment and decree dated 17.05.1971
dismissed the Suit. Against the said
judgment, First Appeal No.121 of 1971
was filed by Kailash Narain Shivpuri.

8. During the pendency of the said
proceedings, six out of living eight trustees
moved an application under Section 4 (1)
of the Charitable Endowment Act, 1890
(hereinafter called as "Act of 1890") for
including
and
declaring
a
trust
as
Charitable
Trust.
A
Government
Notification was made on 07.07.1972
through Treasurer, Charitable Endowment,
U.P. including the trust as a Charitable
Endowment. Scheme of Administration
was drawn and Committee of Management
was constituted which was headed by the
District Magistrate. The notification was
published in the Gazette on 15.07.1972.
The Additional District Judge, Jhansi on
05.08.1974 dismissed the appeal filed by
Kailash Narain Shivpuri.

9. Against the said judgment, a
second appeal being Second Appeal
No.2655 of 1974 was preferred. This Court
vide judgment dated 21.10.1981 set aside
the judgment and decree passed by both the
Courts below while allowing the appeal
and decreed the Suit filed by Kailash
Narain Shivpuri, holding that the Tandon
Trust was not the trust for charitable
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose so as to be governed by the
provisions of Act of 1920.

10. The judgment rendered by this
Court was not challenged by any of the
trustee or the State. One of the trustees
Kailash
Narain
Tandon
moved
an
application on 20.09.1990, before the
Collector, Jhansi along with copy of the
judgment. The Collector, Jhansi sought
written opinion of the District Government
Counsel (DGC), who on 01.11.1990 opined
that the judgment of this Court was final,
once it was held that the Trust is not a
Charitable and Religious Trust and was a
private
Trust
and
the
Government
Notification of 1972 needs to be amended.

11. Despite, the opinion of the DGC
(Civil) when the order was not complied with
by the defendants, notice under Section 80 of
CPC was served on 01.11.1991 and
thereafter, Suit No.11 of 1992 was filed by
the present plaintiff-appellant seeking a relief
for a decree for declaration to this effect be
passed
that
the
vesting
order
dated
07.07.1972 in respect of the properties of
''Tandon Trust', Jhansi vested in defendant
no.2 is illegal and without jurisdiction, and
the properties of ''Tandon Trust' stand
divested from defendant no.2 and re-vested in
old trustees and continued to be vested in old
trustees and their successors as per terms of
Trust deed before the Notification, and Trust
Committee or Management formed under
Scheme of Administration in consequence of
vesting order presided over by the District
Magistrate, Jhansi has no existence in the eye
of law and should be dissolved.

12. Further, relief for permanent
injunction restraining the defendant from
transacting any business, or dealing with
properties of ''Tandon Trust' in any manner
whatsoever and non-interference in working
of old trustees and their successors was also
sought. The said Suit was contested by
defendants-respondents no.1 to 3 who filed
their written statement denying the plaint
allegation. The trial Court framed the
following issues:-

"1- क् आदेश वदि ांक 7-7-72 वजसके
द्व र टण्डि टर्स्ट की सम्पवत्त को प्रवति दी सांख्य -2 में
विवहत वकय िय है, अिैध एिां विि क्षेत्र वधक र है ?

2- क् ि दी की ि द अल्प मूल्य ांवकत
तथ न्य यशुल्क अपय यप् है?

3-
क्
म ििीय
उच्च
न्य य िय
इि ह ि द द्व र वद्वतीय अपीि सांख्य -2655/74 में
प ररत वकये िए आदेश प्रवति दीिण पर िन्धिक री
िही है और र ज्य सरक र क आदेश वदि ांवकत 7-772 इससे प्रभ वित िही है?

4- क् चैरीटैविि एण्ड ररिीवजयस टर्स्ट
एक्ट् के प्र विध ि प्रवति दी सांख्य -3 पर ि िू िही
होते जैस वक प्रवति दपत्र के पैर 24 में कह िय
है?

5- क् द ि चैररटैविि एण्ड इन्ड िमेंट
1890 के प्र विध ि से ि वधत है?

6- क् द िे में द र -80 सी०पी०सी० की
िोवटस की कमी क दोर् है?

7- क् ि दी के पूियज श्री िैजि थ टण्डि
अन्य टर्खस्टयोां के स थ टण्डि टरस्ट की सम्पवत्त को
टरजर र चैररटैविि एण्ड िमेंट एक्ट् 1890 के तहत
विवहत करिे की श सि से प्र थयि की थी।? यवद ह ाँ तो
प्रभ ि?

8- क् ि दी टर्स्ट सम्पवत्त को क्षवत
पहुाँच िे एिां टर्स्ट के उद्देश्योां को विफि करिे
क क यय कर रह है?
6 All. Jagdish Narain Tandon Vs. State of U.P. & Ors.
1191

9- क् ि दी को र ज ज्ञ एिां प्रश सि
योजि को चुिौती देिे क अवधक र िही है?

10- ि दी वकस अिुतोर् को प िे क
अवधक री है?

11- क् ि दीिण क ि द स्ट पेि के
वसद्ध न्तोां से ि वधत है?

12- क् ि दी कैि श ि र यण एिां
उिके वपत श्री िैजि थ टण्डि िे र ज ज्ञ में
िवणयत सम्पवत्त को टर्स्ट की सम्पवत्त स्वीक र
वकय है? यवद ह ां तो प्रभ ि?

13- क् ि दी क ि द क ि ि वधत
है?

14- क् कैि श ि र यण टण्डि
द ि द यर करते समय क फी िृद्ध थे एिां उिें
वदि ई िहीां देत थ ?

15- क् श सि देश वदि ांवकत 7-772 के पूिय ि द सांख्य - 1268/68 द यर वकय ज
चुक थ वजसकी ज िक री टण्डि टर्स्ट के
समस्त टरखस्टयोां को थी, जैस वक रेप्लीकेशि के
पैर -4 में िवणयत है? यवद ह ाँ तो प्रभ ि?

16- क् श सि द्व र अिुमोवदत
प्रिन्ध के अन्तियत िवठत टरस्ट कमेटी जो
चैररटेविि इण्ड िमेंट एक्ट् के अन्तियत िि ई
िई, उवचत प्रक र से क यय िहीां कर रही है और
क् श सि द्व र टर्स्ट की समस्त चि अचि
सम्पवत्त अपिे अवधक र में िही िी िई? यवद ह ां
तो प्रभ ि?

17- क् म ििीय उच्च न्य य िय
द्व र वििर िी सांख्य -1605/77 में वदए िए
विणय वदि ांक 23-4-80 से ि दी प िन्द है तथ
प्रस्तुत ि द द यर करिे से वििांवधत है?

18- क् उच्च न्य य िय को ि द की
सुिि ई की अवधक ररत प्र प् िही है?"

13. Issue no.1 was in regard to the
fact that whether by Notification dated
07.07.1972, the properties of ''Tandon
Trust'
came
within
the
purview
of
defendant-respondent no.2. Issue no.3 was
in regard to the fact that whether the
judgment rendered in Second Appeal
No.2655 of 1974 by the High Court was
binding and affected the Notification dated
07.07.1972 and further issue no.9 was
framed to the effect that whether plaintiff
can challenge the Government Notification.

14. Issues no.1, 3 and 9 were tried
together by the trial Court and it was held
that the Notification dated 07.07.1972
could not be challenged in a suit. The Court
further held that no benefit of the judgment
rendered in second appeal could benefit the
plaintiff-appellant. The Suit was dismissed
on 30.05.1998. Against the said judgment,
Civil Appeal No.65 of 1998 was filed,
wherein the lower appellate Court framed
following points of determination:-

"मुख्य रूप से विध यरण के विए प्रश्न
यह है की क् टांडि टरस्ट चैररटेविि प्रयोजि क
िहीां है और र ज ज्ञ वदि ांवकत 07.07.72 अिैध
ि विि क्षेत्र वधक र के है तथ म ििीय उच्च
न्य य िय की वद्वतीय अपीि सांख्य -2655/74 के
आदेश वदि ांक 21.10.81क विणय उि टरस्ट
पर ि िू होत है?"

15. The lower Appellate Court held
that the Scheme of Administration made
under Section 5 (4) of the Act of 1890
cannot be challenged in the present
proceedings and further held that judgment
rendered in second appeal was not binding
on the defendants-respondents as they were
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
not the party and the said judgment was not
in rem and therefore, dismissed the appeal
on 17.01.2003. Hence, the present second
appeal.

16. This Court, on 23.04.2003,
admitted
the
appeal
on
following
substantial questions of law:-

(i) Whether the Trust which is not
Charitable can be governed by the
provisions of Charitable Endowment Act,
1890 and,

(ii) Whether the Notification
dated 07.07.1972 issued under Section 4 of
Charitable Endowment Act, 1890 was void
and without jurisdiction?

17. Sri Anil Sharma, learned Senior
Counsel
submitted
that
before
the
Notification dated 07.07.1972, two trustees,
namely, Govardhan Das Agarwal and
Manohar Lal Shahaney in the year 1966
had moved application under Section 3 of
Act, 1920 seeking particulars as regards
nature and objects of the Trust. In the said
proceedings, another trustee Kailash Nath
Shivpuri
had
objected
and
moved
application under Section 5(3) of the Act of
1920 and the District Judge granted
permission to file a suit for declaration.
According to him, the suit filed in the year
1968 was categorical to the effect that a
declaration was sought that the Trust in
Suit/Case No.32/67 is not one to which
Charitable and Religious Trusts Act, 1920
applies.

18. Once, the dispute as to the status
of the Trust was raised before the
Notification, it will have no effect as this
Court in Second Appeal No.2655 of 1974
decreed the Suit holding Tandon Trust not
to be Trust for charitable purpose on
21.10.1981, and the judgment so rendered
was in rem and not in persona.

19. According to Senior Counsel, the
declaration by this Court was to the status
of the Trust which was in litigation since
1968. Once, it was held to be Trust not
covered under the Act of 1920 or 1890,
Notification dated 07.07.1972 will have no
consequence.

20. He next contended that after the
judgment of 1981, request was being made
by the trustees to the Collector, Jhansi for
divesting the properties of the Trust from
the Treasurer and re-vesting it into the old
trustees and for dissolution of the Trust
Committee. The Collector has also sought
the opinion of the DGC, who opined in
favour
of
the
plaintiff-appellant
on
01.11.1990, but when no action was taken,
plaintiff-appellant was left with no option,
but to file a Suit for declaration for
divesting the properties from defendant
no.2 and re-vesting in the old trustees.

21. He further laid emphasis that both
the Courts below were not correct to hold
that the judgment passed in second appeal
was not applicable upon the defendantsrespondents in the present case as they
were not the party to the Suit. According to
him, as the Suit filed by Kailash Nath
Shivpuri for the status of the Trust, which
was declared to be not covered under the
Act of 1920, was a judgment in rem and
binding upon the present defendants.

22. Moreover, neither any appeal nor
review was filed by the present defendantsrespondents against the judgment of 1981
which became final, as it declared the
status of the Trust. Further, on the question
of limitation, he has relied upon Article 58
of the Limitation Act, which provides
6 All. Jagdish Narain Tandon Vs. State of U.P. & Ors.
1193
limitation for declaratory suit from the date
of denial. Reliance has been placed upon
the decision of Co-ordinate Bench of this
Court in case of Natha Singh and Another
Vs. Heet Singh and Ors. AIR 1980 All
358 and Booz-Allen & Hamilton Inc Vs.
SBI Home Finance Ltd. and Ors. 2011
(5) SCC 532.

23. Sri P.K. Giri, learned Additional
Chief Standing Counsel appearing for the
defendants-respondents while defending
the judgment passed by Courts below
submitted that Suit filed by Kailash Nath
Shivpuri was inter se between the trustees
and the present defendants were not party
to the same. According to him, once the
application was moved under Section 4 of
the Act of 1890 by six of the trustees and a
Notification was made on 07.07.1972, the
property of the Trust came within the
purview of the Act of 1890 and the relief
claimed by the plaintiff cannot be granted.

24. According to the State Counsel,
the judgment rendered in second appeal is
of the year 1981, while the plaintiffappellant instituted the Suit in the year
1992 and the same was barred by limitation
and no explanation has been afforded as to
why there was such delay on his part. He
then contended that both the Courts below
had rightly recorded the findings that once
the
State
Government
notified
on
07.07.1972, the said Notification cannot be
quashed in a suit proceedings.

25. He lastly contended that the
finding
recorded
in
Second
Appeal
No.2655 of 1974 is not binding as the
defendants-respondents were not the party
in the Suit, nor the plaintiffs of that Suit,
after the Notification, had either amended
their Suit or appeal impleading the present
defendants as the party. According to him,
the said judgment was binding inter se
between the parties and not upon the
present defendants-respondents. Apart from
this, no other argument has been raised
from the State side.

26. I have heard learned counsel for
the parties and perused the material on
record.

27. Before proceeding to consider and
decide the substantial questions of law
framed above, it would be necessary to
have
a
brief
glimpse
of
Religious
Endowments Act, 1863 (hereinafter called
as "Act of 1863"), The Indian Trust Act,
1882 (hereinafter called as "Act of 1882"),
The Charitable Endowments Act, 1890
(hereinafter called as "Act of 1890") and
The Charitable and Religious Trusts Act,
1920 (hereinafter called as "Act of 1920")
as well as the definition and meaning of the
word "Trust", "Religious Endowment" and
"Charitable Endowment."

28. Religious and Charitable Trust
exists, in some shape or other, in almost all
the civilized countries and their origin can
be traced primarily to the instincts of piety
and benevolence which are implanted in
the human nature. The form and nature of
these trusts undoubtedly defer according to
spiritual and moral ideas of different
nations, and even among the same people,
ideas are seen to vary.

29. In Tagore Law Lectures, His
Lordship Justice B.K. Mukherjea traced the
concepts of Religious and Charitable Trust
from the days of Roman Empire till the
present time. He wrote that Imperial Rome
under
the
Christian
Emperors
was
dissimilar in many respects to Pagan Rome,
and the religious and charitable institutions
in England undoubtedly took a different
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
shape when she abjured, Catholicism and
became Protestant. The popular Hindu
religion of modern times is not the same as
religion of the Vedas though the latter are
still held to be the ultimate source and
authority of all that is held sacred by the
Hindus.

30. Before proceeding further, it is
necessary to have clear idea as to what is
meant by the expression "Religious and
Charitable Trusts" in its proper juristic sense.
For this purpose, a little excursion into the
yields of English and Roman law is
necessary. A trust would obviously be
denominated a religious or charitable trust if
it is created for purposes of religion or
charity. Two things, therefore, require to be
considered in this connection, viz., (I) what
are religious and charitable purposes? and (ii)
what is a trust?

31. It is well known, "religion" is a
matter
of
faith
with
individuals
and
communities, and it is not necessarily theistic
(e.g., Buddhism). All that we understand by
religious purpose is that the purpose or object
is to secure the spiritual well-being of a
person or persons according to the tenets of
the particular religion which he or they
believe in.

32. On the other hand, "Charity" means
benevolence and in its wide and popular
sense it comprehends all forms of benefit,
physical, intellectual, moral, ethical or
religious, bestowed upon persons who are in
need of them.

33. The conception of word ''Trust' was
devised by the Chancery Courts in England,
which as Courts of Conscience attempted to
supply the deficiencies of the English
Common Law, by administering what were
known as principles of equity and natural
justice. These principles were imported to a
large extent from the Roman Civil Law.

34. Lewin in his well-known treaties on
the Law of Trusts defines "Trust" to be a
"confidence reposed in some other, not
issuing out of the land, but as thing collateral,
annexed in privity to the estate of the land,
for which cestui que trust has no remedy, but
by Subpoena" (by which an unscrupulous
defendant who could not be touched in the
common law courts was compelled to appear
before an Equity Judge and made to carry out
his orders, the proceeding being entirely one
in personam in the Chancery).

35. Trust as understood in English
Law were unknown in both Hindu and
Muslim jurisprudence. But, Hindus have
also Religious Institutions which were
governed by their own customs and rites,
both public and private. Muslims have also
evolved the concepts of Waqf. But, they
were
strictly
governed
by
Muslims
Personal Law.

36. Under the Hindu system, there is
no line of demarcation between the religion
and charity. On the other hand, charity is
regarded as a part of religion. The Hindu
religion recognises the existence of life
after death and it believes in the law of
Karma according to which good or bad
deeds of a man produce corresponding
results in the life to come.

37. Hindu Religious and Charitable
Acts have been from the earliest time
classified under two heads viz. Istha and
Purtta. The two words are often used
conjointly and they are as old as Rigveda.

38. During the British Rule, for the
first time, Law relating to Religious
Endowments
was
codified
and
the
6 All. Jagdish Narain Tandon Vs. State of U.P. & Ors.
1195
Religious Endowments Act, 1863 came
into existence. The preamble of the Act is
extracted hereasunder:-

"An
Act
to
enable
the
Government
to
divest
itself
of
the
management of Religious Endowments.

Preamble.--Whereas
it
is
expedient to relieve the Boards of Revenue,
and the local Agents, in the Presidency of
Fort William in Bengal, and the Presidency
of Fort Saint George, from the duties
imposed on them by Regulation XIX, 1810
(Ben. Reg. 19 of 1810), of the Bengal Code
(for the due appropriation of the rents and
produce of lands granted for the support of
Mosques, Hindu Temples, Colleges and
other purposes; for the maintenance and
repair of Bridges, Sarais, Kattras, and other
public buildings; and for the custody and
disposal of Nazul Property or Escheats),
and Regulation VII, 1817 (Mad. Reg. 7 of
1817), of the Madras Code (for the due
appropriation of the rents and produce of
lands granted for the support of Mosques,
Hindu Temples and Colleges or other
public purposes; for the maintenance and
repair of Bridges, Choultries, or Chattrams,
and other public buildings; and for the
custody and disposal of Escheats), so far as
those duties embrace the superintendence
of lands granted for the support of Mosques
or Hindu Temples and for other religious
uses; the appropriation of endowments
made for the maintenance of such religious
establishments; the repair and preservation
of buildings connected therewith, and the
appointment of trustees or managers
thereof; or involve any connexion with the
management
of
such
religious
establishments."

39. Thereafter, need was felt for
precise legislation relating to trust when the
increasing
number
of
European
and
Eurasian population had to face problems
in administering the trust created by them,
prior to which they were governed by the
Indian Trust Act, 1866. The British Rule
enacted the Indian Trust Act, 1882 which
was introduced to amend the law relating
private trust and trustees. The preamble of
the Act of 1882 reads as under:-

"An Act to define and amend the
law relating to Private Trusts and Trustees.

Preamble.--WHEREAS
it
is
expedient to define and amend the law
relating to private trusts and trustees."

40. Likewise, Section 3 defines
"Trust" which is extracted as under:-

"3.
Interpretation-clause--
"trust":--A
"trust"
is
an
obligation
annexed to the ownership of property, and
arising out of a confidence reposed in and
accepted by the owner, or declared and
accepted by him, for the benefit of another,
or of another and the owner:"

41. Subsequently, in the year 1890, it
was found that an Act be enforced on the
lines of the Act which was in existence in
England, wherein an official was appointed
who was capable of discharging the
function as official trustee of charity lands
and official trustee of charitable funds, with
this objects, the Charitable Endowments
Act, 1890 was enacted. Section 2 of the Act
provides for the definition of the word
"charitable purpose" which is extracted
hereasunder:-

"2. Definition. --In this Act
"charitable purpose" includes relief of the
poor, education, medical relief and the
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
advancement of any other object of general
public utility, but does not include a
purpose which relates exclusively to
religious teaching or worship."

42.

Simultaneously,
Section
3
provides
for
the
appointment
and
incorporation of Treasurer of Charitable
Endowment. Section 4 provides for the
orders vesting property in the Treasurer so
appointed under Section 3, whereas Section
5
provides
for
the
Scheme
for
Administration of property vested in the
Treasurer.

43. As the Government at that time
found that Act of 1863 was the result of the
decision of the Government to divest its
officer of all direct Superintendence and
control
of
Religious
and
Charitable
Endowment in India, transferring their
function
to
manager
or
managing
committee and merely making provisions
for intervention by the Civil Court on
application made by any person interested
in a particular institution. This policy,
however, did not long remain unchallenged
and there was consistent complaint.

44. The Government decided to enact
a law, whereby any person interested in a
trust may apply a petition to the District
Judge for an order directing the trustee to
furnish him with information as to nature
and objects of trust and of the value,
condition, management, and application of
the subject matter of the trust, and of the
income belonging thereto, or as to any of
these matters, and also directing that the
accounts of the trust shall be examined and
audited.

45. Thus, it came into existence The
Charitable and Religious Trusts Act, 1920.
Section 3 provided the power to apply to
the Court in respect of a trust of a
charitable or the religious nature. Section 5
provided the procedure of the petition to be
heard. Further, Section 12 provided that no
appeal shall lie against any order passed or
against any opinion, advice or direction
given under the Act.

46. Thus, what culls out from the
above is to the nature of a trust or a
religious and charitable endowment created
under the various statutory provisions of
the Act enacted from 1863 to 1920.

47. In the present case, the dispute is
in regard to "Tandon Trust" which is
alleged to have been created by its Author
on 06th June, 1946. The trust deed clearly
defines the object, which is of Encouraging
Education,
Culture,
Study
of
Hindu
Philosophy and Social Service in order to
perpetuate the memory of the grand mother
and father of the Author of the Trust.

48. Clause 7 of the trust deed in clear
terms provides that in case of removal of
any trustee under the Indian Trust Act, the
vacancy so caused will be filled by the
provisions of the terms of the Clause No.3
and 4, meaning thereby that the trust under
consideration is a private trust and its
incorporation and functioning has to be
considered under the scope of Act of 1882.

49. This Court in Second Appeal
No.2655 of 1974 while deciding as to
whether ''Tandon Trust' in question was a
trust for charitable purpose, so as to be
governed by the provisions of the Act of
1920 held it not to be a charitable trust and
found it to be out from it's purview. The
matter regarding declaring ''Tandon Trust'
was initiated by one of the original trustee
Kailash Narain Shivpuri in the year 1968
after having been granted permission by the
6 All. Jagdish Narain Tandon Vs. State of U.P. & Ors.
1197
District Judge on his application filed under
Section 5 (3) of the Act of 1920 in Misc.
Case No.32 of 1967.

50. This Court while allowing the
appeal of one of the trustees had decreed
the Suit No.1268 of 1968, declaring
''Tandon Trust' not to be a charitable and
religious trust. Once, the character and
status of the trust was declared by this
Court, which remained unchallenged by the
present defendants-respondents since 1981,
cannot change the nature and hold the same
to be guided by the Act of 1920 on the
strength of Government Notification dated
07.07.1972
published
in
Gazette
on
15.07.1972.

51. As this Court, on 21.10.1981,
having decreed the Suit of 1968, the
declaration as to the status will be from the
date of institution of the Suit and not from
the pronouncement of the judgment.
Moreover, the judgment rendered on
21.10.1981 was a judgment in rem, as it
declared the status of the trust, and not in
personam as claimed by the defendantsrespondents and held by the Courts below.

52. A declaration of the status is
always in rem and not in personam. The
relief of declaration is for the world to
know about the status of the person in
favour of whom the declaration has been
made.

53. In Booz-Allen & Hamilton Inc.
(Supra), the Apex Court held that a right in
rem is a right exercisable against the world
at large as contrasted from the right in
personam which is an interest protected
solely against specific individuals. Actions
in personam referred to actions determining
the rights and interests of the parties
themselves in the subject matter of the
case, whereas actions in rem referred in
actions determining the title of property
and rights of the parties, not merely among
themselves, but also against all persons at
any time claiming an interest in that
property.

54. Correspondingly, the judgment in
personam refers to a judgment against a
person as distinguished judgment against a
thing, right or status and judgment in rem
refers to a judgment that determines the
status or conditions of property which
operates directly on the property itself.

55. In the present case, the Court
while decreeing the Suit of K.N. Shivpuri
had declared the status of the ''Tandon
Trust', not being a charitable and a religious
trust covered under the Act of 1920. The
declaration made by the Court as to the
status of the trust is to the world at large
and not to any particular party in a suit, as
it affects people at large.

56. Once, the declaration was made
of status and nature of the trust in 1981
decreeing the Suit of 1968, the subsequent
Notification of 1972 lost its relevance and
only needed a consequential order from
the Collector for getting
the
same
denotified.

57. The argument of the State counsel
that the present Suit filed in the year 1992
was time barred and further, the State was
not a party in the Suit of 1968 has no legs
to stand, as once the declaration was made,
the subsequent Suit filed claiming relief of
divesting the property from the defendants
cannot be said to be time barred as neither
the State nor the defendants in the Suit of
1968 had challenged the judgment of this
Court till date and the status declared by
the Court stands as it is.
1198 INDIAN LAW REPORTS ALLAHABAD SERIES

58. The claim for divesting the
property from the realm of defendants
cannot be said to be time barred, once the
property has been declared to be nonreligious and non-charitable and being a
private trust. The defendants continue over
the same as an illegal occupants and cannot
claim right to continue on the ground of
limitation.

59. Moreover, the DGC (Civil) had
given his opinion on 01.11.1990 being
Paper
No.27-C-1/156/12
that
the
Notification of 1972 be amended, but still
the defendants continued defying the
judgment rendered in the second appeal on
21.10.1981.

60. Both the Courts below wrongly
held that the Notification dated 07.07.1972
cannot be challenged and quashed in the
present proceedings, as the only relief
sought by the plaintiff-appellant was to the
extent of divesting the property from the
defendants and re-vesting the same in the
plaintiff-appellant on the basis of the
judgment dated 21.10.1981. Both the
Courts below fell into error that once, it
was notified in the year 1972 and the
property was brought within the ambit of
Act of 1920, the Suit was not maintainable
at the behest of the appellant ignoring the
judgment of this Court dated 21.10.1981.

61. The judgment and order passed by
both the Courts below are illegal and
arbitrary as they have failed to honour and
comply the judgment of this Court dated
21.10.1981, declaring the status of the
''Tandon Trust'. Once, the declaration was
there, the defendants nor the Courts below
had the right to dishonour the same.

62. Considering the facts that the
''Tandon Trust' created in 1946 having been
declared to be a non-religious and noncharitable trust and out of the scope of Act
of 1920, the same cannot be governed by
the provisions of the Charitable and
Endowments Act, 1890, as there was no
element
of
charity
in
the
deed
created/executed by the Author of the
Trust.

63. Moreover, the distinction has been
made clear as to which Trust will fall under
the Act of 1863, 1882, 1890 and 1920.
Thus, the first substantial question of law
framed stands answered in negative i.e. in
favour of the appellant and against the
defendants-respondents.

64. Once, it is held that the ''Tandon
Trust' is not a charitable and religious trust
and the provisions of the Act of 1890 is not
applicable in view of the judgment dated
21.10.1981, and the status of the trust
having been declared by this Court
decreeing the Suit of 1968, the Notification
dated 07.07.1972 will not be applicable
upon the trust bringing it within the ambit
of the Act of 1920.

65. Once, the status of the trust
having been declared by this Court and the
same having been remained unchallenged
by
the
defendants-respondents,
the
Notification of 1972 will have no bearing
of it upon the status of the trust, as the trust
has been declared out of the purview of the
Act of 1890 and 1920 by a judicial order of
this Court and will prevail over the
Administrative Notification issued by the
State on 07.07.1972 published in Gazette
on 15.07.1972. Thus, the second substantial
question of law stands answered i.e. in
favour of the appellant and against the
defendants-respondents. Thus, both the
substantial questions of law as framed
stand answered.
6 All. The National Insurance Co. Ltd. Vs. Vishram & Ors.
1199
66. Having considered material on
record, this Court finds that the judgments
and decree passed by both the Courts below
are illegal and arbitrary and cannot be
sustained in the eye of law and are thus, set
aside.

63. The Second Appeal stands
allowed.

64. The Suit of the plaintiff-appellant
being Suit No.11 of 1992 stands decreed.

65. Office to transfer back the records
of the Courts below.
----------
(2022)06ILR A1199
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

First Appeal From Order No. 817 of 2016
And
First Appeal From Order No. 51 of 2018

The National Insurance Co. Ltd.
 ...Appellant
Versus
Vishram & Ors. ...Respondents

Counsel for the Appellant:
Sri Anil Srivastava

Counsel for the Respondents:
Sri Jagat Pal Singh, Sri Maneesh Pandey

A. Civil Law - Motor Vehicles Act, 1988 -
Computation of Compensation - Just
compensation - Rule 220-A(4) of the
Rules, 1998 - if a statutory instrument
affords greater or better benefits, said
statutory instrument shall operate and the
norms laid down by different judicial
precedents shall not limit the operation of
such statutory instrument - statutory
instrument shall prevail over the norms
laid down by judicial precedents only to
the extent it gives greater or better
benefit than the judicial precedents - If
the
norms
laid
down
by
judicial
pronouncements give greater or better
benefit than the formula devised by the
statutory
instrument,
the
judicial
precedents shall prevail over the statutory
instrument (Para 34)

B. Civil Law - Motor Vehicles Act, 1988 -
Section 173 - Delay in F.I.R. - mere delay
in registering a First Information Report
regarding the accident cannot be a ground
to doubt the case of the claimants - if
there was no indication of fabrication or
concoction to implicate innocent persons
then, even if there was a delay in lodging
the First Information Report, the claim
case cannot be dismissed merely on the
ground of delay in lodging the F.I.R. -

Accident occurred on 22.12.2014 - injured
admitted in the Trauma Centre in K.G.M.U. on
22.12.2014 itself - injured died on 6.1.2015 -
Held - family of the deceased was occupied in
the treatment of the deceased - case of the
claimants cannot be rejected only on the ground
that the First Information Report was registered
nine days after the incident (Para 10)

C. Civil Law - Motor Vehicles Act, 1988 -
Evidence - Proof - Preponderance of
probability - claimants are required to
establish their case on the touchstone of
preponderance of probability and the
standard of proof beyond reasonable
doubt is not applied while inquiring into
the case

Accident proved by the testimony of eyewitness
of the incident (P.W. - 2) - charge-sheet filed by
the police against the driver of the offending
vehicle - Post mortem report indicates that
death occurred due to ante-mortem injuries and
the nature of the injuries shows that the same
were caused in an accident - evidence on record
proves that Sushil was injured in the accident
that took place due to rash and negligent
driving
of
the
offending
vehicle
and
subsequently died due to the injuries caused in
the accident (Para 14)