# Laxmi Kant Verma & Anr v. Mandir Shri Mahabir Ji Trust & Ors

- **Citation:** J. First Appeal From Order No. 51 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** J. First Appeal From Order No. 51 of 2020
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laxmi-kant-verma-anr-v-mandir-shri-mahabir-ji-trust-ors-46481
- **Pages:** 5

## Headnote

A. Civil Law- Civil Procedure Code -
Section 92 - Public trust or Private trust -
Method to determine nature of trust - Intention
of Testator - Essence of a public or private trust
is to be derived and ascertained from the
expression of any trust deed or on the basis of
any constructive criteria which may be relevant
for the purpose. (Para 8)
Held- 18. Analysing the present case in the
light of principles embodied in the apex court
judgment, it is found that the trust deed
succinctly provides that the endowments stand
dedicated for maintenance of temple and shall
vest in the deity. The management of the
dedicated properties circumscribed amongst the
family descendants of the founder trustee is yet
another significant dimension which leans
towards the nature of trust being a private
Hindu Religious Endowment Trust.
B. Constitution of India - Article 25 -
Freedom of religion - In our life we are
governed by constitutional morality but there is
freedom of religion too within the scope of
Article 25 of the Constitution of India, therefore,
this freedom is equally significant and personal
- It is within the scope of this personal right
that the Religious Endowments Act still has its
application to subserve the will of an individual
within our constitutional framework . (Para7)
Appeal dismissed (E-1)
Cases relied on :-

## Text

748 INDIAN LAW REPORTS ALLAHABAD SERIES
and direct the State Government to pay
Rs.7,000/- to him as his remuneration.
----------
(2020)03-05ILR A748
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2020

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.

First Appeal From Order No. 51 of 2020

Laxmi Kant Verma & Anr. ...Appellants
Versus
Mandir Shri Mahabir Ji Trust & Ors.
 ...Respondents

Counsel for the Appellants:
Atul Kumar Dwivedi, Govind Sharan Soni

Counsel for the Respondents:
Brijesh Kumar, Avtar Singh

A. Civil Law- Civil Procedure Code -
Section 92 - Public trust or Private trust -
Method to determine nature of trust - Intention
of Testator - Essence of a public or private trust
is to be derived and ascertained from the
expression of any trust deed or on the basis of
any constructive criteria which may be relevant
for the purpose. (Para 8)
Held- 18. Analysing the present case in the
light of principles embodied in the apex court
judgment, it is found that the trust deed
succinctly provides that the endowments stand
dedicated for maintenance of temple and shall
vest in the deity. The management of the
dedicated properties circumscribed amongst the
family descendants of the founder trustee is yet
another significant dimension which leans
towards the nature of trust being a private
Hindu Religious Endowment Trust.
B. Constitution of India - Article 25 -
Freedom of religion - In our life we are
governed by constitutional morality but there is
freedom of religion too within the scope of
Article 25 of the Constitution of India, therefore,
this freedom is equally significant and personal
- It is within the scope of this personal right
that the Religious Endowments Act still has its
application to subserve the will of an individual
within our constitutional framework . (Para7)
Appeal dismissed (E-1)
Cases relied on :-
1. Deoki Nandan Vs. Murlidhar & ors., AIR 1957
SC 133
2. Mulla Gulam Ali & Safiabai D. Trust Vs. Deelip
Kumar & Co.; (2003) 11 SCC 772 (I)
3. Sri Radhakanta Deb Vs. Commissioner of
Hindu Religious Endowments; 1981) 2 SCC 226
4. Kuldip Chand & anr. Vs. Advocate General to
Government of H.P. & ors., (2003) 5 SCC 46
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Atul Kumar Dwivedi,
learned counsel for the appellants and Sri
Brijesh Kumar Saxena, assisted by Sri Avtar
Singh, learned counsel for respondents no. 1
and 2.

2. Permission for marking respondents
no. 3 and 5 as ''dead' was granted on the
pointing out of a defect in the appeal due to
their death while pendency of the suit.

3. The instant First Appeal From Order
under Section 104 of Code of Civil Procedure
(CPC) has arisen out of a judgement/order
dated 16.1.2020 passed in Misc. Case No.
350/2013 instituted under Section 92 CPC
seeking leave to initiate a suit proceeding for
protection of the properties stated to belong to a
public trust and maintaining accounts thereof.

4. After filing of the misc. case, parties
appear to have exchanged objections and
counter objections. The counter objections
3-5 All. Laxmi Kant Verma & Anr. Vs. Mandir Shri Mahabir Ji Trust & Ors.
749
which were not filed alongwith the appeal were
also placed before this Court during the course
of arguments.

5. The court below by means of the
impugned judgement/order has refused to grant
leave observing that the Mandir Shri Mahabir Ji
Trust, Bajranj Nagar, Gosainganj, Lucknow is
not a religious public trust hence the prayer was
turned down.

6. The point that crops up for
consideration before this Court is as to
whether the court below has rightly
rejected the application filed by the
appellants observing that the trust in
question is not a public trust within the
meaning of Section 92 of CPC and; as to
whether the finding so recorded suffers
from any illegality.

7. In our life we are governed by
constitutional morality but there is freedom
of religion too within the scope of Article
25 of the Constitution of India, therefore,
this freedom is equally significant and
personal. It is within the scope of this
personal
right
that
the
Religious
Endowments Act still has its application to
subserve the will of an individual within
our constitutional framework.

8. It is well settled that the essence of a
public or private trust is to be derived and
ascertained from the expression of any trust
deed or on the basis of any constructive criteria
which may be relevant for the purpose. In the
present case, there does not appear to be much
difficulty for the reason that the trust in question
was established on the basis of a deed duly
registered on 16.10.1973.

9. The issue as to whether Religious
Endowment Trust is a public or private trust is
essentially a question of facts and law both, but
as stated above, the controversy in the present
case hinges on the construction of registered
trust deed.

10. The appellants have taken this Court
through the contents of the trust deed in reply to
which the respondents have also referred to the
same by pointing out an empirical consideration
thereof.

11. This Court has carefully noted the
submissions put forth by learned counsel for the
appellants to the effect that the trust deed does
not exclude the worship by the public at large
and the endowments mentioned in the trust
deed being utilized for various public purposes
thus, would lead to one and the only inference
that the trust in question is a public trust. The
details of income derived through properties
was pointed out which is stated to have been
aligned with the objects set out in the rules of
governance that were registered by the
successor-Manager after the death of the
founder of the trust.

12. It is in the light of these objects that
the appellants have heavily stressed to construe
the nature of the trust as public.

13. Learned counsel for the appellants has
further argued that the court below somehow
has failed to consider the judgement rendered
by the apex court reported in AIR 1957 SC 133
(Deoki Nandan v. Murlidhar and others)
alongwith the judgement reported in (2003) 11
SCC 772 (I) (Mulla Gulam Ali & Safiabai D.
Trust v. Deelip Kumar & Co.), which clearly
indicate that once the beneficiaries are public,
the religious trust must be construed as ''Public'.

14. Per contra, Sri Brijesh Kumar
Saxena, learned counsel for the respondents
drawing attention of this Court to the trust
deed has specifically pointed out the
purpose of the trust within the meaning of
750 INDIAN LAW REPORTS ALLAHABAD SERIES
sentences which for ready reference may be
extracted hereunder:

"feueqfdj us Jh egkchj th egjkt
dk efUnj okdS ctjax uxj xkslkbZxat etdwj
cuok dj mles Jh egkchj th egjkt dh
LFkkiuk djkbZ gS vkSj le; le; ij Jh egkchj
th ds fy, tk;nkns Hkh [kjhnh gS vkSj bl efUnj
o tk;nkn ds izcU/k ds fy, Jh egkchj th ds
gd es ,uMkmesUV endownment dj fn;k gS
ftlds fd bl le; feueqfdj eSustj VaLVh gS
vkSj blds vykok Jh x.ks'k izlkn iq= feueqfdj
ia0 pUnzHkw"k.k 'kkL=h iq= Jh cYnso izlkn th o
Jh fo|k/kj f=ikBh iq= Jh pUnzHkw"k.k 'kkL=h o Jh
yfNeu izlkn iq= Jh cYnso izlkn dqehZ fuoklh
xkslkbZxat etdwj VaLVh gSa vkSj eueqfdj us ;g
O;oLFkk dh gS fd vius thou Hkj og eSustj
jgsxk vkSj mlds ckn mlds [kkunku esa ls
ftldks og uketn dj nsxk og eSustj gksxk
vkSj blh izdkj gj eSustj dks vf/kdkj gksxk fd
og vius ckn ds fy, tgkW rd gks lds esjs gh
[kkunkfu;ksa esa ls fdlh dks uketn dj nsos vkSj
vxj og fdlh dkj.k uketn u dj lds rks ml
le; ftrus VaLVh gks og tgkW rd gks lds esjs
[kkunkfu;ksa esa ls fdlh dks tks mldh jk; esa
eSustjh dh dkfcfy;r j[krk gks dljr jk; ls
pqu ysos ;fn esjh jk; esa dksbZ VaLVh Bhd izdkj
ls dke u djsa rks eq>s vf/kdkj gS fd mldks gVk
nwW vkSj ;fn Åij fy[ks pkj VafLV;ksa esa ls fdlh
dk LFkku fdlh Hkh dkj.k ls [kkyh gks tkos rks
ml fd txg ij eq>dks ;k blh izdkj tks dksbZ
Hkh eSustj gks mldks vf/kdkj gksxk fd ftl
fdlh dks bl dk;Z ds ;ksX; le>s fu;qDr dj
nsos bl izdkj bl efUnj dk lqpk: :i ls dke
py jgk gS vc esjh bPNk gS fd viuh Åij
fy[kh tk;nkn Jh egkchj th egjkt fojkteku
efUnj okdS ctjax uxj dks lefiZr djds blh
Åij fy[ks ,uMkmesUV endowment esa 'kkfey
dj nwW vr% eSus viuh Åij fy[ks tk;nkn Jh
egkchj th egjkt dks lefiZr dj nh vkSj vc
Jh egkchj th egkjkt ds lkjs v[R;kjkr
ekfydkuk o Hkwfe/kjh tks eq>dks Fks og mudks
izkIr gks x;s vkSj bl tk;nkn dk nkf[ky [kkfjt
eS Jh egkchj th ds uke fu;ekuqlkj djk nWwxk
vc eq>dks ;k esjs okfjlku ;k dk;e eqdkeku dks
dksbZ v[R;kj bl tk;nkn es ckdh ugh jg x;k
vkSj bldh ikcUnh lc ij ykfte o vk;n gksxh
vkSj vxj dksbZ 'k[l blds f[kykQ dksbZ nkok ;k
mtz djs rks og dkfcy lquokbZ u gksxkA**

15. Pointing out the essence of the
trust being private, it is submitted that once
the trust deed itself mentions the use of
endowments
to
be
utilized
in
the
maintenance of temple, the intention of the
testator is doubtlessly clear. It is submitted
that not only the construction of Mahabirji
temple was made by the founder trustee out
of his own means and property but for
future maintenance /management of the
same, endowments were dedicated to the
deity
the
management
whereof
was
entrusted to his own family members. Thus,
the future maintenance of the temple as per
the trust deed stood secured through the
means of dedicated property which also
belonged to the founder trustee.

16. Having pointed out these two
aspects of the trust deed very clearly, it is
submitted that the judgement placed
reliance upon by the court below, in fact,
proceeds on a clear understanding of the
apex court judgement reported in (1981) 2
SCC 226
(Sri
Radhakanta
Deb
v.
Commissioner
of
Hindu
Religious
Endowments) as followed in the case
reported in (2003) 5 SCC 46 (Kuldip
Chand and another Vs. Advocate General
to Government of H.P. and others). The
appeal is thus prayed to be dismissed.

17. Learned counsel for the appellant
has ably argued the matter, however, he
was unable to dispute the purpose and
management of the endowments for the
maintenance of Mahabirji temple. The trust
deed has placed a blanket ban on the
alienation of trust property for the same
having been vested in the deity. The trust
3-5 All. Laxmi Kant Verma & Anr. Vs. Mandir Shri Mahabir Ji Trust & Ors.
751
deed clearly makes out that the intention of
the founder trustee was to constitute a
Hindu Religious Endowment for a specific
purpose of which the management was
circumscribed in the descendants of the
founder. It may be useful to extract para-14
of the judgement reported in (1981) 2 SCC
226 (supra) as under:-

"14. Thus, on a conspectus of
the authorities mentioned above, the
following tests may be laid down as
providing
sufficient
guidelines
to
determine on the facts of each case
whether an endowment is of a private
or of a public nature:

(1) Where the origin of the
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 a 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."

18. Analysing the present case in
the light of principles embodied in the
apex court judgment, it is found that the
trust deed succinctly provides that the
endowments
stand
dedicated
for
maintenance of temple and shall vest in
the deity. The management of the
dedicated
properties
circumscribed
amongst the family descendants of the
founder
trustee
is
yet
another
significant
dimension
which
leans
towards the nature of trust being a
private Hindu Religious Endowment
Trust.

19. This Court may also note that
by virtue of Section 92(2) CPC, for any
trust which falls within the trappings of
Religious Endowments Act, 1863, no
relief specified in Section 92(1) CPC
would lie through a suit under the said
Rule.

20. Lastly learned counsel for the
appellants has submitted that the public
worship and the dedicated properties
being utilised for public purpose in
terms
of
the
registered
rules
of
administration have altered the status of
the trust to be public, hence the
impugned order passed by the Court
below is in gross violation of law.

21. The submissions made are
attractive but unconvincing. The rules
registered subsequently cannot eclipse the
intention of trust deed but are rather a
guidance
for
management
evolved
subsequently. This Court may note that the
752 INDIAN LAW REPORTS ALLAHABAD SERIES
dedicated properties are a means to
preserve the religious heritage which is
inclusive of deity worship of Lord
Hanuman unlike in Islam, Christianity or
Judaism. A temple constructed for worship
by all without there being any intention of
receiving offerings from worshipers to
maintain
the
same
is
strongly
a
circumstance that supports the case of the
respondents. Therefore, this Court is of the
considered opinion that the trust deed under
consideration
essentially
constitutes
a
private Religious Endowment Trust, hence
the impugned judgment/order passed by the
court below refusing to grant leave under
Section-92 CPC for want of elaborate
discussion does not suffer from any
illegality in the eyes of law.

22. The appeal is accordingly
dismissed.
----------
(2020)03-05ILR A752
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2020

BEFORE
THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 343 of 1999

Atul Kumar Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Kapil Deo, , Abhishek Yadav, Ashwani
Kumar, G.L. Yadav

Counsel for the Respondent:
Amarjeet Kaur, C.S.C., I.H. Farooqui, R.K.
Katiyar, Rakesh Kumar Tiwari, Shobhit
Mohan Shukla, Vikash Singh

(A) Civil Law- U.P. Recognized Basic
Schools (Junior High School) (Recruitment
and Condition of Service of Ministerial
Staff and Group 'D' Employees) Rules,
1984- Appointment - Rule 4 of - minimum
qualification given for selection on the
post of Clerk - minimum speed of 30
words per minute in Hindi typewriting is
required - not holding "Type Test" vitiates
the selection process - recommendation of
Selection Committee in favour of the
petitioner to the respondent no. 3 is in
itself nullity being de hors the Rules -
consequent
appointment
by
the
respondent no. 4 is also nullity

(B) Pleadings - in response to the
averments in the counter affidavit filed
by the respondents - no rejoinder
affidavit was filed by the petitioner -
averments in the counter affidavit are
treated as correct

(C) Burden of proof - plaintiff has to
prove his own case - cannot succeed on
the weakness of defence

Writ Petition Rejected. (E-10)

List of cases cited:

1. Ravindra Pratap Yadav @ Mahajan Vs. St.
of U.P. & ors. 2004 (22) LCD 1445 (followed)

2. Yogesh Kumar Vs. Govt. of NCT Delhi &
ors. (2003) 3 SCC 548(followed)

3. Mohd. Sartaj Vs. St. of U.P. (2006) 2 SCC
315(followed)

4. Sushil Kumar Dwivedi Vs/. Basic Siksha
Adhikari,
Banda
(DB)
(2003)
2
UPLBEC
1216(followed)

5. Mamta Mohanty (not fully cited) (followed)

6.
St. of Karnataka Vs. KGSD Canteen
Employees
Welfare
Ass.
(2006)
1
SCC
5667(followed)

7. St. of Manipur Vs. Y Token Singh (2007) 5
SCC 65(followed)

8. Pramod Kumar Vs. U.P. Secondary Education
Services Commission & ors. (2008) 7 SCC
153(followed)