# Nath Singh v. The District Judge

- **Citation:** (2012) 3 ILRA 1213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-07
- **Case number:** Civil Misc. Writ Petition No. 55433 of 2007
- **Bench:** Ashok Bhushan, Abhinava Upadhya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nath-singh-v-the-district-judge-42439
- **Pages:** 11

## Headnote

U.P. Act 13 of 1972-Section-2(1) (bb)-
Exemption
from
operation
of
ActRegistered
Trust
deed-executor
for
himself as karta of family including his
brother and sons-lost the control and
management
of
Dharmshala
with
profounder-property dedicates for public
purpose-all
rights
title
ownership
transferred
to-a
public
endowmentconsequently provisions of rent control
not applicable-view taken in Ram Ratan
Sharma, B.R. Arora and Ashok Kumar
1214 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Case-held-correct
law-petition
dismissed.

Held: Para 17 and 18

The present being a case where trust
deed clearly indicates severance of rights
of erstwhile owners from the property.
The submission that it is not a public
trust has rightly been rejected by the
Courts below. The finding recorded by
the courts below that the property is a
public religious and charitable trust is
based
on
consideration
of
relevant
materials including the registered trust
deed
dated
13.12.1954
and
memorandum of association of society
and other materials on record. The
submissions on the basis of which the
petitioner
sought
to
impugn
the
judgment have been found to be without
any substance.

In view of what has been stated above,
we are of the view that Dharmshala is a
public religious trust and there is no
reason
to
disagree
with
the
three
judgements of Hon'ble Single Judge
concerning the same Dharmshala.
Case law discussed:
AIR 1976 S.C. 871; AIR 1981 SC 798; AIR
2003 SC 1685

## Text

3 All] Amolak Nath V. Shri Keshav Ji Gaudia Math Dharamshala Trust, Mathura
1213
where the trial court has refused to admit
evidence which ought to have been
admitted; the additional evidence sought
to be produced could not be produced
despite due diligence before the trial
court; and/or where the appellate court
requires any evidence to enable it to
pronounce
judgment
or
for
any
substantial
cause
The
question
of
adducing the evidence would only arise
where some evidence has already been
adduced.
The
stage
for
adducing
additional evidence has not arrived in
appeal as the evidence has so far not
recorded by the trial court.

7. In view of the aforesaid facts and
circumstances, I am of the opinion that
the provisions of Order 41 Rule 27
C.P.C. permitting additional evidence
cannot be applied to misc. appeals from
an interlocutory order passed on the
interim injunction application.

8. His Lordships of this in Kailash
Nath Singh Vs. The District Judge,
Mirzapur and another AIR 1993 Alld.
67 held that the appellate court while
hearing an appeal arising out of misc.
proceedings is not supposed to entertain
an application for the amendment of the
plaint and the only course open is to
direct
moving
of
the
amendment
application before the trial court or for its
consideration by the trial court on
disposal of the appeal on merits.

9. It is only on a regular appeal
filed that the appellate court exercises the
jurisdiction of the trial court and is
competent to take evidence which is not
the position when the appellate court is
hearing a misc. appeal.

10. In view of totality of the facts
and circumstances, I am of the opinion
that
the
application
for
additional
evidence before the appellate court
below that was seized with the misc.
appeal was not maintainable and the
court below has not committed any error
of law in rejecting the same.

11. The writ petition is devoid of
merits and is dismissed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 55433 of 2007

Amolak Nath

 ...Petitioner
Versus
Shri Keshav Ji Gaudia Math Dharamshala
Trust, Mathura

 ...Respondents

Counsel for the Petitioner:
Sri Rahul Sahai

Counsel for the Respondents:
Sri Sachin Kumar Sharma
Sri Amar Nath Sharma
Sri Anjani Kumar Mishra
Sri Ashutosh Shukla

U.P. Act 13 of 1972-Section-2(1) (bb)-
Exemption
from
operation
of
ActRegistered
Trust
deed-executor
for
himself as karta of family including his
brother and sons-lost the control and
management
of
Dharmshala
with
profounder-property dedicates for public
purpose-all
rights
title
ownership
transferred
to-a
public
endowmentconsequently provisions of rent control
not applicable-view taken in Ram Ratan
Sharma, B.R. Arora and Ashok Kumar
1214 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Case-held-correct
law-petition
dismissed.

Held: Para 17 and 18

The present being a case where trust
deed clearly indicates severance of rights
of erstwhile owners from the property.
The submission that it is not a public
trust has rightly been rejected by the
Courts below. The finding recorded by
the courts below that the property is a
public religious and charitable trust is
based
on
consideration
of
relevant
materials including the registered trust
deed
dated
13.12.1954
and
memorandum of association of society
and other materials on record. The
submissions on the basis of which the
petitioner
sought
to
impugn
the
judgment have been found to be without
any substance.

In view of what has been stated above,
we are of the view that Dharmshala is a
public religious trust and there is no
reason
to
disagree
with
the
three
judgements of Hon'ble Single Judge
concerning the same Dharmshala.
Case law discussed:
AIR 1976 S.C. 871; AIR 1981 SC 798; AIR
2003 SC 1685

(Delivered by Hon'ble Ashok Bhushan, J.)

1. The learned Single Judge while
hearing this writ petition, by order
dated 13.11.2007 formulated following
three questions to be answered by
larger Bench.

A. Whether the trust deed dated
13.12.1954 registered on 20.12.1954
executed by Shri Nand Kishore for
himself and as Manager and Karta of
the Joint Hindu family including his
brothers and Jagan Prasad and Madan
Lal, sons and heirs of Gursaran Das @
Baijnath, chela of Baba Garib Das,
resident of Mathura proves the nature
and origin of endowment and shows
that the control and management of the
dharmshala
is
retained
with
the
founder or his descendants and that the
property
were
dedicated
for
the
purposes
of
maintenance
of
dharmshala belonging to the founder
himself, to show that the endowment
was of private nature?

B. Whether after vesting the
management in the Gaudia Vedanta
Society' and its member the founders
retained
any
control
over
the
management?

C. Whether the judgements in writ
petition No. 54930 of 2003, Ram Ratan
Sharma son of Tulsi Das Vs. District
Judge, Mathura dated 17.2.2004; writ
petition No. 46342 of 2007, Baldeo Raj
Arora Vs. Shree Keshav Ji Gauriya
Math Dharmshala dated 24.9.2007 and
writ petition No. 45694 of 2007, Ashok
Kumar & Ors. Vs. Sri Keshavji
Gauriya Math Dharmshala Trust &
Ors. Dated 3.10.2007 holding that the
building was a public charitable trust
exempt under section 2 (1)(bb) of the
Act?

2. Hon'ble the Chief Justice by
order dated 4.1.2008 directed the
matter to be placed before a Division
Bench. By order dated 8.7.2008, the
matter has been placed before this
Bench for answering the reference.

3. Brief facts of the case which
are necessary to be noted for answering
the reference are; a small cause suit
No. 22 of 2003 was filed by Keshavji
Gaudia Math (hereinafter referred as
'respondent' ) in the court of Judge
Small Cause, Mathura praying for
3 All] Amolak Nath V. Shri Keshav Ji Gaudia Math Dharamshala Trust, Mathura
1215
eviction from the two shops in question
and for payment damages. The case of
the plaintiff in the suit was that
respondent in the proceedings is tenant
at the rate of Rs. 45/- per month in the
two shops as described in the plaint of
which the plaintiff is the owner and the
landlord.
30
days'
notice
dated
24.5.2003 was served on the tenant
terminating the tenancy. The plaintiff
claimed to be religious charitable trust
on which provisions of U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 are not
applicable. It was pleaded that the
Trust
has
passed
resolution
on
27.3.2003 to open a clinic, library and
Pyau in the shops in question and
looking to the aforesaid need, the
decision was taken to terminate the
tenancy. The tenant filed written
statement in which it was pleaded that
the provisions of U.P. Act No. 13 of
1972 are applicable on the premises in
question.
The
allegations
of
the
plaintiff that the property in question is
a public religious charitable trust was
denied. It was pleaded that the U.P. Act
No. 13 of 1972 are applicable. No
resolution has been passed as alleged
by the plaintiff. Notice given by the
plaintiff was duly replied. The suit was
resisted by the tenant. The Judge Small
Cause Court vide its judgment and
order dated 20.2.2004 decreed the suit
for eviction directing the tenant to hand
over the possession within four months.
The tenant filed a revision in the Court
of District Judge being revision No. 17
of 2004 which revision has been
dismissed by the judgment and order of
the Additional District Judge dated
23.2.2007. Trial Court as well as the
revisional Court held that property in
question is a public religious trust and
the provisions of U.P. Act No. 13 of
1972 are not applicable. It was held
that the tenancy has been rightly
terminated by notice under section 106
of the Transfer of Property Act. The
trial court, while decreeing the suit has
relied
on
oral
and
documentary
evidence
which
was
on
record
including
the
trust
deed
dated
13.12.1954 executed in favour of
Keshavji Gaudia Math Dharmshala.
The writ petitioner i.e. the tenant has
filed
the
present
writ
petition
challenging the judgment and order of
the Judge Small Causes Court dated
20.2.2004 as well as the revisional
Court judgment dated 23.2.2007.

4. Sri Rahul Sahai, learned
Counsel for the petitioner challenging
the orders passed by the courts below
contended that the respondent i.e.
plaintiff
is
not
a
public
charitable/religious trust hence, the
provisions of U.P. Act No. 13 of 1972
were applicable and both the courts
below committed error in holding that
the plaintiff is a public religious
charitable trust. Referring to the trust
deed filed as Annexure-6 to the writ
petition, it is contended that various
terms and conditions of the deed
indicate that the trust was created with
the sole object for improvement and
better management of the Dharmshala
and the trust was not a public
charitable trust rather it was handed
over to the trustee as named in the deed
only for the purpose of improvement
and
better
management
of
the
Dharmshala, which does not change the
character of a private Dharmshala into
a
public
charitable/religious
trust.
Learned Counsel for the petitioner has
referred to various portions of the trust
1216 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
deed which shall be hereinafter referred
to in support of his submissions.

5. We have heard learned counsel
for the petitioner and has perused the
record.

6. The questions 'A' and 'B' as
noted above being inter-related are
with regard to the interpretation of trust
deed dated 13.12.1954. The question
'C' relates to three judgements of this
Court in which judgements, this Court
held Keshavji Gaudia Math as a public
charitable/public religious institution in
proceedings which were initiated by
the trust for eviction of three other
tenants, who were tenants of the same
land lord. This Court in following three
judgements dismissed the writ petitions
filed by the tenant challenging their
eviction.

(I) Judgement dated 17.2.2004 in
writ petition No. 54930 of 2003, Ram
Ratan Sharma Vs. District Judge

(II) Judgement dated 24.9.2007 in
writ petition No. 46342 of 2007,
Baldeoraj Arora Vs. Shri Keshav Ji
Gauriya Math

(III) Judgement dated 3.10.2007 in
writ petition No. 45694 of 2007, Ashok
Kumar & others Vs. Keshavji Gauriya
Math

7. In the aforesaid three writ
petitions filed by tenants challenging
their eviction passed in suit filed by
Keshav Ji Gaudia Math, it was held
that
the
trust
was
a
public
charitable/public religious institution
and it is exempted from applicability of
U.P. Act No. 13 of 1972 by virtue of
Section 2(1)(bb). Learned Single Judge
expressed his doubts on the ratio of the
said judgements and framed question
No. C in that regard.

8. Now questions No. 'A' and 'B'
are taken together. The principles and
parameters for finding out whether a
trust is a public trust or a private trust,
came for consideration before the apex
Court in several decisions. Before we
proceed to consider the fact of the
present case and the trust deed dated
13.12.1954, it is useful to refer to
following judgements of the apex court
wherein
the
issue
came
for
consideration.

9. The apex Court in AIR 1976
S.C. 871, Dhaneshwarbuwa Guru
Purshottam-buwa
owner
of
Shri
Vithal Rukhamal Sansthan Vs. The
Charity
Commissioner,
State
of
Bombay had occasion to consider the
test to find out the principles of law for
determination
of
an
endowment
whether
public
or
private
trust.
Following was laid down in paragraphs
30,31 and 44:

"30. The principles of law for
determination of the question whether
an endowment is public or private are
fairly
well-
settled.
This
Court
observed
in
Deoki
Nandan
v.
Murlidhar as follows:-

"The distinction between a private
and a public trust is that whereas in the
former the beneficiaries are specific
individuals, in the latter, they are the
general public or a class thereof. While
in the former the beneficiaries are
persons
who
are
ascertained
or
capable of being ascertained, in the
3 All] Amolak Nath V. Shri Keshav Ji Gaudia Math Dharamshala Trust, Mathura
1217
latter they constitute a body which is
incapable of ascertainment".

31. This Court further held:

"When once it is understood that
the true beneficiaries of religious
endowments are not the idols but the
worshippers, and that the purpose of
the endowment is the maintenance of
that
worship
for
the
benefit
of
worshippers, the question whether an
endowment
is
private
or
public
presents no difficulty. The cardinal
point to be decided is whether it was
the intention of the founder that
specified individuals are to have the
right of worship at the shrine, or the
general public or any specified portion
thereof. In accordance with this theory,
it has been held that when property is
dedicated for the worship of a family
idol, it is a private and not a public
endowment, as the persons who are
entitled to worship at the shrine of the
deity can only be the members of the
family, and that is an ascertained
group of individuals. But where the
beneficiaries are not members of a
family or a specified individual, then
the endowment can only be regarded as
public, intended to benefit the general
body of worshippers".

44.
When
the
origin
of
an
endowment is obscure and no direct
oral evidence is available, the Court
will have to resolve the controversy
about the character of the trust on
documentary evidence, if any, the
object and purpose for which the trust
was created, the consistent manner in
which the property has been dealt with
or managed by those in charge, the
manner in which the property has long
been
used
by
the
public,
the
contribution of the public, to all intents
and purposes, as a matter of right
without
the
least
interference
or
restriction from the temple authorities,
to foster maintenance of the worship
the accretion to the trust property by
way of grants from the state of gifts
from outsiders inconsistent with the
private nature of the trust, the nature
of devolution of the property, are all
important elements in determination of
the question whether a property is a
private
or
a
public
religious
endowment. We are satisfied that in
this case all the above tests are
fulfilled."

10. In AIR 1981 SC. 798
Radhakanta Deb and another Vs.
The
Commissioner
of
Hindu
Religious Endowments, Orissa, the
apex Court again considered the test
which
may
provide
sufficient
guidelines for determination of facts of
each case whether an endowment is
public or private nature. Following was
laid down in paragraphs 7 and 14:

7.The question as to whether the
religious endowment is of a private
nature or of a public nature has to be
decided with reference to the facts
proved in each case and it is difficult to
lay down any test or tests which may be
of universal application. It is manifest
that where the endowment is lost in
antiquity or shrouded in mystery, there
being no document or revenue entry to
prove its origin, the task of the court
becomes difficult and it has to rely
merely
on
circumstantial
evidence
regarding the nature of the user of the
temple. In the instant case, however, as
there are two documents which clearly
1218 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
show the nature of the endowment, our
task is rendered easier. It is well
settled that the issue whether a
religious endowment is a public or a
private one must depend on the
application of legal concept of a deity
and private endowment, as may appear
from the facts proved in each case. The
essential distinction between a private
and a public endowment is that
whereas in the former the beneficiaries
are specified individuals, in the latter
they are the general public or class of
unascertained people. This doctrine is
well-known and has been accepted by
the Privy Council as also by this Court
in a large catena of authorities. This
being the essential distinction between
the nature of a public or a private
endowment, it follows that one of the
crucial tests to determine the nature of
the endowment would be to find out if
the
management
of
the
property
dedicated is in the hands of the
strangers or members of the public or
in the hands of the founders or their
descendants. Other factors that may be
considered would be the nature of right
of the worshippers, that is to say,
whether the right to worship in the
temple is exercised as of right and not
as a matter of concession. This will be
the strongest possible circumstance to
indicate that the endowment was a
public one and the beneficiaries; are
the worshippers and not particular
family. After all, an idol is a juristic
person capable of holding property and
the property dedicated to the temple
vests in
the
deity.
If the
main
worshippers are the members of the
public who worship as a matter of right
then the real purpose is to confer
benefit
on
God.
Some
of
the
circumstances from which a public
endowment can be inferred may be
whether an endowment is made by a
person who has no, issue and who after
installing
the
deity
entrusts
the
management to members of the public
or strangers which is a clear proof of
the intention to dedicate the temple to
public and not to the members of the
family. Where, however, it is proved
that the intention of the testator or the
founder was to dedicate the temple
merely for the benefit of the members
of the family or their descendants, the
endowment would be of a private
nature.

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
3 All] Amolak Nath V. Shri Keshav Ji Gaudia Math Dharamshala Trust, Mathura
1219
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."

11. The third decision, which is
relevant is AIR 2003 SC 1685 Kuldip
Chand and another Vs. Advocate
General of Himachal Pradesh. In
Kuldip Chand's case the question
which was up for consideration was as
to whether by mere use of a premises
as a Dharmashala for about 125 years
would lead to an inference that the
same belongs to a public trust. One of
the tests which was propounded in the
aforesaid case was that a dedication for
public purposes and for the benefit of
the general public would involve
complete cessation of ownership on the
part of the founder and vesting of the
property for the religious object. It was
laid down in the said case that if the
complete control is retained by the
owner, the dedication cannot be said to
be complete. Following was laid down
in paragraphs 21,39 and 40:

21.It is beyond any dispute that a
Hindu is entitled to dedicate his
property for religious and charitable
purposes wherefor even no instrument
in writing is necessary. A Hindu,
however, in the event, wishes to
establish a charitable institution must
express his purpose and endow it. Such
purpose must clearly be specified. For
the purpose of creating an endowment,
what is necessary is a clear and
unequivocal manifestation of intention
to create a trust and vesting thereof in
the donor and another as trustees.
Subject of endowment, however, must
be certain. Dedication of property
either may be complete or partial.
When such dedication is complete, a
public trust is created in contradistinction to a partial dedication
which would only create a charity.
Although the dedication to charity need
not necessarily be by instrument or
grant, there must exist cogent and
satisfactory evidence of conduct of the
parties and user of the property, which
show the extinction of the private
secular character of the property and
its complete dedication to charity. [See
Menakuru Dasaratharami Reddi vs.
Duddukuru Subba Rao (supra)]

39.
A
dedication
for
public
purposes and for the benefit of the
general 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 compete
or partial. A right of easement in
favour 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
1220 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.

40. When the complete control is
retained by the owner be it be
appointment
of
a
Chowkidar;
appropriation of rents, maintenance
thereof
from
his
personal
funds
dedication cannot be said to be
complete. There is no evidence except
oral statements of some witnesses to
the effect that Raj Kumar Bir Singh
became its first trustee. Evidence
adduced in this behalf is presumptive
in
nature.
How
such
trust
was
administered by Raj Kumar Bir Singh
and upon his death by his successors in
interest has not been disclosed. It
appears that the family of the donor
retained the control over the property
and, therefore, a complete dedication
cannot be inferred far less presumed.
Furthermore, a trust which has been
created may be a private trust or a
public trust. The provisions of Section
92 of the Code of Civil Procedure
would be attracted only when a public
trust
comes
into
being
and
not
otherwise.

12. The present is a case where
the
registered
trust
deed
dated
13.12.2004 is on record and learned
Counsel for the petitioner harps on the
interpretation of the aforesaid trust
deed. The emphasis which has been
laid by learned Counsel for the
petitioner is that trust deed itself
stipulates that deed of trust was created
with the sole object of improvement
and better management of Dharmshala.
He further submits that the owner did
not part with the ownership and control
of the Dharmshala was handed over to
the trustee for improvement and better
management which cannot be read as
creation of a public trust.

13. The main question which is to
be answered in the present writ petition
is as to whether the building belongs to
or vested in a public charitable or
public religious institution so as to take
it out of purview of U.P. Act No. 13 of
1972. Section 2(1)(bb) provides for
exemption from operation of the Act.
Section 2(1) (bb) which is relevant is
quoted below:

"2. Exemption from operation of
Act.-(1) Nothing in this Act shall apply
to the following, namely

(bb) any building belonging to or
vested in a public charitable or public
religious institution;"

14. The present is a case where
the registered deed of trust is available,
which is a primary document to
determine the issue by reading the trust
as a whole and deciphering from the
trust deed as to whether it created a
public trust or private trust. Copy of
3 All] Amolak Nath V. Shri Keshav Ji Gaudia Math Dharamshala Trust, Mathura
1221
the trust deed has been filed as
Annexure-6. The Dharmshala earlier
belonged to Nand Kishore and certain
other persons, who were the owner and
manager of Dharmshala, executed the
trust deed. Following portion of trust
deed has been relied by learned
Counsel for the petitioner

"Times are very hard and living
has become costly. Every property is
liable to decay if steps are not taken to
improve it. It is not within our means to
improve the Dharmshala. After mature
deliberations amongst ourselves and
our friends, relatives and well-wishers,
we have arrived at this conclusion that
for
the
improvement
and
better
management of the Dharmshala we
religious persons who may be in a
position
to
improve
the
present
condition of the Dharmshala and may
not allow
it to
be
deteriorated.
Accordingly we approached Swami
Bhakti Projan Keshab Maharaj and
some other members of the Gaudiya
Vendanta society to kindly agree to
serve on the trust committee as trustees
and to manage and improve the
Dharmshala. The said Swamijis have
out of piety agreed to our proposal,
provided a regular trust deed is
executed, and the powers of the trust
committee and of the trustee are
defined and laid down in a proper
deed. We also consider this proposal to
be sound, so that the trust may function
properly
on
well
defined
lines.
Moreover no proper trust deed has
been executed and no rules and
regulations have been framed for the
proper management of the trust, and it
is urgently necessary that a proper
deed of trust should be drawn up for
the purpose. We, accordingly, out of
our own free will and without coercion
or intimidation from any quarter,
execute this deed of trust with the sole
object of improvement and better
management of the Dharmshala of
which the full description is given
below in the schedule.

We,
our
heirs,
successors-ininterest representatives and assignees
are and shall be bound down by the
terms of this deed and shall never have
any power to repudiate it or any of its
terms. This deed of Trust will stand,
last and be in force for ever."

15. Learned Counsel for the
petitioner from the aforesaid portion of
the trust deed submits that the deed of
the trust was executed with the sole
object of improvement and better
management of Dharmshala and owner
never parted with the ownership or
their control and trustees were there
only to manage the Dharmshala hence,
it has no public character. A perusal of
the above quoted portion of the trust
deed clearly records that the owners
were unable to manage the Dharmshala
and they themselves approached the
Swami Bhakti Projan Keshab Maharaj
and some other members of the Gudia
Vendanta society to kindly agree to
manage the dharmshala as trustee. The
contents in subsequent paragraph of the
deeds by the Board of trustees indicate
that
none
of
the
nominee
or
representatives of any of the erstwhile
owners of Dharmshala were trustee nor
they retain any kind of control in the
management of the trust. There was a
clear stipulation in the deed that the
heirs,
successors-in-interest
representatives and assignees of the
erstwhile owner shall have no power to
1222 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
repudiate the trust deed or any of its
terms. The Judge Small Cause court
considered the memorandum of Gaudia
Vedanta Society and returned a finding
that the plaintiff society is a religious
charitable institution.

16. The submission on which
much emphasis has been pressed by
learned counsel for the petitioner is
that the owners never parted with their
ownership or control, has no legs to
stand in view of the specific contents in
the trust deed to the contrary, which is
recorded after paragraph 12 of the trust
deed. While describing the property the
executor clearly recorded that all their
right, title or interest vests in the Board
of trustees henceforth which is a clear
indication of severance of rights and
title of the executors from the property
in question. Following is stated, while
describing
the
property
after
paragraphs 12 of the deed:

"
Pucca
two
storied
Chaukhandidar
building
including
gate, steps and four shops known as
Dharmshala, water rate No. 1977 (Old
No. 1848) and the Municipal Tax per
year Rs. 83/- situate in the Mohalla
Ganeshpura, Kanstila, Mathura of
which possession has been given to be
trustees and all our right, title, interest
and managerial rights including the
right to collect rent etc. in the said
property now vest in the said Board of
Trustee."

17. The present being a case
where trust deed clearly indicates
severance of rights of erstwhile owners
from the property. The submission that
it is not a public trust has rightly been
rejected by the Courts below. The
finding recorded by the courts below
that the property is a public religious
and charitable trust is based on
consideration of relevant materials
including the registered trust deed
dated 13.12.1954 and memorandum of
association
of
society
and
other
materials on record. The submissions
on the basis of which the petitioner
sought to impugn the judgment have
been
found
to
be
without
any
substance.

18. Now comes the question No.
C as to whether the three judgements of
this court noted above holding that the
provisions of Act No. 13 of 1972 are
not applicable on the Dharmshala, are
to be followed or not in this writ
petition. Hon'ble Single Judge while
referring the matter vide reference
dated
13.11.2007
has
shown
his
respectful disagreement with the view
taken by Hon'ble Single Judge in the
aforesaid three judgements in so far as
the
three
judgements
held
the
Dharmshala to be a public religious and
charitable trust. In view of what has
been stated above, we are of the view
that Dharmshala is a public religious
trust and there is no reason to disagree
with the three judgements of Hon'ble
Single Judge concerning the same
Dharmshala. In judgment of this Court
dated 24.9.2007 in writ petition No.
46342
of
2007,
Baldeoraj
Arora
repelling the similar contention, the
Hon'ble Single Judge of this Court held
as follows:

"Copy of the trust deed has been
annexed as Annexure'2' to the writ
petition. The argument of the learned
counsel for the petitioner is that even
tough
through
the
Trust
deed
3 All] Uma Pati Tripathi V. State of U.P. & others
1223
management of the Trust and its
property ws handed over to the
plaintiff,
however,
the
ownership
continued to be of that person who
created the trust i.e. Nand Kishore. I
do not accept this argument. First of
all,
after
creation
of
trust
owners/executors of the trust deed are
divested
of
their
ownership
and
secondly in the Trust deed (at page 17
of the paper book) it is specifically
mentioned........."

19. in view of the aforesaid, the
answer of the questions ABC is as
follows:

A. The trust deed dated 13.12.1954
registered on 20.12.1954 executed by
Shri Nand Kishore for himself and as
Manager and Karta of the Joint Hindu
family including his brothers and Jagan
Prasad and Madan Lal, sons and heirs
of Gursaran Das @ Baijnath, chela of
Baba Garib Das, resident of Mathura
proves the nature and origin of
endowment and shows that the control
and management of the dharmshala is
not retained with the founder or his
descendants and that the property was
dedicated for the public charitable
purpose
to
a
public
charitable
institution to which trust right, title and
ownership was transferred. The trust
deed dated 13.12.1954 cannot be read
as creating any private endowment.

B. After vesting the management in
the Gaudia Vedanta Society' and its
member the founders did not retain any
control over the management.

C. The judgements in writ petition
No. 54930 of 2003, Ram Ratan Sharma
son of Tulsi Das Vs. District Judge,
Mathura dated 17.2.2004; writ petition
No. 46342 of 2007, Baldeo Raj Arora Vs.
Shree
Keshav
Ji
Gauriya
Math
Dharmshala dated 24.9.2007 and writ
petition No. 45694 of 2007, Ashok Kumar
& Ors. Vs. Sri Keshavji Gauriya Math
Dharmshala
Trust
&
Ors.
Dated
3.10.2007 holding that the building was a
public charitable trust exempt under
section 2 (1)(bb) of the Act lays down
correct law.

20. In view of the above discussions
and our answers, we find that there is no
merits in any of the submissions of
learned Counsel for the petitioner and the
judgement of Judge Small Cause Courts
does not suffer from any error which may
warrant any interference by this Court in
exercise of writ jurisdiction. The writ
petition is dismissed.The interim order
stands discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2012

BEFORE
THE HON'BLE DEVENDRA PRATAP SINGH, J.

Civil Misc. Writ Petition No. 60917 of
2008.

Uma Pati Tripathi

 ...Applicant
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Ashish Chitranshi
Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Promotion-petitioner
a
class
4th
employee-claimed promotion of class 3