# BIHAR STATE BOARD RELIGIOUS TRUST, PATNA v. MAHANT SRI BISESHWAR DAS

- **Citation:** [1971] 3 S.C.R. 680
- **Court:** Supreme Court of India
- **Decided:** 1971-02-09
- **Bench:** J. M. Shelat, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bihar-state-board-religious-trust-patna-v-mahant-sri-biseshwar-das-5231
- **Pages:** 13

## Headnote

Bihai· Hindu Religious Trusts Act (I of 1951), s: 2(1)-Mutt-Pro_perty gifAed personally to first mahant-Passing in succession from Guru
to Chela-Whether public religious trust within meaning of section-Tests.
Gaibi Ramdasji was. the recipient of certain
lands from
the
the
Maharaja of Darbhanga and other zamindars.
From out of the income
of these lands a temple and certain residential buildinas were constructed.
The estate -came to be known as Kamlabari asth•l.
Gaibi ltamdasji was
succeeded in the office of Mahant by his che/Q and thereafter succession
to the Mahantship was froin Guru to Che/a. The respondent who was the
reigning Mahant at the relevant time resisted the demand of the appellant
for the production of accounts and other particulars under .the .provisions
of the Biha'r Hindu Religious Trusts Act, I of 1951. The Board took out
.criminal proceedings against the respondent, who thereupon filed a suit in
which he claimed the astha/ and its properties to be his personal property
outside the definition of religious trust. in s. 2(1) of the Act.
The trial
-court decided in favour of the appellant but the High Court took a contrary view.
In appeal to this Court.
HELD : ( 1) Properties of the temple being admittedly in the possession of the Mahan! ever since the time of Gaibi Ramjidas the onus of proof
that the respondent mahant held them on trust for p11blic purposes of a
religious or charitable character was clearly on the appeallant Board who
alleged that it was so.
The trial Judge was, therefore, cleody in error in
holding that the respondent mahant ought to have produced sarods and
that on his failure to do so an adverse inference could be drawn vi:,., that
had they been produced they would have shown that the grants to {;aibi
Ramjidasji were for public purposes of religious or charitable charactor.
[686 F-Gl
(2) The mere fact that Mahaots of n. particular order did not marry
and properties held by them is descended from Guru to Che/a was not
indicative of and did not raise a presumption of such' properties being religious properties. If originally the property was acquired by a l\fahant
the fact of its descent subsequently from guru to ch•la did not also lead to
the conclusion that it had lost its secular character. [687 El
( 3) Evidence that Sadhus and other persons visiting the temple were
given food and. shelter was not by itself indicative of the temple being "
public temple or its properties being subject to a public trust. [688 Al
( 4) The mere fact of the public having been freely admitted to the
temple cannot mean that courts should readily infer therefrom dedication
to the public. The value of such pulolie user as evidence of dedication
depends on the circumstances ''lhich give strength to the inference
that
the user \.\:as as of right. No such evidence of any reliable kind was available to the appellant Board in the instant case. [689 DJ
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BIHAR RELIGIOUS TRUST V, B. DAS
68 I
(5) A religious mutt in northern India is generally known as cisthal,
a monastic institution founded for the maintenance and spread of a parn.
cular sampradaya or cult. · The distinction between dedication to a temple
and a mutt is that in the former case it is to a ·particular deity, while in
tbe later case it is tl> a supericil: or a mahant.
But just as jn the case of
the debutter endowment, there is both private and public endowment, so
too there can be the same distinction between a private •nd public mutt.
A mutt can be dedicated for the use of ascetics generally or for the ascetics
oi a particular section or cult, in which cue it would be a public .institution. But it is not impossible to have a private mur~ wheTe tlr~ endowment is not intended to confer beneftt upon the public .generally or even
upon the
memben
of a
particular
order..
Examples
do
occur
where the founder may grant propelrty to his Spiritual preceptor and his
disciples in succeuion with a view to maintaining one particular spiritual
fami

## Text

680
BIHAR STATE BOARD RELIGIOUS TRUST, PATNA
v.
MAHANT SRI BISESHWAR DAS
February 9, 1971
[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]
Bihai· Hindu Religious Trusts Act (I of 1951), s: 2(1)-Mutt-Pro_perty gifAed personally to first mahant-Passing in succession from Guru
to Chela-Whether public religious trust within meaning of section-Tests.
Gaibi Ramdasji was. the recipient of certain
lands from
the
the
Maharaja of Darbhanga and other zamindars.
From out of the income
of these lands a temple and certain residential buildinas were constructed.
The estate -came to be known as Kamlabari asth•l.
Gaibi ltamdasji was
succeeded in the office of Mahant by his che/Q and thereafter succession
to the Mahantship was froin Guru to Che/a. The respondent who was the
reigning Mahant at the relevant time resisted the demand of the appellant
for the production of accounts and other particulars under .the .provisions
of the Biha'r Hindu Religious Trusts Act, I of 1951. The Board took out
.criminal proceedings against the respondent, who thereupon filed a suit in
which he claimed the astha/ and its properties to be his personal property
outside the definition of religious trust. in s. 2(1) of the Act.
The trial
-court decided in favour of the appellant but the High Court took a contrary view.
In appeal to this Court.
HELD : ( 1) Properties of the temple being admittedly in the possession of the Mahan! ever since the time of Gaibi Ramjidas the onus of proof
that the respondent mahant held them on trust for p11blic purposes of a
religious or charitable character was clearly on the appeallant Board who
alleged that it was so.
The trial Judge was, therefore, cleody in error in
holding that the respondent mahant ought to have produced sarods and
that on his failure to do so an adverse inference could be drawn vi:,., that
had they been produced they would have shown that the grants to {;aibi
Ramjidasji were for public purposes of religious or charitable charactor.
[686 F-Gl
(2) The mere fact that Mahaots of n. particular order did not marry
and properties held by them is descended from Guru to Che/a was not
indicative of and did not raise a presumption of such' properties being religious properties. If originally the property was acquired by a l\fahant
the fact of its descent subsequently from guru to ch•la did not also lead to
the conclusion that it had lost its secular character. [687 El
( 3) Evidence that Sadhus and other persons visiting the temple were
given food and. shelter was not by itself indicative of the temple being "
public temple or its properties being subject to a public trust. [688 Al
( 4) The mere fact of the public having been freely admitted to the
temple cannot mean that courts should readily infer therefrom dedication
to the public. The value of such pulolie user as evidence of dedication
depends on the circumstances ''lhich give strength to the inference
that
the user \.\:as as of right. No such evidence of any reliable kind was available to the appellant Board in the instant case. [689 DJ
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BIHAR RELIGIOUS TRUST V, B. DAS
68 I
(5) A religious mutt in northern India is generally known as cisthal,
a monastic institution founded for the maintenance and spread of a parn.
cular sampradaya or cult. · The distinction between dedication to a temple
and a mutt is that in the former case it is to a ·particular deity, while in
tbe later case it is tl> a supericil: or a mahant.
But just as jn the case of
the debutter endowment, there is both private and public endowment, so
too there can be the same distinction between a private •nd public mutt.
A mutt can be dedicated for the use of ascetics generally or for the ascetics
oi a particular section or cult, in which cue it would be a public .institution. But it is not impossible to have a private mur~ wheTe tlr~ endowment is not intended to confer beneftt upon the public .generally or even
upon the
memben
of a
particular
order..
Examples
do
occur
where the founder may grant propelrty to his Spiritual preceptor and his
disciples in succeuion with a view to maintaining one particular spiritual
family and for perpetuation .of certain rites and ceremonies which are
deemed to be conducive to the spiritual welfare of the found.;, and his
family. In such cases it would be the grantor and his descendents who are'·
the only persons interested in seeing that the institution is kept up for their
benefit. Even if a few ascetics are fed and given shelter, such a purpose
is not to be deemed an independent charity in which the public or a sec·
tion of it is interested. Such charities appertain to a private debutter also.
[690 D·HI
The existence of a private mutt in which the property was given to the
head of the mutt for his personal benefit only has in the past been recog.
nised. In suc.h cases there is no intention on the part of the grantor to
fetter the grantee with any obligation in dealing with the property granted.
In each case the court has to come to its conclusion either from the grant
i(Sclf or from· the circumstances of ihe case whether the grant was for the
benefit of the public or a section of it i.e. an unascertained class. or for
the. benefit of tb,e grantee himself or for a class of ascertained individuals.
An inference can also be dra\vn from the usage and custom of the institution or from the mqde in which properties had been dealt with as also
other established circumstances. [691 B.C]
(6) The fact that idols were installed p.;,manently on a pedestal and
the temple was constructed on grounds separate from the residential quar·
ters of the mahant could not lead to inference of dedication to the public.
In the first place such factors are also found in private temples and mutts
and therefore a're not conclusive. In the second place there was th.e evidence that the mahants residential quarters were in fact, not separate from
the temple premises. (691 G-H]
'
(7) The expresSion 'appertaining to the asthar in the deeds of gift~
made by the__,reigning mahants in favour of their nominees as successors
meant things which were appurtenant to and forming part of the principal
property which was the subject matter of the instrument. The expression
would at best mean that the properties formed part of the asthal and were
not the properties of the mahant as distinct from those of the asthal. But
unless the asl'hal itself was a public trust for the religious or charitable
purpose's, the properties appertaining thereto would not be properties of
a public trust for religious or charitable purposes.
The use of the expression 'appertaining to the asthal', therefore, could not lead lo the conclusion that the property in question was stamped with a trust for public
purposes. (692 CJ
The appeal must accordingly be dismissed.
682
SUPREME COURT REPORTS
(1971)3 S.C.R.
Maham Ramsaroop Das Ji v. S. P. Sahi, 1955 B.L.J.R. 88, Ma/Jant
R~msaroop Das J(v. S. P. Sahi, 1959 Supp. 2 S.C.R. 583 & Deoki Nandan
v. Murlidhar, (1956] S.C.R. 756 at 761, referred to.
Permanand v. Nihal Chand [1938] l.L.R .. 65 I.A. 252 Ramsaran Das v.
Jai Ram D"s, A.LR. 1943 Pat 135, Babu Bhagwan Din v. Gir Har Saroop,
67 I.A. 1, Matam Nadipudi v. Board of Commissioners for Hindu Reli•
gious Endowments, Madras, A.I.R. 1938 Mad. 810, Missir v. Das, [1949]
1.L.R. 28 Pat. 890 and Sri Thakurji Ramji v. Malfluro Prasad, A.I.R. 1941
Pat. 254 at 358 and Mahant Puran Atal v. Darshan Das, [1942] I.L.R. 34
All 468, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 407 of
191>7.
A:
B
Appeal from the judgment and decree dated March 13, 1962
C
of the Patna High Court in Appeal from Original Decree No. 330
of 1958.
D. Goburdhun and R. Goburdhun, for the appellant.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by
Shela&, J.-This appeal arises from a dispute between the
appe_llant~:Soard and the respondent which occurrCd when the
Board tried to enforce tlie provisions of the Bihar Hindu Religious
Trusts Act, 1 of 1951, in respect of the estate known as Kamla~
bari asthal consisting of a te!T'ple,
buildin~s and lands. The
respondent is the current mahant claiming direct descent from the
founding mahant Galbi Ramdasji in the line of successiqn from
Guru to Che/a. Gaibi Ramdasji was the recipient of certain lands
from the then Maharaja of Darbhanga and other zamindars. From
out of the income of these lands, a temple with Shri Ram, Janki
and Laxmanjl as the presiding deities thereof, and certain residen.
tial buildings were constructed.
Later mahants added to these
properties by acquisition from out of the income of the existing
properties.
The respondent-mahant r°'isted the Board's demand
for production of accounts and other particulars and in conse·
quence the B6ard took out criminal proceedings against the respondent.
The respondent thereupon filed a suit o,f which this
·appeal is the outcome.
In the suit, the respondent claimed that the said asthal and its
properties were his personal properties, the gifts of lands having
originally been made personally to the founding mahant,. an4l
thereafter, to the mahants succeeding him, and that therefore,
the properties were not religious trusts as defined by s. 2 (1 ) of
·~_,,,Act. That sub-section defines a 'religious trust' to mean
' ariy,.express or constructive trust created or existing for any purY
~
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llutAll 11.ELIG!OUS TRUST v. II. DAS (Shelat, ).)
68 3
'A
pose recognised by Hindu Law to be religious, piou_s or charitable
but shall not include a trust created accordmg to Sikh reugion ()I
purely tor the benefit of the Sikh community and a pnvate endowment created for the worship oi the family. idol in which the public
are not interested". The Board took the stand $at the asthat and
the properties belonging to it were not the personal properties of
B the manant or his preoecessors, that the gifts to them were not.
personal gifts but to the asthal, tI!-at the fact that members of the
public had, without any let or hindrance, been usmg the temple
for darshan and worship, the fact that festivals were celebrated at
which members of the public gave offerings, the practice of feeding
of sadhU$ and pilgrims, all went to indicate that the asthal was a
c
public trust in which the members of the public had an interest.
Both sides led considerable amount oi. evidence, both oral and
documentary. The oral evidence consisted of the testimony of
witnesses, some of whom deposed, on the one hand, that the· members of ~~ public had been coming to the temple without any
obstruction on the patt of the• mahant, and some others, on the
D other hand, that on certain occasions some of the members of the
public had actually been turned away from the temple. Witnesses
also deposed to ~ fact of. festivals having 'been celebrated when
members of the public were allowed and placed offerings, of
sadhu.i: and pilgrims having ~n fed an(i given shelter, thus showing the user of the temple by .tlle public and the asthal having
E disbursed the income of its properties towards religious and charitable purposc:s.
Some of the witnesses examined by the Board were -
even prepared to depose that on occasions certain members of the
public had exercised some sortof control over the mahant's
management of these properties. The oral evi<lence, however, was
not of much assistance, partly because it was int~rested an<i partly
r
becauso none of the witnesses ha<i any personal knowledge of
the things which they sought to <iepose.
·
As regards the documentary evidence1 the respon<ient-mahant
di<i' ~ot produce !he sanods under ~hich tne founding mahant had
acquired properties. These, he said, could not be traced. The
G Board ~o d1<i not make any attempt: to produce the record of the
Darbb,anga Estate which, on merger thereof with the State of Bihar
presumably must be in the custody of the State Governmen~ th~
record, which presumably must contain copies of these sanads, if
produced, would have thrown considerable light on the nature of
the gifts .and the manner in which they were made. The docuH mentary evidence produced ~t t~e trial, therefore, cqnsisted mainly
of (1) d~s of gift or nomination ll!ade by a reigning mahant in
favour of h!S chela as his successor, (2) deeds of sales purchast:S
mortgage deeds etc. made and executed by the mahants- in th~
14-918 Sup. C.L/71
684
SUPREME COURT REPORTS
(1971] 3 S.C.R.
course of their administration of the asthal properties, and ( 3)
A
certain revenue records.
The issue which the Trial Judge considered to be. the most
crucial one was framed by him _as follows :
·
"Whether the temple and the properties in ·suit are
the personal properties of the plaintiff or are trust
properties under the provisions of Act I of 1951 ?"
B
Thl' issue was framed by him in these terms partly because the
respondent had claimed these properties ·as his personal properties,
and partly because the Trial Judge was under the · impression,
C
because of the High Court's\decision in Mahant Rc;msaroop Das Ii
v. S. P. Sohi(1) th~ the definition in s. 2( 1) of the Act also
covered private religious trusts.
That decision was,
however,
reversed on appeal to this Court and as reported in Maham Ram·
saroop Das Ji v. S. P. Sahi(") the.correct position is that private
trusts do not fall within the ambit of the definition in that section.
It was because the Trial Judge was under the belief that private
D
religious trusts also fell within the definition that he also placed
before himself only two alternatives, namely, whether the proper·
ties were personal properties of the respondent or whether they
were trust properties. On the evidence before him, he ultimately
held that the asthal and the properties appertaining thereto were
public religious trust and dismissed the respondent's suit.
E
In corning to this conclusion the Trial _Judge took into account
the following circumstances :
(I) that the mahants. were bairagis, i.e., celibates,
which fact raised the presumption that they held
properties on behalf of the asthal to which their
lives were entirely devoted;
·
(2) that Mahant Gaibi Ram<lasji
had set up
a
sampradaya which attracted a large following,
that therefore, the temple built by him was for
the benefit of his followers and for spreading and
prop~gating 'the doctrines of that sampradaya;
( 3) that from these facts the presumption arose that
he had dedicated the temple and the properties
to the public or a section thereof;
(4) that the evidence showed that sadhus, fakirs and
abhyagat.1· were entertained at the ten1ple, that
the income of the properties was spent on p11ia
(I) 1955 B.L.J.R. 88.
(!) [1959] Supp. 2 S.C.R. >83.
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RIBAR RT'.T.J<l!OUS TRUST v . . n. DAS (She/at, J.)
685
(5)
(6)
(7)
an<l other religious activities and for festivals;
consequently, the presumption was that the properties were subject to religious and charitable
purposes;
that at the time of the installation of the deities
in the temple Pran Pratisl!tha and other ceremonies ml!st have been performed which meant
that the temple and the properties were declared
to have been dedicated to 'the public;
that the deeds of appointed of successors executed
by the mahants described the mahants as asthaldharls and the properties as appertaining to the
asthal, and
that though revenue records descried the mahants
as proprietors of these properties, they had to
be read in th·~ light of the facts aforesta1ed.
On these premises he upheld the Board's contention that "the
temple and the properties were trust properties of a public nature
for religious and charitable purposes".
On an appeal by the respondent-mahant, the High Court first
observed that the evidence on record had to be viewed in the light
of the definition section as constructed by this Court in Mahant
Ramsaroopdasji v. Sahi( 1) that is to say, 'that the trust, as defined
in that section, meant only public trusts and did not include private
trusts.
The High Court then appraised the entire evidence and
came to the conclusion that even if the mahant had not been able
to show that the temple and the other properties were the private
properties o.f the mahants, all the factors from which the Trial
Judge raised the presumption of a public trust were oonsistent with
the properties constituting a private religious trust. .On this view
the High Court reversed the judgment of the Tria( Judge and
decreed the respondent's suit. holding that the Act did not apply
to the properties in suit.
Counsel for the appellaint-Board challenged before us the correctness or the High Court's judgment and
supported the Trial Court's judgment.
It is true that the responden--mahant did not prpduce the
original sanads whereunder certain lands had been gifted to the
founding mahant by the various zamindars. They were not produced because,
as the
respondent deposed, they could not be
traced. but, as stated ea.rlier it was not impossible for the Board
also, if it wanted to rely on them, to produce the record such as
that of Dharbhanga Estate, and show therefrom the natur~ and the
terms of those gifts. The Trial Court, however, was not entitled.
(I) [1959) Supp. 2 S.C.R. 58~.
686
SUPREME COURT REPQRTS
[1971 J 3 s.c.R.
as we shall presently show, from the mere failure of the mah~nt
to produce the original sanads to draw an adverse inference which
it did against him.
From the rest of the evidence the following facts as summarised
by the High Court, emerged :
I. that the temple was constructed by Gaibi Ramdasji and it
was he who installed the deities therein;
2. that he was succeeded to the mahantship by his che/a, and
thereafter succession to the mahantship had been from guru to
che/a;
3. that the appointment of a successor has been all throughout from guru to che/a, the reigning mahant appointing or nominating his successor from amongst his che/as and the members of
the public have had at no rime any voice in the selection or nomination;
4. that the proJl"rties have always been recorded in the names
of the mahants as proprietors and not in the name of the deities
in the D registers, khewats and khatians;
5. that the mahants have been in possession and management
of the asthal and the properties all throughout;
6. that the mahants acquired properties frO!Jl time to time in
their own. names as proprietors and never in the names of the deities
or the asthal, without any objection at any time from any one and
dealt with some of them through deeds of sales, mortgages, leases
etc.
·
Properties of the temple being thus admitedly in the possession
of the mahants ever since the time of Gaibi Ramdasji, the onus
of proof that the respondent-mahant held them on trust for public
purposes of a religious or charitable character was clearly on the
appellant-Board who alleged that it was so.
The Trial Judge. was,
therefore, clearly in error in holding that the respondent-mahant
ought to. have; produced the sanads and that on his failure to do
so an aaverse inference could be drawn, namely, that had thev
been produced they would have shown that the grants to Gaibi
Ramdasji were for public purposes ot a religious or charitable
chiiracter.
(see Parmanand v. Nihal ChanJd(') ) .
The sanads not having been available, the appellant-Board
tried to establish through the oral evidence of slx witnesses (D.Ws.
l to 6), that the temple was founded and the p~es in question
were acquired for the benefit of the public or a section thereof
(1) [1938] I.LR. 65 I.A, 257
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B!HAR RELIGIOUS TRUST v. B. DAS (She/at, ]. )
6/!7
The testimony of these witnesses, however, diq not possess much
credibility, because although these witnesses declared that the
temple was established for the benefit of the public, none of them
deposed that Gaibi Ramdasji or any of the succeeding mahants
had at any time dedicated the t_emple or the properties to the
public or to those who used to attend the temple for worship and
darshan.
In these circumstances, the appellant-Board had to fall
back upon certain circumstances and the conduct of the mahants
to establish that these properties were properties of a public trust.
The circumstances and the conduct relied on were : ( 1) the
fact that the mahants were vaishnav bairagis who were life long
celibates; (2) that sadhus and others were given food and shelter
when they visited the temple; (3) that festivals and other important Hindu dates used to be celebrated; ( 4) that the members of
the public came to the temple for darshan without any hindrance
and as of right; ( 5) that in the deeds and wills, whereby reigning.
mahants appointed or nominated their successors, the properties
were described as appertaining to the asthal, and that the temple
being the dominant part of the asthat and maintained for the worship and puja of the presiding .deities installed therein, the properties belonged to the temple, and therefore, they were properties
of a trust for religiou!i and charitable character.
In Parmanand vs. Nihal Chand(") the Privy Council held
that the mere fact that mahants of a particular order did not marry
and properties held by them descended from guru to chela was
not indicative of and did not raise a presumption of such properties bein2 religious properties. If originally the _properly was
acquired by a mahant, the fact oi its
descent
subsequently from guru to chela did not lead to the conclusion that
it h\1(1 lost its secular character. Where, however, a property is
dedicated to an idol for the object of performing its puja and Other
necessary ceremonies the person managing such property is only
a shebait, the idol being a juristic person in Hindu law capable of
holding such property. If it is alleged that such property is a
trust property held for public . purposes to which Acts, sueh as
the Charitable and Religious Trusts Act, 1920 or the present Act,
applies, it has to be shown that the trust is not a prjvate trust but
is one substantially for public purposes of a religious llnd charitable nature.
In such cases provision for the
service of the
sadhus, occasional guests and wayfarers does not render a trust
fbr an idol into a trust for public purposes. This is because where
the main purpose of the trust is making provision for the due
worship of an idol and performance 0£ its seva puja and other
ceremonies, the feeding of sadhus and giving hospitality to wayfarers are inevitable. These are regarded as duties forming part
(ll
rl938) I.L.R. 65 I.A. 2si,
688
SUPREME COURT REPORTS
(1971 ]:i S.C.R.
of the due worship or the particular deity. . (see Ramsara11 Das
vs. Jai Ram Das( 1) Therefore, evidence that sadhus and other
persons visiting the temple are given food and shelter is not by
itself indicative of the temple being a public temple or its properties being subject to a public trust.
Evidence that the mahants used to celebrate Hindu festivals
when members of the public used to attend the temple an'd give
offerings and
that the public were admitted to the temple for
darshan and worship is also not indicative of the temple being
one for the bendit of the public. The celebration of festivals i,.
according to Hindu belief, part and parcel of the puja of the deity.
Such festivals are celebrated in family and other private temples
also.
The fact that members of the public used to come to the
temple without any hindrance also does not necessarily mean that
. the temple is a public temple, for members of the public do attend
private temples. It is against Hindu sentiments to turn away persons who come to do worship and darshan. The mf.!re fact, therefore, that no instance had occured when persons from the public
were asked to go away or the absence of proof that they were
"allowed on permission or invitation only cannot be conclusive of
the temple being one in which the public have by user acquired
interest.
The case in point is of Babu Bhagwan Din vs. Gir Har
Saroop('). The original grant there was to the respondent ancestor, one Daryao Gir, by the then Nawab of Oudh. The property
in question comprised of hnd on which stood the templ~, the
presiding deity of which was Bhaironji, certain houses and shops.
The respondents, who claimed to be the descendants of the original
grantee, were grahastha fakirs, i.e., both goshains and house holders.
There was no proof that there had been any interference
with the management of the properties.
The revenue records
showed the properties in the names of the descendants of Daryao
Gir. The shops were let out and in .the leases concerning them the
goshains were referred to sometimes as owners and sometimes as
owners of th.e "asthan Sri Bhairon;i". There was evidence, however, of members of the Hindu public having resorted to the
temple for worship and darshan without any obstruction.
An
annual me/a used to be held for many years with public subscription on the grounds of the \emple.
The evidence showed that
the temple and the gushains profited from the increased resort to
the temple by the public the me/a period. Yet, the Privy Council
held that the general effect of the evidence was that the family had
treated the temple as family property and the mere fact of the
members of the public having come to the temple and having
(I)
A.J,R. 1943 Pat, 135,
(~) 67 IA. !,
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689
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made offerings and the me/a having been held which gave popul~
. rity to 1he itemple and increased its esteem in the eyes of the pub!J.C
and the fact that they were never turned away were not enough
to hold the te1nple and the properties as a public trust. At page
IO of the report their Lordships .observed :
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"Dedication to the public is not to be r~adily inferred when it is known that the temple property was
acquired by grant to an individual or family.
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inference, if made from the fact of user by th~ public, JS
hazardous, since it would not in general-be-consonant
with Hindu sentiments or practice that worshippers
should be turned away; and, as worship generally im·
plies offerings of some kind, it is not to be expected
that the managers of a private temple should in all cir·
cumstances desire to discourage popularity."
Thus the mere fact of the public having been freely admitted
to that t~mple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as
evidence of dedication depends on the circumstances which give
strength to the inference that the user was as of right. No such
evidence of any reliable kind was available to the appellant-Board
·in the instant case.
True it is that a charitable trust might either be creat_ed by
a grant .for an express purpose or a grant having been made in
favour of an, individual or a class of individuals, that individual
or that class of individuals might, after obtaining the grant, create
a charitable trust on behalf of the Board reliance was placed
on the deeds of gifts or nominations by reigning mahants in
favour of their nominees, marked in Ex.
7 series where the
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tnahants have stated that they appointed such chelas" as mahants
of Kamlabari asthal a,rid described the properties as properties
appertaining to the 11:1·thal. Relying on tb.e~e words counsel argued
that what the founding mahant Gaibi 'Ramdasji established was
the asthal of Kamlabari for the propagation of Sri Sampraclaya
where his disciples and the other adherents of Sri Sampradaya
could receive instruction in the doctrines of that Sampradaya at
the hands of the mahant aind that the temple was only part o( the
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asthal as its adjunct. The argument was that the asthal was to
support t~e sadhus a~d other followers of Sri Sampradaya,
the
temple bemg only an mstrument for propagating and teaching the
doctrines held by the Sampradava. In support of the argument
reliance w~s placed on Mahant ~uran Atal v. Darshan Das(I)'.
There ~as in th<1t case also no evidence of any original grant for
;1 chantable purpose from a donor, nor was there in evidence
(1) [1912] I.LR. 34 All. 468.
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690
SUPREME COURT REPORTS
(1971) 3 S.C.R.
aμy instrument expressly creating a charitable trust.
The High
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Court of Allahabad, however, held that the mahant held the properties in trust for a charitable purpose relying on the mode of the
user Ct the property and . dectarations made from time to time
by the mahants. Those declarations were to the effect that the
properties were lield for the purpose only of supporting and maintaining Manakshahi fakirs, entertaining visitors and for giving of
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alms. The properties were held muafi, i.e.; free from Government
revenue, .on the. strength of such declarations. Also, in litigations
for succession to the gaddi, it had all along been assumed that the
properties belonged·to the gaddi managed by the gaddi11DShin for
the time being and held for charitable purposes. On this evidence,
the High Court held that it .could presume that there was a charic
table or religious trust, md further observed that even if the main
purpose of the gust was to support Nanakshahi fakirs
and to
spread the religion founded by Guru Na,nak, the trust would still
be one for a public purpose within the meaning of s. 92 of the
Code of Civil Procedure.
A religious mutt in northel]ll India iS usually known as asthal,
a monastic institution fou)lded for the mantena.nce and spread of a
particular Sampradaya or cult. The distinction between dedication to a temple and a mut~ is that in the former case it is to a
particular deity, while itt the latter, it is to a superior or a mahant.
But just as in the case of the debutter endowment, there is both. a
private a,nd a, public endowment, so too ther(l can be the same
Jistinction between a private and a public mut~. A mutt can be
dedicated for the use of ascetics generally or for the ascetics of
a particular sect or cult, in which case it would be a public institution. Mutts have generally sadavrats, i.e., arran_gements for
giving food .and shelter to wayfarers and ascetics attached to them.
They may have temples to which the public is allowed· access.
Such circumstances might indicate the public character of the institution. But it is not impossible to have a private mutt where the
endowment is not inrtended to confer benefit upon the public
generally or even upon the members of a particular religious sect
or order. Examples do occur where the founder may grant property to his spiritual preceptor a,nd his disciples in succession
with a view to maintain one particular spiritual family and for
perpetuation of certain rights aind ceremonies which are deemed
to be ,conducive to the spiritual welfare of the founder and his
family. In such cases it would be the grantor and his descendants
who are the.only persons interested in seeing that the institution
is kept up for their benefit. Even if a few ascetics are fed and
given shelter, such a purpose is not to be deemed an independent
charity in which the public or a section of it has an interest. Such
charities, as already stated earlier, appertain to a private debutter
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Bl.HAR RELIGIOUS TRUST v. B. DAS (She/at, J.)
691
also.
(see B. K. Mukherjea, Hindu Law of Religious & Charitable Trusts. (3rd ed.), 303, 304).
The existence of a private mutt, where the property was given
10 the head of the· mutt for his personal he'nefi.t only, has in tht:
past recogl!lised.
(see Matam Nadipudi v. Board o; Commis·
~ioners for Hindu Religious Endowments, Madras(!) and Missir
v. Das('). In such cases there is no intention on the part of the
grantor to fetter the grantee with any obligation in dealing with
tile property granted.
In each case the court has to cun1e to iL>
conclusion either from the grant itself or from the circumstances o:
the case whether the grant was for the benefit of the public or a
section of it, i.e., an unscertained class, or for the benefit of the
grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt
with as also other established circumstances.
Puran Atal's case(") has no application in the present case·
because there is no evidence such as there was regarding the user
of the properties for the maintenance of a particular class of ascetics, nor are<llere declarations made from time to time by the
mahants which led the Court there to pronounce that the trust.
was for a charitable purpose, and on the strepgth of which the
properties were held revenue free.
An attempt appears to have been made in the Trial Court to
establish that cerain ceremonies, such as Sanka/pa, Prat·istha and
Utsarga, were performed at the time when idols were installed
in the temple. In the case of temples Pratistha, and not Utsargμ.
if established, would indicate dedication to the public.
(see
Kane's History of Dharmasasti-as, Vol. 2, part II, 892 to 893, and
Deoki Nandan v. Mur/ldhar('). Unfortunately for the <.ppellant
Board,. there was no clear evid<,:nce of the particular ceremonies
performed at the time when Gaibi Ramdasji insalled the id_ols
except a general statement from the respondent that when idols
are installed in temples Pran Pri:ltistha is generally performed.
Support for a dedication to the public was also sought from the
fact that the idols were installed permanently on a pedestal (t.inha.
san) a~d ~e temple was constructed on groun9.Lseparat~ from
the residential <iJUarters of the mahant. In the first place
such
factors are also found in private temples and mutts, and therefore.
are not conclusive. In the second place there was the evidence
that the mahant's residential quarters a;e in fact not separate
from the temple premises.
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(t) A.I.R. 1938 Mad. 810.
(3) [1942] l.L.R 34 All. 468.
15-918 Sup. C.I./71
(2) [1949] I.L.R. ~8 P>'. R90.
(4) [1956) S.CR. 756 at 761.
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SUPREME COURT REPORTS
[1971] 3 S.C.R.
Lastly, reference was made to some of the deeds of gifts made
.by the reigning mahant is favour of their nominees as successors
where the properties were described as appertaining to the asthal.
Assuming that the scribes of these documents used the expression
'appertaining to the asthal' in the sense in which such expression
is sometimes used in the deeds of conveyance, the
expression
.means things which are appurtenant to and forming part of the
principal p.roperty which is the subject matter of the instrument.
(see Stroud's Judicial Dictionary, (3rd Ed.), Vol. I. 177). The
expression 'appertaining to the asthal' in these deeds, therefore,
would at best mean that the properties formed part of the asthal
and are not the properties of the mahant as· distiinct fl.om those
of the asthal. (see Sri Thakutji Ramji v. Mathura Prasad(1) But
unless the asthal itself is a public trust for religious or charitable
purposes, the properties appeartaining thereto would not be properties of a public trust for religious or charitable purposes.
Th~
use _9f the expression 'appertaining to the asthal', therefore, cannot lead to the conclusion that the properties in question were
stamped with a trust for public purposes.
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These were all the conteLtions urged before us. In our view,
the appellant-Board failed ta establish that the proportion in suit
fell within the ambit of the Act .and he respondent-mahant was
subject to its proWisions. The High Court accordingly was right
in reversing the Trial Court's judgment and decreeing the respondent's suit. Consequently, the appeal is dismissed with costs.
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Appeal disrriisseJ.
(I) A.l.R. 1941 Pat. 354, at 358.
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