# Mahant Ram Saroop Dasji v. S. P. Sahi

- **Citation:** [1959] Supp. 2 S.C.R. 601
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 230 of 1955
- **Bench:** S. R. Das, s. K. DAS, P. B. Gajendragadkar K. N. Wanchoo, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahant-ram-saroop-dasji-v-s-p-sahi-1705
- **Pages:** 24

## Headnote

Hindu Religious Trusts-Property relating to Trust situate
outside State of Bihar-Applicability of Bihar Hindu Religious
Trusts Act to such property-,-Legislative competency-Con~titutional
validity of Enactment -
Applicability to private trusts-Bihar
Hindu Religious Trusts Act, r950 (Bihar I of r95r), ss. r(2), 2(r), 3
-Constitution of India, Arts. 245, 246, Sch. VII, List III, Item 28.
Deed-Construction-Hindu Religious Trust-Private or Publie.
A deed of trust was executed by the respondent on March
II, 1938, when she was residing at D in the State of Bihar, in
respect of the propertitl's described in the Schedules referred to
in the deed, some of which were situate outside the State of
Bihar. In the trust deed she described herself as the settlor,
and it was recited therein that the settlor had installed a deity
named Iswar Srigopal in her house and had since been regularly
worshipping.and performing the puja of the said deity; and that
she had been erecting a Nat Mandir to be named in mem<fry of
her deceased son. The recitals also showed that the settlor had
provided for the construction of two temples (Jugal Mandir), in
one of which was to be installed the deity Srigopal and other
deities, and in the other the marble image of her preceptor; and
that the temple committee shall consist of the Jugal Mandir
shebait for the time being and six pious Hindus who must be
residents of D and of whom at least four shall be Benga!is. One
76
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. I(, Das j.
I959
April r5.
r959
State of Bihar
v.
Charusila Dasi
602
SUPREME COURT REPORTS [1959] Supp.
of the clauses of the trust deed recited :-"The ' pronamis' and
perquisites to be offered to the deities and image in the Jugal
Mandir shall form part of the Srimati Charusila Trust Estate and
neither the shebait nor any one else shall have interest or claim
in or over same."
The provisions of the trust deed in regard to
the ceremonials relating to free distribution of food and water
and the festivals to be performed for the deity and the image,
which were well known festivals in which members of the Hindu
Community usually take part, contemplated that they were to be
done on a large scale so as to enable a large number of persons
to take part in them. There was also a provision in the trust
deed for the establishment of a hospital for Hindu females
and a charitable dispensary for patients of any religion or
creed.
After the coming into force of the Bihar Hindu Religious
Trusts Act, 1950, the President of Bihar State Board of Religious
Trusts started proceedings under ss. 59 and 70 of the Act against
the respondent in respect of the trust on the footing that it was
a public trust to which the Act applied. The respondent made
an application to the Patna High Court under Art. 226 of the
Constitution in which she prayed that a writ or order be issued
quashing the proceedings taken against her by the Bihar State
Board of Religious Trusts on the grounds (1) that the trust deed
dated March II, 1938, was a private endowment created for the
worship of a.family idol in which the public were not interested,
(2) that the Act did not apply to private trusts, (3) that the Act
was ultra vires the Constitution by reason of the circumstance
that its several provisions interfered with her rights as a citizen
guaranteed under part !II of the Constitution, and (4) that, in
any case, the Act was not applicable to the trust deed in question as some of the properties were situate outside the State of
Bihar.
Held: (1) that on its true construction the deed of trust dated
March II, 1938, created a religious and charitable trust of a public nature.
Deoki Nandan v. Murlidar, [1956] S:C.R. 756, considered.
In re Charusila Dasi, I.L.R. [1946] l Cal. 473, explained.
One of the relevant considerations as to whether the trust
was a public trust, will be if by the trust deed any right of
worship has been given to the public or any section of the
publ1c answering a particular description.
(2

## Text

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(2) S.C.R.
SUPREME COURT REPORTS
601
asthal and also prohibiting the respondents from interfering . with the rights of the appellant in the
management of the Salouna asthal and the properties
appertaining thereto, unless and until the respondents
have obt.ained the necessary determination that the
Salouna asthal is a public trust. The appellant will be
entitled to his costs throughout.
Appeal allowed.
THE STATE OF BIHAR & OTHERS.
v.
SM. CHARUSILA DASI
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR
K. N. WANCHOO and M. HIDAYATULLAH, JJ.)
Hindu Religious Trusts-Property relating to Trust situate
outside State of Bihar-Applicability of Bihar Hindu Religious
Trusts Act to such property-,-Legislative competency-Con~titutional
validity of Enactment -
Applicability to private trusts-Bihar
Hindu Religious Trusts Act, r950 (Bihar I of r95r), ss. r(2), 2(r), 3
-Constitution of India, Arts. 245, 246, Sch. VII, List III, Item 28.
Deed-Construction-Hindu Religious Trust-Private or Publie.
A deed of trust was executed by the respondent on March
II, 1938, when she was residing at D in the State of Bihar, in
respect of the propertitl's described in the Schedules referred to
in the deed, some of which were situate outside the State of
Bihar. In the trust deed she described herself as the settlor,
and it was recited therein that the settlor had installed a deity
named Iswar Srigopal in her house and had since been regularly
worshipping.and performing the puja of the said deity; and that
she had been erecting a Nat Mandir to be named in mem<fry of
her deceased son. The recitals also showed that the settlor had
provided for the construction of two temples (Jugal Mandir), in
one of which was to be installed the deity Srigopal and other
deities, and in the other the marble image of her preceptor; and
that the temple committee shall consist of the Jugal Mandir
shebait for the time being and six pious Hindus who must be
residents of D and of whom at least four shall be Benga!is. One
76
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. I(, Das j.
I959
April r5.
r959
State of Bihar
v.
Charusila Dasi
602
SUPREME COURT REPORTS [1959] Supp.
of the clauses of the trust deed recited :-"The ' pronamis' and
perquisites to be offered to the deities and image in the Jugal
Mandir shall form part of the Srimati Charusila Trust Estate and
neither the shebait nor any one else shall have interest or claim
in or over same."
The provisions of the trust deed in regard to
the ceremonials relating to free distribution of food and water
and the festivals to be performed for the deity and the image,
which were well known festivals in which members of the Hindu
Community usually take part, contemplated that they were to be
done on a large scale so as to enable a large number of persons
to take part in them. There was also a provision in the trust
deed for the establishment of a hospital for Hindu females
and a charitable dispensary for patients of any religion or
creed.
After the coming into force of the Bihar Hindu Religious
Trusts Act, 1950, the President of Bihar State Board of Religious
Trusts started proceedings under ss. 59 and 70 of the Act against
the respondent in respect of the trust on the footing that it was
a public trust to which the Act applied. The respondent made
an application to the Patna High Court under Art. 226 of the
Constitution in which she prayed that a writ or order be issued
quashing the proceedings taken against her by the Bihar State
Board of Religious Trusts on the grounds (1) that the trust deed
dated March II, 1938, was a private endowment created for the
worship of a.family idol in which the public were not interested,
(2) that the Act did not apply to private trusts, (3) that the Act
was ultra vires the Constitution by reason of the circumstance
that its several provisions interfered with her rights as a citizen
guaranteed under part !II of the Constitution, and (4) that, in
any case, the Act was not applicable to the trust deed in question as some of the properties were situate outside the State of
Bihar.
Held: (1) that on its true construction the deed of trust dated
March II, 1938, created a religious and charitable trust of a public nature.
Deoki Nandan v. Murlidar, [1956] S:C.R. 756, considered.
In re Charusila Dasi, I.L.R. [1946] l Cal. 473, explained.
One of the relevant considerations as to whether the trust
was a public trust, will be if by the trust deed any right of
worship has been given to the public or any section of the
publ1c answering a particular description.
(2) that the Act does not apply to private endowments.
Mahant Ram Saroop Dasji v. S. P. Sahi, [1959] Supp. 2
S.C.R. 583, followed.
(3) that the provisions of the Act do not take away or
abridge any of the rights conferred by Part III of the Constitution.
Mahant Moti Das v. S. P. Sahi, [1959] Supp. 2 S.C.R:. 563,
followed.
(2) S.C.R. SUPREME COURT REPORTS
603
(4) thats. 3 of the Act makes the Act applicable to all pub1959
lie religious and charitable institutions within the meaning of
the definition clause in s. 2(1) of the Act, which are situate in
State of Bihar
the State of Bihar and any part of the property of which is in
v.
that State.
Charusila Dasi
(5) that where the trust is situate in Bihar the State has
legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust,
and as the object of the Act is to provide for the better administration of Hindu Religious Trusts in the State of Bihar and for.
the protection of properties appertaining thereto, in respect of
the property belonging to the trust outside the State the aim is
sought to be achieved by exercising control over the trustees in
personani, and there is really no question of the Act having
extra-territorial operation.
(6) that, in the present case, the circumstance that the
temples where the deities were installed are situate in Bihar
and that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu Public in Bihar,
gives enough territorial connection to enable the legislature of
Bihar to make a law with respect to such trust.
Tata Iron & Steel Co. Ltd. v. State of Bihar, [1958) S.C.R.
1355 and The State of Bombay v. R.M.D. Chamarbaugwala, [1957]
S.C.R. 874, relied on.
Sardar Gurdyal Singh v. The Rajah of Faridlwte, (1894) L.R.
21 I.A. 171, distinguished.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
230 of 1955.
Appeal from the judgment and order dated October
5, 1953, of the Patna High Court in M. J.C. No. 128
of 1953.
,
...\Mahabir Prasad, Advocate-General for the State of
Hihar and R. C. Prasad, for the appellants.
N. C. Chatterjee and P. K. Chatterjee, for the respondent.
1959. April 15. The Judgment of the Court was
delivered by
S. K. DAS, J.-This appeal relates to a trust s. K. Das 1·
known· as the Srimati Charusila Trust and the properties appertaining thereto. By its judgment and
order dated October 5, 1953, the High Court of Patna
has held that the trust in question is a private trust
created for the worship of a family idol in which the
public are not interested and, therefore, the provisions
1959.
State of Bihar
v.
Charusila Dasi
S. J(. Das].
604
SUPREME COURT REPORTS [1959] Supp.
of the Bihar Hindu Religious Trusts Act, 1950 (Bihar
I of 1951), hereinafter referred to as the Act, do not
apply to it. Accordingly, it allowed an application
made to it under Art. 226 of the Constitution and
quashed the proceedings taken against the respondent
herein under ss. 59 and 70 of the Act.
The State of
Bihar, the President of the Bihar State Board of
Religious Trusts and the Superintendent of the said
Board who were respondents to the petition under Art.
226 are the appellants before us.
The trust in question was created by a trust deed
executed on March 11, 1938. Srirnati Charusila Dasi
is the widow of one Akshaya Kumar Ghose of No. 3,
Jorabagan Street in Calcutta. She resided at the
relevant time in a house known as Charu Niwas at
Deoghar in the district of Santhal Parganas in the
State of Bihar. In the trust deed she described herself
as the settlor who was entitled to and in possession of
certain properties described in schedules B, C and D.
Schedule B property consisted of three bighas and odd
of land situate in mohalla Karanibad of Deoghar town
together with buildings and structures thereon ;
schedule C property was Charu Niwas, also situate in
Karanibad of Deoghar; and schedule D properties
consisted of several houses and some land in Calcutta
the aggregate value of which was in the neighbourhood of Rs. 8,50,000. In a subsequent letter to the
Superintendent, Bihar State Board of Religious
Trusts, it was stated on behalf of Srimati Charusila.
Dasi t;hat the total annual income from a,11 the pr6perties was about Rs. 87,839. In the trust deed it was
recited that the settlor had installed a deity named
Iswar Srigopal in her house and had since been
regularly worshipping and performing the " puja" of
the said deity; that she had been erecting and constructing a twin temple (jugal mandir) and a Nat
Mandir (entrance hall) to be named in memory of her
deceased son Dwijendra Nath on the plot of land
described in schedule B and was further desirous of
installing in one of the two temples the deity Srigopal
and such other deity or deities as she might wish to
establish during her lifetime and also of installing in
•
(2) S.C.R. , SUPREME COURT REPORTS
605
the other temple a marble image of Sri Sri Balanand
Brahmachari, who was her religious preceptor and
who was regarded by his disciples as a divine person.
It was fμrther recited in the trust deed that the settlor
was also desirous of establishing and founding a
hospital at Karanibad for Hindu females to be called
Akshaya Kumar Female Hospital in memory of her
deceased husband. By the trust deed the settlor transferred
to the trustees the properties described in
schedules B, C and D and the trustees were five in
number including Srimati Charusila Dasi and her
deceased husband's adopted son Debi Prasanna Ghosh;
the other three trustees were Amarendra Kumar Bose,
Tara Shanker Chatterjee and Surendra Nath Burman,
but they were not members of the family of the settlor.
Amarendra Kumar Bose resigned from the office of
trusteeship and was later replaced by Dr. Shailendra
Nath Dutt. The trusts imposed under the trust deed
were-(1) to complete the construction of the two
temples and the Nat Mandir at a cost not exceeding
three lakhs to be met out of the trust estate and donations, if any ; (2) after the completion of the two
temples, to instal or cause to be installed the deity
Iswar Srigopal in one of the temples and the marble
image of Sri Balanand Brahmachari in the other and
to hold a consecration ceremony and a festival in
connection therewith ; (3) after the installation ceremonies and festivals mentioned above, to provide for
the payment and expenditure of the daily "sheba
puja" and periodical festivals each year of the <leity
Srigopal and such other deities as might be installed
at an amount not exceeding the sum of Rs. 13,600 per
annum and also to provide for the daily "sheba" of
the marble image of Sri Balanand Brahmachari and
to celebrate each year in his memory festivals on the
occasion of (a) the" Janma-tithi" (the anniversary of
the installation of the marble image); (b) "Gurupurnima" (full moon in the Bengali month of Ashar);
and (c) "Tirodhan" (anniversary of the day on which
Sri Balanand Brahmachari gave up his body) at a cost
not exceeding Rs. 4,500
per annum; and (4) to
establish or cause to be established and run and
1959
State of Bihar
v.
Charusila Dasi
S. /{. Das j.
I959
Stale of Hihaf
v.
Charusila Dasi
S. [(, Das ].
606
SUPREME COURT REPORTS [1959] Supp.
manage in Deoghar a hospital for Hindu femo.les only
to be called Akshaya Kumar Female Hospital and an
attached: outdoor charitable dispensary for all out-patients of any religion or creed whatsoever and pay out
of the income for the hospital and the outdoor dispensary an annual sum of Rs. 12,000 or such other sum
as might be available and sufficient after meeting the
charges and expenditure of the two temples and after
paying the allowance of the" she bait" and trustees
and members of the temple committee. It was further
stated that the work of the establishment of the
hospital and the out-door charitable dispensary should
not be taken in hand until the construction of the
temples and the installation of the deities mentioned
above.
It may be here stated that it is the case of both
parties before us that the temples and the Nat Mandir
have been constructed and the deity and the marble
image installed therein; but \leither the hospital nor the
charitable dispensary has yet been constructed. The
powers, functions and duties of the trustees were also
mentioned in the deed and, in schedule A, detailed.
rules were laid down for the holding of annual general
meetings, special meetings, and ordinary meetings of
the trustees. To these details we shall advert later.
On October 27, 1952, the Superintendent, Bihar
State Board of Religious Trusts, Patna, sent a notice
to Srimati Charusila Dasi under s. 59 of the Act
asking her to furnish a return in respect of the trust
in question. Srimati Charusila Dasi said in reply that
the trust in question was a private endowment created
for the worship of aJ'amily idol in which the public
were not interested and therefore the Act did not
apply to it. On January 5, 1953, the Superintendent
wrote again to Srimati Charusila Dasi informing her
that the Board did not consider that the trust was a
private trust and so the Act applied to it. There was
further correspondence between the solicitor of Srimati
Charusila Dasi and the President of the Bihar State
Board of Religious Trusts. The correspondence did
not, however, carry the matter any further and on
February 5, 1953, the President of the State Board of
•
(2) s.c.R. SUPREME COURT REPORTS
607
Religious Trusts said in a notice that he had been
authorised to assess a fee under s. 70 of the Act in respect of the trust. Ultimately, on April 6, 1953, Srimati
Charusila Dasi made an application to the High Court
under Art. 226 of the Constitution in which she prayed
that a writ or order be issued quashing the proceedings
taken against her by the Bihar State Board of Religious Trusts on the grounds (a) that the trust in question
was a private trust to which the Act did not apply and
(b) that the Act was ultra vires the Constitution by
reason of the circumstance that its several provisions
interfered with her rights as a citizen guaranteed under
Art. 19 of the Constitution.
This application was contested by the State of Bihar
and the Bihar State Board of Religious Trusts, though
no affidavit was filed by either of them. On a construction of the trust deed the High Court came to the
conclusion that the trust in quest\on was wholly of a
private character created for the worship of a family
idol in which the public were not interested and in that
view of the matter held that the Act and its provisions
did not apply to it. Accordingly, the High Court
allowed the application and issued a writ in the nature
of a writ of certiorari quashing the proceedings under
ss. 59 and 70 of the Act and a writ in the nature of a
writ of prohibition restraining the Bihar State Board
of Religious Trusts from taking further proceedings
against Srimati Charusila Dasi in respect of the trust
in question. The appellants then applied for and
obtained a certificate from the High Court that the
case fulfilled the requirements of Art. 133 of the Constitution. The present appeal has been filed in pursuance of that certificate.
In connected Civil Appeals numbered 225, 226, 228,
229 and 248 of 1955 (1) judgment has been pronounced
to day, and we have given therein a conspectus of the
provisions of the Act and have further dealt with the
question of the constitutional validity of those provisions in the context of fundamental rights guaranteed
by Part III of the C.onstitution. We have held therein
that the provisions of the Act do not take away or
(r) Mahant Moti Da$ v. S. P. Saki, seep. 563, ante.
1959
State of Bihar
y,
Charusila Dasi
S. I<. Vas ].
I959
State of Bihar
v.
Charusila Dasi
S. K. Das].
608
SUPREME COURT REPORTS [1959] Supp.
abridge any of the rights conferred by that Part. In
Civil Appeal No. 343of1955 (1) in which also judgment
has been pronounced today, we have considered the
definition clause in s. 2(1) of the Act and come to the
conclusion that the Act does not apply to private endowments, and have further explained therein the
essential dist.inction in Hindu law between private and
public religious trusts. We do not wish to repeat what
we have said in those two decisions; but in the light of
the observations made therein, the two questions which
fall for decision in this appeal are-(1) if on a true
construction of the trust deed dated March 11, 1938,
the Charusila Trust is a private endowment created for
the worship of a family idol in which the pμblic are not
interested, as found by the High Court and (2) if the
answer to the first question is in the negative, does the
Act apply by reason of s. 3 thereof to trust properties
which are situate outside the State of Bihar.
We now proceed to consider and decide these two
questions in the order in which we have stated them.
On behalf of the appellants it has been contended that
on a true construction of the deed of trust, the Charusila Trust must be held to be a public religious trust.
The learned Judges of the High Court emphasised that
part of the preamble wherein it was stated that the
settlor had installed a deity called Iswar Srigopal in her
house and had been regularly worshipping the said
deity, which circumstance (according to them) showed
that in its origin the endowment was a private endowment created for the worship of a family idol in which
the public were not interested, and the learned Judges
were further of the view that the installation of the
said deity in one of the two temples and of the marble
image of Sri Balanand Brahmachari in the other
temple did not alter the nature of the endowment
which continued to be a private endowment; they also
expressed the opinion that the provision in the trust
deed for the establishment of a hospital for Hindu
females and a charitable dispensary for patients of any
religion or creed was merely incidental to the other
main objects of the endowment. These findings of the
(r) Mahant Ram Saroop Dasji v. S, P. Sahi, seep. 583, ante.
(2) S.C.R.
SUPREME COURT REPORTS
609
High Court have been seriously and strenuously chalz959r
lenged before us.
'
W
h•
• h
b
'd
h
h
State of Bihar
e say t IS wit respect, ut we cons1 er t at t e
learned Judges of the High Court have failed to give
Charu~ia Dasi
to several material clauses of the trust deed their due
weight and these have an important bearing on the s K. Das J.
question in issue. It is true that the settlor said that
• she had installed the deity Iswar Srigopal in her house
and she had been regularly worshipping the deity since
such installation ; if the trust had. been created only for '
the purpose of continuing such family worship, the
conclusion would no doubt be that the endowment was
wholly of a private character in which the public had
no interest. That was not, however, what was done.
The settlor created the trust for the construction of
two temples, in one of which was to be installed the
deity Iswar Srigopal and in the other the marble image
of her preceptor; the trustees consisted of persons three
of whom were strangers to the family, though the settlor reserved to herself the power to remove in her
absolute discretion any one or more of the trustees for
misconduct by reason of change of religion, etc. One
of the relevant considerations is if by the trust deed
any right'of worship has been given to the public or
any section of the public answering a particular description. One of the clauses of the trust deed reads :
"The 'pronamis' and perquisites to be offered to
the deities and image in the J ugal Mandir shall form
part of the Srimati Charusila Trust Estate and neither
the shebait nor any one else shall have interest or
claim in or over same."
This clause to which the learned Judges of the High
Court have made no reference shows that the right of
worship was not confined to the family of the settlor
or founder, but was given to other members of the
Hindu public who could offer. " pronamis " and perquisites to the deities, and those 'pronamis' and
perquisites were to fori:n part of the trust ·estate.
Schedule E of the deed gives details of the festivals
and ceremonials to be performed for the deity and the
image of Sri Balanand Brahmachari. One of the ceremonials is a "Jal Chhatra" (free distribution of
77
I959
State of Bihar
v.
Charusila Dasi
S. K. Das j.
'
610
SUPREME COURT REPORTS [1959] Supp.
WIJ,ter); another is" annakoot" (distribution of food)
at tho time of Diwali, the approximate .oxpenditure
being fixed at Rs. 500. A third ceremony is a "bhandara ",culminating in free distribution of food, of the
Mata,ji of Sri Balanand Brahmachari. These are ceremonies which even if ancillary to "deva-sheba, ",
appea,r prima facie to confer benefit on the genernl
body gf worshippers. Though not conclusive by themselves, they have to be considered in the light of the
other main provisions of the trust deed. The other
festivals which have to be performed as a rule for tho
deity are s.nch well-known festivals a,s Hath Yatra,
Jhulan, Janmastami, Rash and Do! (Ho1i) in which
members of the Hindu community usually take part
in large numbers, and the scale of expenses laid down
shows that the festivals are to be performed on a large
scale so as to enable a large number of persons to take
part in them. Even with regard to the special festivals
for Sri Balanand Brahmacha,ri on the occasion of the
Ja,nmatithi, Gurupurnima and Tirodhan, the provisions of the trust deed contemplate that they are to be
performed on a large scale so that other disciples of
Sri Balananda Brahmachari may also join in them.
Even the constitution of the committee of trustees is
such as would show that the endowment is not a mere
private endowment. The trust deed says-
" In filling up a vacancy the trustees shall see tlrnt
in the Board of Trustees there shall be, if available,
one who is the seniormost lineal male descendant of
Akshaya Kumar Ghose, the deceased husband of the
settlor, who is eligible and willing and capable of acting
as a trustee, another who is a trustee of the Sree Sree
Balanand Trust created at Deoghar by the said Sree
Bala1rnndji Brahmachari Maharaj of sacred memory,
and a third who shall be disciple ofSree Sree Balanand
order, that is to say, any one of the disciples of the said
Sree Sree Balanand Brahmachari Maharaj of sacred
memory and his disciples and the disciples of the latter
and so on if such a disciple is willing, eligible and
capable of acting as a trustee of the said Trust hereby
created, provided al ways that the foll number of trustees shall at all times be five in number and no one
(2) S.C.R. SUPREME COURT REPORTS
611
shall be eligible to be a trustee unless he be adult male,
pious, Bengali Hindu and provided also that the
r959
· State of Bihar
shebait of Sree Gopal and the shebait of Sree Baleshv.
wari Devi of the Ashram Deoghar shall under no
Charusita Dasi
circumstances be eligible to be a trustee under these
presents save and except in the case of the settlor who
shall so long as she lives to both a trustee and a
shebait."
We may here draw attention to the formation of the
temple committee as envisaged by the trust deed. It
says that the temple committee shall consist of the
Jugal Mandir shebait for the time being who shall be the"
ex officio member and president of the committee and
the other members who will be appointed or nominated by the trustees shall consist of six pious Hindus
who must be residents of Deoghar and of whom at
least four shall be Bengalis. If the trust were created
for the worship of a family idol, one would not expect
provisions of this nature which vest the management
of the temple and the "sheba puja " in members of
the public outside the family of the settlor.
Besides the aforesaid provisions, there is in express
terms the imposition of a trust in favour of the public
so far as the hospital and the charitable dispensary
are concerned. It is necessary to quote here cl. 8 of
the trust deed. That clause reads:
" To establish or cause to ~ established and run
and manage in Deoghar a hospital for Hindu females
only to be called in memory of the husband of the
settlor, since deceased, the " Akshaya Kumar Female
Hospital " and an attached out-door Charitable Dispensary for all out-patients of any religion or creed
whatsoever and out of the said income to pay and/or
spend for the objects of the said Hospital and out-door
Dispensary annually a sum of rupees twelve thousand
or such sum as will be available and sufficient after
meeting the aforesaid charges and expenditure and
after paying the allowance of the shebait and trustees
and members of the temple committee and the establishment charges of offices at Calcutta and Deoghar
and of the temple estabJishment hereinafter mentioned
provided however that the work of the establishment
S. J(. Das ].
•
'959
Stale of Bihar
v.
Charusila Dasi
S. K. Das].
•
612
SUPREME COURT REPORTS
[1959] Supp.
of the Hospital and out.door Charitable Dispensary
shall not be taken in hand by the trustees until the
construction of the temple and installation of the deities hereinbefore mentioned."
The trust deed further states that the female hospital
and charitable dispensary shall, so long as the settlor
is alive, be located in a house to be rented in Deoghar
and after her death shall be shifted to and located in
Charu Niwas.· Charu Niwas was, however, sold by an
. order of the Calcutta High Court and the sale proceeds,
it is stated, were appropriated towards the satisfaction
"of the debts and liabilities of the trust estate. One
clause of the trust deed relating to the hospital and
the charitable dispensary says:
"The object of the said Hospital shall be to provide Hindu females with gratuitous medical and surgical and maternity advice and aid and also to admit
them as indoor patients in conformity with such rules
and regulation as may be made by or with the sanction of the Board of Trustees. The outdoor Charita~e Hospital shall be run as the trustees shall provide
by rules. In furtherance of these objects, its funds
may be expended in subscriptions or contributions to
convalescent and other similar institutions and to
other special hospitals and in sending patients to
and maintaining them in such institution and hospitals provided that tb.e sum so expended in any one
year shall not exceed rupees one thousand or such sum
as may be fixed by the trustees from time to time."
The learned Judges of the High Court have expressed the view that these provisions for the estab_ lishment of a hospital and charitable dispensary are
merely incidental or ancillary to the other main objects
of the trust. With great respect, we are unable to
appreciate how the establishment of a hospital and
charitable dispensary of the nature indicated in the
trust deed can be said to be ancillary or incidental to
other objects of the ~rust, viz., the construction of two
temples and the installation of the deities therein. In
clear and unequivocal terms the trust deed imposes a
dis~inct and independent trust in favour of a considerable section of the public for whose benefit the hospital
(2) S.C.R. SUPREME COURT REPORTS
613
and the charitable dispensary are to be established.
It is true th::i,t the establishment of the hospital and
the charitable dispensary is to be taken in hand after
·the construction of the temples and the installation of
the deities; that circumstance, however, does not make
the trust in relation to the hospital and the dispensary
any the less important or even merely incidental or
ancillary to the other trusts. It merely determines the
priority of time when the different trusts created by
the deed are to be given effect to. The High Court
has placed reliance on the decision in Prasaddas Pal v.
Jagannath Pal (1).
That was a case in which by the
deed of endowment were dedicated certain houses and
premises to the "sheba ,, of a family idol established
in one of the said houses and for feeding the poor and
carrying out other charitable objects ; the deity was
installed inside one of the residential quarters, the
" shebaitship " was confined to the members of the
family of the founder, and the feeding of the poor and
of students, in case the income of the debutter property increased, was found to be part and parcel of
the ";debasheba ",and in those circumstances it was
held that the feeding of the poor efo. was not an independent charity but incidental to the main purpose of
the endowment, viz., the "puja " of the deity. We are
unable to hold that the same considerations apply to
the trust before us.
In Deoki N andan v .- M urlidhar (2) this Court considered the principles of law applicable to a determination of the question whether an endowment is public
or private, anq observed:
"The cardina.l 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 i 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
(1) (1932) I.L.R. (io C"-1. 538.
(2) [1956] S.C.R. 756, 762.
r959
State of Bihar
v.
Charusila Dasi
S. K. Das].
r959
State uf BihaY
v.
Charusila Dasi
S. K. Das j.
614
SUPREME COURT l'tEPORTS [1959] Supp.
where the beneficiaries are not members of a family or
a specified individual, then the endowm~IJt can only
be regarded as public, intended to benefit the general
body of worshipper's."
One of the facts which was held in that case to indicate that the endowment was public was that the idol
was installed not within the precincts of residential
quarters but in a separate building constructed for
that very purpose on a vacant site.
We do not suggest that such a fact is by itself decisive of the question. The fact that the temple is outside the dwelling
house is only ·a circumstance in favour of it being
regarded a public temple, particularly in Madras
(except Malabar); there are, however, private temples
in Bengal which are built outside the residential
houses of donors (see the Hindu Law of Religious and
Charitable Trust, Tagore Law Lectures by the late
Dr. B. K. l\lukherjea, 1952 edition, p. 188). In the case
before u~, the two temples were constructed outside
the residential quarters, but that is only one of the
relevant circumstances.
We must construe the deed
of trust wit.h reference to all its clauses and so construed, we have no doubt that the trusts imposed
constitute a public endowment. There is one other
point to be noticed in this connexion.
The deed of
trust in the present case is in the English form aml the
settlor has transferred the properties to trustees who
are to hold them for certain specific purposes of religion and charity; that in our opinion is not decisive
but is nevertheless a significant departure from the
mode a private religious endowment is commonly
made.
It is necessary now to refer to a decision of the Cli'lcutta High Court, In re Oharusila Dasi (1)
relating
to this very trust. The question for oonsideration in
that case was the assessment of income-tax on the income of this trust estate for the accounting year 193839. The trustees were assessed upon the whole income
of the trust. The trustees appealed against the asse'ssment and contended that the entire trust was for public,
religious and charitable purposes and the whole income
(1) I.LR. [1946] r Cal. 473.
(2) S.C.R. SUPREME COURT REPORTS
615
fell within cl. (1) of sub-s. 3 of s. 4 of the Income-tax
Act. The contention of the Commissioner of Income-tax
was that the trust was no more than a private religious
trust and the income did not enure for the public benefit, save with respect to that part of the income which
was to be devoted to the hospital and dispensary and
to which the latter part of cl. (1) applied.
A reference
was accordingly made to the High Court and the
question framed was whether on a proper construction
of the deed of trust, so much of the income of the
trust as was not applied for the purpose of constructing and maintaining the female hospital was exempt
from tax under the provisions of s. 4(3) of the Indian
Income-tax Act. It was pointed out before the High
Court that no part of the income of the trust during
the accounting year was devoted to the hospital and
dispensary and it was .conceded that that part of the
income which would be devoted to those institutions
would fall within the exempting clause. It so happens
that the learned counsel who argued the case on behalf
of the trustees in the Cale utta High Court in the
income-tax reference is the same counsel who has
argued the case before us on behalf of Srimati Charusila Dasi.
The contention now is that the trust in its
entirety is a private religious trust. Eleven circumstances were referred to by learned counsel in the
income-tax reference in support of his contention that
the entire trust as ascertained from the trust deed was
of a public nature. Gentle, J., with whom Ormond, J.,
agreed, held that on a proper construction of the deed
of trust, so much of the income of the trust as was not
applied for th~ purpose of constructing and maintaining the female hospital was not exempt from tax under
the provisions of s. 4(3) of the Indian Income-tax Act.
This decision, it must be stated at once, does not
wholly support the present respondent. So far as the
hospital and the dispensary are concerned the trust
was held to be a public trust.
We are of the view that
having rega.rd to the main clauses of the trust deed to
which we have already made a reference, the trusts in
favour of the deity Iswar Srigopal and the image of
Sri Balanand Brahmachari are also of a public nature.
1959
State of Bihar
v.
C harusila Dasi
S. J(. Das j.
'959
State of Bihar
v.
C harusila Dasi
S. K. Das j.
616
SUPREME COURT REPORTS [1959] Supp.
One of the points which was emphasised before the
Calcutta High Court was the provision with regard to
" pronamis " and perquisites to be offered to the deity
and the image.
The High Court said :
" This provision does not indicate the creation of
a trust in favour.of the public, bnt, on the contrary, it
denies the right of any one, which must include any
member of the public, having a right to the pronamis.
In its terms, the deed negatives that benefit is con,
ferred upon the·public ".
The aforesaid observations appear to us, with respect,
to be based on a misconception. When a member of
the public makes an offering to a deity, he does not
retain any right to what he has offered.
What he
offers belongs to the deity.
When we talk of the right
of members of the public or a considerable section
thereof, we refer to the right of worship or the right to
make offerings in worship of the deity and not of the
right to the offerings after they have been made.
With regard to other clauses of the trust deed also
we take a view different from that of the learned
Judges who .decided the income-tax reference.
We
have already explained our view in the preceding
paragraphs and it is unnecessary to reiterate it. The
conclusions at which we have arrived on a construction of the deed of trust is that it creates a religious
and charitable trust of a public nature.
Now, we proceed to a consideration of the second
point. Section 3 of the Act says-
" This Act shall apply to all .religious trusts,
whether created before or after the commencement of
this Act, any part of the property of which is situated
in the State of Bihar ".
The argument before us on behalf of the respondent is
this. Under Art. 245 of the Constitution, Parliament
may make laws for.the whole or any part of the terri,.
tory of India and the legislature of a State may make
laws for the whole or any part of the State. Clause (2)
of the said Article further states that no I.aw made by
Parliament shall be deemed to be invalid on the
ground that it would have extra-territorial operation.
Article 246 gives the distribution of legislative power;
(2) S.C.R.
SUPREME COURT REPORTS
617
Parliament has exclusive power to make laws with
respect to any of the matters enumerated in what has
been called the Union List; Parliament as also the
legislature of a State have power to make laws with
respect to any of the matters enumerated in the Concurrent List; the legislature of a State has exclusive
power to make laws for such State or any part thereof with respect to any of the matters enumerated in
the State List. Item 28 of the Concurrent List is-
" charities and charitable institutions, charitable and
religious endowments and religious institutions".
Learned counsel for the respondent contends that by
reason of the provisions in Arts. 245 and 246 of the
Constitution read with item 28 of the Concurrent List,
the Bihar legislature which passed the Act had no
power to make a law which has operation outsidE) the
State of Bihar; he further contends that under s. 3 the
A.ct is made applicable to all religious trusts, whether
created before or after the commencement of the Act,
any part of the property of which is situated in the
State of Bihar; therefore, the Act will apply to a
religious institution which is outside Bihar even though
a small part of its property may lie in that State. It is
contended that such a provision is ultra vires the
power of tho Bihar Legislature, and Parliament alone
can make a law which will apply to religious institutions having properties in different States. Alternatively, it is contended that even if the Act applies to·a
religious institution in Bihar a small part of the property of which is in Bihar, the provisions of the Act
can have no application to such property of the institution as is outside Bihar, such as the Calcutta properties in the present case.
It is necessary first to determine the extent of the
application of the Act with reference to ss. 1 (2) and 3
of the Act read with the preamble. The preamble
states:-
" Whereas it is expedient to provide for the better
administration of Hindu religious trusts in the State
of Bihar and for the protection and preservation of
properties appertaining to such trusts",
78
.
I959
State of Bihar
v.
Chan<sila Dasi
S. K. Das ].
I959
State of Bihar
v.
Charusila Dasi
S. K. Das].
618
SUPREME COURT REPORTS [1959] Supp.
It is clear from the preamble that the Act is intended
to provide for the better administration of Hindu
religious trusts in the State of Bihar. Section 1 (2)
states that the Act extends to the whole of the State
of Bihar, and s. 3 we have quoted earlier. If these two
provisions are read in the context of the preamble,
they can only mean that the Act applies in cases in
which (a) the religious trust or institution is in Bihar
and (b) any part of the property of which institution
is situated in the State of Bihar. In other words, the
aforesaid two conditions must be fulfilled for the
application of the Act.