# MAHANT RAM SAROOP DASJI v. S. P. SARI, SPECIAL OFFICER-IN-CHARGE OF THE HINDU RELIGIOUS TRUSTS AND OTHERS

- **Citation:** [1959] Supp. 2 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** No. 343 of 1955
- **Bench:** S. R. Das, s. K. DAS, P. B. Gajendragadkar, K. N. WANCiIOO, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahant-ram-saroop-dasji-v-s-p-sari-special-officer-in-charge-of-the-hindu-1702
- **Pages:** 19

## Headnote

Hindu Religious Trusts-Private Trusts-Applicability of
Bihar Hindu Religious Trusts Act-Religious Endowments, public
and private-Distinction between-Definition of "religious trust "
-Scope and Effect-Bihar Hindu Religious Trnsts Act, z950
(Bihar I of z95z), SS. 2(I), 4(5), ]O(I), 32, 48·
The appellant as the Mahant of the Salouna asthal made an
application in the High Court under Art. 226 of the Constitution praying inter alia for the issue of a writ quashing the order
of the Bihar State Board of Religious Trusts requiring the appellant to submit a return of income and expenditure under s. 59 of
the Bihar Hindu Religious Trusts Act, 1950, on the grounds, inter
alia, that the Salouna asthal was a private institution and not a
religious trust within the meaning of the Act and that the Act
did not apply to private trusts.
The High Court took the view
that the language of s. 2(1) of the Act, which defined a " religious
trust", was wide enough to cover within its -ambit both private
and public trusts recognised by Hindu law and that the Salouna
asthal did not come within any of the two exceptions recognised
by the section.
Held, that on a true and proper construction of the provisions of the Act, considered in the background of previous
legislative history with regard to religious, charitable or pious
trusts in India, the definition clause in s. 2(1) of the Act
does not include within its ambit private trusts and that the
provisions of the Act do not apply to such trusts.
The essential distinction in Hindu law between religious
endowments which are public and thos! which are private is that
in a public trust the beneficial interest is vested in an uncertain
and fluctuating body of persons, either the public at large or some
considerable portion of it answering a particular description ; in
a private trust the beneficiaries are definite and ascertained
individuals or who within a time can be definitely ascertained.
The fact that the uncertain and fluctuating body' of persons is a
section of the public following a particular religious faith or fa
only a sect of persons of a certain religious persuasion would not
make any difference in the matter and would not make the trust
a private trust.
I959
April r5.
t959
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. K. Das].
584
SUPREME COURT REPORTS
[1959] Supp.

## Text

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(2) S.C.R. SUPREME COURT REPORTS
583
MAHANT RAM SAROOP DASJI
v.
S. P. SARI, SPECIAL OFFICER-IN-CHARGE
OF THE HINDU RELIGIOUS TRUSTS
AND OTHERS
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCiIOO and M. HIDAYATULLAH, JJ.)
Hindu Religious Trusts-Private Trusts-Applicability of
Bihar Hindu Religious Trusts Act-Religious Endowments, public
and private-Distinction between-Definition of "religious trust "
-Scope and Effect-Bihar Hindu Religious Trnsts Act, z950
(Bihar I of z95z), SS. 2(I), 4(5), ]O(I), 32, 48·
The appellant as the Mahant of the Salouna asthal made an
application in the High Court under Art. 226 of the Constitution praying inter alia for the issue of a writ quashing the order
of the Bihar State Board of Religious Trusts requiring the appellant to submit a return of income and expenditure under s. 59 of
the Bihar Hindu Religious Trusts Act, 1950, on the grounds, inter
alia, that the Salouna asthal was a private institution and not a
religious trust within the meaning of the Act and that the Act
did not apply to private trusts.
The High Court took the view
that the language of s. 2(1) of the Act, which defined a " religious
trust", was wide enough to cover within its -ambit both private
and public trusts recognised by Hindu law and that the Salouna
asthal did not come within any of the two exceptions recognised
by the section.
Held, that on a true and proper construction of the provisions of the Act, considered in the background of previous
legislative history with regard to religious, charitable or pious
trusts in India, the definition clause in s. 2(1) of the Act
does not include within its ambit private trusts and that the
provisions of the Act do not apply to such trusts.
The essential distinction in Hindu law between religious
endowments which are public and thos! which are private is that
in a public trust the beneficial interest is vested in an uncertain
and fluctuating body of persons, either the public at large or some
considerable portion of it answering a particular description ; in
a private trust the beneficiaries are definite and ascertained
individuals or who within a time can be definitely ascertained.
The fact that the uncertain and fluctuating body' of persons is a
section of the public following a particular religious faith or fa
only a sect of persons of a certain religious persuasion would not
make any difference in the matter and would not make the trust
a private trust.
I959
April r5.
t959
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. K. Das].
584
SUPREME COURT REPORTS
[1959] Supp.
CIVIL
APPELLATE JURISDICTION:
No. 343 of 1955.
Civil Appeal
Appeal from the judgment and order dated September 13, 1954, of the Patna High Court in Misc. Judl.
Case No. 39of1954.
L. K. Jha, B. K. P. $inha and R. G. Prasad, for
the appellant.
Mahabir Prasad, Advocate-General for the State of
Bihar, Ishwari Nandan Prasad and S. P. Varma, for
the respondents.
1959. April 15. The Judgment of the Court was
delivered· by
S. K. DAS, J.-This appeal on a certificate granted
by the High Court of Patna is from a judgment of the
said High Court dated September 13, 1954, in a writ
proceeding numbered as Miscellaneous Judicial Caso
No. 39 of 1954 in that court, which the appellant had
instituted on an application made under Art. 226 of
the Constitution in the circumstances stated below.
It was alleged that one Mahatma Ma~t Ramji, a
Hindu saint, owned and possessed considerable properties in the district of Monghyr in the State of
Bihar. About two hundred years ago, he built a small
temple at Salouna in which he installed a deity called
Sri Thakur Lakshmi Narainji. This temple came to
he known as the Salouna asthal. Mast Ramji died
near about the year 1802. He was succeeded in turn
by some of his disciples, one of whom was Mahant
Lakshmi Dasji. - He built a·new temple in 1916 into
which he removed the deity from the old temple and
installed two new deities, Sri Ram and Sita. In 1919
Mahant Lakshmi Dasji died. He left three disciples,
Vishnu Das, Bhagwat Das and Rameshwar Das. A
dispute arose among these disciples about succession
to the gaddi, which was settled sometime in February
1919. By that settlement it was arranged that Vishnu
Das would succeed Mahant Lakshmi Das as the
shebait and would be succeeded by Bhagwat Das, and
thereafter the ablest " bairagi " · of the asthal, born of
Brahmin parents, would be eligible for appointment as
(2) S.C.R.
SUPREME COURT REPORTS
585
shebait.
Bhagwat Das died sometime in 1935 and
again a dispute arose between one Rameshwar Das,
the youngest chela of Mahant Lakshmi Das, and
Ram Saroop Das who is the present Mahant and appellant before us. Rameshwar Das, it appears, filed
an application under the Charitable and Religious
Trusts Act (XIV of 1920) for a direction upon Mahant
Ram Saroop Das to render an account of the usufruct
of the asthal. This application was contested by
Mahant Ram Saroop Das, who said that the properties appertaining to the Salouna asthal did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act
(XIV of 1920) and therefore he was not accountable
to any person. Mahant Ram Saroop Das also applied
for and obtained permission under s. 5 of the aforesaid
Act to institute a suit for a declaration that the
Salouna asthal and the properties thereof did not constitute a public trust. Such a suit was brought in the
court of the Subordinate Judge of Monghyr who, however, dismissed the suit. Then, there was an appeal to
the High Court of Patna and by the judgment and decree passed in First Appeal No. IO of 1941 dated March
5, 1943, the High Court gave a declaration to the effect
that the Salouna asthal and-the properties appertaining thereto did not constitute a public trust within the
meaning of the provisions of the Charitable and Religious Trusts Act; (XIV of 1920). Some eight years
later, the Bihar .Hindu Religious Trust Act, 1950
(Bihar I of 1951), hereinafter referred to as the Act,
was passed by the Bihar Legislature and received the
President's assent on February 21, 1951. It came into
force on August 15, 1951. The Bihar State Board of·
H.eligious Trusts (one of the respondents before us) was
constituted under this Act to discharge in regard to
religious trusts other than Jain religious trusts the
functions assigned to it under the several provisions of
the Act. On November 14, 1952, this Boa.rd, in exercise of the powers conferred on it under s. 59 of the
Act, asked the appellant to furnish to the Board a
return of the income and expenditure of the asthal.
74
x959
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. K. Das].
I959
Mahant Ram
Saroop Dasji
v.
S,_p, Salli
S. K. Das].
586
SUPREME COURT REPORTS [1959) Supp.
The appellant replied by a letter dated December 1,
1952, that the Salouna asthal wa~ a private institution
to which the Act did not apply, and also drew the attention of the Board to the judgment and decree of
the High Court in First Appeal No. lO of 1941.
The
Board, however, gave a reply to the effect that it was
not bound by the declaration made by the High Court
and asked the appellant to obtain a declaration in
respect of his claim under the provisions of the Act
or to snbmit a return. Thereafter, on January 22,
1954, the appellant made his application under
Art. 226 of the Constitution in which he averred
(a) that the Salouna asthal was not a religious trust
within the meaning of the Act ; (b) that the properties
appertaining thereto did not constitute a religious trust
and the appellant was not a trustee within the meaning of the Act; (c) that the Act did not apply to private trusts; and (d) that the demand made by the
respondent Board amounted to an interference with
the appellant's fundamental right to hold the asthal
properties. The appellant accordingly prayed. for the
issue of a writ quashing the order of the respondent
Board requiring the appellant to submit a return of
income and expenditure and also for an order directing the respondent Board and its officers to refrain
from interfering with the appellant in his right of
management of the Salouna asthal and the properties
appertaining thereto.
The High Court of Patna by its judgment complained against dismissed the petition on the main ground
that the language of s. 2(1) of the Act, which defined
a 'religious trust ' for the purposes of the Act, was
wide enough to cover within its ambit both priva:te
and public trusts recognised by Hindu law to be religious, pious or charitable and that the Salouna asthal
did not come within any of the two exceptions recognised by the section, namely, (1) a trust created according to Sikh religion or purely for the benefit of the
Sikh community; and (2) a private endowment created for the worship of a family idol in which the public
are not interested. 'fhe High Court also held that the
materials on the record were not sufficieμt to decide
(2) S.C.R.
SUPREME COURT REPORTS
587
the question whether the Salouna asthal and the
properties thereof constituted a religious trust of a
public character; but proceeding on the footing that
the Act applied to private trusts, it expressed the view
that the restrictions imposed on the trustee by the
several provisions of the Act were not violative of the
fundamental right .guaranteed under Art. 19(l)(f) of
the Constitution, inasmuch as there was no legal
reason why the State should not exercise superintendence and control over the administration of private
trusts as in the case of public trusts. In a judgment
dated October 5, 1953, dealing with the same question
in some earlier cases, the High Court had, however,
expressed a somewhat different view. It had then
referred to the principle that when a legislature with
limited power makes use of a word of wide and general
import, the presumption must be that it is using the
word with reference to what it is competent to
legislate, and adopting that principle it said that s. 2(1)
of the Act should be read in a restricted sense so as to
include only Hindu religious or charitable trusts of a
public character and the provisions of the Act would
accordingly apply to such trusts only.
The principal point urged before us on behalf of the
appellant is one of construction-do the provisions of
the Act apply to private religious trusts? The contention of the appellant is that they do not. It is necessary
to refer at this stage to some of the relevant provisions of the Act. In connected Ci vii Appeals Nos. 225,
226, 228, 229 and 248 of 1955 (1) in which also we are
delivering judgment today, we have referred to the
provisions of the Act in somewhat greater detail. In
this appeal we shall refer to such provisions only as
have a bearing on the principal point.
We start with the definition clause in s. 2 (1). It
says-
"' religious trust ' means any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or chl:!>ritable,
but shall not include a trust created according to the
Sikh religion or purely for the benefit of the Sikh
(1) Mahant Moti Das v. S.P. Sahi, seep. 563 ante.
1959
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. K. Das].
I959
111 ahant Ratn
Saroop Dasji
v.
S. P. Saiii
S. [(. Das ].
588
SUPREME COURT REPORTS [1959] Supp.
community and a private endowment created for the
worship of a family idol in which the public . are not
interested ; ".
The expression ' trust property ' in s. 2 (p) means tho
property appertaining to a religious trust and the
expression ' trustee ' in s. 2 (n) is defined in the follow -
ing terms-
"' trustee' means any person, by whatever
designation known, appointed to administer a religious
trust either verbally or by or under any deed or
instrument or in accordance with the usage of such
trust or by the District Judge or any other competent
authority, and includes any person appointed by a
trustee to perform the duties of a trustee and any
member of a Committee or any other person for the
time being managing or administering any trust property as such; ".
The next important section for our purpose is s. 4 as
amended by Bihar Act, XVI of 1954, which gives effect
to certain amendments and repeals. Sub.section (5) of
s. 4 is in these terms-
" The Religious Endowments Act, 1863 (XX of
1863), and section 92 of the Code of Civil Procedure,
1908 (V of 1908), shall not apply to any religious trust
in this State, as defined in this Act."
-Chapter V of the Act contains a series of sections
which delimit the powers and duties of the State Board
of Religious Trusts. Section 28, the opening section
of the chapter, states the general powers and duties of
the Board. Section 29(1) has a bearing on the question at issue before us. It states inter alia that where
the supervision of a religious trust is vested in any
committee or association appointed by the founder or
by a competent court or authority, such committee or
association shall continue to function under the general
superintendence and control of the Board unless
superseded by the Board under sub-s. (2) of the section. If an order of supersession is passed, the committee er association or any other person interested in
the religious trust may within 30 days of the order of
the Board under sub-s. (2) make an application to the
·District Judge for varying, modifying or setting aside
(2) S.C.R. SUPREME COURT REPORTS
589
the order of supersession. Section 30, so far as it is
relevant for our purpose, states-
" When any object of a religious trust has ceased
to exist or has, in the opinion of the Board, become
impossible of achievement, the Board may, of its own
motion or on the application of any Hindu, after
issuing notice in the prescribed manner, to the trustee
of such trust and to such other person as may appear
to the Board to be interested therein and after making
such inquiry as it thinks fit, determine the object
(which shall;be similar or as nearly similar as practicable to the object which has ceased to exist or become
impossible of achievement) to which the funds, property or income of the trust or so much of such fund,
property or income as was previously expended on or
applied to the object which has ceased to exist or
become impossible of achievement, shall be applied."
Section 32 defines the power of the Board to settle
schemes for proper administration of religious trusts.
It states:
, "32(1). The Board may, of its own motion or on
application made to it in this behalf by two or more
persons interested in any trust,-
(a) settle a scheme for such religious trust after
making such inquiry as it thinks fit and giving notice
to the trustee of such trust and to such other person
as may appear to the Board to be interested therein;
(b) in like manner and subject to the like conditions, modify any scheme settJed under this section or
under any other law or substitute another scheme in
its stead:
Provided that any scheme so settled, modified or
substituted shall be in accordance with the law governing the trust and shall not be contrary to the wishes
of the founder so far as such wishes can be ascertained.
(2) A scheme settled, modified or substituted
instead of another scheme under this section shall,
unless otherwise ordered by the District Judge on an
application, if any, made under sub-section (3) come
into force on a day to be appointed by the Board in
this behalf and shall be published in the official
gazette.
r959
l\'1ahant Rani
Saroop Dasji
v.
S. P. Saki
S. K. Das].
I959
Jl1 ah ant llam
Sa~oop DasJi
v.
S. P. Sahi
S, J{. Das].
590
SUPREME COURT REPORTS [1959] Supp.
(3) The trustee of, or any other person interested in,
such trust, may within three months from the date of
the publication in the official gazette of the scheme so
settled, modified or substituted instead of another
scheme, as the case may be, make an application to
the District Judge for varying, modifying or setting
aside the scheme; but, subject to the result of such
application, the order of the Board under sub.sections
(ll and (2) shall be final and binding upon the trustee
of the religious trust and upon every other person
interested in such religious trust.
(4) An order passed by the District Judge on any
application made under sub-section (3) shall be final."
It may be here stated that the expression "person
interested in religious trust " is defined in s. 2(g). The
definition is in these terms-
"" person interested in a religious trust" means
any person who is entitled to receive any pecuniary or
other benefit from a religious trust and includes,-
(i) any_ person who has a right to worship or to
perform any rite, or to attend at the performance of
any worship or rite, in any religious institution connected with such trust or to participate in any religiG>us
or charitable ministration under such trust;
(ii) the founder and any descendant of the
founder ; and
· (iii) the trustee;''.
The only other section which need be quoted in full is
s. 48. of the Act which is in these terms :-•
"48(1). The Board, or with the previous sanction
of the Board, any person interested in a religious trust
may make an application to the District Judge for an
order-
( a) removing the trustee of such religious trust, if
such trustee-
(i) acts in a manner prejudicial to the interest of
the 'said trust ; or
(ii) defaults on three or more occasions in the
payment of any amount payable under any law for
the time being in force in respect of the property or
income of the said trust or any other statutory charge
on such property or income; or
(2) S.C.R. SUPREME COURT REPORTS
591
(iii) defaults on three or more occas10ns in the
payment of any sum payable to any beneficiary under
the said trust, or in discharging any other duty imposed upon him under it; or
(iv) is guilty of a breach of trust.
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries; or
(e) granting such further or other relief as the
nature of the case may require.
(2) The order of the District Judge under subsection (1) shall be final".
Now, the argument on behalf of the appellant is
that on a true and proper construction of the aforesaid
provisions of the Act, considered in the background of
previous legislative history with regard to religious,
charitable or pious trusts in India, the definition clause
in s. 2 (l) of the Act is confin~d to religious, pious or
charitable trusts of a public nature recognised as such
by Hindu law. In order· to appreciate this argument
it is necessary to state first the distinction in Hindu
law between religious endowments which are public
and those which are private. To put it briefly, the
essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating
body of persons, either the public a.t large or some
considerable portion of it answering a particular description; in a private trust the beneficiaries are definite
and ascertained individuals or who within a definite
time can be definitely ascertained. The fact that the
uncertain and fluctuatiqg body of persons is a section
of the public following a particular religious faith or
is only a SeJJt of persons of a certain religious persuasion would not make any difference in the matter and
would not make the trust a private trust (see the
observations in Nabi Shirazi v. Province of Bengal) (1).
The distinction in this respect between English law and
Hindu law has· been thus stated by Dr. Mukherjea in
his Tagore Law Lectures on the Hip.du Law of Religious
and Charitable Trusts (1952 Edition, pp. 392-396) :
"In English law charitable trusts are synonymous
(1) (1942) I.L.R. I Cal. 2II 1 228.
I959
Mahant Ram
Saroop Dasji
v.
S. P. Salli
S. K. Das].
'959
Maltant Ram
Saroop Dasji
v.
S. P. Sahi
S, K, Das].
592
SUPREME COURT REPORTS [1959] Supp.
with public trusts and what is called religious trust is
dnly a form of charitable trust. The beneficiaries in
a charitable trust being the general public or a section
of the same and not a determinate body of individuals,
the remedies for enforcement of charitable trust are
somewhat different from those which can be availed
of by beneficiaries in a private trust. In English law
the Crown as parens patriae is the constitutional protector of ali property subject to charitable trusts, such
trusts being essentially matters of public concern .......
One fundamental distinction _ between English and
Indian law lies in the fact that there can be religious
trust of a private character under Hindu law which is
not possible in English law ".
On behalf of the appellant it has been pointed out
that so far as public religious and charitable trusts are
concerned, there are a number of legislative enactments, both general and local, which aim at controlling the management and administration of such trusts
and provide for remedies in cases of mal-administration. So far as private religious trusts are concerned,
there are no specific statutory enactments and such
trusts are regulated by the general law of the land.
The British Government, when it was first established
in India, following the tradition of the former rulers,
asserted by virtue of its sovereign authority_ the right
to visit public religious and charitable endowments
and to prevent and redress abuses in their management. A Regulation for that purpose was passed in
Bengal in 1810 (Regulation XIX of 1810) and one for
Madras in 1817 (Regulation YII of 1817). In Bombay
also there was a Regulation (XVII of 1827) which
related to endowments of the ,same chara(lter. In 1863
was passed the Religious Endowments Act (XX of
1863), which repealed the Bengal and Madras Regulations in so far as they related to purely religious institutions and their control was transferred from the
Board of Revenue to non-official committees constituted under the Act of 1863. It is worthy of note, how-
.ever, that the Act of 1863 also applied to public religious endowments only. In course of time it was found
that the Act of 1863 did not provide adequate protec.
(2) S.C.R. SUPREME COURT REPORTS
593
tion to public religious trust against abuses which led
to their control by the State and the remedies provided
by that Act did not go far enough.
Then came the
Charitable Endowments Act, 1890 (VI of 1890), and
the Charitable and Religious Trusts Act, 1920 (XVI of
1920), both of which related to public trusts; the former related exclusively to public trusts for charitable
purposes unconnected with religious teaching or worship while the l.atter related to trusts created for public
purposes of a charitable or religious nature. In the
Civil Procedure Code of 1877 a specific section was
introduced, viz., s. 539, under which a suit could be
instituted in case of any alleged breach of any express
or constructive trust created for public religious or
charitable purposes. This section was later amended,
and in this amended form it became s. 92 of the present Civil Procedure Code, the first condition necessary
to bring a case within its purview being the existence
of a trust, whether express or constructive for public
purposes of a religious or charitable nature. It is clear
beyond doubt that a private trust is outside the operation of s. 92, Civil Procedure Code. Of the local Acts,
the earliest was that of the Bombay Presidency of the
year 1863. In more recent years were passed the
Orissa Hindu Religious Endowments Act, 1939, the
Bombay Public Trusts Act, 1950, and the Madras
Hindu Religious and Charitable Endowments Act,
1951, all of which relate to public religious institutions
and endowments. No local Act has been brought to
our notice which clearly or unmistakenly sought to
include within its ambit private religious trusts.
On behalf. of the appellant it has been submitted
that though the definition clause in s. 2 (1) of the Act
is expressed in wide language, other provisions of the
Act make it clear that it is confined to public trusts
only. Section 2 (1) of the Act, we have pointed out,
recognises two exceptions: first, a trust created
according to the Sikh religion or purely for the benefit
of the Sikh community; and, second, a private endowment created for the worship of a family idol, in
which the public are not interest~d. It is not disputed
75
I959
Mahant Ram
Saroop Dasji
v.
S. P. Saki
S. K. Das].
I959
Mahant Ram
Saroop Dasji
v.
S. P. Sdl~i
S. K. Das j.
594
SUPREME COURT REPORTS [1959] Supp.
that the second exception is an instance of a private
trust, in which the p_ublic are not interested.
The
High Court has taken the view that inasmuch as the
definition clause mentions by way of an exception
only one instance of a pri:vate endowment, all private
endowments created otherwise than for the worship of a
family idol must be included within the definition· of
the maxim of expressio unius exclusio alterius.
We do
not think that this view is quite correct. First of all,
let us examine some other provisions of the Act which
specifically refer to the definition clause and see what
the legislature has itself taken it to mean. Take, for
example, s. 4 of the Act, as amended by Bihar Act,
XVI ·of 1954. This section amends and repeals certain
earlier Acts like the Charitable Endowments Act, 1890,
and the Ch!'-ritable and Religious Trusts Act, 1920;
both of which we have already pointed out related
exclusively to public trusts. Sub-s. (5) of s. 4 states
tb:at the Religious Endowments Act, 1863, and s. 92 of
the Code of Civil Procedure, 1908, shall.not apply to
any religious trust in the State, as defined in this Act:
'The Religious Endowments Act, 1863, and s. 92, Civil
Procedure Code,-both apply to public trusts; they
have no application to private trusts. If the definition clause was intended to include within its ambit
private trusts (other than those created for the worship of a family idol), then it is difficult to understand
why sub-s. (5) of s. 4 should be worded as it has been
done. That sub-section in effect· says that two earlier
enactments which· apply exclusively to public trusts
shall not apply to any trust (we emphasise the word
' any ') as defined in the Act. If private trusts created
otherwise than for the worship of a family idol w:ere
included in the definition of religious trust, then
sub-s. (5) was entirely otiose or redundant so far as
those private trusts were concerned for the earlier enactments never applied to them. 1'he obvious indication
is that all trusts defined in the Act are public trusts
and, therefore, it became necessary to exclude the
operation of earlier enactments which but for the
exclusion· would have applied to such trusts. If the
intention ofsub-s. (5fof s. 4 was to exclude some t.rusts
(2) S.C.R. SUPREME COURT REPORTS
595
only out of many included within the definition clause
from the operation of the earlier enactments, as is
contended for by the learned Advocate.General of
Bihar, then the use of the word' any' appears to us
to be particularly inapt. Sub-section (5) of s. 4 was
amended by Bihar Act XV~ of 1954.
Before the
amendment it read as follows;
"S. 4(5). The: Religious Endowments Act, 1863,
and section 92 of the Code of Civil Procedure, 1908,
shall not apply to any Hindu Religious Trust in the
State of Bihar."
Prior to the amendment, sub-s. (5) made no reference
to the definition clause; it merely said that two of the
earlier enactments shall not apply to an:l' Hindu Reli:
gious Trust in the State of Bihar. The amended subsection, however, specifically refers to the definition
clause and states that two of the earlier enactments,
which apply only to public trusts, shall not apply to
any trusts, as defined in the Act. In our opinion, by
sub-s. (5) of s. 4 the Legislature itself has spoken and
indicated the true scope and effect of the definition
clause.
Secondly, it may be asked why the legislature having before it the earlier enactments which applied to
public trusts only, failed to use the word 'public'
before the word ' purpose ' in. the definition clause ?
This is a pertinent question which must be faced. The
answer, we think, is this. Charitable trusts are public
trusts, both under the English and Indian law; in
England a religious trust being a form of charitable
trust is also public, but in India, according to Hindu
law, religious trnst may be public or private. But the
most usual and commonest form of a private religious
trust is one created 'for the worship of a family idol in
which the public are not interested. Any other private religious trust must be very: rare and difficult to
think of.
Dealing with the distinction between public
and private endowments in Hindu law, Sir Dinshah
Mulla has said at p. 529 of his Principles of Hindu
Law (llth edition)-
" Religious endowments are either public or private. In a public endowment the _dedication is for
r959
Mahanl Ram
Saroop Dasji
v.
S. P. Saki
S. !(. Das J.
I959
Mahant Rain
Saroop Dasji
v.
S. P. Sahi
S. J(. Das ].
596
SUPREME COURT REPORTS [1959] Supp.
the use or benefit of the public. When property is
set apart for the worship of a family god in which the
public are not interested, the endowment is a private
one".
Obviously enough, the definition clause merely quotes
the typical example of a private endowment mentioned above. It is also significant that the exclusion of
an endowment created for the worship of a family idol
is based on the adjectival clause which follows it, viz.,
"in which the public are not interested ". In other
words, the exclusion is based on the essential distinction between a public and private trust in Hindu law.
If the test is that the public or any section thereof
are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows
that there may be a trust created for the worship of a
family idol in which the public may be interested.
Those are cases of trust which began as a· private
trust but which eventually came to he thrown open to
the public. This also indicates that the definition
was intended to cover only public trusts.
We now turn to some of the other provisions of the
Act, which we have earlier quoted~ Section 29(1)
which talks of supervision of a religious trust being
vested in any committee or association appointed by
the founder or by a co)llpetent court or authority is
ordinarily appropriate in the case of a public trust only.
Section 30( 1) which em bodies the doctrine of cypres
permits any Hindu to make an application for invoking the power of the Board to determine the object to
which funds, property and income of a religious trust
shall be applied where the original object of the trust has
ceased to exist or has become impossible of achievement. This section is also inappropriate in the case
of a private trust, the obvious reason being that any
and every Hindu cannot be interested in a private
trust so as to give him a locus standi to make the application. Further, it is difficult to visualise that a
Hindu private debutter will fail, for a deity is immortal. Even if the idol gets broken or is lost or stolen,
another image may be consecrated and it cannot be
said that the original object has ceased to exist. Sec-
(2) S.C.R.
SUPREME COURT REPORTS
597 ·
tion 32 is an important section of the Act and confers
power on the Board to settle schemes for proper
administration of religious trusts. Now, the section
says that the Board may exercise the power of its own
motion or on application made to it in this behalf by
two or more persons interested in any trust. The
language of the section follpws closely the language of
s. 92, Civil Procedure Code, so far as the phrase "two
or more persons iμterested in any trust" is concerned.
It is difficult to understand why in the case of a private trust, it should be necessary that two or more
persons interested in the trust must make the application to settle a scheme for such a trust. In a private
or family debutter the beneficiaries are a limited and
defined class of persons, as for example, the members
of a family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter
property or other neglect of duties, a suit can certainly
be instituted for remedying these abuses of trust.
Under the general law of the land the founder of the
endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter,
for removal of the old trustee and for appointment of
a new one. It is not necessary in such a case that
two or more persons interested in the trust must join
in order to institute the suit. The condition of " two
or more persons" is appropriate only to a public trust,
the reason being that a public trust is a matter of
public concern. Section 48 of the Act is also analogous to s. 92 of the Code of Civil Procedure and one of
the reasons for excluding the operation of s. 92 of the
Code of Civil Procedure from trusts as defined by the
Act is the existence of provisions in the Act which 11re
analogous to s. 92 of the Code of Civil Procedure. This
section is also more appropriate to public trusts than
to private trusts. In fact, the Act contains provisions,
as the preamble states, 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 and for that purpose certain
earlier enactments like the Religious Endowments
Act, 1863, the Charitable Endowments Act, 1890,
1959
Mahant Ram
Saroop Dasji
v.
S. P. Sahi
S. R. Das ].
'
1959
.
M aluuiJ Ram
"Saroop Dasji
v.
S. P. Sahi
S, K. Das ].
. 598
SUPREME COURT REPORTS [1959] Supp.
the Charitable and Religious Trusts Act, 1920 and
the Civil Procedure Code, l908, have eitlier been
amended or excluded from operation. All those earlier
enactments related only to public trusts and if the
intention was that the Act would apply to private
trusts as well, one would expect. that that intention
would be ma.de clear by the use o! unambiguous language. We find, on the contrary, that though the
definition clause in s. 2(1) is expre~sed in somewhat
wide language~ sub-s. (5) of s. 4 makes clear what the
true scope and effect of the definition clause is .
.For the reasons given above, we hold that the definition clause does not include within its ambit private
trusts and the Act and its provisions do not apply to
such trusts.
Learned counsel for the 11 ppella.nt has in the alterna.ti ve argued before us that if the Act appli~s to
private trusts, several of its provisions will be violative of the fundamental right guaranteed to citizens
under Art. 19(l)(f) of the Constitution inasmuch as the
restrictions imposed thereby on trustees of private
trusts, in which the public are not interested, cannot
be justified as reasonable restrictions in the_interests
of the general public within the meaning of cl. (5) of
Art. 19. The High Court negatived this argument
by adopting the rule of English law that in the case
of a charitable corporation where the founder is a
P.rivate person, he and his heirs become visitors in law
aud where such heirs are extinct or incompetent, their
powers devolve on the Cr9wn or the State ~ therefore,
it is in the interests of the general pubhc that the
State should exercise superintendence and control over
the administration of private trusts as in the case
of public trusts. This view of the High Cour.t has
been seriously contested before us, and learned counsel
for the appellant has submitted that there is no warrant for the adoption of'the rule of English law.in view
of the fundameu tu.I distinction bet ween English and
Hindu law as to private riiligious trus£s.
He has also
·drawn our attention to the following. observations of
Dr. "Mukherjea (Hindu Law of Religious and Charitable
Trust, 1952 Edition, p. 393) on this point:
(2) S.C.R.
SUPREME cotrR1r REPORTS
599
"In English law there is a 'visitatorial' power
attached to all eleemosynary corporations. A visitor
has the right to settle disputes between members of
the corporation, to irnrpect· and regulate their actions
and generally to correct all ,abuses and irregularities
in the administration of charity. The law allows· to
the founder of an .eleemosynary institution full powers
to make regulations for its creation and such powers
inclnde the right of nominating visitors. Under the
law of England as it stood before 1926, if a private
person was the founder of a charitable corporation,
then he and his heirs became automatically the visitors. The des9ent, of the rights of a visitor to heirs
has now been abolished by the Administration of
Estates Act, -1925, and it is not clear as to who
would be visitor in default of appointment by the
founder.
Most probably such rights would devolve
upon the Crown as they did when the founder's heirs
became extinct or could not be found or the heir was
a lunatic."
He has further .submitted tlrat whatever be the position in English law, the guarantee of a fundamental
right must depend on· the terms of Art. 19 of the Constitution and such guarantee cannot be whittled down
by importing art~ficial rules of English law.
In view of oul'>fi_nding on the question of construction of the definition clause read with s. 4 (5) and
other provisions of the Act, we consider it unnecessary
to pronounce finally on the c,on ten tions referred to . in
the preceaing paragraph, except merely to state that a
serious question of the constitutional validity of several
provisions of the Act would have undoubtedly arisen
if the Act were held to apply to private trusts as well.
On our finding·that the Act does not apply to private
trusts, the appellant is entitled to succeed in his appeal.
'.!;he High Court has said that the materials on the
record of'the case are not sufficie_nt to decide the question whether the Balouna asthal and the properties of
the mahant constitute a trust of a public character.,
This question, however, was the subject of a contested
litigation and. the appellant had obtained a declaration
in First Appeal No: ~O Qf 1941 that the Salouna asthal
1959
Mahant Ran1
Saroop Dasji
v.
S. P. Sahi
S. K. Das ].
I
•
•
'
'959
Maliant Ram
Sa,oop Dasji
v.
S. P. Saki
S. ·K. Das ].
600
SUPREME COURT REPORTS [1959] Supp.
and the properties appertaining thereto did not constitute. a public trust. The respondents were ncit parties
to that litigation and may not be bound ·by that judgment; but on behalf of the respondents no affidavit
was filed nor were any materials placed to show thatthe .. position is different from what-was declared by the
High Court. The High Court commented on the fact
that the appellant did not produce before the court a.ll·
the documents in his possession.
A petition bas been
filed before us for taking in ev;idence the documents
which were considered by the High Qourt in First
Appeal No. 10 of 1941. We do not think that in the
circumstances of this case it is ne?essary to consider
that evidence afresh. As long as the declaration made
by the High Court .in First Appeal No. 10of1941 stands
and in the absenc~ of some evidence to the contrary, the
appellant is entitled to say that the Salouna asthal and
the properties appertaining thereto do not constitute a,
public trust and the Act and its. provisions do not
apply to it.
Our attention has been drawn to s. 43 of the Act as
amended by Act XVII of 1956. That section says inter
alia that all disputes as to whether any immovable property is or is not a trust property shall be enquired into,
either on its own motion or on an application, l;>y the
authority appointed in this behalf by the State Government by notification in the official gazette. Without
expressing any opinion as to the constitutional validity
of s. 43 of the Act we merely point out that no decision
has been given under s. 43 of the Act (as it stood prior
or after the amendment) against the appellant in respect of the-Salouna asthal and the properties a ppertaining thereto.