KHUB NARAIN MISSIR Vs. RAMCHANDRA NARAIN DASS

JUDGEMENT

(1.) Appeal No. 274 arises out of Title Suit No. 10 of 1943 and App. No. 275 arises out of Title Suit No. 3 of 1943. In Suit No. 10 of 1943, which was instituted in the Court of the Subordinate Judge of Darbhanga on 8-2-1943, the plaintiff was Mahanth Ramchandra Narain Dass and the defendants ware Khub Narain Missir, Ramkishun Thakur, Shubhnarain Pande and Ramsunder Pande, and in Suit No. 3 of 1943, which was instituted in the Court of the District Judge of Darbhanga, the plaintiffs were one Rambihari Thakur and Khub Narain Missir, defendant 1 of Suit No. 10 of 1943. The defendants of Suit No. 10 had filed an application under Section 3 of Act XIV [14] of 1920 before the District Judge of Darbhanga for directing the Mahanth to furnish accounts for being examined and audited, and the then District Judge directed the Mahanth to produce the accounts for the years 1345, 1346 and 1347. The Mahanth moved this Court is civil revision against this order, but his application was dismissed. The Mahanth then filed Title Suit No. 10 of 1943 for a declaration that the

(2.) Both the suits were heard together by the learned District Judge, who, by his judgment dated 7-8-1945, decreed Title Suit No. 10 of 1943 which had been instituted by the Mahanth declaring that the properties detailed in the schedules attached to the plaint of the Mahanth were properties to which Act XIV [14] of 1920 was not applicable. The learned Judge dismissed Title Suit No. 3 of 1943 on the finding that it had not been established that there was a trust for public purposes of a charitable or religious nature, and that consequently Section 92, Civil P. C., was inapplicable. Rambihari Thakur and Khub Narain Missir, the plaintiffs of Suit No. 3 of 1943, have preferred F.A. No. 275 of 1945 against the decision of that suit, and the four defendants of Suit No. 10 of 1943 have preferred F.A. No. 273 of 1945 against the decision of that suit, and the principal matters of controversy in these two appeals are whether the proper, ties mentioned in the plaint of Suit No. 10,were debottar properties and were held on trust for purposes of religious and charitable nature, and whether the Mahanth has rendered himself liable to removal from his office on account of his alleged misfeasance and malversation. One of the arguments advanced on behalf of the appellants before us was that the Court below should have in this case held that the asthal was a public institution and that the properties appertaining to it were held on trust for public purposes of a religious and charitable nature when it negatived the contention of the Mahanth that the asthal properties were his private properties. IN other words, the contention of Mr. De for the appellants was that the Court below by earning to the funding that the properties were held on private trust had made out a third case. But, I think, the learned Judge has been quite careful in his statements and findings, and he has concluded his discussion on this point with the following observation:

(3.) There can be no doubt that the incidents attaching to properties depend in each case upon the conditions on which the properties were dedicated or upon the conditions which can be gathered from the way the properties have been dealt with or which may be inferred from the usage and the custom of the institution. In Ram Parkash Das v. Anand Das, 43 I.A. 73 : A.I.R. (3) 1916 P.C. 256) their Lordships of the Judicial Committee observed that an asthal is an institution of a monastic nature, and that it is established for the service of a particular cult, 'the instruction in its tenets, and the observance of its rites, and that the question as to who has the right and office of Mahant is one, which must depend upon the custom and usage of the particular math or asthal. Such questions in India, their Lordships said, are not settled by an appeal to the general Customary law; the usage of the particular math stands as the law, therefore. In Chhotabhai v. Jnan Chandra Basak, 62 I.A. 146: (A.I.R. (22) 1935 P.C. 97) their Lordships pointed out that it is necessary to consider who was the author or who were the authors of the trust which is alleged to have been a trust for a public purpose of a charitable or religious nature. Their Lordships further pointed out that the intention to create a trust must be indicated by words or acts with reason. able certainty and that the purpose of the trust( property, and the beneficiaries must be indicated is such a way that the trust could be administered by the Court if occasion arose. It was, therefore, incumbent on these appellants to place on the record certain very essential materials in absence of which it cannot be held that there is an express or constractive trust created or existing for a public purpose of a charitable or religious nature to which Act XIV [14] of 1920 applies. The question is what materials are there on the record which can go to establish that a treat had been created for a public purpose of a charitable or religious nature. I have no hesitation in agreeing with the learned Advocate General, who appeared on behalf of the respondent before us, that there is no evidence in this base to show that a trust for a public purpose of a charitable or religious nature had been created. I am further inclined to hold that the way in which the asthal properties have been dealt with over since its inception leaves no room for doubt that this asthal is a private institution. The observance of religious festivals, the feeding of sadhus and giving hospitality to atithis or guests are inevitable where there is a temple in which idols are being worshipped and-which is under the control of a bairagi Sadhu. It is common ground that this asthal was founded by Mahanth Damodar Dass, who, it appears, was a saint whose piety had attracted the attention of not only the local people but also of a big person like the Maharaja Bahadur of Darbhanga. 'The plaintiffs of Suit No. 3 of 1943 have stated in para. 1 of the plaint that in village Bihat Tola Adulpur there is an asthal from a very long time of Bairagi Ramanandi Laskari sect, which is commonly known as the Adalpur asthat, and that in the said asthal from its very inception there is a "temple in which the murties of Sri Ramji, Jankiji and Lachhmanji besides other deities are consecrated and installed." In the depositions the witnesses for these appellants have been described as plaintiff's witnesses, and the witnesses for the Mahant have been described as defendant's witnesses, and we get it from the evidence of the plaintiffs' witnesses that Mahant Damodar Dass was the founder of the Adalpur asthal, and that idols of the temple were installed in his time. In the written statement of Suit No. 3 the Mahant has stated that in the yeas 1759 the temple was established by Mahant Damodar Dass who,