P. GAYAPRASAD Vs. S. S. BHARGAO

JUDGEMENT

(1.) THE respondents brought a suit under Section 92, Civil P.C., against the appellant and Mt. Parmabai, who was joined as a respondent in this appeal but who died during the pendency of the appeal. They obtained a decree on 25th November 1929 that Parmabai should be the nominal trustee during her lifetime and that after her death the appellant Gayaprasad and his heris should be the nominal trustees, but that the respondents and one other person whom they should appoint by mutual consent should be appointed Panchas for the management of the dedicated property and to make arrangements for the worship and celebrations. It was further ordered that the Panchas named should take possession of all the properly covered by the deed of dedication and that Parmabai and Gayaprasad should deliver possession of all such property, account books and bonds. No appeal was made by Parmabai during her lifetime, but the appellant has preferred this appeal.

(2.) THE two grounds urged by the learned counsel who appeared for the appellant were, first, that no suit could be brought under Section 92, in this matter, as there was no public trust, and, secondly, that no order for actual delivery of possession or handing over of the property could be passed under Section 92. No argument was addressed as regards the finding about mismanagement and it may be taken as practically admitted that there has been mismanagement by the appellant. The appellant therefore takes his stand on the two technical grounds and has not made any contest upon the merits. The trust relates to a temple built by one Lalainprasad, the deceased husband of Parmabai, about the year 1910, On 1st January 1920 this Lalainprasad executed a deed, which is called a tamliknama and which is on record as Ex. P-1. In that deed he stated that he had constructed a temple next to his residential house in Satthiakua, Jabbulpore, and had installed a deity of Shree Radha Krishnachandraji in that temple, that he and his wife Parmabai had been arranging for the worship of that deity and would continue to do so during their lifetime, that as he had become old and had no heir he executed the deed for the future management of the worshipping and dedicated for that purpose certain immoveable property valued at Rs. 1,225 in favour of the deity, and that the expenses for his own maintenance and for that of his wife and for the worship of the deity should be met by the income of the property dedicated. It is further stated in the deed that Lalainprasad and his wife Parmabai should manage the temple jointly or severally during their lifetime and that, if one of them died, the survivor should be the manager. It is added that their grandson Gayaprasad should serve them diligently and that after their death he should manage the temple for the maintenance of himself and of his family and for the worship of the deity and that after him his descendants from generation to generation should continue the management. Then the following persons, viz., Beohar Raghubirsingh, Seth Kapoorchand, Shyamsunderlal, Kallu and Beju, all residents of Satthiakua, Jabbulpore, wore appointed to supervise the management as Panchas and a clause was added that, if any of the Panchas should die Or was unwilling to exercise his authority, the remaining Panchas were entitled to select any honest Hindu, with the exception of the donor's own younger brother, Chunilal Bhatta, as a Pancha.

(3.) THE two chief contentions are whether the trust was a private or public one and secondly, whether the reliefs claimed in the plaint fall within Section 92, Civil P.C. As regards the first, I am clearly of opinion that the view taken by the lower Court is correct. It is true that the deed (Ex. P-1) does not expressly create a public trust, but, on the other hand, it certainly does not expressly declare that the dedication is meant to be a family or private one. There is nothing in the deed repugnant to the idea that the trust should be to the benefit of the public and in such a case the deed should, I think, be interpreted in favour of a public trust. In this connexion I have been referred by the learned counsel for the respondents to Ramdas v. Mt. Basanti A.I.R. 1922 All 519, Deohinandan v. Brijnandan, A. I, Rule 1924 Pat 502, Puraviya Goundan v. Poonachi Goundan (1921) 62 IC 655 and Kalimata Debi v. Nagendra Nath A.I.R. 1927 Cal 244. The presumption would usually be in favour of a public dedication and where there is nothing contrary to such a presumption and where there is no mention of a private or family trust, then I think it should be held that the dedication was for the benefit of the public. In the present case moreover there is ample evidence to show that the temple has been all along used for public worship. It was first established some time about 1910, some ten years before the deed (Ex. P-1) was executed, and it has all along been used by the public. The witnesses examined by the plaintiff-respondents clearly prove the fact of public worship, and the only witness examined on behalf of the appellant was defendant 1, Mt. Parmabai herself. Her evidence does not prove that the dedication was a private or family one or that the public were excluded from worship in the temple; in fact it proves little else but mismanagement by the appellant Gayaprasad. It must therefore be held that the trust created by Lalainprasad by the deed (Ex. P-1) was a public one and as such within the purview of Section 92, Civil P. Order It remains then to consider whether the reliefs claimed in the plaint are such as are mentioned in Section 92, Clause (1) of the Code. The plaintiff-respondents claimed the following reliefs: (a) That defendants 1 and 2 be removed from the management of the trust; (b) that the plaintiffs be appointed trustee; (c) that the possession of the property be made over to the plaintiffs; (d) that an order for rendering accounts be passed against the defendants; (e) that after accounts are taken a decree be passed against the defendants for such amounts as may be found due from them; (f) that an amount for the maintenance of defendant 2 be fixed; and (g) the costs of the suit be allowed to the plaintiff." It is clear that of these reliefs the first two are reliefs mentioned in Section 92. Similarly the relief (d) for an order rendering accounts is a relief mentioned in Section 92, whilst relief (f) would fall under Clause (h), Section 92(1), if not under Clause (g), It may be noted that relief (e), which asks for a decree against the defendants for such amount as may be found due, has not been granted, and such a relief, I think, could not be claimed under Section 92.