PRAKASH CHANDRA NAG Vs. SUBODH CHANDRA NAG

JUDGEMENT

(1.) (6 August 1936).-This is an appeal by five of the defendants in a suit under Section 92, Civil P.C. In connexion with the appeal there is a cross-objection by the plaintiffs. The suit related to an Asram known as the Asram of Baba Lokenath Brahmachari in Borodi in the District of Dacca, said to be an endowment for public, religious and charitable purposes. The plaintiffs are residents of village Barodi and other villages adjacent to it. They claim to be entitled to perform, and allege that they do perform, the worship of Baba Lokenath who lived and died in the Asram, and to have contributed funds for its improvement and maintenance; and some of them were also on a committee which was in existence for its administration at the time when the cause of action arose. The Asram is situate on a piece of land of which the superior title belongs to one set of co-sharer zamindars, the Nag Babus, the said set of co- sharers being known as the Madhyam Hisya or Panch Hisya, the other two sets of co-sharers going by the name of Pub Hisya and Paschim Hisya. In the suit, as originally filed, there were eighteen persons as defendants, the first seventeen of whom were some of the Madhyam Hisya or Panch Hisya co-sharers. It was alleged that while the committee which was appointed by the public and of which some of the plaintiffs were members was functioning, fourteen out of the defendants wrongfully and illegally constituting themselves a committee of management with defendant 1 as its President, collected funds over their signatures , obstructed the performance of an annual utsab attached to the institution, committed breach of trust and acted in various ways in disregard of the religious sentiments of the public who perform sheba and puja at the Asram and to the detriment of the public trust which the Asram represents, thus necessitating a suit for reliefs under Section 92 of the Code for its preservation and upkeep. The defendants were impleaded on the footing that they had assumed the position of trustees de son tort.

(2.) The contesting defendants ranged themselves into two sets: one consisting of defendants 2 and 3; and the other of defendants 6, 7, 8 and 11. Those of the other defendants, who originally entered contest, eventually withdrew therefrom or ultimately supported the plaintiffs. Both sets of contesting defendants denied that the Asram was an endowment or trust for public, religious or charitable purposes, or that its site, structures or appurtenances had ever been dedicated for use as such. They alleged that the Asram was the private property of the Panch Hisya Maliks; that on the death of Baba Lokenath who as a holy saint had been allowed to remain at the place and live in huts built for him by the said Maliks, the said Maliks in order to perpetuate his memory introduced the worship of his Asan and his Sandals and also inaugurated an annual Utsab; and that although the public were allowed to make offerings and participate in the worship and although they contributed to the expenses of the annual Utsab and also effected certain improvements in the place at their cost, they had acquired no rights to or in the Asram or in its management. It was admitted that in later years, as the Utsab grew in importance and dimensions, the assistance of persons who were not members of the Panch Hisya was taken by constituting a sort of an advisory body with some such persons as members thereof, in order that its functions might be more satisfactorily organized and accomplished. Such details as regards all these matters as are relevant for the purposes of the case, in the stage at which it now is, will be given at their proper places hereafter. The Judge has decreed the suit. The decree runs in these words: It is ordered and decreed that the suit be and is hereby decreed; that a scheme will be settled by the Court for the administration and management of the Asram of Baba Lokenath Brahmachari which has been found to be a public trust or debuttar of a religious and charitable nature; that provision will be made in the scheme for the appointment of a committee which will be trustees of the Asram: that the management and the administration of the Asram and its properties and appurtenances will be vested in the committee which will be formed according to the provisions in the scheme; that the three Hisyas of the Nag family and the general body of disciples, worshippers and devotees will be entitled to representation on the committee, the proportion of which will be determined at the time of the framing of the scheme; that the defendants will be removed from the management of the Asram after the committee is constituted in accordance with the Scheme. In view of the very substantial moral and material help which the Panch Hisya has so long rendered to the Asram and with a view to restoration, of good feelings between the parties to this unfortunate litigation for securing good management of the Asram, I order that the parties do bear their own costs in this suit.

(3.) From this decree the appeal has been taken. Defendant 8, Prakas Chandra Nag, originally preferred the appeal; and later on Sasanka Mohan Bose, Sudhansu Mohan Bose, Bidhubhusan Nag and Brahmananda Nag, defendants 6, 7, 11 and 3 respectively, have joined him as co- appellants. The cross-objection by the plaintiffs is for the costs which the Court below has disallowed. The first and most important question in the case is whether the Asram is a trust created for public purposes of a charitable or religious nature within the meaning of that expression in Section 92 of the Code. To deal with this question the history of the Asram, beginning from its origin and tracing it down to the present times, will have to be carefully considered, as the learned Judge has done. As regards the origin of the Asram, it is necessary to set out somewhat in detail the pleadings of the parties on the point, including therein their respective contentions as developed in the course of the trial, and also the findings which the Judge has come to. In the plaint the property was described as permanently settled nishkar rent-free land, being debuttar Lokenath Brahmachari appertaining to Settlement Khatian No. 801 of Mouza Barodi No. 5, area 1.22 acres, inclusive of kutcha and pucca temple, muth, rooms, tank, indara (well), tube well, etc., thereon; and it was said that the Asram, consisting of the said property, its site, structures and appurtenances, had been dedicated for use as an endowment for public, religious and charitable purpose. It was also stated in the plaint that Baba Lokenath Brahmachari, who was an ascetic and devout saint, came to village Barodi about 72 years ago and put up for about a year in the house of one Dengu Karmokar and lived upon alms; that within this time his devotion and saintliness having attracted the people of the locality, he was granted nishkar right in the plot of land aforesaid, which was then part of a public cremation ground, by the Panch Hisya Nag Babus to whom the land belonged and that the public of the locality created for him on a portion of the land a hut and a cook-shed where he lived as a recluse, giving himself up to devotion and meditation. It was also said in the plaint that the Asram thus founded was maintained and improved out of the income of the land and the offerings made by the public. In para. 5 of the plaint it was said: The fame of Baba Lokenath spread far and wide and he came to be worshipped as an incarnation of God and the number of his worshippers and disciples went on fast increasing. In course of time the area of the Asram proper was enlarged and improved with public contributions and the offerings made thereat into its present condition.