JAMUNA DAS Vs. RAM KUMAR JI

JUDGEMENT

(1.) In the town of Muzaffarpur there is a Pinjrapole Goushala , that is to say, a home and hospital for decrepit cows which is maintained by the Agarwal and allied communities in accordance with what they conceive to be their pious duty. The members of these communities are in the main traders and shopkeepers. The particular Gaushala in question is situated in Mahalla Kanhauli. The plaintiff is an official of the society and sues on behalf of himself and his fellow members. The defendants are also members of the same community, being a Hindu joint family and engaged in trade. The Gaushala in question was founded about the year 1900 and the members, including the defendants (who joined the socially in about the year 1917) were in the habit of maintaining the Gaushala by collecting from their customers a email sum proportionate to every sale of goodsmade. This custom of the community is widely known throughout India and the purchasers are aware that the small additional percentage which is known as biti is to be devoted by the shopkeeper or merchant to the maintenance of the Gaushala. The members of the society appear also to have agreed to contribute a small percentage of the cost of bales of cloth imported by them. The society settles up its accounts with each individual member from time to time and the percentage collected on behalf of the Gaushala on each purchase and credited to the Gaushala in the books of the merchant would be handed over to the society for the charitable purpose referred to. The rate of biti charged by the defendants to customers, after they had become members in 1917, was according to the resolution of the society, two annas and six pies per hundred rupees of the sales effected. For some time the defendants paid up the money collected by them, and also the agreed percentage on importations contributed by themselves to the officials of the Gaushala. After a time, however, the defendants were found to be in arrears and were reproached by the members of the society. Ultimately in January 1928 the defendants made out a hatchita admitting that the amount due to the Gaushala in respect of the transactions carried through was a sum of Rs. 2,643 which the defendants promised to pay with interest. The plaintiff on behalf of the other members of the Gaushala sues the defendants for the amount so admitted to be due with interest.

(2.) The Subordinate Judge dismissed the suit, holding that it was not shown how much of the said sum of Rs. 2,643 was attributable to the payments which the defendants had received from customers on transactions of sale and how much of the said sum was attributable to the premise by the defendants to pay out of their own pockets en the value of goods imported by them. He held, and to this limited extent in my opinion rightly held, that in respect of the promise to make a contribution to come out of their own pockets on the value of the goods imported, the promise was not enforceable against the defendants, being without consideration, and that the hatchita to the extent that the sum mentioned related to this form of contribution was no more than a repetition of the voluntary promise. The plaintiff appealed to the District Judge who dismissed the appeal, agreeing with the Subordinate Judge in the matter of the irrecoverable nature of such part of the amount due as was attributable to the promise by the defendants out of their own pockets and further held that there was no evidence to satisfy the Court that the defendants had in fact received from the public subscriptions by way of biti in connection with sales of merchandise. The Judge, however, held that with respect to credit transactions the defendants had in fact credited in their books a levy of biti to the Gaushala but it had not been shown that with respect to such transactions biti had been realized from customers.

(3.) A great deal of discussion before the Courts below and before this Court was directed to the question of whether the defendants had declared a trust in favour of the Gaushala and whether the entries in their books and the hatchita in question constituted such a declaration. In my opinion this is irrelevant. It is true that neither a promise, nor a written acknowledgment that in respect of such promise a sum had been set aside by the defendants with a promise to hand it over to charity can be the basis of a suit by the society to recover on account of such promise. It might be that if the defendants had actually placed the amount promised to the credit of the society so as to-hand over the property in such account to tie society, the society could retain" the amount. But in the case before us there has been no such handing over. When we come, however, to the matter of subscriptions collected from the public the position is entirely different. A person who collects money for a charily, whether or not the person from whom the money is collected pays it willingly or with any sympathy or interest in the charity, in question, becomes a trustee of such money for the charity and it is entirely immaterial that the charity or society has made any arrangement with the collector authorizing him to collect because the trust is constituted by the payment by the members of the public on the representation by the collector that the money is for a specific charitable purpose.