BABU BHAGWAN DIN Vs. GIR HAR SAROOP

JUDGEMENT

(1.) On 14 April 1930, the first two appellants (uncle and nephew) filed before the District Judge at Lucknow an application under S. 3, Charitable and Religious Trusts Act (14 of 1920) for an order directing accounts to be furnished in respect of a certain temple in Lucknow together with land and houses adjacent thereto and occupied therewith. The principal deity is Bhaironji and from this idol the temple takes its name but there are other idols also in different parts of the temple compound, which is now of an area variously stated as about four bighas or 16 biswas. The respondents to the application were five in number, three men and two women : with certain other members of their family they are now respondents before the Board in this consolidated appeal. They claim to be direct descendants of one Daryao Gir to whom a grant was made in 1781 of the land now in question by the then reigning Nawab of Oudh. It has been found and it does not appear to be in doubt that the members of this family are grihastha fakirs being at once Goshains and householders. The family comes from the Bijnore district "on the Dhampur side" and is a joint Hindu family of the usual type. At the time of the application to the District Judge members of the family had been continuously in occupation and control of the temple and a number of samadhs or tombs had been set up containing the ashes of Goshains who had belonged to the family. No interference with the management of the temple or the conduct of its worship whether on behalf of the public or otherwise had at any time taken place. It was not alleged in the application that the family bad been guilty of any neglect or mismanagement and the contrary has now been held by the Courts in India. The District Judge gave to the five respondents before him an option to bring a suit for a declaration that the property was not subject to a trust for a public purpose of a charitable or religious nature but they did not take this course. Accordingly he threw upon them the burden of disproving this allegation and after hearing nine witnesses for the applicants and two of the respondent Goshains, and after considering certain documents, he held that there was a strong prima facie case that the temple formed the subject of a public trust and that the Goshains had failed to establish the opposite. He therefore directed the Goshains before him to furnish particulars of the extent of the property, the nature of the buildings and the income for the past year (1 October 1930). This order was not complied with, and on 16 September 1931, the first two appellants brought in the Court of the Subordinate Judge, Mohanlalganj, suit No 108/7 of 1931 against the same five members of the respondents' family. The suit was framed under S. 92, Civil PC: relying upon the failure to furnish particulars as ordered by the District Judge, the plaint asked for removal of the defendants, the appointment of new trustees and the framing of a scheme for the management of the temple. Before judgment had been given in this suit, another suit - No. 8/130 of 1931 -was on 23 December 1931, brought in the same Court by 14 plaintiffs, claiming that they and four of the persons impleaded as defendants were members of the joint Hindu family to whom the temple belonged. This meant that 13 persons who had not been made parties to the proceedings before the District Judge were now putting their rights in suit as descendants of Daryao Gir and his coparceners. The contesting defendants to this suit included the first two appellants-that is the uncle and nephew who had initiated the proceedings before the District Judge. Judgment in the former of these suits (No. 108/7) was given on 22 February, 1932, by the learned Subordinate Judge at Mohanlalganj. He held that the five Goshains, defendants before him, had not proved that 13 other members of their family were interested and he left this to be determined in the other suit. He considered that the order of the District Judge concluded the question whether the temple was or was not the subject, of a public religious trust and he decreed the suit, removing the five defendants, appointing new trustees and approving a scheme. About a year later (28 February 1933) judgment in suit No. 8/130 of 1931 was delivered by another Subordinate Judge (at Malihabad) holding that the temple property was the private and personal property of the 18 persons (14 plaintiffs and four defendants) of the respondents' family on behalf of whom it had been claimed. Both of these decisions were taken on appeal to the Chief Court at Lucknow and on 23 October 1934, Nanavutty and Zia-ul-Hasan JJ. delivered one judgment covering the two appeals. They held that the temple property was not impressed with a public trust but was private property belonging to the joint family of the goshains. Hence the two appeals, which are now before the Board as a consolidated appeal.

(2.) The first question is whether the order of the District Judge made under the Charitable and Religious Trusts Act, 1920, precludes the respondents from disputing that the temple is the subject of a public religious trust. That order was made in the presence of five members only of the family and it is not shown that the other members are bound by it according to any principle of representation. Hence, it is difficult to see how these other members can be prevented from claiming the property as belonging to their joint family. The Chief Court have refused for other reasons also to regard the District Judge's order as conclusive. In this they have followed the decisions of a Bench of the Lahore High Court in AIR 1934 Lah 771, 1and a single Judge of the Bombay High Court in 58 Bom 623,2and have agreed with the view of Niamatulla J. in 51 All 805,3in preference to the opinion of Mukerji J. in the case last mentioned. Their Lordships agree with the Chief Court.They hold that the decision of the District Judge under the Act of 1920-a decision from which by S.12 there is no appeal-is a decision in a summary proceeding which is not a suit nor of the same character as a suit; that it has not been made final by any provision in the Act; and that the doctrine of res judicata does not apply so as to bar a regular suit even in the case of a person who was a party to the proceedings under the Act. The existence of a public trust is the foundation of the proceedings authorized by S. 3 of the Act: prima facie, while the District Judge may have to come to a decision upon this point in order to satisfy himself on the question of his own jurisdiction, he cannot by an erroneous decision thereon give himself jurisdiction. To produce this result there must be some provision in the Act which requires a contrary construction. No matter how long or how peaceably an individual may have been in possession and enjoyment of property it is always possible for persons claiming to be acting for the public to lay claim to the property as having been impressed with a trust of a charitable or religious nature. It is readily intelligible that the District Judge should be required to stay proceedings under the Act in any case in which the person against whom they have been taken is willing to bring a suit. But it would be both drastic and anomalous to provide that a person in possession, if not willing to bring a suit to establish his own title affirmatively, must be content to abide without right of appeal by the decision of the District Judge in a proceeding of this character. The terms of S. 6 of the Act are intended, in their Lordships' view, to define the consequences of such an order as was made in this case by the District Judge on 1 October 1930, but the words "if a trustee without reasonable excuse fails to comply" cannot be read to exclude a contention in a regular suit that the plaintiff is not a trustee or to prevent a similar contention being raised by a defendant to a suit under S. 92 of the Code. Upon the merits, it is desirable to consider first the documents. The main document of title has already been mentioned. It is Ex. 4 dated 2 April, 1781, whereby the Nawab of Oudh granted the property now in question to the respondents' ancestor, Daryao Gir. The grant runs as follows: The present and future state officials of Haveli Lucknow, suburbs and the province of Akhtarnagar, Oudh, should know that five pucca bighas waste land, free from Government revenue, mal and sewai, in the immediate vicinity of village Nawagaon, included in the said Haveli whereon lies the house of Bhairon, has been granted along with the said house, in the name of Daryao Gir Goshain the Mahant, free of all dues and shall not be shown in the record; that the said land shall, generation after generation and descent after descent, be left in the possession and enjoyment of the said person and his heirs and they (officials) should not interfere and meddle with the same for any reason so that the said person having remained in possession of the said land and constructed a house, etc., should with contentment and devotion remain engaged in praying for His Highness.

(3.) This grant was construed by a Court of the Nawab in 1843 when members of the respondents' family took proceedings to eject certain dhobis (washermen) who had been allowed to set up and live in a thatched hut in the courtyard of the temple. It was held to be a grant of five bighas of the waste land to Daryao Gir, ancestor of the "fakirs," to be held generation after generation as a muafi (revenue free grant) and that the "fakirs" had been long in possession. There is also the khasra compiled after 1857 at the time of the first Settlement of the city of Lucknow soon after the annexation of Oudh by the British. This shows the plot as "mud house of Bhaironji" and under the heading "name of owner by virtue of possession" are inserted "Kesri Gir and Jawahir Gir and Kalyan Gir disciples of Daryao Gir." These are the main documents in the case but there are in addition a number of "sarkhats" or leases of shop rooms on the outskirts of the temple property. These are expressed to be granted by individual members of the respondents' family: as the trial Judge (in Suit No. 8/130) has pointed out, the lessors were representative of each of the three branches of the family. The Chief Court noticed that there is no lease in the name of the idol as distinct from the names of individual Goshains. In these leases the Goshains are sometimes referred to as "owners" of the shop or kothri: in one at least, as owners of the "asthan Sri Bhaironji." It will be convenient to indicate the main features of the evidence before attempting to draw any inferences from the documents. The appellants rely strongly on the fact that for many years Hindu members of the public have resorted to the temple for worship and darshan without let or hindrance. About 46 years before the trial, a mela or fair had been started by some musicians and dancers and had become an annual function towards which public subscriptions were collected. There was some evidence that part of these moneys had been spent upon whitewashing and repairing the temple but the Chief Court does not consider this to be established; though it is certain that the temple and its Goshains profited from the increased resort to the temple during the mela.