MAHANT RAM SAROOP DASJI versus S. P. SARI, SPECIAL OFFICER-IN-CHARGE OF THE HINDU RELIGIOUS TRUSTS AND OTHERS

I959

April r5.

(2) S.C.R. SUPREME COURT REPORTS

583

MAHANT RAM SAROOP DASJI v. S. P. SARI, SPECIAL OFFICER-IN-CHARGE OF THE HINDU RELIGIOUS TRUSTS AND OTHERS (S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR, K. N. WANCiIOO and M. HIDAYATULLAH, JJ.) Hindu Religious Trusts-Private Trusts-Applicability of Bihar Hindu Religious Trusts Act-Religious Endowments, public and private-Distinction between-Definition of "religious trust " -Scope and Effect-Bihar Hindu Religious Trnsts Act, z950 (Bihar I of z95z), SS. 2(I), 4(5), ]O(I), 32, 48·

The appellant as the Mahant of the Salouna asthal made an application in the High Court under Art. 226 of the Constitu tion praying inter alia for the issue of a writ quashing the order of the Bihar State Board of Religious Trusts requiring the appel lant to submit a return of income and expenditure under s. 59 of the Bihar Hindu Religious Trusts Act, 1950, on the grounds, inter alia, that the Salouna asthal was a private institution and not a religious trust within the meaning of the Act and that the Act did not apply to private trusts. The High Court took the view that the language of s. 2(1) of the Act, which defined a " religious trust", was wide enough to cover within its -ambit both private and public trusts recognised by Hindu law and that the Salouna asthal did not come within any of the two exceptions recognised by the section.

Held, that on a true and proper construction of the provi sions of the Act, considered in the background of previous legislative history with regard to religious, charitable or pious trusts in India, the definition clause in s. 2(1) of the Act does not include within its ambit private trusts and that the provisions of the Act do not apply to such trusts.

The essential distinction in Hindu law between religious endowments which are public and thos! which are private is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description ; in a private trust the beneficiaries are definite and ascertained individuals or who within a time can be definitely ascertained. The fact that the uncertain and fluctuating body' of persons is a section of the public following a particular religious faith or fa only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust.

584 SUPREME COURT REPORTS

[1959] Supp.

t959

Mahant Ram Saroop Dasji v. S. P. Sahi

CIVIL APPELLATE JURISDICTION:

No. 343 of 1955.

Civil Appeal

Appeal from the judgment and order dated Septem ber 13, 1954, of the Patna High Court in Misc. Judl. Case No. 39of1954.

S. K. Das].

L. K. Jha, B. K. P. $inha and R. G. Prasad, for

the appellant.

Mahabir Prasad, Advocate-General for the State of Bihar, Ishwari Nandan Prasad and S. P. Varma, for the respondents.

1959. April 15. The Judgment of the Court was

delivered· by

S. K. DAS, J.-This appeal on a certificate granted by the High Court of Patna is from a judgment of the said High Court dated September 13, 1954, in a writ proceeding numbered as Miscellaneous Judicial Caso No. 39 of 1954 in that court, which the appellant had instituted on an application made under Art. 226 of the Constitution in the circumstances stated below.

It was alleged that one Mahatma Ma~t Ramji, a Hindu saint, owned and possessed considerable pro perties in the district of Monghyr in the State of Bihar. About two hundred years ago, he built a small temple at Salouna in which he installed a deity called Sri Thakur Lakshmi Narainji. This temple came to he known as the Salouna asthal. Mast Ramji died near about the year 1802. He was succeeded in turn by some of his disciples, one of whom was Mahant Lakshmi Dasji. - He built a·new temple in 1916 into which he removed the deity from the old temple and installed two new deities, Sri Ram and Sita. In 1919 Mahant Lakshmi Dasji died. He left three disciples, Vishnu Das, Bhagwat Das and Rameshwar Das. A dispute arose among these disciples about succession to the gaddi, which was settled sometime in February 1919. By that settlement it was arranged that Vishnu Das would succeed Mahant Lakshmi Das as the shebait and would be succeeded by Bhagwat Das, and thereafter the ablest " bairagi " · of the asthal, born of Brahmin parents, would be eligible for appointment as

x959

Mahant Ram Saroop Dasji v. S. P. Sahi

S. K. Das].

(2) S.C.R. SUPREME COURT REPORTS

585

shebait. Bhagwat Das died sometime in 1935 and again a dispute arose between one Rameshwar Das, the youngest chela of Mahant Lakshmi Das, and Ram Saroop Das who is the present Mahant and ap pellant before us. Rameshwar Das, it appears, filed an application under the Charitable and Religious Trusts Act (XIV of 1920) for a direction upon Mahant Ram Saroop Das to render an account of the usufruct of the asthal. This application was contested by Mahant Ram Saroop Das, who said that the proper ties appertaining to the Salouna asthal did not con stitute a public trust within the meaning of the pro visions of the Charitable and Religious Trusts Act (XIV of 1920) and therefore he was not accountable to any person. Mahant Ram Saroop Das also applied for and obtained permission under s. 5 of the aforesaid Act to institute a suit for a declaration that the Salouna asthal and the properties thereof did not con stitute a public trust. Such a suit was brought in the court of the Subordinate Judge of Monghyr who, how ever, dismissed the suit. Then, there was an appeal to the High Court of Patna and by the judgment and de cree passed in First Appeal No. IO of 1941 dated March 5, 1943, the High Court gave a declaration to the effect that the Salouna asthal and-the properties appertain ing thereto did not constitute a public trust within the meaning of the provisions of the Charitable and Reli gious Trusts Act; (XIV of 1920). Some eight years later, the Bihar .Hindu Religious Trust Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, was passed by the Bihar Legislature and received the President's assent on February 21, 1951. It came into force on August 15, 1951. The Bihar State Board of· H.eligious Trusts (one of the respondents before us) was constituted under this Act to discharge in regard to religious trusts other than Jain religious trusts the functions assigned to it under the several provisions of the Act. On November 14, 1952, this Boa.rd, in exer cise of the powers conferred on it under s. 59 of the Act, asked the appellant to furnish to the Board a return of the income and expenditure of the asthal.

74

I959

Mahant Ram Saroop Dasji v. S,_p, Salli

S. K. Das].

586

SUPREME COURT REPORTS

[1959) Supp.

The appellant replied by a letter dated December 1, 1952, that the Salouna asthal wa~ a private institution to which the Act did not apply, and also drew the at tention of the Board to the judgment and decree of the High Court in First Appeal No. lO of 1941. The Board, however, gave a reply to the effect that it was not bound by the declaration made by the High Court and asked the appellant to obtain a declaration in respect of his claim under the provisions of the Act or to snbmit a return. Thereafter, on January 22, 1954, the appellant made his application under Art. 226 of the Constitution in which he averred (a) that the Salouna asthal was not a religious trust within the meaning of the Act ; (b) that the properties appertaining thereto did not constitute a religious trust and the appellant was not a trustee within the mean ing of the Act; (c) that the Act did not apply to pri vate trusts; and (d) that the demand made by the respondent Board amounted to an interference with the appellant's fundamental right to hold the asthal properties. The appellant accordingly prayed. for the issue of a writ quashing the order of the respondent Board requiring the appellant to submit a return of income and expenditure and also for an order direct ing the respondent Board and its officers to refrain from interfering with the appellant in his right of management of the Salouna asthal and the properties appertaining thereto.

The High Court of Patna by its judgment complain ed against dismissed the petition on the main ground that the language of s. 2(1) of the Act, which defined a 'religious trust ' for the purposes of the Act, was wide enough to cover within its ambit both priva:te and public trusts recognised by Hindu law to be reli gious, pious or charitable and that the Salouna asthal did not come within any of the two exceptions recog nised by the section, namely, (1) a trust created ac cording to Sikh religion or purely for the benefit of the Sikh community; and (2) a private endowment creat ed for the worship of a family idol in which the public 'fhe High Court also held that the are not interested. materials on the record were not sufficieµt to decide

1959

Mahant Ram Saroop Dasji v. S. P. Sahi

S. K. Das].

(2) S.C.R. SUPREME COURT REPORTS

587

the question whether the Salouna asthal and the properties thereof constituted a religious trust of a public character; but proceeding on the footing that the Act applied to private trusts, it expressed the view that the restrictions imposed on the trustee by the several provisions of the Act were not violative of the fundamental right .guaranteed under Art. 19(l)(f) of the Constitution, inasmuch as there was no legal reason why the State should not exercise superintend ence and control over the administration of private trusts as in the case of public trusts. In a judgment dated October 5, 1953, dealing with the same question in some earlier cases, the High Court had, however, It had then expressed a somewhat different view. referred to the principle that when a legislature with limited power makes use of a word of wide and general import, the presumption must be that it is using the word with reference to what it is competent to legislate, and adopting that principle it said that s. 2(1) of the Act should be read in a restricted sense so as to include only Hindu religious or charitable trusts of a public character and the provisions of the Act would accordingly apply to such trusts only.

The principal point urged before us on behalf of the appellant is one of construction-do the provisions of the Act apply to private religious trusts? The conten tion of the appellant is that they do not. It is necessary to refer at this stage to some of the relevant provi sions of the Act. In connected Ci vii Appeals Nos. 225, 226, 228, 229 and 248 of 1955 (1 ) in which also we are delivering judgment today, we have referred to the provisions of the Act in somewhat greater detail. In this appeal we shall refer to such provisions only as have a bearing on the principal point.

We start with the definition clause in s. 2 (1). It

says-

"' religious trust ' means any express or construc tive trust created or existing for any purpose recognis ed by Hindu Law to be religious, pious or chl:!>ritable, but shall not include a trust created according to the Sikh religion or purely for the benefit of the Sikh

(1) Mahant Moti Das v. S.P. Sahi, seep. 563 ante.

I959

111 ahant Ratn Saroop Dasji v. S. P. Saiii

S. [(. Das ].

588

SUPREME COURT REPORTS [1959] Supp.

community and a private endowment created for the worship of a family idol in which the public . are not interested ; ". The expression ' trust property ' in s. 2 (p) means tho property appertaining to a religious trust and the expression ' trustee ' in s. 2 (n) is defined in the follow - ing terms-

"' trustee' means any person, by whatever designation known, appointed to administer a religious trust either verbally or by or under any deed or instrument or in accordance with the usage of such trust or by the District Judge or any other competent authority, and includes any person appointed by a trustee to perform the duties of a trustee and any member of a Committee or any other person for the time being managing or administering any trust pro perty as such; ". The next important section for our purpose is s. 4 as amended by Bihar Act, XVI of 1954, which gives effect to certain amendments and repeals. Sub.section (5) of s. 4 is in these terms-

" The Religious Endowments Act, 1863 (XX of 1863), and section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall not apply to any religious trust in this State, as defined in this Act." -Chapter V of the Act contains a series of sections which delimit the powers and duties of the State Board of Religious Trusts. Section 28, the opening section of the chapter, states the general powers and duties of the Board. Section 29(1) has a bearing on the ques It states inter alia that where tion at issue before us. the supervision of a religious trust is vested in any committee or association appointed by the founder or by a competent court or authority, such committee or association shall continue to function under the general superintendence and control of the Board unless superseded by the Board under sub-s. (2) of the sec tion. If an order of supersession is passed, the com mittee er association or any other person interested in the religious trust may within 30 days of the order of the Board under sub-s. (2) make an application to the ·District Judge for varying, modifying or setting aside

r959

l\'1ahant Rani Saroop Dasji v. S. P. Saki

S. K. Das].

(2) S.C.R. SUPREME COURT REPORTS

589

the order of supersession. Section 30, so far as it is relevant for our purpose, states-

" When any object of a religious trust has ceased to exist or has, in the opinion of the Board, become impossible of achievement, the Board may, of its own motion or on the application of any Hindu, after issuing notice in the prescribed manner, to the trustee of such trust and to such other person as may appear to the Board to be interested therein and after making such inquiry as it thinks fit, determine the object (which shall;be similar or as nearly similar as practic able to the object which has ceased to exist or become impossible of achievement) to which the funds, pro perty or income of the trust or so much of such fund, property or income as was previously expended on or applied to the object which has ceased to exist or become impossible of achievement, shall be applied." Section 32 defines the power of the Board to settle schemes for proper administration of religious trusts. It states:

, "32(1). The Board may, of its own motion or on application made to it in this behalf by two or more persons interested in any trust,-

(a) settle a scheme for such religious trust after making such inquiry as it thinks fit and giving notice to the trustee of such trust and to such other person as may appear to the Board to be interested therein; (b) in like manner and subject to the like condi tions, modify any scheme settJed under this section or under any other law or substitute another scheme in its stead:

Provided that any scheme so settled, modified or substituted shall be in accordance with the law govern ing the trust and shall not be contrary to the wishes of the founder so far as such wishes can be ascertained. (2) A scheme settled, modified or substituted instead of another scheme under this section shall, unless otherwise ordered by the District Judge on an application, if any, made under sub-section (3) come into force on a day to be appointed by the Board in this behalf and shall be published in the official gazette.

I959

Jl1 ah ant llam Sa~oop DasJi v. S. P. Sahi

S, J{. Das].

590

SUPREME COURT REPORTS

[1959] Supp.

(3) The trustee of, or any other person interested in, such trust, may within three months from the date of the publication in the official gazette of the scheme so settled, modified or substituted instead of another scheme, as the case may be, make an application to the District Judge for varying, modifying or setting aside the scheme; but, subject to the result of such application, the order of the Board under sub.sections (ll and (2) shall be final and binding upon the trustee of the religious trust and upon every other person interested in such religious trust.

(4) An order passed by the District Judge on any application made under sub-section (3) shall be final." It may be here stated that the expression "person interested in religious trust " is defined in s. 2(g). The definition is in these terms-

"" person interested in a religious trust" means any person who is entitled to receive any pecuniary or other benefit from a religious trust and includes,-

(i) any_ person who has a right to worship or to perform any rite, or to attend at the performance of any worship or rite, in any religious institution con nected with such trust or to participate in any religiG>us or charitable ministration under such trust;

(ii) the

founder and any descendant of the

founder ; and

· (iii) the trustee;''.

The only other section which need be quoted in full is s. 48. of the Act which is in these terms :- •

"48(1). The Board, or with the previous sanction of the Board, any person interested in a religious trust may make an application to the District Judge for an order-

( a) removing the trustee of such religious trust, if

such trustee-

(i) acts in a manner prejudicial to the interest of

the 'said trust ; or

(ii) defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property or income of the said trust or any other statutory charge on such property or income; or

I959

Mahant Ram Saroop Dasji v. S. P. Salli

S. K. Das].

(2) S.C.R. SUPREME COURT REPORTS

591

(iii) defaults on three or more occas10ns in the payment of any sum payable to any beneficiary under the said trust, or in discharging any other duty impos ed upon him under it; or

(iv) is guilty of a breach of trust. (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing accounts and inquiries; or (e) granting such further or other relief as the

nature of the case may require.

(2) The order of the District Judge under sub

section (1) shall be final".

Now, the argument on behalf of the appellant is that on a true and proper construction of the aforesaid provisions of the Act, considered in the background of previous legislative history with regard to religious, charitable or pious trusts in India, the definition clause in s. 2 (l) of the Act is confin~d to religious, pious or charitable trusts of a public nature recognised as such by Hindu law. In order· to appreciate this argument it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the bene ficial interest is vested in an uncertain and fluctuating body of persons, either the public a.t large or some considerable portion of it answering a particular des cription; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuatiqg body of persons is a section of the public following a particular religious faith or is only a SeJJt of persons of a certain religious persua sion would not make any difference in the matter and would not make the trust a private trust (see the observations in Nabi Shirazi v. Province of Bengal) (1). The distinction in this respect between English law and Hindu law has· been thus stated by Dr. Mukherjea in his Tagore Law Lectures on the Hip.du Law of Religious and Charitable Trusts (1952 Edition, pp. 392-396) : "In English law charitable trusts are synonymous

(1) (1942) I.L.R. I Cal. 2II 1 228.

'959

Maltant Ram Saroop Dasji v. S. P. Sahi

S, K, Das].

592

SUPREME COURT REPORTS

[1959] Supp.

with public trusts and what is called religious trust is dnly a form of charitable trust. The beneficiaries in a charitable trust being the general public or a section of the same and not a determinate body of individuals, the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust. In English law the Crown as parens patriae is the constitutional pro tector of ali property subject to charitable trusts, such trusts being essentially matters of public concern ....... One fundamental distinction _ between English and Indian law lies in the fact that there can be religious trust of a private character under Hindu law which is not possible in English law ".

On behalf of the appellant it has been pointed out that so far as public religious and charitable trusts are concerned, there are a number of legislative enact ments, both general and local, which aim at controll ing the management and administration of such trusts and provide for remedies in cases of mal-administra tion. So far as private religious trusts are concerned, there are no specific statutory enactments and such trusts are regulated by the general law of the land. The British Government, when it was first established in India, following the tradition of the former rulers, asserted by virtue of its sovereign authority_ the right to visit public religious and charitable endowments and to prevent and redress abuses in their manage ment. A Regulation for that purpose was passed in Bengal in 1810 (Regulation XIX of 1810) and one for Madras in 1817 (Regulation YII of 1817). In Bombay also there was a Regulation (XVII of 1827) which related to endowments of the ,same chara(lter. In 1863 was passed the Religious Endowments Act (XX of 1863), which repealed the Bengal and Madras Regula tions in so far as they related to purely religious insti tutions and their control was transferred from the Board of Revenue to non-official committees consti tuted under the Act of 1863. It is worthy of note, how .ever, that the Act of 1863 also applied to public religi In course of time it was found ous endowments only. that the Act of 1863 did not provide adequate protec.

I959

Mahant Ram Saroop Dasji v. S. P. Saki

S. K. Das].

(2) S.C.R. SUPREME COURT REPORTS

593

tion to public religious trust against abuses which led to their control by the State and the remedies provided by that Act did not go far enough. Then came the Charitable Endowments Act, 1890 (VI of 1890), and the Charitable and Religious Trusts Act, 1920 (XVI of 1920), both of which related to public trusts; the for mer related exclusively to public trusts for charitable purposes unconnected with religious teaching or wor ship while the l.atter related to trusts created for public purposes of a charitable or religious nature. In the Civil Procedure Code of 1877 a specific section was introduced, viz., s. 539, under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes. This section was later amended, and in this amended form it became s. 92 of the pre sent Civil Procedure Code, the first condition necessary to bring a case within its purview being the existence of a trust, whether express or constructive for public purposes of a religious or charitable nature. It is clear beyond doubt that a private trust is outside the opera tion of s. 92, Civil Procedure Code. Of the local Acts, the earliest was that of the Bombay Presidency of the year 1863. In more recent years were passed the Orissa Hindu Religious Endowments Act, 1939, the Bombay Public Trusts Act, 1950, and the Madras Hindu Religious and Charitable Endowments Act, 1951, all of which relate to public religious institutions and endowments. No local Act has been brought to our notice which clearly or unmistakenly sought to include within its ambit private religious trusts.

On behalf. of the appellant it has been submitted that though the definition clause in s. 2 (1) of the Act is expressed in wide language, other provisions of the Act make it clear that it is confined to public trusts only. Section 2 (1) of the Act, we have pointed out, recognises trust created according to the Sikh religion or purely for the benefit of the Sikh community; and, second, a private endow ment created for the worship of a family idol, in which the public are not interest~d. It is not disputed

two exceptions:

first, a

75

I959

Mahant Ram Saroop Dasji v. S. P. Sdl~i

S. K. Das j.

594

SUPREME COURT REPORTS

[1959] Supp.

that the second exception is an instance of a private trust, in which the p_ublic are not interested. The High Court has taken the view that inasmuch as the definition clause mentions by way of an exception only one instance of a pri:vate endowment, all private endowments created otherwise than for the worship of a family idol must be included within the definition· of the maxim of expressio unius exclusio alterius. We do not think that this view is quite correct. First of all, let us examine some other provisions of the Act which specifically refer to the definition clause and see what the legislature has itself taken it to mean. Take, for example, s. 4 of the Act, as amended by Bihar Act, XVI ·of 1954. This section amends and repeals certain earlier Acts like the Charitable Endowments Act, 1890, and the Ch!'-ritable and Religious Trusts Act, 1920; both of which we have already pointed out related exclusively to public trusts. Sub-s. (5) of s. 4 states tb:at the Religious Endowments Act, 1863, and s. 92 of the Code of Civil Procedure, 1908, shall.not apply to any religious trust in the State, as defined in this Act: 'The Religious Endowments Act, 1863, and s. 92, Civil Procedure Code,-both apply to public trusts; they have no application to private trusts. If the defini tion clause was intended to include within its ambit private trusts (other than those created for the wor ship of a family idol), then it is difficult to understand why sub-s. (5) of s. 4 should be worded as it has been done. That sub-section in effect· says that two earlier enactments which· apply exclusively to public trusts shall not apply to any trust (we emphasise the word ' any ') as defined in the Act. If private trusts created otherwise than for the worship of a family idol w:ere included in the definition of religious trust, then sub-s. (5) was entirely otiose or redundant so far as those private trusts were concerned for the earlier enact ments never applied to them. 1'he obvious indication is that all trusts defined in the Act are public trusts and, therefore, it became necessary to exclude the operation of earlier enactments which but for the exclusion· would have applied to such trusts. If the intention ofsub-s. (5fof s. 4 was to exclude some t.rusts

r959

Mahanl Ram Saroop Dasji v. S. P. Saki

S. !(. Das J.

(2) S.C.R. SUPREME COURT REPORTS

595

only out of many included within the definition clause from the operation of the earlier enactments, as is contended for by the learned Advocate.General of Bihar, then the use of the word' any' appears to us to be particularly inapt. Sub-section (5) of s. 4 was amended by Bihar Act XV~ of 1954. Before the amendment it read as follows;

"S. 4(5). The: Religious Endowments Act, 1863, and section 92 of the Code of Civil Procedure, 1908, shall not apply to any Hindu Religious Trust in the State of Bihar." Prior to the amendment, sub-s. (5) made no reference to the definition clause; it merely said that two of the earlier enactments shall not apply to an:l' Hindu Reli: gious Trust in the State of Bihar. The amended sub section, however, specifically refers to the definition clause and states that two of the earlier enactments, which apply only to public trusts, shall not apply to any trusts, as defined in the Act. In our opinion, by sub-s. (5) of s. 4 the Legislature itself has spoken and indicated the true scope and effect of the definition clause.

Secondly, it may be asked why the legislature hav ing before it the earlier enactments which applied to public trusts only, failed to use the word 'public' before the word ' purpose ' in. the definition clause ? This is a pertinent question which must be faced. The answer, we think, is this. Charitable trusts are public trusts, both under the English and Indian law; in England a religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trnst may be public or private. But the most usual and commonest form of a private religious trust is one created 'for the worship of a family idol in which the public are not interested. Any other pri vate religious trust must be very: rare and difficult to think of. Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (llth edition)-

" Religious endowments are either public or pri In a public endowment the _dedication is for

vate.

I959

Mahant Rain Saroop Dasji v. S. P. Sahi

S. J(. Das ].

596 SUPREME COURT REPORTS

[1959] Supp.

the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one". Obviously enough, the definition clause merely quotes the typical example of a private endowment mention ed above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz., "in which the public are not interested ". In other words, the exclusion is based on the essential distinc tion between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characte ristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a· private trust but which eventually came to he thrown open to the public. This also indicates that the definition was intended to cover only public trusts.

We now turn to some of the other provisions of the Act, which we have earlier quoted~ Section 29(1) which talks of supervision of a religious trust being vested in any committee or association appointed by the founder or by a co)llpetent court or authority is ordinarily appropriate in the case of a public trust only. Section 30( 1) which em bodies the doctrine of cypres permits any Hindu to make an application for invok ing the power of the Board to determine the object to which funds, property and income of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achieve ment. This section is also inappropriate in the case of a private trust, the obvious reason being that any and every Hindu cannot be interested in a private trust so as to give him a locus standi to make the ap plication. Further, it is difficult to visualise that a Hindu private debutter will fail, for a deity is immor tal. Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist. Sec-

1959

Mahant Ram Saroop Dasji v. S. P. Sahi

S. R. Das ].

(2) S.C.R. SUPREME COURT REPORTS

597 ·

tion 32 is an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts. Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust. The language of the section follpws closely the language of s. 92, Civil Procedure Code, so far as the phrase "two or more persons iµterested in any trust" is concerned. It is difficult to understand why in the case of a pri vate trust, it should be necessary that two or more persons interested in the trust must make the applica tion to settle a scheme for such a trust. In a private or family debutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family. If the trustee or shebait is guilty of mis management, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust. Under the general law of the land the founder of the endowment, or any of his heirs is competent to insti tute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one. It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit. The condition of " two or more persons" is appropriate only to a public trust, the reason being that a public trust is a matter of public concern. Section 48 of the Act is also analo gous to s. 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of s. 92 of the Code of Civil Procedure from trusts as defined by the Act is the existence of provisions in the Act which 11re analogous to s. 92 of the Code of Civil Procedure. This section is also more appropriate to public trusts than to private trusts. In fact, the Act contains provisions, as the preamble states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties apper taining to such .trusts and for that purpose certain earlier enactments like the Religious Endowments Act, 1863, the Charitable Endowments Act, 1890,

' 1959

.

M aluuiJ Ram "Saroop Dasji v. S. P. Sahi

S, K. Das ].

. 598

SUPREME COURT REPORTS

[1959] Supp.

the Charitable and Religious Trusts Act, 1920 and the Civil Procedure Code, l908, have eitlier been amended or excluded from operation. All those earlier enactments related only to public trusts and if the intention was that the Act would apply to private trusts as well, one would expect. that that intention would be ma.de clear by the use o! unambiguous lan guage. We find, on the contrary, that though the definition clause in s. 2(1) is expre~sed in somewhat wide language~ sub-s. (5) of s. 4 makes clear what the true scope and effect of the definition clause is .

.For the reasons given above, we hold that the defini tion clause does not include within its ambit private trusts and the Act and its provisions do not apply to such trusts.

Learned counsel for the 11 ppella.nt has in the alter na.ti ve argued before us that if the Act appli~s to private trusts, several of its provisions will be viola tive of the fundamental right guaranteed to citizens under Art. 19(l)(f) of the Constitution inasmuch as the restrictions imposed thereby on trustees of private trusts, in which the public are not interested, cannot be justified as reasonable restrictions in the_interests of the general public within the meaning of cl. (5) of Art. 19. The High Court negatived this argument by adopting the rule of English law that in the case of a charitable corporation where the founder is a P.rivate person, he and his heirs become visitors in law aud where such heirs are extinct or incompetent, their powers devolve on the Cr9wn or the State ~ therefore, it is in the interests of the general pubhc that the State should exercise superintendence and control over the administration of private trusts as in the case of public trusts. This view of the High Cour.t has been seriously contested before us, and learned counsel for the appellant has submitted that there is no war rant for the adoption of'the rule of English law.in view of the fundameu tu.I distinction bet ween English and Hindu law as to private riiligious trus£s. He has also ·drawn our attention to the following. observations of Dr. "Mukherjea (Hindu Law of Religious and Charitable Trust, 1952 Edition, p. 393) on this point:

1959

Mahant Ran1 Saroop Dasji v. S. P. Sahi

S. K. Das ].

I

•

(2) S.C.R. SUPREME cotrR1r REPORTS

599

"In English law there is a 'visitatorial' power attached to all eleemosynary corporations. A visitor has the right to settle disputes between members of the corporation, to irnrpect· and regulate their actions and generally to correct all ,abuses and irregularities in the administration of charity. The law allows· to the founder of an .eleemosynary institution full powers to make regulations for its creation and such powers inclnde the right of nominating visitors. Under the law of England as it stood before 1926, if a private person was the founder of a charitable corporation, then he and his heirs became automatically the visi tors. The des9ent, of the rights of a visitor to heirs has now been abolished by the Administration of Estates Act, -1925, and it is not clear as to who would be visitor in default of appointment by the founder. Most probably such rights would devolve upon the Crown as they did when the founder's heirs became extinct or could not be found or the heir was a lunatic."

He has further .submitted tlrat whatever be the posi tion in English law, the guarantee of a fundamental right must depend on· the terms of Art. 19 of the Con stitution and such guarantee cannot be whittled down by importing art~ficial rules of English law.

In view of oul'>fi_nding on the question of construc tion of the definition clause read with s. 4 (5) and other provisions of the Act, we consider it unnecessary to pronounce finally on the c,on ten tions referred to . in the preceaing paragraph, except merely to state that a serious question of the constitutional validity of several provisions of the Act would have undoubtedly arisen if the Act were held to apply to private trusts as well. On our finding·that the Act does not apply to private trusts, the appellant is entitled to succeed in his appeal. '.!;he High Court has said that the materials on the record of'the case are not sufficie_nt to decide the ques tion whether the Balouna asthal and the properties of the mahant constitute a trust of a public character., This question, however, was the subject of a contested litigation and. the appellant had obtained a declaration in First Appeal No: ~O Qf 1941 that the Salouna asthal

'959

Maliant Ram Sa,oop Dasji v. S. P. Saki

S. ·K. Das ].

•

'

600

SUPREME COURT REPORTS [1959] Supp.

and the properties appertaining thereto did not con stitute. a public trust. The respondents were ncit parties to that litigation and may not be bound ·by that judg ment; but on behalf of the respondents no affidavit was filed nor were any materials placed to show that the .. position is different from what-was declared by the High Court. The High Court commented on the fact that the appellant did not produce before the court a.ll· the documents in his possession. A petition bas been filed before us for taking in ev;idence the documents which were considered by the High Qourt in First Appeal No. 10 of 1941. We do not think that in the circumstances of this case it is ne?essary to consider that evidence afresh. As long as the declaration made by the High Court .in First Appeal No. 10of1941 stands and in the absenc~ of some evidence to the contrary, the appellant is entitled to say that the Salouna asthal and the properties appertaining thereto do not constitute a, public trust and the Act and its. provisions do not apply to it.

Our attention has been drawn to s. 43 of the Act as amended by Act XVII of 1956. That section says inter alia that all disputes as to whether any immovable pro perty is or is not a trust property shall be enquired into, either on its own motion or on an application, l;>y the authority appointed in this behalf by the State Govern ment by notification in the official gazette. Without expressing any opinion as to the constitutional validity of s. 43 of the Act we merely point out that no decision has been given under s. 43 of the Act (as it stood prior or after the amendment) against the appellant in res pect of the-Salouna asthal and the properties a pper taining thereto. It would be open to the respondents to take such steps as may be available to· them in law to get it determined by a competent authority that the trust in question is a public trust,

We wou Id accordingly allow this appeal, set aside the judgme!lt and order of the High Court· dated Septem ber 13, 1954, and direct the issue of an appropriate writ quashing the order of the respondent Board calling upon the appellant to file a statement of income and expenditure with regard to the properties of the Salouna

(2) S.C.R. SUPREME COURT REPORTS

601

asthal and also prohibiting the respondents from in terfering . with the rights of the appellant in the management of the Salouna asthal and the properties appertaining thereto, unless and until the respondents have obt.ained the necessary determination that the Salouna asthal is a public trust. The appellant will be entitled to his costs throughout.

Mahant Ram Saroop Dasji v. S. P. Sahi

S. I(, Das j.

Appeal allowed.

I959

April r5.

THE STATE OF BIHAR & OTHERS. v. SM. CHARUSILA DASI (S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR K. N. WANCHOO and M. HIDAYATULLAH, JJ.) Hindu Religious Trusts-Property relating to Trust situate outside State of Bihar-Applicability of Bihar Hindu Religious Trusts Act to such property-,-Legislative competency-Con~titutional validity of Enactment - Applicability to private trusts-Bihar Hindu Religious Trusts Act, r950 (Bihar I of r95r), ss. r(2), 2(r), 3 -Constitution of India, Arts. 245, 246, Sch. VII, List III, Item 28. Deed-Construction-Hindu Religious Trust-Private or Pub-

lie.

A deed of trust was executed by the respondent on March II, 1938, when she was residing at D in the State of Bihar, in respect of the propertitl's described in the Schedules referred to in the deed, some of which were situate outside the State of Bihar. In the trust deed she described herself as the settlor, and it was recited therein that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshipping.and performing the puja of the said deity; and that she had been erecting a Nat Mandir to be named in mem<fry of her deceased son. The recitals also showed that the settlor had provided for the construction of two temples (Jugal Mandir), in one of which was to be installed the deity Srigopal and other deities, and in the other the marble image of her preceptor; and that the temple committee shall consist of the Jugal Mandir shebait for the time being and six pious Hindus who must be residents of D and of whom at least four shall be Benga!is. One

76