Supreme Court of India
KULDIP CHAND AND ANR.versusADVOCATE GENERAL TO GOVERNMENT OF HIMACHAL PRADESH AND ORS.
- Citation
- 2003 INSC 90
- Decided
- 14 February 2003
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
A public trust is not created unless there is clear, cogent evidence of complete dedication and relinquishment of ownership; mere long‑term public use of a Dharamsala does not satisfy this requirement.
Summary
The case concerned a Dharamsala built by Raj Kumar Bir Singh, allegedly dedicated to the public, which later passed to his heirs and was sold to the appellants. The State, through the Advocate General, sued under Section 92 of the Code of Civil Procedure claiming the property was a public trust. A single High Court judge held no public trust existed; a Division Bench reversed, declaring it a public trust. The Supreme Court examined whether the dedication was complete and whether the plaintiff had discharged the heavy burden of proving a public trust. Relying on established tests, the Court found no clear evidence of total relinquishment of ownership, noting that the public’s use was limited, the owners retained control, and no contributions or management by the public existed. Consequently, the suit under Section 92 CPC was not maintainable and the Division Bench judgment was set aside.
Issues considered
- Whether the Dharamsala was a public trust within the meaning of Section 92 of the Code of Civil Procedure.
- Whether the original owner’s dedication amounted to a complete relinquishment of ownership, creating a public trust.
- Who bears the burden of proof in establishing a public trust and what evidence is required.
Legislation cited
Subjects
public trustSection 92 CPCdedicationcharitable trusttrust lawHindu lawburden of proofadverse possession
Judgment
KULDIP CHAND AND ANR. A
V.
ADVOCATE GENERAL TO GOVERNMENT OF HIMACHAL
PRADESH AND ORS.
FEBRUARY 14. 2003
B
[S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.)
Trusts:
Code of Civil Procedure, 1908-Section 92-0riginal owner dedicating C
dharamsala to general public-Property being used as dharamsala for long
period-Successor-in-interest of original 011•ner selling the sa111e - Suit on
ground that property a trust property, dedica1ed lo public for public purpose--
Single Judge of High Court dismissing the suit holding that public trust never
created-However, Division Bench setting aside the same-Sustainability of- D
Held, public in general did not exercise their right, if any, in respect of suit
premises for long time since 1963-Mere fact that part of dharamsala was
used by general public for long time but continuance of such benevolent act
would not lead to creation of trust-Creation of trust being determinative
factor of entertaining such suit, order of Division Bench unsustainable.
E
The original owner constructed a Dharamsala and dedicated it to
the general public. After his death it devolved upon the successors-in-
interest. Then heir 'J' inherited the property and later sold it to the
appellants. The property was used as Dharamsala for a continuous period
of about 125 years. Respondent-State Government filed suit under Section F
92 CPC on the ground that the property was a trust property and was
dedicated to the public for public purpose by the original owner. Single
Judge of High Court dismissed the suit holding that the public trust was
not created and the property was treated by the original owner and his
successors-in-interest as their own property and not as trustees thereof.
Respondents filed Letters Patent Appeal. Division Bench set aside the G
order, Hence the present appeal.
Appellants contended that the Division Bench erred in setting aside
the judgment of the High Court; and that a suit under Section 92 CPC
would be maintainable only in the event it is proved beyond any pale of
1195 H
1196 SUPREME COURT REPORTS [2003] I S.C.R.
A doubt that the trust is a public trust and not otherwise.
Respondent No. I contended that the user of the property as
Dharamsala has not been and could not be disputed, such user having been
continued for a period of 125 years the same could not have been treated
as private property and, thus a complete dedication thereof for user of
B the public must be inferred.
Allowing the appeal, the Court
HELD: 1.1. A benevolent act on the part of a ruler of the State for
C the benefit of the general public may or may not amount of dedication
for charitable purpose. A dedication for public purposes and for the benefit
of the general public would involve complete cessation of ownership on
the part of the founder and vesting of the property for the religious object.
In absence of a formal and express endowment, the character of the
dedication may have to be determined on the basis of the history of the
D institution and the conduct of the founder and his heirs. Such dedication
may either be complete or partial. A right of easement in favour of a
community or a part of the community would not constitute such
dedication where the owner retained the property for himself. It may be ,-
that right of the owner of the property is qualified by public right of user
E but such right in the instant case, is not wholly unrestricted. Apart from
the fact that the public in general and/or any particular community did
not have any right of participation in the management of the property
nor for the maintenance thereof any contribution was made is a matter
of much significance. 11206-D-GI
F 2.1. Whether an endowment is of a public or private nature, the
following tests are sufficient guidelines to determine on the facts of each
case, namely, where the origin of the endowment cannot be ascertained,
the question whether the user of the temple by members of the public is
as of right; the fact that the control and management vests either in a large
G body of persons or in the members of the public and the founder does not
retain any control over the management, allied to this may be a
circumstance where the evidence shows that there is provision for a scheme
to be framed by associating the members of the public at large; where,
however, a document is available to prove the nature and origin of the
endowment and the recitals of the document show that the control and
H management of the temple is retained with the founder or his descendants,
KULDIP CHAND ,. ADV GEN TO GOVT OF HIMACHAL PRADESH 1197
and that extensive properties are dedicated for the purpose of the A
maintenance of the temple belonging to the founder himself, this will be a
conclusive proof to shO\\' that the endon'ment \\'3S of a private nature;
where the evidence show that the founder of the endowment did not make
any stipulation for offerings or contributions to be made by members of
the public to the temple, this would be an important intrinsic circumstance B
to indicate the private nature of the endowment. 11209-H; 1210-A-EI
> Sri Radhakanta Deb and Anr. v. Commissioner of Hindu Religious
Endowments, Orissa, 11981 I 2 SCC 226, relied on.
2.2. The aforementioned tests were not satisfied in the instant case.
It is true that the appellants di~ not produce their title deeds wherefor an C
adverse inference could be drawn, but transfer of the suit premises in their
favour by the owner thereof stands admitted and in fact the said
transaction constituted cause of action for filing the suit. In any event, their
possession over the disputed premises stands dismissed. Furthermore, it
cannot be understood as to why the public in general did not exercise their D
right, if any, in respect of the suit premises for a long time and at least
since 1963. It may be that a part of the Dharamsala in question was used
by the general public for a long time but continuance of such a benevolent
acts/charity would not lead to creation of a trust which alone is the
determinative factor for entertaining a suit in terms of Section 92 CPC.
Hence the judgment and decree passed by the Division Bench of the High E
Court cannot be sustained. 11210-H; 1211-AI
Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao, fl9571 SCR
1122; The Bihar Swte Board Religious Trust, Patna v. Mahan/ Sri Biseshwar
Das, 1197111SCC574; Maharani Hemanta Kwnari Debi and Ors. v. Gauri F
- "" Shankar Tewari and Ors., 11940-411 Law Reports I.A. Vol. 68, 53; Mahant
Ram Saroop Dasji v. S.P. Sahi, Special Officer-in-charge of Hindu Religious
Trusts and Ors., AIR 119591 SC 951 and Babu Bhagwan Din v. Gir Har
Saroop, 67 I.A. I, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5178 of 1997. G
From the Judgment and Order dated 19.11.1996 of the Himachal Pradesh
High Court in R.F.A. No. 44 of 1984.
G.L. Sanghi, E.C. Agrawala, Mahesh Agrawal, Rishi Agrawal, Alok
Agrawal and Vivek Yadav for the Appellants. H
1198 SUPREME COURT REPORTS r2003] I S.C.R.
A Natesh Kumar. Sharma for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. Whether by mere use ofa premises as a "Dharamsala'
for about 125 years would lead to an inference that the same belongs to a
B public trust, is the question involved in this appeal. which arises out of a
judgment dated 19.11.1996 passed by a Division Bench of the High Court of
Himachal Pradesh at Shimla in Regular First Appeal No.44 of 1984 whereby
and whereunder the judgment of a learned Single Judge of the said Court
dated 20.3 .1984 passed in Civil Suit No.22 of 1979 was reversed.
c Fact of the matter shorn of all unnecessary details is as under :-
Raj Kumar Bir Singh, was the owner of Nahan Estate. He constructed
the said Dharamsala on a land measuring 1702 sq. yards and 18% sq. Girha;
comprising of Khasra Nos. 991 with Gosha A & B, 992, 993 with Gosha,
994, 995 with Gosha, 996 and 999 situated in the town of Nahan as per Misal
D
Haqiyat of Settlement Sani. As per the latest settlement the new Khewat
Khatuni Nos. with Kharsa Nos. are Khewat No.78, Khatuni Khata Nos. 133
to 137 and Khata No.28/50, 914, 915, 955, 956, 959, 962, 963, 957, 960, 961
and 958. Allegedly, the said Dharamsala was dedicated to the general public ....
....
wherefor a stone plaque on the top of its main gate was affixed. The public
E in general, the travellers and in particular those taking part in an yearly fair
known as Renuka Fair admittedly could stay therein for three days without
permission whereafter, pem1ission of the owner of the property was necessary.
Raj Kumar Bir Singh died in or about the year 1881 whereupon the
properties owned by him devolved upon Surjan Singh. Upon the death of
F Surjan Singh, the properties devolved upon Ranzor Singh. Ranzor Singh died _,,,_
on 14.I 1.1947 and on his death his properties were inherited by Jagat Bahadur """'
Singh. .
Jagat Bahadur Singh allegedly sold the suit property by reason of three ·-1-
documents in favour of the appellants herein which were preceded by
G
agreements of sale executed in the year 1963.
Claiming the said property to be a trust property, a suit was filed by the ~
Advocate General of the Government of Himachal Pradesh purported to be
under Section 92 of the ,Code of Civil Procedure alleging therein that t,he
H same had been dedicated to the public for public purposes by the
KULDIP CHAND ,. ADV GEN TO GOVT OF HIMACHAL PRADESH [SB SINHA J 1 1199
aforementioned Raj Bir Singh. A
It was contended that while dedicating the said property to the public
Raj Kumar Bir Singh. as founder of the trust became the sole trustee and
remained as such and upon his death.the Dharamsala was looked after and
managed by Ranzor Singh in the same capacity. Upon. the death of Ranzor
Singh. Jagat Bahadur Singh became the trustee but he (Original Defendant B
No. I) sta11ed misappropriating the trust property for his own use and denying
the very existence and nature of the said prope11y. It was alleged that with
a view to defeat the trust and grab for himself the said property, he entered
into the aforen1entioned transactions.
The cause of action for the said suit was said to have arisen on 25.4.1963 C
and 1.1. 1970 when Defendant No. I sold the property in suit to Defendant
Nos.2 and 4 respectively and also on 29.3.1968 when Defendant No.2 sold
the property to Defendant No.3
The defendants in their respective written statements denied and disputed D
the allegations made in the plaint that the property in question was dedicated
to the public. According to the·defendants, the secular nature or character of
the said prope11y was never changed and it all along remained the personal
property of Original Defendant Nv. I and his predecessors in interest.
The Defendants Nos.3 to 5 in their written statements further claimed E
that they were bona fide purchasers of the suit property for valuable
consideration: and have effected improvements thereof upon coming into
possession and have been running a tourist hotel therein.
The learned Single Judge having regard to the pleadings of the parties
fra1ned as many as ten issues. F
In the said suit, the Plaintiff examined a large number of witnesses in
support of his case. The learned Single Judge on analyzing the materials
brought on records by the parties including the revenue records came to the
conclusion that a public trust was not created and the Dharamsala in question
had all along been treated by Raj Kumar Bir Singh, Ranzor Singh and Jagat G
Bahadur Singh as their own property and not as trustees thereof.
The learned Single Judge further held that Defendant Nos.3 and 5
being in possession of the property in suit for a period of more than twelve
years acquired title by adverse possession. H
1200 SUPREME COURT REPORTS r2003] I S.C.R.
A The plaintiff-Respondent No. I. namely, the Advocate General of the
Government of Himachal Pradesh, preferred a Letters Patent appeal against
the said judgment and decree. The Division Bench by reason of the impugned
judgment reversed the judgment and decree passed by the learned Single
Judge holding that as no instrument was required for creation of a trust, the
only test therefor would be to see as to whether the general public in exercise
B of their rights have been deriving the benefits of institution in sequence of
the objects for which it came to be established. The Division Bench further ..(
held that the purported alienations made by the Original Defendant No. I in
favour of Defendants Nos. 3 to 5 were illegal and they did not derive any
right, title or interest in relation thereto. It was also held that the plea of
C adverse possession raised by Defendant Nos. 3 to 5 was not sustainable. It
was directed:
"In view of what has been said above, the defendants are ordered
to be divested from their rights whatsoever in the institution and its
properties forthwith. They are ordered to be removed from the
D institution and its properties forthwith. The institution and its properties
shall hereinafter be managed and controlled by a committee headed
by the Deputy Commissioner as its Chairman. The other Members
would comprise of the Executive Engineer, PWD, (B&R}, District
Development and Panchayat Officer, the President of the Bar by
designation and two more public persons bf eminence carrying status
E in life who are prepared to take up the assignment with devotion.
Their names would be selected by the cohcerned Deputy
Commissioner. This should be dbne without further delay and the
Trust should be got registered and a separate bank account be opened
in the name of the institution which would be operated by the
F concerned Deputy Commissioner or any other number of the
Committee authorised by him.
The learned District Judge is directed to get the matter of accounts
investigated and whatever rents and profits the defendants have made
out of the Trust property from the date of the filing of the suit and
G pass a decree against the defendants under Order 20 Rule 12 of the
Code of Civil Procedure. Any other suggestion, proposal or direction
which is sought in respect of the management and control of the
institution, would be dealt with by the learned District Judge keeping
in view the spirit of this judgment."
H The appellants are in appeal before us questioning the correctness of
KULDIP CHAND ,.. ADV.GEN. TO GOVT OF HIMACHAL PRADESH [S.B SINHA. J ] 120 I
the said judgment. A
Mr. G.L. Sanghi, learned Senior Counsel appearing 011 behalf of the
appellants. would submit that the Division Bench committed a manifest error
of Ja\\' in r~versing the judg1nent of the learned Single Judge of the High
Cou11 without taking into consideration the following: (I) The revenue entries
do not support the case of a dedication of the property; (2) The plaintiffs B
~ have utterly failed to discharge their onus of proof to show that there was
ever any dedication of property in favour of the general public; (3) The
administration of the Dharamsala was all along in the hands of the members
of the family; (4) No contribution had ever been made by the public; and (5)
No materials have been brought on records to show that the suit property was C
used or managed by the general public.
Mr. Sanghi would urge that the burden of proof heavily lay upon the
plaintiff to show that there had been a complete dedication of the property
in question in favour of the general public which was not discharged. The
learned counsel would contend that a suit under Section 92 of the Code of D
Civil Procedure would be maintainable only in the event it is proved beyond
any pale of doubt that the trust is a public trust and not otherwise. In support
of the said contention, strong reliance has been placed in Menakuru
Dasaratharami Reddi v. Duddukuru Subba Rao, [1957] SCR 1122, The Bihar
State Board Religious Trust, Patna v. Mahan/ Sri Biseshwar Das, [1971] I E
SCC 574 and Sri Radhakanta Deb and Anr. v. Commissioner of Hindu
Religious Endowments, Orissa, [1981] 2 SCC 226.
Mr. N.K. Sharma, learned counsel appearing on behalf of Respondent
No. I. on the other hand, would submit that the witnesses examined on behalf
of the plaintiff-respondent were all old and respectable people. Some of them F
had worked under the Raja. It was submitted that the user of the prope11y as
Dharmsala has not been and could not be disputed. Such user having been
continued for a period of 125 years the same could not have been treated &s
pnvate property and, thus, a complete dedication thereof for user of the
public must be inferred.
G
Mr. Sharma would urge that the conduct of the contesting defendants-
appellants should also be taken note of, as a power of attorney holder, i.e. the
father of the appellants sold the same in their favour. It was pointed out that
the appellants even did not prove their title deeds in respect of the suit
property. H
1202 SUPREME COURT REPORTS [20031 I S.C.R.
A It was pointed out that the witnesses examined on behalf of the plaintiff-
respondents categorically stated that for maintenance and management of the
property a separate cell was created and the income derived therefrom was
being used for maintenance thereof. Only when the Dharamsala fell in
disrepair, the Town Municipal Committee started maintaining the same.
B The primal question which falls for our consideration is as to whether
the plaintiff has been able to prove that Raj Bir Singh had created a public
trust in respect of the Dharamsala in question.
It is beyond any dispute that a Hindu is entitled to dedicate his property
C for religious and charitable purposes wherefor even no instrument in writing
is necessary. A Hindu, however, in the event, wishes to establish a charitable
institution must express his purpose and endow it. Such purpose must clearly
be specified. For the purpose of creating an endowment, what is necessary is
a clear and unequivocal manifestation of intention to create a trust and vesting
thereof in the donor and another as trustees. Subject of endowment, however,
D must be certain. Dedication of property either may be complete or partial.
When such dedication is complete, a public trust is created in contra-distinction
to a partial dedicat.ion which would only create a charity. Although the
dedi~ation to charity need not necessarily be by instrument or grant, there
must exist cogent and satisfactory evidence of conduct of the parties and user·
E of the property, which show the extinction of the private secular character of
the property and its complete dedication to charity. [See Menakuru
Dasaratharami Reddi v. D11dd11kuru Subba Rao (supra)].
Admittedly, in the instant case, no instrument in writing was created.
Establishment of a Dharamsala may constitute a charitable trust. It is also liot
F in dispute that Khasra No.995 is. recorded as 'Parao' (vacant site). Khasra
No.993 makes a reference of demolished site relating to 'parao'. In Khasra ->tf
No.994, 'katcha' latrine is entered whereas in Khasra No.992 a 'residential
house' is recorded.
It is not in dispute that in the revenue records the ownership of the
G property stands in the name of Ranzor Singh. The right of the general public
is not mentioned therein. Only because a 'sarai' or 'parao' existed in the
disputed property would by itself not be sufficient to arrive at a conclusion
that the same was a public trust. It appears from the revenue records that
even in the possession column, the names of Ranzor Singh or Surjan Singh
H were mentioned. Some individuals have been shown in possession of the
KULDIP CHAND ,. ADV.GEN. TO GOVT OF HIMACHAL PRADESH [S.B SINHA, JJ J 203
shops and the houses. The undisputed oral evidence is that the tenants and A
lessees were paying rents to the owners. It may be that an engrafted stone
was fixed over the main gate of the Sarai mentioning that the same was
constructed by Raj Kumar Bir Singh, but the same is of little or no value for
arriving at a finding that Raja Bir Singh dedicated the property to the public.
For the purpose of finding out as to whether the Plaintiff has been able to B
discharge the heavy burden of proof upon him as to how the same was
treated, we may take notice of the evidence adduced on behalf of the Plaintiff.
P.W. I, Ram Gopal Abhi, who was the main witness in the case, admitted
that an Adult Education School was also opened on th·e first floor of the
Dharamsala. He categorically stated that the members of the public never C
spent any amount for maintenance of the Dharamsala. He feigned his ignorance
when suggested that horses of the police personnel were tied or used to be
l tied in the courtyard inside the Dharamsala. He, however, accepted that Ranzor
Singh appointed a Chowkidar to look after the Dharamsala and he used to
pay his salary from his own pocket. He also admitted that the disputed
Dharamsala was being used on the occasion of marriage of his sister for D
accommodating the marriage party with the permission of Ranzor Singh and
for accommodating the barat they had taken two rooms in the first floor and
these were the V.l.P. rooms which could ~e utilized by any person only with
the permission of Ranzor Singh.
E
P. W.2, Des Raj, stated that the travellers used to tie their cattle and
horses etc. in the open site. The public in general/visitors/travellers used to
stay in the disputed Dharamsala wherefor no charge used to be taken. He,
however, did not know that the Chowkidar who used to look after the said
Dharamsala was maintaining any register or not. Renuka Fair admittedly
used to be held in the month of kartic every year. F
P. W.3, Kanshi Ram, stated that the Dharamsala is a double storey
building having about two rooms in the upper storey and three or four rooms
in the ground floor; whereas P. W. I, Shri Ram Gopal Abbi stated that there
were about 24 rooms in the Dharamsala.
G
P. W.4, Phool Chand, in his evidence stated that the public could stay
m the Dharamsala for three days without permission but thereafter the
pennission of Ranzor Singh· was necessary. He admitted that about 20-22
years back, one saw mill had been fixed in a room of the disputed Dharamsala.
He accepted that the public did not contribute anything for maintenance and H
1204 SUPREME COURT REPORTS [2003] I S.C.R.
A upkeep of the Dharamsala nor any register was maintained. He also accepted
that only the private persons of Raja Sahib used to stay in the two rooms of
the upper storey.
P.W. i, Dalip Singh, who was married at Nahan and whose marriage
party came to Nahan from Shakargarh, stated that the Dharamsala had only
B two rooms in the first floor and many rooms in the ground floor. He, however,
could not say as to whether any permission had been taken by his in-laws for
use of the Dharamsala.
P.W. 8, Jagmohan Ramo!, who was a Sanitary Inspector, stated :
c " .... One Chowkidar used to sit in the Dharamsala and Dharamsala
had been constructed by the ancestors of Maharaja Jagat Bahadur.
They were the owners of the Dharamsala. I do not know if the trucks
of Surjan Singh were parked in the vacant site. It is, however, a fact
that the trucks of different persons used to be parked there."
D
P. W. 14, Suraj Lal Bansal, who was the power of attorney holder 'of
Maharaja Jagat Bahadur Singh stated :
" ..... There were two shops in the disputed Dharamsala. The
shopkeepers used to pay the rent to Bahadur Singh for further payment
E to Maharaj Bahadur Singh and Kanwar Ranjor Singh. The shopkeepers
never paid rent to the Chowkidar. The travellers or the public who
used to stay in the disputed Dharmasala were not rn pay anything for
their lodging. There were no orders of receiving any payment from
such public persons"
F
He further stated :
"Kanwar Ranjor Singh and Maharaj Jagat Bahadur had one temple of ->f
their own within the Mahal area. They and their forefathers had also
constructed temples in Nahan Town and these temples were for public
G purposes. I did not see any Trust deed but I have only stated that
Maharaj Jagat Bahadur and Kanwar Beer Singh were trustees because
they used to maintain the disputed Dharamsala; Defendants No~ 4 and
5 are in possession of the property, where the old disputed Dharamsala
was situated. From outside they have constructed some shops which
'(
are visible from outside. I never went inside ............. "
H
KULDIP CHAND ,.. ADV GEN TO GOVT OF H!MACHAL PRADESH [S.B. SINHA. J ] J 205
He accepted that the rent received from the two shops was too meagre A
to maintain the disputed Dharamsala and Jagat Bahadur Singh was maintaining
the same.
If the Dharamsala was constructed for the purpose of Sarai within the
meaning of provisions of the Sarai Act. 1867 still it may not amount to
B
-
creation of a public trust. Dharan1sala \Vas not even registered under the Sarai
Act. No evidence had been brought on record to show that the provisions
thereof had been complied with either by the ru !er of the State or by the
Chowkidar.
All PWs and in pai1icular PW who was in service of the Raja, did not C
state that the provisions of the Sarai Act had been complied with. P.W.I, as
noticed hereinbefore, categorically stated that the rooms in the first floor
were meant for use by the family members of the Raja and/or by others with
l his permission. A part of the Dharamsala which, thus, remained under the
complete control of the owner of the property and, thus, the same cannot
answer the description of a public trust. D
Long user of a property as Dharamsala by itself would not lead to an
inference that dedication of the property by Kunwar Bir Singh in favour of
the public was complete and absolute. Had such dedication been made, the
same was expected to be recorded in the revenue records.
E
In terms of Section 35 of the Evidence Act, the entries in the revenues
record would be presumed to be correct; although the same is a rebuttable
one.
Another aspect of the matter must also receive serious consideration. It F
appears from the evidence of PW 8 that Bir Singh and his successors have
constructed many temples for general public. If a trust was created it was
expected that all the trust prope11ies would be managed by some trustees and
not by the rulers on their own. Furthermore, if there were other properties
which were also subject matter of public trust why no claim was made in
relation thereto. G
From the materials brought on records by the parties, as noticed
herein before, the following facts emerge : (I) That the shops were let out to
the other people; (2) People could come and stay in the Dharamsala but for
stay of more than three days, only upon seeking permission therefor; (3) Rent H
1206 SUPREME COURT REPORTS [2003] I S.C.R.
A received from the shops were being used by the owners for their own purpose;
(4) Dharamsala was being managed/maintained from the personal funds of
the owner: (5) The management and control of the Dharamsala was all along
with the owners; (6) A school was opened in tfie Dharamsala: (7) A chowkidar
was appointed by Ranzor Singh to look after the Dharamsala and his salary
used to be paid by the owner from his O\vn pocket: (8) Dharamsala could be ..
B used for marriage purpose but only with the permission of the owners: (9)
The first floor rooms could be used only by the officers or by others with the
permission of the owner; (10) The Dharamsala was ordinarily being used by
the pilgrims only during fair; (I I) The public never contributed anything for
maintenance of the Dharamsala; (12) No member of public had any say as
C · regards management of the Dharamsala and had no legal right to use the
same; ( 13) No member of public ever participated in the management of the
Dharamsala; (14) No manager had ever been appointed to look after and
manage the property; (15) The Dharamsala was not registered under the
Sarais Act; ( 16) There is no evidence to show that the owners acted as
shabaits or trustees.
D
A dedication for public purposes and for the benefit of the general
public would involve complete cessation of ownership on the pa11 of the
founder and vesting of the property for the religious object. In absence of a
formal and express endowment, the character of the dedication may have to
E be determined on the basis of the history of the institution and the conduct
of the founder and his heirs. Such dedication may either be complete or
partial. A right of easement in favour a community or a part of the community
would not constitute such dedication where the owner retained the property
for himself. It may be that right of the owner of the property is qualified by
public right of user but such right in the instant case, as noticed herein before,
F is not wholly unrestricted. Apa11 from the fact that the public in general and/
or any particular community did not have any right of participation in the
management of the property nor for the maintenance thereof any contribution
was made is a matter of much significance. A dedication, it may bear repetition ,
to state, would mean complete relinquishment of his right of ownership and
G proprietary. A benevolent act on the part of a ruler of the State for the benefit
of the general public may or may not amount to dedication for charitable
purpose.
When the complete control is retained by the owner - be it be
appointment of a Chowkidar; appropriation of rents, maintenance thereof
H from his personal funds dedication cannot be said to be complete. There is
KULDIP CHAND ,. ADV GEN TO GOVT OF HIMACHAL PRADESH [S.B SINHA. J) J 207
no evidence except oral statements of some witnesses to the effect that Raj A
Kumar Bir Singb became its first trustee. Evidence adduced in this behalf is
presumptive in nature. How such trust was administered by Raj Kumar Bir
Singh and upon his death by his successors in interest has not been disc!osed.
It appears that the family of the donor retained t~~ control over the property
and, therefore, a complete dedication cannot be inferred far less presumed. B
Furthermore. a trust which has been created may be a private trust or a public
trust The provisions .of Section 92 of the Code of Civil Procedure would be
attracted only "·hen a public trust comes into being and not otherwise.
'
. Undoubtedly, bequests for construction of a Dharamsala will be for a
charitable purpose. [I is not necessary that the properties must be dedicated C
to any particular deity but what is essential is complete dedication for a
charitable purpose. Such dedication may be made to a.n object both religious
and of public utility.
In Maharani He111anta Kun1ari Debi and Ors v. Gauri Shankar Te1rari
and Ors., (1940-41) Law Reports, LA., Vol 68, 53, the Privy Council while D
reversing the decision of the Allahabad High Court reported in (1936) I.LR.
Vol. 58, 818 observed :
"A bathing ghat on the banks of the Ganges at Benares is a
• subject-matter to be considered upon the principles of the Hindu law. E
If dedicated to such a purpose, land or other property would be
dedicated to an object both religious and of public utility, just as
1nuch as is a dhara1nsala or a math, nohvithstanding that it be not
dedicated to any particular deity. But it cannot from this consideration
be at once concluded that in any particular case there has been a
dedication in the full sense of the Hindu law, which involves the F
. . complete cessation of ownership on the part of the founder and the
vesting of the property in the religious institution or object There
may or may not be some presumption arising in respect of this from
particular circu1nstances of a given case, but, in the absence of a
formal and express endowment evidenced by deed or declaration, the G
character of the dedication can only be determined on the basis of the
history of the institution and the conduct of the founder and his heirs.
That the dedication of property to religious or charitable uses may be
complete or partial is as true under the Benares as under the Bengal
school of Hindu law. Partial dedication may take place not only where H
1208 SUPREME COURT REPORTS f2003] I S.C.R.
A a mere charge is created in favour of an idol or other religious object,
but also, as Mr. Mayne in his well known work was careful to notice,
"where the owner retained the prope1ty in himself but granted the
community or pa1t of the community an easement over it for certain
specified purposes .... .''
B It was further held :
" ..... Whether the question be limited to the ghat in suit or be enlarged
by consideration of the evidence about neighbouring ghats, it seems
to their Lordships that there is no substantial ground for holding that
the plaintiffs predecessors, or any of them, had divested themselves
c of all property in this ghat and had accepted the position of having
a mere right or management. No express dedication has been proved
by production of a deed of endow_ment or otherwise: No manager has
ever been appointed. Not one instance has been shown in which the
plaintiff or any predecessor has purported to act as superintendent,
D sebait or mutawalli. On the contrary, they have been treated as owners /
whenever by disrepair the ghat has attracted the attention of public
authority. They have repaired and substantially improved the ghat at
their own expense. They have closed it to bathers on proper occasions,
and have levied tolls on the keepers of shops at festivals. That their
expenditure upon the ghat has exceeded their receipts, and that they
E
would not wish to make a profit from the tolls is probable enough,
but in no way tends to prove that they have parted with all right as
owners of the soil. The evidence as to agreement taken from ghatias
upon nearby ghats is strong to show that in them the proprietors have
retained their rights of ownership notwithstanding that the ghats are
F public bathing places ...... "
When a dedication to a charity is sought to be established in absence
of an instrument or grant, the law requires that such dedication be established
by cogent and satisfactory evidence of conduct of the parties and user of the
G property which show the extinction of the private secular character of the
property and its complete dedication to charity. It must be proved that the
donor intended to divest himself of his ownership in the dedicated property.
'The meaning of charitable purpose may depend upon the statute defining the
same.
H This Court in Mahant Ram Saroop Dasji v. S.P. Sahi, Special Officer-
KULDIP CHAND ,. ADV.GEN TO GOVT. OF HIMACHAL PRADESH [S.B SINHA. J J J 209
in-Charge of Hindu Religious Trusts and Ors., AIR (I 959) SC 95 I traced the A
history of public trust and pointed out that whereas under English law all
trusts should be public trusts. u.1der Hindu law, there may be private trust
also. It \\'as held that all the statutes operating in the field including Section
92 of the Code of Civil Procedure apply to public trust alone.
In the Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar B
Das (supra), this Court upon noticing the decision of the Privy Council 111
Sahu Bhag1ran Din v. Cir Har Saroop, [67, I.A., I] observed :
'Thus, the mere fact of the public having been freely admitted to the
temple cannot mean that Courts should readily infer therefrom C
dedication to the public. The value of such public user as evidence
of dedication depends on the circumstances which give strength to
the inference that the user was as of right. No such evidence of any
reliable kind was available to the appellant-Board in the instant case."
This Court held that the charitable trust might either be created by a D
grant for an express purpose or a grant having been 1nade in favour of an
individual or a class of individuals, that individual or that class of individuals
might, after obtaining the grant, create a charitable trust but here there is no
evidence as regards such grant.
Yet again in Sri Radhakanta Deb and Another v. Commissioner of E
Hindu Religious Endo1vn1ents, Orissa (supra), upon taking into consideration
a large number of decisions of the Privy Council as also of this Court, it was
observed :
"It may thus be noticed that this Court has invariably held that the
mere fact that the members of the public used to visit the temple for F
the purpose of worship without any hindrance or freely admitted
therein would not be a clear indication of the nature of the endowment.
It is manifest that whenever a dedication is made for religious purposes
and a deity installed in a temple, the worship of the deity is a necessary
concomitant of the installation of the deity, and therefore, the mere G
factum of worship would not determine the nature of the endowment.
Indeed if it is proved that the worship by the members of the public
is as of right that may be a circumstance which may in some cases
conclusively establish that the endowment was of a public nature."
This Court laid down the following tests as sufficient guidelines to H
1210 SUPREME COURT REPORTS [2003] I S.C.R.
A determine on the facts of each case whether an endowment is of a public or
private nature :
(I) Where the origin of the endowment cannot be ascertained, the
question whether the user of the temple by members of the public
is as of right;
B
(2) The fa~t that the control and management vests either in a large
body of persons or in the members of the public and the founder
does not retain any control over the management. Allied to this
may be a circumstance where the evidence shows that there is
provision for a scheme to be framed by associating the members
c of the public at large;
(3) Where, however, a document is available to prove the nature and
origin of the endowment and the recitals of the document show
that the control and management of the temple is retained with
D the founder or his descendants, and that extensive properties are
dedicated for the purpose 9f the maintenance of the temple
belonging to the founder himself, this will be a conclusive proof
to show that the endowment was of a private nature;
(4) Where the evidence shows that the founder of the endowment did
E not make any stipulation for offerings or contributions to be made
by members of the public to the temple, this would be an important
intrinsic circumstance to indicate the private nature of the
endowment.
None of the aforementioned test is satisfied in the instant case. It is true
F that the appellants herein did not produce their title deeds wherefor an adverse
inference could be drawn, but transfer of the suit premises in their favour by
the owner thereof stands admitted and in fact the said transaction constituted
cause of action for fifing the suit. In any event, their possession over the
disputed premises stands admitted.
G We furthermore fail to understand as to why the public in general did
not exercise their right, if any, in respect of the suit premises for a long time
and at least since 1963.
It may be that a part of the Dharamsala in question was used by the
1
H general public for a long time but continuance of such a benevolent acts/
KULDIP CHAND "·ADV.GEN. TO GOVT. OF HIMACHAL PRADESH [SB SINHA. J.) 121 l
charity would not lead to creation of a trust which alone is the determinative A
factor for entertaining a suit at the instance of the Advocate General in terms
of Section 92 of the Code of Civil Procedure.
For the foregoing reasons, we are of the opinion that the judgment and
decree passed by the High Court cannot be sustained. The appeal is allowed
accordingly. However, in the facts and circumstances of this case, there shall B
be no order as to costs.
N.J. Appeal allowed.
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