MAHANT PARICHCHAN DASversusTHE BIHAR STATE BOARD OF RELIGIOUS TRUSTS & ORS.

                                                                             1125

                        MAHANT PARICHCHAN DAS                                          A
                                         v.
   THE BIHAR STATE BOARD OF RELIGIOUS TRUSTS & ORS.
                                Novernber 6, 1979
               [R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]
        Bihar Hindu Religious Trusts Act, 1951 (1 of 1951)-Trust of a public
 '()T   private nature-TeSts.
     The appellant (plaintiff) the present Mahan!, filed a suit for a declaration
, that the ple.int-schedule- properties were his personal properties1 and that there
 was no trust of a religious or public nature so as to· attract the provisions of
 the Bihar Hindu Religious Trust Act 1951. It was contended in the suit that           C
 one G constructed a temple on his own land in the village, installed deities~
 performed puja and raj-bhog till his death, that the public had no concern
 with tho idols and that after his death he was succeeded by his son who
 became a bairagi. Apart from the properties left by him, his son also acquir-
 •ed other properties. On the son's death he was succeeded by his Chela who
 •became a Mahant. Each succeeding Mahant was succeeded by his Chela.
 Properties vmre acquired by the respective Mahants in their own name and              D
  trela!ted as their personal properties. One of the Mahants constructed a temple
  in a. nearby village where he installed deiti~s and performed puja and raj-bhog.
 It ·was claimed that the temple and the properties were the private properties
 •of the Mahant and the public did Ilot havC any interest or right in them.
 The suit was contested by respondent No. ·),,.contending tbQt the temples and
 the properties were not the private properties of the Mahant and that they
 'belonged to a Hindu Religious Trust to which the provisions of the Bihar             E
 Hindu Religious Trusts Act, 1951 were applicable. The Trial Court dismissed,
 the suit and its decree was confirmed by the High Court.
    In the appeal to this Court, the question was whether the plaint-schedule
 properties were properties in respect of which there was~-a trust of a public'
 or religious nature so as to attract the provisions of the Bihar Hindu Religious
 Trusts Act, 1951.                                                                     F
    . HEID : !. The High Court was right in holding that there wai a trust
  of a public nature. [1130BJ
     2. The fact that members of the public were permitted to go to the
  temple without any hinderance might not be a circumstance which by itself
  worud conclusively establish that the temple was a public temple 'in the
  absence of an ~lement of right in the user of the temple by the public. Con-         G
  versely the free use of the properties of the temple by the Mahant at a time
  when he was the sole. manager of the temple and its properties would not
 .necessan1y le!ad to the inference that the temple was not a public temple. [1129EJ
     3. There can be no simple or conclusive factual test to determine the
 «Character of a trust. The totality of the circumstances and their effect must be
 .considered. [1129FJ ,                                                                B
    In the instant case not only were the members of. the public allowed free
 access ·to the. temple, but they were evincing much great.er interest in the instl-
      1126                   SUPREME COURT REPORTS                   [1980] 1 s.c.R.

A     tution as several villagers had made gifts of land to it, a circumstanct; which
      would ordinarily be consistent with the nature of the institution being public
      and not private. [1129F]

          4. The situation of the temple woulq be an important        circumstance    in
      determining whether it was private -0r public. [1129G]
         Deoki Nandan v. Mur/idlzar [1956] S.C.R. 756 refetred to:
B
          In the instant case the High Court had pointed out that the temple was
      constructed outside the village o:D. open land between two vil}Uoges so as to be
      convenient to the villagers of both the villages. It was constructed on a high
      platform and was open on all sides with plenty Of space around it, so as to-
      attract and accommodate large number of villagers from two villages. This
      indicated that the trust was of a public nature. [1129H~1130AJ
c         5. The d.onatioo of land by members of the public to the insti.tution and
      location of the temple at a place freely. l!<cessible and convenient to the pnblio
      were circumstances which indicated that the trust was of a public nature. [1130BJ
         Bihar State Board Religiou3 Trust, Patna v. Mahanl Sri Biseshwsr Das~
      [1971] 3 S.C.R. 680, distinguished.

D     CIVIL APPELLATE JURISDICTION : Civil Appeal No, 2582 of 1969.
         From the Judgment and Decree dated 12-12-1961 of the Patna
      High Court in Appeal from Original Decree No. 50/57.
          B. P. Singh for the Appellant.
E         D. Gobardhan for Respondents 1-2.
          U. P. Singh for Respondent No. 3.
          The Judgment ·of the Court was delivered by
          CHINNAPPA REDDY, J .-The only question for consideration in this
      appeal is whether the plaint-schedule properties are properties in res-
Ji'   pect of which there is a trust of a public or r~ious nature so as to
      attract the provisions of Bihar Hindu Religious Trusts Act (Act I of
      1951).· The plaintiff-appellant filed the suit out of which the appeal
      a•ises for a declaration that the properties were his persoool proper-      ·. ~
      ties and t.'iat there was no trust of a religious or public nature so as       l
G     to attract the provisions of the Bihar Act I of 1951. His case, as set · ·,
      out in the plaint, was that one Gurdya.1 Singh constructed a temple
      on his 0\\11 land in the village' of Dumri and installed the deities of
      Ramji, Lakshmanji and Sitaji in the temple. He used to perform puja
      and raj-bhog till his death. The public had no concern with the.
      idols.' After his death be was succeeded by bis son Gulab Singh who
      became a bairagi assuming the name of Gulab Das. Apart from the
      properties· left by Gurdya\' Singh, Guiab Das also acquired other pro-
      perties. On his death he was succeeded by his Cbela Brahmdas who
               l'. DAS v. BIHAR RELIG)OUS TRUSTS (Chinnappa Reddy,!.) 1127


     in tum was 1mcceeded by his Chela Dwarika Das. Each succeeding                     A
i.
     Mahant was succeeded by his Chela, the present Mahant being the
     plaintiff-appellant. Properties were acquired by the respective
     Mahaots in their own individual names and were always treated as their
     personru properties. Brahmdas constructed a temple in the village of
     Maudchln where also he installed the deities of Ramji, Lakshmanji nnd
     0


     Sitaji and used to perform puja and raj-bhog. The temple and the
                                                                                        B
     properties were the private properties of the Mahani and the public
     dH not have any interest or right in them. The suit was. contested
     by the Bihar State Board of Religious Trusts and others who pleaded
     that the temples and the properties were not the private properties of
     the Mahaot and that they belonged to a Hindu Religious Trusts to                   c
     which the provisions of the Bihar Religious Trusts Act were applicable.
     The suit was dismissed by the Additional Sub Judge of Muzaffarpur
     and the decree of ·the Trial Court was confirmed by the High Court
     of Palna.
             Shri B. P. Singh, learned counsel for the appellant-plaintiff accepted
                                                                                        D
         the several findings arrived at by the High Court on various evidential
         matters and argued that even on those findings it could not be held
         that the properties belonged to a Trust of a religious or public Il'll.!ure.
         He invited our attention to the decision of this Court in Bihar State
         Board. Religious Trust, Patna v. Mahant Sri Biseshwar Das,(') and
         submitted that on almost identical facts it had been_ held in trot case        E
         that there was no trust for religious or public purposes.
             In IJiliar State Board Religious Tn1st, Patna v. Mtihant Sri
         Biselhwar !Das,(') the facts found by the High Court as summarised
         by this. Court were :
                   "(!) that the temple was constructed by Gaibi Ramdasji
                                                                                        F
              and it was he who installed the deities therein;
                   (2) that he was succeeded to the mahantship by his
              chela, and thereafter succession to the mahantship had been
              from guru to chela;
                   (3) that the appointment of a successor has been all
              through-out from 'f_Uru to chela, the reigning mahant appoint-            G
              ing or nominatin~_lhis succ~ssor from amongst his chelas and
              tlie members of tile public have had at no time any voice in
              the selection or njimination;     ,
                  (4) that the properties have always been recorded in
              the names of the malmnts as proprietors and not in the name
                                                                                        H
              of the deities in. the D registers, Khewats and Khatians;
          II) {1971! 3 S.C.R. 680 at 686, 687.

                                 •
     1128                SUPREME COURT REPOllTS              [1980] 1 s.c.ll.

.A           (5) that the mahants have been in possession am;!
          management of the asthal and the properties all throughout;
              ( 6) that the mahants acquired properties from time to
          time in their own names as proprietors and never in the
          rtames of the deities or. the asthal, without any objection at

•         any time from any one and dealt with some of them through
          deeds of s~les, mortgages, leases etc."
     Before this Court reliance was placed on the following circumstances
     to prove that the p~operties were impressed with a trust for religious
     or public purposes :
c            " ( 1) the fact that the mahants were vaishnav !Joairagis
          who were life long celibates;
             (2) that sadhus and others were given food and shelter
          when they visited the temple;
              (3) that festivals and other important_ Hindu dates used
         to be celebrated;
              (4) that the members of the public came to the temple
         for darshan without any hindrance and as of right ;
              ( 5) that in the deeds and wills, whereby reigning
          mahants appointed or nominated their successors, the. pro-'
E
        . perties were described as appertaining to the asthal, and that .
          the temple being the dominant part of the asthal and main-
          tained for the worship and puja of the presiding deities instal-
          led therein, the properties belonged to the temple, and
          therefore, they were properties of a trust for religious and
          charitable character.
             ( 6) The idols were installed partly on a pedestal and
         the temple was constructed on grounds separate from the
         residential quarters of the Mahant".
     It was held by this Court that everyone of the circumstances was._
     equally consistent with the character of the trust being public or pri- '
     vate and that the onus which was on the Bihar State Religious Trust
     Board to establish the public nature of the trust had not been dis-
     charged.
         In view of the submissions of the learned counsel for the appel-
11   !ant, it is necessa.ry to refer to the findings of the High Court in the
     present case. The High Court found that there was no evidence to
     show who the founder of the Mutt was and who built the temples.
        P. DAS v. BIHAR RELIGIOUS TRUSTS (Chinnappa Reddy, 1.) 1129


 [t was also found that there was no evidence to show that the temple          A~
 fa the village of Dumri was. constructed on the land belonging to Gnr-
 -Oyal Singh. or that the temple in the village of Maudah was constructed
 ·On l;md belonging to Brahmda/i. It was fourid that several proper-
 ties were acquired by various Mahants in th_eir names ·instead of in the
  names of the idols but the acquisition of properties was for the pur-
 poses of the Asthal or Mutt. It was also found that from time to
 ·time .gifts of land had been made by the villagers of ·Dumri. It was
                                                                               •
  found that the Mahants had executed Kebalas for effecting repairs of
  the temples and had similarly executed deeds of mortgage. It was
  found that the people of the villages of Dumri and Maudah used to
  visit the temple without any let or ·hinderance and that the Mutt was
 ·so located as to suit the convenience of the villagers of both Dumri         c
  and Harpur. It was situated on the boundary of the two villages and
 was on a platform at a certain height, open on all sides with plenty of
 ·space around it. The temple in the Mutt had three doors with space
 for visitors. It was noticed by the High Court that the lands were
  held rent free in consideration of religious services.                       D
        It is true as submitted by the learned counsel, many of the crr-
   .cumstances are neutral. The fact that members of the public were
   '.JIBrmitted to go to the temple without any hindrance might not be a
  ·circumstance which by itself would conclusively establish that the
    temple was a public temple in the absence of an element of right in        E
   the user of the temple by the public. Conversly the free use of the
   ·properties of the temple by the Mahant at a time when he was the sole
    manager of the temple and its properties would not necesS'ar:ily lead
    to the inference that the temple was not a public temple. Patently
    there can be no simple or conclusive factual tests to determine the
  ·character of a trust. The totality of the circumstances and their effect
  ·must be considered. Here not only do we find that members of the
  ·public were allowed free access to the temple, they were evincing much
  ;greater interest in the institution as evidenced by the circumstance that
    ~everal villagers had made gifts of land to it, a circumstance which
. :would ordinarily be consistent with the nature of the institution being
  :public and not private. Again, as pointed out by Venkatarama Ayyar,         G
   J., Deoki Nandan v. Murlidhar,(') the situation of the temple would
  'be an important circumstance in determining whether it was private
    or public. The High Court has pointed out that the temple was cons-
  •tructed outside the village on open land between the villages of Dumri
  :and Harpur so as to be convenient to the villagers of both the villages.
  [t was constructed onl a 'high platform and was open on all sides with       R'
    1130                SUPREMJI COURT REPORTS           [1980] 1 s.c.R~-

    plenty or space around it to accommodate large number of people.
    Obviously the temple was located and constructed so as to attract and·
    accommodate large number of villagers from the two villages. The
    donation of land by members of the public to the institution and the
    location of the temple at a place freely accessable and convenient to
    the public were circumstances which were absent in Bihar State Board-
B   Religious Trust, Pllfna v. Mahant Sri Biseshwar Das (supra). We
    are satisfted that, in the circum~tances the High Court was right in
    holding that there was ,a trust of a public nature. The oappeal is,.
    therefore, dismissed with costs.


    N.V.K.                                             Appeal dismissed<.