Mt. Tetar Kuar and Others vs Chhotu Das

Chatterji, J.—This appeal arises out of a suit brought by five plaintiffs under the provisions of Section 92, Civil P.C., for removal pf the defendant on the ground that he committed breach of trust. The defence inter alia was that the trust in question was not a trust of a public nature such as would come under the provisions of Section 92, Civil P.C. The learned District Judge gave effect to this defence and dismissed the suit, holding that the trust was not of a public charaeter. The plaintiffs have preferred this appeal.

The trust in question was created, by a deed dated 22nd April 1913, which was executed by Hanuman Das. The deed recites that Hanuman Das and his wife having no children were always engaged in the service and worship of the idol Sri Radha Krishnaji, installed by Hanuman Das exclusively in the thakurbari in his family residence. With a view to make provision for the worship of the idol he dedicated his residence together with his properties to the idol. He appointed Chhotu Das whom he had brought up since his childhood like his son as the mutawalli. The deed provides:

It is necessary and proper that mahanth Chhotu Das, manager and mutawalli, should always, as usual, serve and worship (the idol), perform the ragbhog and celebrate the festivals, so that no want and difficulty may be felt in the performance of the ragbhog, should thoroughly repair the temple, thakurbari and the houses thereof, so that they may not go out of repairs. As a matter of fact, he should make the nakdi and bhaoli collection and properly, should manage the said thakurbari and its affairs in accordance with the needs of the time and should serve the casual visitors.

The deed further provides for the appointment of a subsequent mutawalli by his relations in case Chhotu Das died without leaving any chela. The learned District Judge upon a construction of this deed has held that there is nothing in the deed to indicate that Hanuman Das intended to smake a dedication in favour of the public. At the very outset the deed recites that the idol Sri Radha Krishnaji was installed by Hanuman Das in his family residence. It is not disputed that Sri Radha Krishnaji was the family idol of Hanuman Das.

The question naturally arises whether there is anything in the deed from which it can be said that Hanuman Das intended to convert his family idol to a public idol. There is absolutely nothing whatever of that sort in the deed. Mr. Sarjoo Prasad contends that the dedication to the public may be inferred from the fact that there was an absolute dedication to the idol, that part of the income was intended to be spent for casual visitors and that the relations of Hanuman Das were given the option to select an outsider as mutawalli. None of these factors however can be regarded as proof of dedication to the public.

In every case of an absolute dedication to an idol, whether private or public, the dedicator divests himself absolutely of his proprietary interest in the properties endowed. As regards the entertainment of casual visitors, it is not uncommon in the case of private endowments. As regards the selection of an outsider as mutwalli, it is to be observed that Hanuman Das was childless, and he was making provision for the appointment of a mutwalli in case he left no issue or Chhotu Das left no chela.

Mr. Sarjoo Prasad also relies upon the evidence of certain witnesses who say that Chhotu Das had no right to stop the public from entering the temple. But the learned Judge has given very cogent reasons for disbelieving that evidence, and there is no reason why we should differ from the Judge''s estimate of the oral evidence. The deed of dedication is of 1913, and the terms of the deed are quite clear. Upon the terms of the deed it is impossible to hold that there was any intention to create a public trust. To my mind any oral evidence would be absolutely useless to control the terms of the deed.

In my opinion the learned Judge was quite right in holding that the trust is not of a public character, and in that view he was right in dismissing the suit.

I would therefore dismiss the appeal with costs.

Harries C. J.

I agree.