Ram Prasad Gupta and Others vs Ramkishun Prasad

Kulwant Sahay, J.—This is an application in revision against an order of the District Judge of Shahabad dismissing the petitioners'' application u/s 18, Religious Endowments Act (20 of 1863), for leave to institute a suit for the removal of the muttawali of a Hindu endowment in the town of Arrah.

The learned District Judge has held that the petitioners are interested in the trust, that they were animated by bona fide motives and that there has been mismanagement and breach of the trust. He has however held that the petitioners have failed to show that the endowment was a public endowment and that in order to bring the case within the provisions of Section 18 of the Act it was necessary to show that the endowment was a public endowment. The application for leave to sue was therefore dismissed on the sole ground that the endowment in question was not of a public nature. The point for consideration therefore is whether it is necessary, to attract the provision of Section 18 of the Act, that the endowment must be of a public nature; and secondly, whether the endowment in the present case is a public endowment.

On behalf of the petitioners it is contended that it is not necessary to prove for the purposes of Section 18 of the Act that the endowment must be of a public nature. Act 20 of 1863 was primarily passed to relieve the Boards of Revenue and the local agents in the Presidency of Fort William in Bengal, and the Presidency of Port Saint George, from the duties imposed on them by Regulation 19 of 1810 of the Bangal Code and Regulation 7 of 1817 of the Madras Code, as is evident from the preamble of the Act. Sections 3 to 13 of the Act provide the mode of transferring to the trustees etc., of the trust property which were then held in charge of the Boards of Revenue, for deciding disputes as to the right of succession to trusteeship, the rights of the trustees to whom the property was to be transferred, for appointment of committees for exercising the powers which were till then exercised by the Boards of Revenue or the Local Agents, for the constitution and duties of those committees and the qualifications of the members thereof, for their tenure of office, for the manner of filling up vacancies, and for duties of trustees and of the committees as to accounts, etc Section 14 of the Act then provides for suits by persons interested in any mosque, temple or religious establishment, or in the performance of the worship or of the service thereof, or the trusts relating thereto, against the trustees, managers or superintendents of the mosques and religious establishments for any misfeasance, breach of trust or neglect of duty committed by them. Section 18 provides that no suit contemplated by Section 14 shall be entertained without the leave of the Court previously obtained, and "Court" has been defined in Section 2 as the principal Court of original civil jurisdiction in the district in which the mosque, temple or religious establishment is situate.

The question is whether the suit contemplated by Section 14 refers to suits in respect of mosques, temples or religious establishments in general, or only to such mosques, temples and religious establishments as are dealt with in Sections 3 to 13 which evidently contemplate mosques, temples and religious establishments to which Regulation 19 of 1810 was applicable. It was held in Jan Ali v. Ram Nath Mundul [1881] 8 Cal. 32 that the mosque, temple or religious establishment mentioned in Section 14 of the Act is not any mosque, temple or religious establishment whatever, but any mosque, temple or religious establishment for the support of which endowments in land have been made by the Government or private individuals, in other words, mosques; temples, or religious establishments to which Regulation 19 of 1810 was applicable. This appears to be the true interpretation to be placed upon Section 14 of the Act of 1863. What we have to consider is whether, if the Regulation of 1810 were still in force, the endowment in question in the present case could have been brought within the purview of that regulation or not.

As appears from the preamble to the Regulation of 1810, all that was necessary to attract the provision of the Regulation was that the endowment granted in land should have been by the Government or by individuals for the support of mosques, Hindu temples, colleges, etc. In the present case the endowment expressly is by an individual for the support of a Hindu temple, and there is no reason to hold that, had the Regulation 19 of 1810 been in force the present endowment could not have been brought within the purview of it. It is true that Section 16 of the Regulation states that the object of the Regulation was solely to provide for the due appropriation of lands granted for public purposes agreeably to the intent of the grantor; but the preamble to the Regulation shows that when endowments had been granted in land by an individual for the support of a Hindu temple such endowments were to be considered as for publics purposes. Section 16 of the Regulation merely gave an assurance to the public of the object for which the Regulation was passed, viz., to provide for the due appropriation of the lands granted for public purposes agreeably to the intent of the grantor and not to resume any part of the produce of them for the benefit of the Government, so that no suspicion may arise as to the objects of the Government.

If therefore the endowment in question in the present case came within the purview of Regulation 19 of 1810, as it obviously did, being an endowment of land by an individual for the support of a Hindu temple, it is to be presumed that it was one for public purposes, and Section 14 of the Act of 1863 and consequently Section 18 thereof must beheld to be applicable. In Sheoratan Kunwari v. Ram Pargash [l896] 18 All. 227 what was contended for was that Act 20 of 1863 applied only to those endowments the nomination to which had been exercised by or had vested in the Board of Revenue under Regulation 19 of 1810, and it was held that this contention was not sound and that it was not necessary to show that the temple was one which was formerly under the control of the Board of Revenue. In Delrus Banoo Begum v. Kazee Abdoor Rahman [1875] 23 W.R. 453 it was held that in order to vest the super-intendence of an endowment in the Board of Revenue under Regulation 19 of 1810 it was necessary that the endowment should be of a public nature. That case went up to the Privy Council, and although their Lordships disposed of the appeal on another point and held that it was not necessary for them to determine whether the endowment in question was of such a character as would sustain a suit under Act 20 of 1863, yet they observed that they saw no reason for disagreeing with that part of the judgment of the High Court where it had held that the endowment was not of such a public character as would sustain a suit under the Act of 1863: see Asghar Ali v. Delroos Banoo Begam [1877] 3 Cal. 324 (P.C.). This view was followed by Tottenham and Banerjee, JJ., in Protap Chandra Misser v. Brojo Nath Misser [1891] 19 Cal. 275. I am therefore of opinion that all that is necessary in order to attract the provisions of Section 14 and Section 18 of the Act of 1863 is to show that the endowment is of a nature that the superintendence of it could vest in the Board of Revenue under Regulation 19 of 1810 if it were in force; and as, in my opinion, the endowment in question in the present case is of such a character, the District Judge had jurisdiction to grant the leave u/s 18; and in refusing to do so he has failed to exercise his jurisdiction vested in him by law.

In this view of the case it is not necessary to consider the terms of the endowment in order to determine the purposes thereof. Had it been necessary to do so I would hold that the endowment is of a public character. The purpose of the endowment was for maintaining the services in the temple in which the images of Sri Ramchandraji, Lachhmanji and Sri Janki Maharani had been installed. The founder had divested himself completely of his interest in the property and had transferred it to the temple and the images therein. The protection of the endowment in such a case, according to Hindu law, ultimately vested in the Crown and as such it must be treated to be of a public nature.

One of the tests to determine whether an endowment is a private family endowment or a public endowment is to consider whether the founder or all the members of the family could divert the income of the endowed property to their own private use or to any purpose other than that expressed in the deed of endowment. Here under the express terms of the deed the income could not be so diverted in any event and at any time, but was to be used for all time to the purpose of maintaining the services in the temple. I would therefore set aside the order of the District Judge and grant the leave u/s 18 of the Act as applied for. Having regard to the nature of the case, I am of opinion that there should be no order for costs.

James, J.

I agree.