Thakur Madan Mohan Lalji Gopal Lal alias Thakurji Madan Mohanji Birajman Mandir and Others vs Prakash Chandra

R.K. Mahajan, J.—This revision is against the order dated 17.4.1989 passed by Shri R. K. Shukla, VIth Additional Disrict Judge, Azamgarh by virtue of which he refused to entertain the suit u/s 14 of the Religious Endowment Act, 1863 (hereinafter referred to as the Act).

This revision has arisen from the following brief facts--there is one private endowment called Thakurdwara owned by family of Thakur Madan Mohan Lalji Gopal Lal alias Thakurji Madan Mohanji situate in Mohalla Gurutola, presently known as Mohalla Khattri Tola, Pargana Nizamabad, Tehsil Sadar, Azamgarh. The trust was created on 19.2.1977 and at present, Shri Prakash Chandra is the Mutawalli who manages the trust. The Manager (Mutawalli) was to be appointed from the family in rotation and the best possible person was to head the temple. It was alleged in the suit that Prakash Chandra sold the property for Rs. 16,000 and he may be removed from the Managership and in place of him, the present Appellants No. 2 to 5, namely, Bhagwan Das, Raghunath Prasad, Baijnath Prasad and Radhey Shyam may be appointed by the Court. The case of Prakash Chandra is that it was sold to maintain the trust property and not for personal gain. The learned trial court rejected the claim of the Plaintiffs-Appellants as the permission u/s 18 of the Act cannot be granted because the trust is a private one. Being aggrieved by the order of the trial court, the present revision has been filed.

I have heard the learned Counsel for the parties. The learned Counsel for the revisionist has submitted that the order of the lower court refusing to grant permission u/s 18 of the Act is erroneous on facts and law as the trust is of public nature.

Learned Counsel for the Respondent submitted that the Act only applies to endowment of public nature and not private endowment.

Learned Counsel for the Respondent further submits that the finding of the lower court is also not erroneous and cannot be interfered and has relied upon The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, . In the aforesaid case, the Hon''ble Supreme Court held that High Court should not interfere even if the order is right or wrong or is in accordance with law or not, unless it has exercised its Jurisdiction illegally or with material irregularity.

Since the lower court did not find the trust to be of public nature under the Act, so it refused to allow the permission to file a suit. The finding is based on facts and it cannot be interfered as the lower court has jurisdiction to decide on jurisdictional and foundational facts.

In case if there is defalcation of the property or mismanagement of the property by the trustee, the remedy also lies u/s 92 of CPC for removing the trustee if the trust was created for public purpose of charitable nature or of religious nature. Section 92 of CPC is quoted with advantage:

Public charities.--(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original Jurisdiction or in any other Court of Original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree of removing any trustee etc.

Counsel for revisionist has not resorted to this provision to avail the remedy and the counsel for the Respondent has not disputed regarding the applicability of this provision. The test whether the temple is a public or private was laid down in Bala Shankar Maha Shankar Bhattjee and others Vs. Charity Commissioner, Gujarat State, wherein it was held that:

In private trust, the beneficial interest is vested absolutely in one or more individuals who are, or within a given time, may be definitely ascertained. On the other hand public trust has for its object the members of an uncertain and fluctuating body and the trust itself is: of a permanent and indefinite character and is not confined within the limits prescribed to a settlement of a private trust. In a public debuttar or endowment, the dedication is for the use or benefit of the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. There is a broad difference when one comes to construe a dedication, between conduct which shows that the owner of the property is giving individuals and conduct which shows that he intends certain members of a class whom he desires to benefit to act indiscriminately without permission that is to say, as of right. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. A useful test, for a Judge to apply to see whether the evidence satisfies the conditions of the private trust, is to ask himself whether any of the acts testified to by the witnesses could have been prevented or penalised by proceedings for trespass.

Learned Counsel for the Respondent cited the case Raja Brajasunder Deb Vs. Raja Rajendra Narayan Bhanj Deo, and submitted that since it is a private idol and as such. Religious Endowment Act, 1863 does not apply.

It was observed that Sections 1 to 17 of the Act do not apply to endowment which is not public. Admittedly, the trust is private religious in nature and in the facts and circumstances of the case, the remedy can be availed u/s 92 of Code of Civil Procedure.

I find substance in the arguments of the counsel for the Respondents and in my view, there is no infirmity in the lower court order and the same is maintained. The revision is dismissed.