1. The present action has been brought by the plaintiff for a declaration that certain alienations made by the defendant Sant Shah who is the Mahant of a Dharamsalla be declared to be void. There is also a prayer compelling the defendant to return the amount of monies taken by him from the Collector Srinagar, to the credit of the Dharamsalla, or in the alternative to invest this money in government securities, There is also a prayer for directing defendant Sant Shah to render accounts regarding the money received by him from the Collector and directing him to throw the Dharamsalla open for the use of Shutra Shahian. The suit has been cons tested by the defendant on various grounds and the defendant has also taken certain preliminary objections to the maintainability of the suit.

2. On the pleading of the parties the following preliminary issues were raised in this case:

1. Whether the State is a necessary party to the suit? O.P.D

2. Whether the suit is barred by Section 92 of the CPC? O.P.D

3. Whether the suit is barred by the provisions of Religious Endowments Act? O.P.D

3. The plaintiff has adduced evidence on these preliminary issues which I would now consider, I would first take up Issue No. 2 which to my mind is the most important issue in this case.

4. Counsel for the plaintiff contended that the present suit does not come within the provisions of Section 92 of the CPC and therefore, sanction of the Advocate General was not necessary before instituting the present suit.

5. Counsel for the defendant contended that the present suit is clearly a suit which is governed by the provisions of Section 92 of the CPC and therefore the suit cannot proceed without the sanction of the Advocate General.

6. In order that Section 92 of the CPC may apply four conditions appear to be necessary to be satisfied.

i. There must exist a trust for public purposes of a charitable or religious nature.

ii. The plaint must allege that there is a breach of such trust or that the direction of the court is necessary for the administration of the trust.

iii. The suit must be a representative one on behalf of the public and not by individuals for their own interests.

iv. The relief claimed in the suit must be one of the reliefs mentioned in the section.

7. I would first take up the first condition namely as to whether the present trust is a trust for public purposes of a charitable or religious nature.

8. In the present case, the plaintiffs allegation is that Dharamsala Shutra Shahian situated in Srinagar was a trust created for the benefit of an order of Sadhus peculiarly known as Shutra Shahian and the Dharamsala in question is styled as Dharamsalla Shutra Shahian. The Dharamsala is situated in Shaheed Gunj and the proprietary rights of the Dharamsalla vest in an organisation of Shutras as a whole.

9. It is also alleged that the sect was recognised by the Dogra rulers who encouraged the settlement of members of the sect in the State and a “Muafi” of land revenue was also sanctioned by the rulers of the State with respect to the Dharamsala. It also appears from the plaintiff's case that several immovable properties by way of gifts were given for the use and residence and maintenance of the members of Shutra sect. The Dharamsala is managed by person belonging to the Shutra Sect and selected by corum of at least five Shutra Sadhus.

10. The manager was removeable if he failed to observe the Shutra principles or if he was guilty of misfeasance or breach of the trust. The plaintiffs allegation further was that an area of 128 Kanals 7 Marlas was acquired under the Land Acquisition Act and compensation was paid to the manager. These proceedings have also been challenged by the plaintiff in his plaint and certain allegations of waste and mis-appropriation have also been made by the plaintiff in Para Nos. 9 and 11 of the plaint.

11. In order to determine whether a particular trust is a public trust within the meaning of Section 92 of the CPC we have to sea whether the beneficial interest is vested in an uncertain and fluctuating body of individuals and whether the trust is of a permanent character. It is not disputed in this case that the present trust is of a permanent character. It is admitted that beneficial interest is vested in a body of individuals which is only a section of the public or caste namely the Shutra Sect.

12. The fact, however, that the management of the trust vests only in the hands of such persons, namely, Shutras in this case and the public has no hand in the said management, by itself would not be sufficient to show that the trust is not a public trust. I am fortified in my view by a decision of Orissa High Court reported in Bala Krishna v. Ganesh Prasad, AIR 1952 Orissa 203 where their Lordships have observed as follows:

“The fact that the management has followed a particular line of descent in the Bharati family and later on in the plaintiffs family, or that no member of the public ever took any interest in the management or upkeep of the temple, would not indicate that the temple is the private properly of the plaintiffs. No trustee can by his own acts of mis-management or repeated alienation contrary to the interests of the trust, convert what is otherwise a public endowment into a family endowment.”

13. Mr. Nehru argued that the fact that the public had no hand in the management of the trust shows that it was not a public trust. This argument, as I have already pointed out is not sound and does not find support from the authorities. In the instant case no deed by which the present trust was created has-been brought on the record by the plaintiff.

14. We have to determine the nature of the trust from the oral evidence led by the plaintiff regarding user of the Dharamsalla. A consideration of the evidence of the plaintiff will clearly show that the beneficial interest as also the administration;, vests only in a particular sect namely Shutras yet ithe Dharamsala is open to the public and can be used by all members of the public at any time. P. Ws. 1, 2, 6 and 7 have clearly stated in their evidence that the Dharamsala can be used by any member of the public.

15. P.W 2 has further stated that there is a temple in the Dharamsala in which anybody can worship. P.W 3 however says that in the present Dharamsala there is no temple but he is sadly contradicted by P.W 2 which has been discussed above. P.W 4 says that only Shutras can stay in the Dharamsala but the witness does not appear to be a competent witness because he has admitted that he does not know anything about the law and custom governing Shutras.

16. The witness is merely a chance witness who passes through the Dharamsala off and on and in these circumstances his evidence cannot be considered to be worthy of credence. P.W 5 also says that only Shutras can stay in the Dharamsala and no-one else. But this witness is also contradicted by the evidence of P. Ws. 1 and 2. On the other hand P. Ws. 6 and 7 have clearly stated that any member of the public can stay in the Dharamsala and use it.

17. P.W 7 also says that the income of Dharamsala has to be spent for public purposes. P.W No. 1, has stated that there was an Ayurvedic Pharmacy attached to the Dharamsalla where medicines were sold and distributed free to the public. It is, therefore, clear from the plaintiffs evidence that although the Dharamsala was founded for the benefit of Shutras and is managed by Shutras, yet it has been used indiscriminately and freely by the public for a very long time.

18. In these circumstances, it cannot be said that Dharamsala Shutra Shahian in question is a private-trust. In Dhoribhai Dadabhai v. Pragdasji Bhagwan-dasji, AIR 1938 Bom 471 it was held that even if the use of a temple is restricted to persons professing a particular sect, the temple might still be a public temple; and that even though the properties were to be used for the benefit of a particular institution, but if there was a public user, the trust became a public trust.

19. The facts of that case in my opinion seem to be very much similar to the facts of the present case. In the present case also according to the plaintiff the beneficial interest vested in Shutras and so did the management but the Dharamsala was used by any member of the public and the income was to be spent for the benefit of the public. Thus, the mere fact that the present Dharamsala was-meant for the purpose of Shutra sect, would not by itself show that it was not a public trust.

20. To the same effect are the decisions reported in Mt. Afiman v. Hamiduddin Husain, AIR 1919 Lah 190, Nathu Mal v. Kishori Lal Singh, AIR 1915 All 69, and Mahomed Nabi v. Province of Bengal, AIR 1942 Cal 343. In a recent case of the Privy Council reported in AIR 1948 PC 214, Gurnatharudhaswami v. Bhimappa Gangadharappa, it was held that the fact that the trustee of a public religious and charitable trust received many gifts of property for charitable purposes from various persons clearly went to show that the trust was a public trust.

21. In the present case also it is the plaintiffs allegation in para No. 1 of the plaint that Shutra Shahian received gifts from various persons. The position, therefore, which emerges from the evidence led by the plaintiff and the allegations made in the plaint is that the Dharamsala was meant for the benefit of Shutras and was managed by them, but was open to the use of the public. The well recognized tests to determine a public trust are:

i. The nature of the object and purpose of endowment, that is, whether it is open to the public generally or not.

ii. The authority of the donor to derive the funds.

iii. The existence of any reversionary right in the donor, and

iv. The user by the public.

22. In the present case, it is dearly alleged by the plaintiff in Para No. 3 of the plaint that the management of the trust had no personal interest in the property and there is no allegation to show that there was any reversionary right in the founder of the trust and nor there is anything to show that the donor reserved himself the authority to divert funds. On the other hand, the allegations are that the trust property was managed in accordance with the principles of the Shutra Sect.

23. There is overwhelming evidence to show that the Dharamsala was thrown open to the public also. These circumstances, therefore, clearly show that the Dharamsala in question was a public trust which clearly comes within the provision of Section 92 of the CPC. I am, therefore, satisfied that the first condition mentioned in Sec. 92 is fulfilled in this case.

24. I would now come to the second condition namely: As to whether there is an allegation of breach of the trust on the part of the manager.

25. Mr. Nehru Submitted that there is no allegation of breach of trust made by the plaint in his plaint I am, however, unable to agree with this contention. The plaintiff has clearly alleged in Para No. 3 of the plaint that the manager of the trust has no personal interest and cannot use the properties or their usufruct against the principles of Shutra Sect. In para No. 9 of the plaint, the plaintiff makes the following allegations:

“The result of this payment to the defendant has been that the defendant has used and is using this money for his personal benefit. He purchased a motor car, ill fitted for the mendicant Sadhus of Shutras. He gave gifts to his relatives. He is lavishly spending money in disregard of the interests of the Dharamsala for purposes which are not authorised or moral. He has given up all restrictions of the Sect on dress, Joil Dunda, and manner of living including eating and drinking. He is also trading with this money which is not authorised or safe.”

26. A perusal of these allegations would convince anybody that this is nothing but a dear allegation of misfeasance on the part of the trustee. The second condition is also, therefore, satisfied in this case.

27. As regards the third condition that the suit must be in a representative capacity, it is not disputed that the present suit has been filed in a representative capacity and the plaintiff had obtained the sanction of the court under Order 1, Rule 8 of the CPC for filing the present suit. This condition is, therefore, also satisfied.

28. The last condition is with respect to the reliefs claimed by the plaintiff. The reliefs claimed by the plaintiff are as follows:

i. Declaring that the defendant Sant Shah was and is incompetent to alienate in any manner the movable property, immoveable property or its equivalent in money belonging to the Dharamsala Shutra Shahian in village Shahid Guni Srinagar or to trade with the money equivalent of such property or to spend such money for any purpose other than the Dharamsala Shutra Shahian, located in Srinagar.

ii. Compelling the defendant Sant Shah, to return the money taken by him from the Collector Srinagar as compensation for the property of the Dharamsaua to the collector Srinagar for investment according to law or in the alternative to invest this money in safe securities recognized by the law with the approval of the members of the Shutra Sect.

iii. Ordering the defendant Sant Shah to render accounts of the money received by him from the Collector Srinagar by way of compensation and to trade with that money.

iv. Compelling the defendant Sant Shah to keep open the Dharamsala at Sahid Gunj Srinagar for the use of Shutra Shahian and to open a Sadabarat for them in that Dharamsala.

29. Relief is dearly a relief which comes within the category (c) of Section 92 clause (1) of the CPC. Moreover, relief No. 3 directing the defendant to render accounts also comes within the Telief (d) of Section 92(1) of the CPC because the court is asked to direct accounts and inquiries into the accounts of the trustee. In case reported in AIR 1942 Cal 343, the Division Bench of the Calcutta High Court has held:

“Relief to compel trustee to cease spending Waqf income on secular objects and to apply entire income to religious purposes falls under Sec. 92(1)(h) as it is of same nature as contemplated in S. 92(1)(e)”.

30. In the present case also, I am satisfied that the relief claimed by the plaintiff clearly comes within the relief mentioned in clauses (c), (d) and (e) of Section 92 of the CPC. In fact reading the plaint as a whole, it appears that the plaintiff had alleged that the trustee has been guilty of misfeasance and wanted a declaration that properties of the trust should be applied for the purpose recognized by the bust and that a scheme should be framed for directing the trustee to invest the money for beneficial interests of the trust. This seems to me to be the substance of the allegations made by the plaintiff in his plaint.

31. Finally, I might point out the conduct of the plaintiff himself in this case. The plaintiff before filing the present suit moved the Chief Justice under the provision of the Religious Endowments Act and had withdrawn the application on the basis of some assurance given by the defendant. The application was made clearly on the basis that the trust in question was a public trust.

32. The plaintiff, therefore, before instituting the present suit had been himself treating the presents trust as a public trust. The conduct of the plaintiff coupled with the circumstances mentioned above/dearly show that the trust in question is a trust which comes within the provisions of Section 92 of the CPC.

33. It is, therefore, clear that on the allegations made by the plaintiff in his plaint the case clearly comes within Sec. 92 and the present suit of the plaintiff without complying with the conditions mentioned in Section 92 of the CPC is not maintainable. Issue No. 2 is, therefore, decided against the plaintiff and in favour of the defendant.

34. Issue No. 3.

35. Whether the suit is barred by the provisions of Religious Endowments Act? O.P.D Mr. Nehru contended that as there is no temple attached to the Dharamsala it cannot be said that the present case relates to any religious endowment for religious establishment. The contention is that the present institution which is meant for the benefit of a private sect, is more or less a social order or social organisation and not a religious establishment. In my opinion, the contention is not well founded.

36. The word “Religious Establishment” used in Section 2 of the Religious Endowments Act of 1977 is wide enough to include a trust; of the kind with which we are dealing in the present suit. It is not disputed that Shutras are a religious sect and that the present institution is meant for the benefit of Shutras and certain religious ceremonies are performed there. In fact two witnesses of the plaintiff admit that there is a temple attached to the Dharamsala which is used as a place of worship. P.W No. 7 does not admit that there is a temple but he says that there is a Samadhi which is used for the purpose of puja by Shutras.

37. These facts unmistakably show that the present institution is nothing but a religious establishment and is not merely a social order as contended by Mr. Nehru. Another contention for the applicability of Section 2 of the Religious Endowments Act is that there must be an allegation of misfeasance or breach of the trust. I have already held that there are clear allegations of breach of trust and neglect of duty on the part of the trustee by the plaintiff while dealing with Issue No. 2. In my opinion, therefore, all the conditions mentioned in Sec. 2 of the said Act are satisfied in this case and the suit is therefore also barred under the provisions of the Religious Endowments Act.

38. I might also mention that the plaintiff himself had filed an application as indicated above before the Chief Justice, under the provisions of Religious Endowments Act in which he had clearly alleged that the present institution was a religious establishment, because it was only on that footing that an application could have been made to this court for the reasons given above, Issue No. 3 is answered against the plaintiff and in favour of the defendant. Issue No. 1.

39. Whether the State is a necessary party to the suit? O.P.D

40. I have carefully perused the plaint and I do not think that the plaintiff has claimed any interest against the State. The plaintiff has, no doubt; challenged the Land Alienation proceeding incidentally, but he has not made any allegation against the State nor he has claimed any relief against it. Therefore, it cannot be said that the State is a necessary party in this case. This issue is therefore, decided, in favour of the plaintiff and against the defendant. In view however of my decision on Issue Nos. 2 and 3 it is held that the suit is not maintainable and must be dismissed with costs.

AE/H.G.P

41. Suit dismissed.