The judgment of the Court was as follows:—
This is an appeal by five of the defendants in a suit under s. 92 of the Code of Civil Procedure. In connection with the appeal there is a cross-objection by the plaintiffs.
The suit related to an âsram known as the âsram of Bâbâ Lokenâth Brahmachâri, in Barodi in the district of Dacca, said to be an endowment for public, religious and charitable purposes. The plaintiffs are residents of village Barodi and other villages adjacent to it. They claim to be entitled to perform, and allege that they do perform the worship of Bâbâ Lokenâth, who lived and died in the âsram, and to have contributed funds for its improvement and maintenance; and some of them were also on a committee which was in existence for its administration at the time when the cause of action arose. The âsram is situate on a piece of land of which the superior title belongs to one set of co-sharer zemindârs, the Nag Babus, the said set of co-sharers being known as the Madhyam Hisya of Panch Hisya, the other two sets of co-sharers going by the name of Pub Hisya and Paschim Hisya. In the suit, as originally filed, there were eighteen persons as defendants, the first seventeen of whom were some of the Madhyam Hisya or Panch Hisya co-sharers. It was alleged that, while the committee, which was appointed by the public and of which some of the plaintiffs were members, was functioning, fourteen out of the defendants wrongfully and illegally constituting themselves a committee of management with the defendant No. 1 as its president collected funds over their signatures, obstructed the performance of an annual utsab attached to the institution, committed breach of trust and acted in various ways in disregard of the religious sentiments of the public, who perform shebâ and pujâ at the âsram and to the detriment of the public trust which the âsram represents; thus necessitating a suit for reliefs under s. 92 of the Code, for its preservation and upkeep. The defendants were impleaded on the footing that they had assumed the position of trustees de son tort.
The contesting defendants ranged themselves into two sets: one consisting of defendants Nos. 2 and 3: and the other, of defendants Nos. 6, 7, 8 and 11. Those of the other defendants, who originally entered contest, eventually withdrew therefrom or ultimately supported the plaintiffs. Both sets of contesting defendants denied that the âsram was an endowment or trust for public, religious or charitable purposes, or that its site, structures or appurtenances had ever been dedicated for use as such. They alleged that the âsram was the private property of the Panch Hisya mâliks; that on the death of Bâbâ Lokenâth, who as a holy saint had been allowed to remain at the place and live in huts built for him by the said mâliks, the said mâliks, in order to perpetuate his memory, introduced the worship of his âshan and his sandals and also inaugurated an annual utsab; and that, although the public were allowed to make offerings and participate in the worship and although they contributed to the expenses of the annual utsab and also effected certain improvements in the place at their cost, they had acquired no rights in the âsram or in its management. It was admitted that in later years, as the utsab grew in importance and dimensions, the assistance of persons, who were not members of the Panch Hisya, was taken by constituting a sort of an advisory body with some such persons as members thereof, in order that its functions might be more satisfactorily organized and accomplished. Such details as regards all these matters, as are relevant for the purposes of the case, in the stage at which it now is, will be given at their proper places hereafter.
The Judge has decreed the suit. The decree runs in these words:—
It is ordered and decreed that the suit be and is hereby decreed; that a scheme will be settled by the Court for the administration and management of the âsram of Bâbâ Lokenâth Brahmachâri which has been found to be a public trust or debattar of a religious and charitable nature; that provision will be made in the scheme for the appointment of a committee which will be trustees of the âsram, that the management and the administration of the âsram and its properties and appurtenances will be vestedin the committee which will be formed according to the provisions in the scheme; that the three hishyas of the Nag family and the general body of disciples, worshippers and devotees will be entitled to representation on the committee, the proportion of which will be determined at the time of the framing of the scheme; that the defendants will be removed from the management of the âsram after the committee is constituted in accordance with the scheme. In view of the very substantial moral and material help which the Panch Hisya has so long rendered to the âsram and with a view to restoration of good feeling between the parties to this unfortunate litigation for securing good management of the âsram, I order that the parties do bear their own costs in this suit.
From this decree, the appeal has been taken. The defendant No. 8, Prakash Chandra Nag, originally preferred the appeal; and later on Shasanka Mohan Basu, Sudhangshu Mohan Basu, Bidhu Bhusan Nag and Brahma Nanda Nag, defendants Nos. 6, 7, 11, and 3, respectively, have joined him as co-appellants. The cross-objection by the plaintiffs is for the costs which the Court below has disallowed.
The first and most important question in the case is whether the âsram is a “trust created for public purposes of a charitable or religious nature” within the meaning of that expression in s. 92 of the Code? To deal with this question the history of the âsram, beginning from its origin and tracing it down to the present times, will have to be carefully considered, as the learned Judge has done. As regards the origin of the âsram it is necessary to set out somewhat in detail the pleadings of the parties on the point, including therein their respective contentions as developed in the course of the trial, and also the findings which the Judge has come to. In the plaint the property was described as—
Permanently-settled niskar rent-free land, being debattar Lokenâth Brahmachˆri appertaining to settlement khatiyan No. 801 of mouzâ Barodi No. 5,—area 1.22 acres, inclusive of kâtchâ and puccâ temple, math, rooms, tank, indârâ (well), tube-well, etc., thereon;
and it was said that the âsram, consisting of the said property, its site, structures and appurtenances, had been dedicated for use as an endowment for public, religious and charitable purpose. It was also stated in the plaint that Bâbâ Lokenâth Brahmachâri, who was an ascetic and a devout saint, came to village Barodi about 72 years ago and put up for about a year in the house of one Dengu Karmakar and lived upon alms; that within this time his devotion and saintliness having attracted the people of the locality, he was granted nishkar right in the plot of land aforesaid, which was then part of a public cremation ground, by the Panch Hisya Nag Babus, to whom the land belonged, and that the public of the locality created for him on a portion of the land a but and a cookshed where he lived as a recluse, giving himself up to devotion and meditation. It was also said in the plaint that the âsram thus founded was maintained and improved out of the income of the land and the offerings made by the public. In para. 5 of the plaint it was said:—
The fame of Bâbâ Lokenâth spread far and wide and he came to be worshiped as an incarnation of God and the number of his worshippers and disciples went on fast increasing. In course of time the area of the âsram proper was enlarged and improved with public contributions and the offerings made thereat into its present condition.
In paragraph 6 of the plaint it was stated:—
Bâbâ Lokenâth lived a totally detached life and since both himself and the public-treated it as debattar of a public religious or charitable nature.
These pleadings in the plaint were understood by the Court below as meaning that the Panch Hisyamâliks made a sort of a debattar grant in favour of Bâbâ Lokenâth, treating him as a deity incarnate; at least, that appears to have been the way in which the pleadings were pressed in the said Court. It was not alleged in the plaint, nor is it anybody's case, that there was any deity installed in the âsram, but it was sought to be made out on behalf of the plaintiffs that Bâbâ Lokenâth used to carry on meditation and religious observances there and to give away in charity almost everything that he received, reserving to him what was necessary to meet his barest wants. This, as far as one can make out, was the plaintiffs' case as regards the origin of the trust for public, charitable or religious purposes. The contesting defendants denied any nishkar or debattar grant and any dedication or endowment whatever, repudiated all suggestions that the âsram was ever a seat of learning or religion, and denied that it was ever an institution for charity. They alleged that the âsram was only the private residence of Bâbâ Lokenâth, who had no right of ownership in it, that it was built for him by the Panch Hisya mâliks to enable him to remain there and carry on his meditations, that it was they who bore the expenses of the âsram and kept it up in repairs and that, on his demise, the âsram reverted to their own possession as mâliks. The learned Judge has held that the Panch Hisya Nag Babus made an absolute grant of the land to Bâbâ Lokenâth for the purpose of making a hermitage there; and that it was a debattar grant made with the intention of enabling him to make his âsram there, and carry on his work of spiritual and religious uplift of his devotees and disciples and of charity among the poor of the locality. He has ultimately recorded his conclusion in these words:—
I am clearly of opinion that the land of the âsram was granted in debattar in favour of the Bâbâ by the Panch Hisya and that both the grantor and the grantee and the public treated the âsram as a public, religious and charitable institution. The Bâbâ so long as he lived, in fact, treated and regarded himself as a trustee of the âsram for his devotees and disciples and the poor. The original grant of the land by the Panch Hisya was in essence a grant for religious and charitable purposes which the Bâbâ represented.
From the evidence adduced on both sides there is no doubt whatever that Bâbâ Lokenâth was regarded Siddha Mahâpurush (one who had attained the highest spiritual perfection) or a superman, that his meals were such as are offered to Hindu deities and that his prasâd (remnants of his meals) were distributed amongst his disciples, the visitors and the poor who used to assemble in the âsram. There can be no doubt also that Bâbâ Lokenath's personal needs were of an extremely limited character and that almost all that he got he gave in charity—for charity is an integral part of the religion of Hindus—and never lay by anything. Nor is there any doubt that after he had been in the âsram for some time, when his name and fame travelled far and wide, people began to look upon him as a saint with spiritual powers of the highest order. But we think the learned Judge was carried away a good deal by his sentiments in readily accepting as correct the statement of the witnesses who have spoken about a debattar grant made by the Panch Hisya Nags in his favour. One of the witnesses on this point was P.W 7, Shashi Bhooshan Nag. He said that the Panch Hisya Babus had made a dedication (utsarga) of the land in favour of the Bâbâ. The statement is pure hearsay, as the witness said that he heard about it from his father. And it appears that the witness purported to say that it was after the greatness of the Bâbâ came to be known (and that according to the evidence was quite a long time after the Bâbâ had settled himself on the land and only towards the end of Iris life) that the gift of the land was so made to him. The effect of the evidence of this witness is to make out that when the Bâbâ, was originally brought on the land no right to it was conferred on him, and it was only later on when the Panch Hisya Babus came to know that he was a superman (and that according to the evidence was only 4 or 5 years before his death, when Srijut Bijay Krishna Goswami saw him and proclaimed him as such), that they made a debattar in his favour. P.W 4 Rai Mohan Karmakar also deposed about the debattar grant, but his evidence too is similar hearsay, for he said that he heard of it from Janaki Brahmachâri and Bhajliram; the former having been a favourite disciple of the Bâbâ and the latter, a woman who used to do menial works at the âsram. There is also some evidence to the effect that the âsram was treated by Bâbâ, Lokenâth and by the public as debattar, but such evidence is too vague to deserve reliance. Some of the witnesses have said that the Bâbâ, used to be regarded as a living God; but it is obvious that such evidence is of little use in this connection. There is no evidence about any nishkar grant to the Bâbâ, which was the plaintiffs' case in the plaint; nor is there any reliable evidence on which it is possible to hold that there was any grant to him of any character. The learned Judge, at some places in his judgment, seems to have expressed the view, which was what P.W 7 Shashi Bhooshan Nag endeavoured to establish, that the dedication (utsarga) was in favour of the Bâbâ himself on the footing that he was worshipped as a living God by his devotees and disciples, as the learned Judge has said. At other places, he has expressed the view, which is also embodied in the conclusion which has been quoted above, namely, that the grant was a debattar made in favour of the Bâbâ so that he became a trustee for an endowment that was so founded. In our opinion, there is really no substantial foundation for any of these views, as we shall presently see.
The Judge has pointed out that there is no direct evidence on the question as to what were the terms and conditions under which the Bâbâ came to be upon the piece of land, which admittedly belonged to the Panch Hisyas. The evidence of D.W 4 Ram Chandra Karmakar is that the Bâbâ (who upon other materials to which the learned Judge has referred came to Barodi about the year 1865 = towards the end of 1271 B.S) lived for about 3 years in the house of the witness's grandfather Dengu Karmakar, and when, after the death of the latter, it became inconvenient for him to put up there any longer, the Panch Hisya Babus settled the Bâbâ on the land after erecting a but there. This, it must be said, is hearsay, as the witness heard it from his father. The land, it is true, was not of much value to the Panch Hisya Babus; but we are unable to find that there is any reliable evidence on which we may affirm the finding of the learned Judge that the Hindu public of Barodi had a right of casement to bury their children of tender age in it. The learned Judge has observed that, as the land was worthless, it is highly probable that the Panch Hisya Babus made an absolute gift of it to the Bâbâ. It is obvious that no such inference is plausible. A piece of evidence upon which the learned Judge has relied, so far as the question of grant or dedication is concerned, is that afforded by the entries in the settlement khatiâns (Exs. 51 and 51A) prepared in 1912, 22 years after the demise of Bâbâ Lokenâth and at a time when the âsram was in charge of his favourite disciple, Janaki Nath Brahmachâri, to whom we shall have to refer more in detail hereafter. The two plots appertaining to the âsram, were C.S plots Nos. 43 and 44. Both the plots were recorded as comprising debattar Lokenâth Brahmachâri and as constituting a permanent intermediate tenure under the Panch Hisya Babus; Janaki being recorded as in possession of plot No. 43 and the nature of his interest being described as nishkar; and plot No. 44 being recorded as in the possession of Panaulla as a dhoki bargâ settled-raiyat under the debattar. The entries certainly afford very strong presumptive evidence that the land is debattar. But when the learned Judge used this evidence as supporting debattar grant made to or in favour of the Bâbâ he fell into an error of anachronism, for in reality they do not necessarily establish, even prima facie, that the debattar, whatever its character was, had its origin in Bâbâ Lokenâth's time. We cannot, therefore, endorse the finding of the learned Judge which he has recorded in these words:—
The khatiyans fully support the plaintiffs' case that the lands of the âsram were granted as a debattar in favour of the Bâbâ on account of his saintly and god-like character. It is wholly improbable that the grant was conditional and of a limited character and was to enure only during the lifetime of the Bâbâ or that the Bâbâ's possession was really permissive.
This is a convenient place to refer to another error which seems to pervade the decision of the learned Judge not only on this point, but also on several of, the other points that arose in connection with this case. The learned Judge seems to have been of opinion that the burden of proving that there was no endowment or that there was no trust for public purposes of a charitable or religious nature was upon the defendants. In proceeding on this view he has been entirely in error, for in a suit under s. 92 of the Code, just as much as in all other suits, the onus of establishing a case for the reliefs asked for is on the plaintiffs. We shall not refer to this matter again, for the facts will have to be found by us on the materials such as there are on the record; and at this stage, after the parties have adduced all the evidence that they desired, the question of onus of proof hardly matters.
[After dealing with the evidence, their Lordships went on to say:—]
We hold that the plaintiffs have failed to prove that there was any grant of the character they had pleaded, or any of the nature that the learned Judge has found.
The learned Judge having thus found that an endowment or a trust for public purposes, the objects of which were religion and charity, having been created during the lifetime of Bâbâ Lokenâth, that endowment or trust continued to exist and flourish ever afterwards. To quote from his judgment:—
The public and religious and charitable character of the âsram in suit was maintained in the time of the Janaki Brahmachâri and the other Brahmachâris and pujaris who succeeded at the âsram. The whole of the evidence shows that the Bâbâ was raised to the Godhead after his demise and that the âsram thenceforth became to all intents and purposes a temple for his worship and a place of pilgrimage sacred to his memory.
Also—
In the time of Janaki Brahmachâri, the worship of the Bâbâ in the shape of his âshan and sandals was perfected and reduced to a system. He was the man in the sole authority at the âsram, as the Bâbâ, had been before him.
In these findings the learned Judge was persisting in the double capacity that, in his view, Bâbâ Lokenâth fulfilled, namely, first a Godhead, and second, a trustee. It is very difficult to evolve a clear idea of the nature of the trust in which such double character of an individual at the head of its management is involved, and Mr. Bose, appearing on behalf of the plaintiffs, found it very inconvenient to support such a theory. He preferred in the end to put his case on the basis of a gift to a religious foundation, so common in other countries, but of which there is hardly any parallel in any part of Bengal. But be that as it may, we have already expressed our view of the matter and it will suffice for us to repeat that there is, in our judgment, no foundation whatever for a supposition that there was any trust created for religious or charitable purposes or that Bâbâ Lokenâth was meant to be the beneficiary as well as the trustee in respect of any such trust. In this view that we have taken it is clear to us that the plaintiffs' case as laid, should fail. But it is, not right that we should dispose of the suit on this finding that we have come to; because the allegation is that there was a trust for public purposes and, therefore having regard to the special jurisdiction that Courts have in matters of public trusts and which they must exercise in suitable cases in order to protect the interest of the public where the public stand in need of the Courts' interference, we have to examine the case thoroughly in order to see whether any other public trust is disclosed.
[After further discussing the evidence, the judgment proceeded:—]
Speaking of this period, which the learned Judge, not inappropriately, has designated as the period of Brahmachâris or shebâits, he has said:—
Evidence coming from both sides shows that during the shebâitship of the Brahmachâris, who succeeded Janaki, shebâ, pujâ, making of pranâmis and offerings in cash and kind at the âshan, distribution of prasâd, giving of alms to the poor and other religious and charitable usages of the âsram continued to be observed as before, and the religious and charitable character of the institution was fully maintained. Then as before, the âsram was maintained out of offerings in cash and kind at the âshan (cash-offerings were latterly put by worshippers into a collection-box which was hung up in the âshan ghar).
This, in our judgment, is a correct summary of the situation such as it was at this period. The learned Judge has gone on to observe that the shebâits were not accountable to any for the money spent by them; but this could hardly be correct, for at least Jnanananda was turned out for committing misappropriation. And it would be more correct to say that no accounts used to be taken from them. The learned Judge has also held that there is no evidence that there was any deficit at the âsram which was made up by the Panch Hisya; and this we think is a correct finding. There is the evidence of D.W 2 Brahmananda Nag that the âsram used to be maintained by akas britti (chance offerings) and that he often felt curious as to the source from which the expenses used to be met and often found that some offerings came just in nick of time through Bâbâ's grace. There is no reason to doubt the evidence, for good causes often thrive in this way. And in any event, as far as we can see, there was no scale definitely fixed for expenditure on any particular head and so there could be no difficulty in adjusting the expenses to the income. Of course the Panch Hisya Nag Babus also, just as numerous other devotees and disciples used to do, used to make these offerings and went on paying their annual contribution of Rs. 20 for the utsab.
After the death of Janaki a tin-shed was erected over the place where his samâdhi was situate; khâs possession was taken of the land on which stood the jote of Panaulla and two small tanks were excavated on the spot at a total cost of Rs. 100 or a little more. There is no reliable evidence as to who paid the costs. On the utsab day of 1324 (= 1917-1918) when Jnanananda was the shebâit, a mandir which had been erected on the place of samâdhi (cremation) of the Bâbâ was consecrated. It is not disputed that the costs of construction and consecration of the mandir were met by subscriptions raised from the public.
After the period of the Brahmachâris or shebâits began the era of pujâris, of whom the first to be appointed was Sarada Charan Chakrabarti, who has been examined as D.W 14. There was a controversy as regards the date and year on which he was appointed as such, but this controversy, as the learned Judge has pointed out, is not very material. Sarada Charan Chakrabarti was sent to the âsram by P.W 29, Mathura Mohan Chakrabarti, in the latter part of 1331 (= 1925) or the beginning of 1332 (= 1926) at the request of a committee which was then functioning and about the origin of which we shall presently investigate. The learned Judge has found that it was about that time that Sarada was appointed as pujâri by that committee and we see no reason to dissent from this-conclusion. We may observe that Sarada was examined in this case as a witness on behalf of the defendants but his deposition has not been printed in the paper-book and neither side has referred to it. Possibly, his evidence, which has not been believed by the learned Judge, is worthless.
We come now to an era which has played a very important part in the history of this institution. The significance of the mode in which the administration of the institution has been carried on during this period has been a matter of great controversy between the parties.
On the evidence in the case the Judge has found:—
I am satisfied that committee for looking after the daily shebâ pujâ at the âsram was first appointed in 1332 (=1925-1926) and functioned for 3 years. Such a committee was appointed for the second time in 1335 (=1928-1929). From 1332 (= 1925-1926) there was in fact only one committee which looked after and managed both the daily shebâ pujâ at the âsram and the annual ustab on the 19th Jaistha.
This finding has not been challenged before us. No reliable materials are available as regards the personnel of the committee of 1332.
To complete the chain of the narrative it only remains to mention a few other facts. In order to carry on the affairs of the utsab of 1338 B.S (= June, 1931) the newly appointed committee had to borrow on their own responsibility Rs. 500 from a lady belonging to Panch Hisya, namely, Sreemati Labanya, sister of the defendant No. 5; and eventually that loan was repaid from out of the monies received from the public but no interest was charged. The articles seized by the police were subsequently made over to the new committee or its members.
In these circumstances, the suit came to be instituted on December 21, 1931, and its result in the Court below has already been detailed. And as we have already stated, the first and most important question in the case is whether the âsram is a trust created for public purposes of a charitable or religious nature within the meaning of that expression in s. 92 of the Code. We have already held that, though the Bâbâ himself used to give his all to charity, such charity was his own and was not in connection with any institution which he had founded, that his meditation and devotion and religious teachings or advice were only those of a great saint such as the Bâbâ was and not appurtenant to any institution which had come into existence; and that on his death the land and huts of which he was in use and occupation reverted to the Panch Hisya mâliks. We have also indicated that, on the death of the Bâbâ, by inaugurating the worship of his âshan and sandals and by resolving to continue the Bâbâ's religious and charitable works with the help of Janaki Brahmachâri as the head of the institution, the Panch Hisya mâliks founded an institution which partook of the character of a debattar and was to all intents and purposes a religious and charitable institution. The question is whether this institution was but the private and personal property of the Panch Hisya mâliks, as the contesting defendants have claimed in this case, or an institution in the nature of a trust for public purposes.
It does appear that a claim to the âsram as private property of the Panch Hisya mâliks has, from time to time, been set up on behalf of the latter. Amongst instances, too numerous to mention, such claim appears in the written statements of the contesting defendants and in the arguments addressed to the Court below, which the learned Judge in his judgment was at great pains to deal with and overrule. It also pervades the depositions of some of the witnesses who have been examined as witnesses on behalf of the defence, and it has been suggested in cross-examination to some of the plaintiffs' witnesses but only to be repudiated and repelled: It appears also in a document to which we have already referred, namely, the proceedings of the meeting held on Baisâkh 15, 1338 B.S, which are headed—
Conference of the mâliks (sattwâdhikâri) entitled to or having proprietary rights in the âsram.
Materials to which we have referred so far do not establish any such right, if by it private ownership is meant, and that we have already said at other places. Dr. Sen Gupta, in arguing the case of his clients, the appellants, in one part of his argument seemed to rely upon such right as a private right of ownership on the part of the Panch Hisya by referring to the fact that several of the other devotees and disciples of Bâbâ Lokenâth have started similar âsrams in other parts of the country; but if he meant to advance such a contention we must say we cannot regard it as well founded. His main arguments, however, showed an endeavour to establish not that his clients or the Panch Hisya Nags have any rights of ownership therein but that the institution is in the nature of a private endowment. This distinction is very material but it seems to have been overlooked by the learned Judge. The learned Judge has very definitely rejected, and we think quite rightly, the defence that the âsram is the private property of the Panch Hisya mâliks and he has held that the land is a debattar and its belongings and appurtenances too are not such property. Having come to that conclusion, he has found it as the next step that it was not the Panch Hisya mâliks but that the public including the mâliks of all the three hisyas are entitled to claim the right to its management. We do not think that the last mentioned conclusion really follows from the first. When the contention as to private ownership is overruled and it is held that the institution represents a foundation or endowment, the next thing to be considered is whether it is such for a private purpose or for public purposes. And only if it is the latter and not the former that it can form the subject matter of a suit under s. 92 of the Code, Dr. Sen Gupta's arguments have been directed to showing that it is of the former and not of the latter type. On the other hand, Mr. Bose has relied upon the finding of the Court below by which the defendants' claim as regards ownership has been rejected and he has argued that the very fact such a claim has been set up on behalf of the defence is sufficient for the removal of the defendants from their position as trustees de son tort, because a claim which is adverse to the trust amounts to a breach of trust. While agreeing with Mr. Bose in his contention, in so far as it represents a proposition of law, we are unable to hold that in this case there has been, in fact, any claim adverse to the trust or any breach of trust, because it is not suggested that the Panch Hisya Babus have even appropriated a pice out of the proceeds of the âsram or have dealt with any properties belonging to the âsram in any way detrimental to its interests.
On the question, whether the purpose of the institution was private or public, there is a mass of materials to be considered and it is really upon the proper inference to be drawn from the facts, most of which are practically undisputed, that the answer to this question depends. As regards the worship of the âshan and the sandals, there is no evidence suggesting that it was not open to all and sundry, or that any time any intending worshipper was refused permission or any fee was charged for darshan, and it seems to be an admitted position that the public in general have always been allowed free and unrestricted right of worship at the place. It also appears that all offerings made at the place have all along been collected and expended for the benefit of the poor of all castes and creeds not excluding Mahomedans, who flocked to the place to get prasâd, etc. There is evidence that, during the time of Janaki, a big mahotsab was held in which some 4 or 5 thousand people were fed, the costs being met from the collections made at the âshan. Babu Rai Mohan Karmakar, a disciple of Janaki, used to contribute yearly Rs. 300 or Rs. 350 according to the plaintiffs, and Rs. 240 or so according to the defendants for the maintenance of the âsram. Presents of an oil painting of the Bâbâ and a miniature image in stone were accepted from Rajani Brahmachâri and from Mathura Mohan Chakrabarti and kept at the place in Janaki's time. A titled but was constructed by one Madhab Kaibarta at a cost of Rs. 350. One Guru Dayal Kaibarta had a tin-hut constructed over the samâdhi of Janaki at his own cost. The puccâ plinth and floor of the âshan ghar were constructed at the cost of one Krishna Daroga. In 1917-1918 a puccâ math or mandir was constructed over the samâdhi of the Bâbâ at a cost of about Rs. 3,400 with subscriptions raised from the public by starting a fund named “Barodi Lokenâth Brahmachâri samâdhi Prathisthân Fund”. The mandir was consecrated at a regular ceremony to which the public were invited; and a photograph of the Bâbâ presented by Babu Mathura Mohan Chakrabarti was installed on the platform, and on the walls of the mandir it was inscribed that it had been built with public subscriptions. A masonry well was constructed by a wealthy devotee of the Bâbâ named Rebati Lal Banerji which cost about Rs. 2,000, and there was a regular utsarga or dedication ceremony in connection with it on the occasion of the utsab in 1334 B.S (=1927) at a cost of Rs. 300, the name of the donor being inscribed on the well. In the same year Babu Mathura Mohan Chakrabarti got a puccâ flight of steps built for the âsram at a cost of about Rs. 300. About the same time a reservoir was constructed; but as far as one can gather that was done with the surplus funds at the disposal of the âsram. There is evidence that a store house was built but as to who paid the costs, the evidence is in a dubious state as the learned Judge has observed. In 1930, the Narayanganj Local Board constructed a tube-well there for the use of the general public. Upon all these facts, while, on the one hand, it is clear that there is nothing to indicate that the Panch Hisya Nag Babus ever abandoned such rights as they had in the âsram from its inception, they never objected to the public in general from effecting improvements on it and making it more serviceable and of greater utility to the public, and on the other hand they suffered subscriptions to be raised from the public and costs being incurred by individual members of the public as well as by public bodies for its maintenance, upkeep and improvement. It is quite true that if some particular stranger chooses to make a gift to a private endowment or institution for his own spiritual benefit or mental satisfaction, receipt of such gifts does not alter the character of the endowment or the institution itself and make it a public one if at its inception or in reality it was not so. But the number and nature of the gifts received, as aforesaid, are matters which have their importance. In addition to all this there is also evidence that in recent years collection-boxes were introduced to raise subscriptions for the expenses of the âsram, and the public have also been invited to subscribe for its repairs.
The utsab is an annual function attached to the âsram and having been started in 1297 B.S has continued for nearly 50 years and so has become an integral part of it. There is hardly any dispute, certainly none as regards those that have been held since the one that was performed by Nabadwip Chandra Ray in 1319 B.S (=1912-1913), that the costs of the utsab have been borne by the public, supplemented by such scanty contributions, as the surplus of the income at the âshan could afford to make. These subscriptions have always been given by the public not of their own accord, but on invitations and appeals issued to them by those who had the management in their hands. The learned Judge has, in his judgment, given a table showing the amounts of contributions received from the âshan, the amounts received from the public, and the total expenditure, in some of the more recent years. This table is not quite accurate in its details, but it is quite correct in so far as it purports to make out that the public contributed to the bulk of the expenses. And it is also proved that such contributions have been received from all sorts and conditions of people and from different parts of India. The public also helped in the utsab in various other ways,—donations in kind also used to be received, people making gifts, either free or at concession rates. Appeals for funds are sent out broadcast and the enthusiasm that the utsab evokes is hardly of a nature commensurate with a private religious or charitable function. In recent years, when the function grew in proportion and was more organized, manifestos and invitations have been issued over the signatures or in the names of the bhaktas of the Brahmachâri Bâbâ, asking people of all descriptions to contribute and take part. After the utsab is over, the accounts are exhibited at public places for their information and to let them know how their money has been spent.
From all these facts the conclusion seems irresistible that the purpose of the institution was public and not private. It is the extensiveness of the object which affords a sure indication of the public nature of a trust.
In Attorney-General v. Pearce, Lord Chancellor Hardwick observed that each particular object of a charity may be private, but it is the extensiveness which will constitute it a public charity. As Smith, J. in the case of Hall v. Derby Sanitary Authority said:—
It is clear to me that there can only be two classes, viz., “private” and “public” charities. I ask myself is this a private charity? Of course it is not. Then, even apart from any decided cases, I should have been prepared to hold that, not being a private, it was a public charity.
The same may be said of the present case, taking of course the word “charity” in its broad sense, as explained in the case of Commissioners for Special Purposes of Income Tax v. Pemsel. Or, as Manisty, J. observed in Hall's case, the test is whether the charity is not for a large and extensive section of the community. See also Shaw v. Halifax Corporation. Or again, as observed in Verge v. Somerville:—
Whether it is public whether it is for the benefit of the community or of an appreciably important class of the community.
So far as the question of extensiveness is concerned there is hardly any ground for supposing that the founders of the institution and those who have managed it ever since, at any time entertained the idea of keeping its activities, either religious or charitable, confined to any particular sect or division of the public. We have, therefore, no hesitation in concluding that the âsram represents a religious and charitable trust for public purposes. The contention such as has been put forward on behalf of the appellants, namely, that the feeding of the poor which goes with the worship of the âshan and the sandals, which was private and personal with the Panch Hisya Babus, its founders, is not an independent charity in which any class of the public had a direct and independent interest, as explained in the cases of Sathappayar v. Periasami and Prasaddas Pal v. Jagannath Pal(6) cannot be upheld.
In the absence of a deed of dedication, the question whether the âsram was ever dedicated to the public must depend upon inferences which could legitimately be drawn from facts not in dispute and from unambiguous evidence adduced in the suit, regard being had to the principles of Hinduism applicable to the institution. See Pujari Lakshmana Govindan v. Subramania Ayyar. In the case just referred to their Lordships have observed that it would be a legitimate inference to draw that the founder had dedicated the temple to the public, if it was found that he had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship. Similar inference may well be drawn from the use which the public have made of the shrine as a place for devotion or worship, the receipt of votive offerings from the public, and the fact that a section of the public have taken the benefits of its attached sadâbrata for a long period of time. Chintaman Bajáji Dev v. Dhondo Ganesh Dev; Jugalkishore v. Lakshmandas Raghunathdas. In our judgment, from the course of conduct on the part of the parties concerned, such inference should be drawn in the present case.
We hold that it has been established with sufficient clearness in this case that on the demise of Bâbâ Lokenâth when the âsram was founded as a religious and charitable institution by the Panch Hisya Babus, the intention was to create a trust for the use and benefit of the public and that it has all along been treated and administered as a religious and charitable trust for public purposes. This, however, does not mean that the Panch Hisya Babus, the founders of the trust, have ever relinquished their rights as such founders. Indeed all such evidence as we have on the record points unmistakably to the conclusion that they have never meant to give up such rights at any time. There is evidence that a proposal to get them to relinquish their ownership of the mâliki right to the land in favour of the public did not materialise. Such evidence as we have of their allowing others to associate themselves with the management is perfectly consistent with the supposition that they desired to avail of the co-operation of outsiders in order to the more satisfactory administration of the affairs of the âsram. The benefactions subsequently received do not make those who have made them joint founders with the original founders, and the benefactions are not to be regarded as anything beyond an accretion to the existing foundation. See Ananda Chandra Chuckerbutty v. Braja Lal Singh and the decisions therein referred to. It is well settled that when the worship of an idol has been founded, the shebâitship is vested in the founder and his heirs, unless he has disposed of it otherwise, or there has been some usage or course of dealing which points to a different mode of devolution. See Gossami Sri Gridhariji v. Romanlalji Gossami. That this principle applies to private as well as to public trusts has also been well settled by judicial decisions: Sheoratan Kunwari v. Ram Pargash; Sital Das Babaji v. Protap Chandra Sarma; Raj Krishna Dey v. Bipin Behari Dey; Hori Dasi Debi v. Secretary of State for India in Council; Ananda Chandra Chukerbutty v. Braja Lal Singh. Call them shebâits or call them trustees, if any relief is to be granted in a suit under section 92 of the Code, ordering their removal or interfering with their rights as founders, something substantial will have to be shown justifying the removal or the interference.
Section 92 of the Code does not say that as soon as you find a religious or charitable trust for public purposes and as soon as you find a suit instituted by two or more persons with the requisite consent, you may make a decree granting the plaintiffs the reliefs detailed in the different-clauses of the section or any of them. The section lays down that one of two conditions must be satisfied before the Court can proceed to grant any of the reliefs: (1) there must be an alleged breach of the trust, or (2) the direction of the Court should be deemed necessary for the administration of the trust. As regards the former of these two conditions, the allegation that has been made on that head is contained in para. 22 of the plaint. It is a curious and unmeaning statement. It says:—
As some of the members of the acting committee in breach of the trust have been siding with the committee set up by the principal defendants it has become impossible for that committee (meaning the plaintiffs' committee) to discharge their function properly.
No breach of trust in respect of the âsram was suggested anywhere in the plaint, nor is there a word in the evidence even faintly making such a suggestion. So far as the second condition is concerned, much was said about the defendants having been guilty of misfeasance and malfeasance; it was said that the defendants' committee was not properly framed, that it, was illegally constituted, that it had acted in various ways to the detriment of the trust, and in disregard of the religious sentiments of the worshippers and that the public were suffering great inconvenience. We regret to have to say that we do not find that the said committee had done anything on which an action for a relief under s. 92 of the Code may be founded. We have already said that the Panch Hisya Nags, as founders of the âsram, were fully entitled to take proper steps for its management; and we think that when on the expiry of the life of the previous committee in Baisâkh, 1338, they appointed a fresh committee, they were perfectly within their rights in doing so. We cannot approve of the course of action adopted by those members of the old committee who formed themselves into a rival committee in order to retain hold over the administration of the âsram. For this conduct on their part it is not they themselves but some of their elders were responsible, vide Exs. 8 and 8(a). But whatever that may be, the âsram, as far as we can make out, went on smoothly and happily, until the plaintiffs' committee, for the formation of which we can find no justification whatever, came upon the scene and created the troubles which were the precursor of the present action. We can find no materials on which we can uphold the decree which the Court below has made.
The appeal is allowed and it is ordered that the suit be dismissed with costs in both the Courts. The cross-objection is dismissed.
The 19th August, 1936.
On a representation made to us on behalf of the plaintiffs respondents by Mr. H.D Bose as regards the order for costs made in our judgment, we have heard the parties further and the conclusion at which we have arrived is that it would be proper having regard to the circumstances of the case to vary the said order in the following way, namely, that the appellant will be allowed his costs of the appeal in this Court, but the order for costs as made in the Court below will stand and we order accordingly.
A.K.D
Appeal allowed.