Falshaw, J.:— These are revision petitions filed by two tenants Shambhu Dayal and Siya Ram Gupta against whom decree for ejectment passed by the trial Court in favour of the plaintiffs the Shrimati Ganga Devi Jain Dharmarth Trust and a number of Trustees have been affirmed in first appeal.
2. It appears that the Trust filed suits Under section 17 of the Act of 1952 against three tenants on the ground that it was a public institution and that the premises occupied by the tenants were bona fide required for the furtherance of its activities. It was alleged that the Trust was created under a will executed by Shrimati Ganga Devi Jain in 1935 and that the parts of the premises forming trust property occupied by the tenants were directed to be used as a Dharamshala for Sadhus and Mahants. It was also stated that under the provisions of the Charitable and Religious Trusts Act of 1920 a direction had been obtained by the trustees from the learned District Judge if for the filing of the suits to get rid of the tenants.
3. It has been held by the Courts below that the Trust was a public trust, and that it was a public institution within the meaning of section 17, and that it bona fide required the premises in suit for the furtherance of its activities.
4. It does not appear, however, that although the cases were decided by the learned Senior Subordinate Judge in April 1957, his attention was drawn to the decision of J.L Kapur J. and myself in Civil Revision No. 413 of 1953, J.N Singh & Company v. Sardari Mal etc., decided on the 2nd of December 1955, after the points involved had been referred to a Division Bench. In that case the owners of certain property had themselves created a trust for the property the object of which was to establish a Jain Dharamshala or a Digambar Jain ??? House in 1947 and in 1952 the Trust sought to eject the tenant under the provisions of section 17 of the Act.
5. Apart from the fact that we were doubtful whether a valid trust had been created in that case, we also examined at length the question whether a charitable trust is necessarily a “public institution” within the meaning of section 17 in which, while the term is not defined, it is illustrated by the explanation which forms the last paragraph of the section and reads:—
“For the purposes of this section, public institution includes any educational institution, library, hospital and charitable dispensary.”
The following passage occurs in the judgment of Kapur J., with which I agreed:—
“And the argument railed was that if a charitable trust were intended to be within the ambit of section 17, there was not being easier for the legislature than to use these words or some such phrase instead of just using the words “public institution” and on the analogy of the observations of Lord homer if the legislature intended to include every charitable trust within the meaning of the words “public institution” nothing would have been easier than to say so, and, in my opinion, the language of the section seems to indicate that public institutions which can take advantage of the provisions of section 17 are those which all within the definition there given, i.e, an educational institution, library, hospital and ??? dispensary.”
6. The only point on which the learned counsel for the respondents could distinguish this decision was that in that case the Trust was created while the defendant was a tenant whereas in the present case the Trust was created before the tenants entered into occupation, but this is a distinction which has no bearing on the question whether the Trust is or is not a “public institution”.
7. Even if I had not been a party to this decision, and did not consider it to be correct, I should be bound to follow it, but in any case I am still of the opinion that the view taken therein was correct and that a charitable institution of the nature of the plaintiffs' Trust in the present case is not necessarily a “public institution” within the meaning of section 17 and that any body which claims to be so must be closely akin to the instances mentioned in the explanation, in my opinion the plaintiffs' Trust does not fall within the scope of section 17 and I accordingly accept the revision petitions and dismiss the suits but leave the parties to bear their own costs throughout.
Petition accepted.