Laik, A.C.J.
1. This is a long and sad story, connected with a Foundation or Institution popularly Known as Jadabpur Kaibalyadham (hereinafter shortly stated as Dham), which is the subject-matter of the present litigation, founded by Sree Sree Ram Chandra Thakur (hereinafter shortly stated as Sree Thakur). It is inter-mixed partly with the other Dhams founded by Sree Thakur situate in Bangladesh, viz., Pahartali and Dingamanik and inter-mixed partly with the threat authorised by a lawyer Sri Sudhansu Banerjee, the Plaintiff No. 1 (Respondent No. 27). The blatant assumption of the nine Plaintiffs, amongst whom Sri Amiya Roy Choudhury (also known as Dadaji) is one, is that the Dham is a public institution which the Mohant (Defendant No. 2)(Sri Brojendra Nath Banerjee, now dead) first failed to anticipate and then coped with adequately. This story is better told by my learned brother in chronological order, historical, perspective with summary of evidence and the discussion on relative case laws.
2. The controversy touches and involves delicate and abstruse questions or doctrines relating to Hindu religious endowments. In our view, it admits of a considered decision upon principles of law though based on limited range of facts and capsule history of events.
3. The case was considered in some depth. We have to acknowledge the care which has been manifested in the arguments of both Mr. Banamali Das appearing on behalf of the Appellants and Mr. R.C. Deb for the Respondent Mohant and of Mr. Shyama Charan Mitter for some other Defendants-Respondents supporting the Mohant. We had the advantage of hearing another delicious and increasingly useful argument of Mr. Radhakanta Mukherjee who appeared for the Respondent No. 1 Sree Sree Kaibalyanath Satyanarayan Jew. Mr. Mukherjee''s arguments regarding the concept of the Hindu deity and the first principles of kaibalya from the old texts, are instructive and much appreciated by us. It was said that kaibalya cannot be meant for public. It is an impossibility. It must be limited to the disciples. Nam is equated with the eternal truth. To say all these, is to say the obvious. His submissions, adroitly tuned, was that it was exclusively a private endowment. He supported Mr. Deb. The doubts which might have warranted a different line of judgment after Mr. Das'' argument, have ultimately disappeared after the hearing was concluded.
4. I have thought it desirable not to load my opinion rather to exclude from the judgment of mine all such details, which might obscure the points although all details have been carefully considered by us and the most important of them are noted by my learned brother.
5. The starting point of the discussion and of all the arguments, the most fatuous one, is as to whether the Dham is a public religious endowment or a private one. The arguments proceeded mainly on the evidence, both documentary and oral. Reference was made to the several authorities. I acknowledge I have considered a few authorities which were not mentioned by the counsel. Because the law on the subject is of great consequence, I venture to think if there is one place where it should be reconsidered on principle it is here and if there is one time for it to be done, it is now when the opportunity offers, before the law gets any more enmashed in its own net. Holt C.J. once did it after he had done much research on his own--"I have stirred these points which wiser heads in time may settle."
6. The references on the main branch of the argument are : Dr. Bijan K. Mukherjee on Hindu Law of Religious and Charitable Trust (Tagore Law Lectures, 3rd. ed., 1970); Mulla''s Hindu Law (14th ed.); Ganapati Aiyer''s Hindu Religious Endowment (2nd ed.);
7. The following principles of law are to be followed in order to test as to whether a Hindu religious endowment was a public or a private one.
(a) There should not be any general or rigid rule and there is no canon of the Judges in general to the understanding of the issue. The approach should be flexible. There can be no landmarks pointing out the boundaries of public and private nature and character of foundation in all cases. There is no straight street.
(b) Where the dedication is not complete and the public is not interested in the worship, it is a private endowment.
(c) The question whether the temple ever was dedicated to the public, must depend upon the inferences which should ultimately be drawn from the facts not in dispute and from unambiguous evidence of records in the case, regard being had to the law and principles of Hinduism.
(d) Where the Idol is Shastrically installed and consecrated in a place and the worship is performed in accordance with the Shastras and the temple is open to the public as of right--it is a public temple; if not, it is a private one.
(e) Where the beneficiaries of a trust or endowment were specific or specified individuals, ascertained or capable of being ascertained within a reasonable period the trust or endowment is a private one. To be a public trust the beneficiaries must be indeterminate body of persons, and/or fluctuating body and/or who cannot be identified.
(f) There was a presumption in the Madras Presidency in favour of the temples and their endowments being public ones whereas there is no such presumption in Bengal or West Bengal where from the very early times a good number of rich families established private temples for their own use in grand scale and this had often happened, as stated in many of the treaties on old Bengal law and polity and some of them being of great and unknown antiquity.
(g) In a trust for family Idol, or in a private temple, in contra-distinction to a math or hermitage, public may be somewhat interested as well, but that does not make it a public trust or public temple as a matter of rule.
(h) Dedication to the public is not to be readily inferred. It would be rather hazardous. It would not in general be consonant with the Hindu sentiment or practice that the worshippers should be turned away from worshipping even in a private temple. It is an ancient practice further ennobled by public acceptance.
(i) The Court should be slow to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which might give strength to the inference that the user by the public was as of right.
(j) The admission of the public long after the establishment of the temple on a particular day, possibly owing to altered conditions, would not affect the private nature and character of the trust.
(k) Even if the heirs of the founder do not claim any right to the temple and their endowments, after the founder''s death, that would not make the temple a public one as a matter of course.
(1) If temples and their endowments were being used by the public freely, without any interference and as of right and there is no restriction of their entries to the temple, the temple and the endowment would be public. But neither the offerings by the public to the Idol nor their admission thereto per se would make it public. It must be user by the public at large as of right.
(m) The management and control of the temple and the endowment are not the sole criteria to judge the nature of the endowment. The assemblage even of a mammoth gathering on a particular day (in the instant cases, Foundation Day) and/or distribution of bhog or prasad, again, are no criteria to hold that the temple or endowment is a public one, as they do not by themselves change the nature and character of the endowment.
(n) Extensiveness of the object, largeness of the community or the section thereof, appeals for fund from the public, holding out to the public by the founder or his family that the institution is public, in the absence of a document, ceremonies open to the public as of right and on all days, huge gathering of the public, vastness of the temple, mode of its construction, control and management of the foundation by the public are some of the factors to be considered in favour of the temple and the endowment being a public one.
(o) Public should be public at large. A particular section might not suffice in many cases to answer the description of the public.
(p) Because there is no trustee or shebait from the founder''s family and the mere use of the expression pratistha do not prove the dedication to the public. There should be pran-pratistha, according to the Shastric rites when on consecration divine spirit would descend on the image and then becomes fit to be worshipped. That alone also does not make it public.
(q) There is a distinction between public right and right of a group of disciples, in an endowment who have personal attachment and devotion for their Guru. It is only akin to a spiritual family which is not understood in the strict legal sense.
(r) The facts and circumstances of each one must be considered in their historical settings, in order to be accepted as sufficient proof of dedication of a temple as a public temple.
(s) The original foundation cannot be extended except by the founder.
8. Tested by the above principles we addressed ourselves in this appeal to the consideration of the above controversy, which in one form or other has agitated the disciples--bhaktas, asritas and anuraktas of Sri Thakur, who himself became an object of worship after his demise on May 1, 1949. It would be important to bear in mind that both parties derive from and share a common religious origin and faith in Sri Thakur''s preachings and while each party adheres to its own position, divisions surfaced long ago and the grass appeared to have rapidly grown around the institution and opportunity was seized to settle score with the Mohant even by making allegations against him about the misappropriation of the funds and concealment of the accounts of the Dham.
9. Mr. Deb at the outset asked the Appellants whether they would insist on the said allegations made against the Mohant. When the developments were closing in on them, the charges against the Mohant, found to be frivolous, were withdrawn by the Appellants and by Mr. Banerjee, who is the Respondent No. 27 in this appeal. Mr. Deb then started watering down his observations against the Plaintiffs. No return, in my view, is as welcome as that of good sense.
10. It will be convenient now to indicate the main features of the evidence in the case. It might be noted that the Plaintiffs filed several documents which are neither interpartes nor relevant; some others are even inadmissible, but as no objection was taken in the Court below, Mr. Deb proceeded to argue on all the documents.
11. There is a large number of devotees of Sri Thakur who founded the Dham but never entered it. A register was being maintained and being made upto-date but no fair balance was maintained between ''goodies'' and ''baddies''. Bhaktas, asritas, sishyas and anuraktas are ascertainable and identifiable and are not indeterminate.
12. People come to the temple as invitees except on the anniversary of the Foundation Day, which lately attracted a large number of outsiders. The Plaintiffs found it fashionable to emphasize that lacs of people congregate on the Foundation Day, but it arrested my attention that the quantity of rice and dal mentioned by the witnesses can feed only 20,000 people at the utmost. The estimate of gathering of lacs of people is also an exaggeration, particularly in view of the space (not more than 2 bighas) available, both open and covered, for the persons even to stand on the Foundation Day. Notices and invitations were issued only to the asritas. P.W. 9 being himself a trustee and ex-Secretary of the Board of Trustees, admitted that the Ashram was not a public one and no outsiders were allowed to stay there. There is no independent evidence of seva-puja by any member of the public. There is no holding out or representation by the founder or his family and/or by the successive Mohants that it is a public institution. There is no convincing evidence that the foundation is for the relief of the poor or for public charities.
13. Sudhansu Banerjee, the Plaintiff No. 1, who chose not to be the Appellant in this appeal, had the grace to confess that the deed of trust or management did not give any benefit to the public. He abandoned the logic of his own reasoning. He filed a suit previously against Sri Arun Roy and others. But it would be a mistake to reckon this as an assertion of public trust. D.W. 4 gave direct evidence that Banerjee proceeded with the suit u/s 92 of the CPC without informing others. Rather he manoeuvered. There is no direct cross-examination by the Plaintiffs on this point.
14. Sri Thakur''s photographs and wooden sandles only are worshipped by the disciples. In the temple of the Dham, there is no deity, no idol, consecrated or otherwise. There is neither any form of universal God. There is no installation of deity and no pratistha in the legal sense even of the Thakur''s photographs and/or his sandals. It is a recent temple. Only habitual worshippers being Sri Thakur''s disciples used to come by the sufferance of the Mohant. No outsider ever managed the foundation. There is no evidence about the contribution from the public, except certain insignificant pranamees, in the box maintained. There is evidence that neither Mr. Banerjee nor the other Plaintiffs made any contribution to the foundation, though theirs was oft-voiced grievance. There is evidence, on the other hand, to show that the principal contributors are the main contesting Defendants and none of the contributors wanted the public to come in.
15. All trustees and all members of the Committee are Thakur''s confirmed bhaktas. All general meeting held are of asritas of Sri Thakur. Their signatures appear in the record. The accounts are distributed only at the meeting of the asritas and never to the public on any day, including the Foundation Day. Mr. Banerjee himself, the Plaintiff No. 1, does not know whether non-disciples are allowed to see the accounts. The Plaintiff No. 2 (P.W. 17), the Appellant No. 1, himself does not say that it is a public endowment and relies on Ex. M. No direct question was put to P.W. 10, who is a Barrister-at-Law, about the public nature of the foundation.
16. Exhibit M, written by Sri Thakur in his own hand, is the genesis of the foundation. It shows that the nature and character of the foundation is private being limited to his bhaktas and disciples and to none else. It is explained execution of a corporate philosophy. Exhibit 5(a) dated March 18, 1952, executed by the Mohant Shyama Charan, who died in the year 1960, is not a deed of trust. It is a voluntary deed of management only, though lossly called a deed of trust. Even the executor is not bound by its terms far less Sri Brojendra the succeeding Mohant who is now dead. The Mohant, in the facts of the particular case, is not strictly the legal equipollent to a trustee. Each Mohant for the time being is the supreme head and can abrogate its terms. The whole charge of the foundation is on the Mohant; Biojen was all-powerful like Sri Shyama Charan (P.W. 9). The said deed refers to the general meeting, but that is to be held only by (he disciples who only can perform seva-puja.
17. P.W. 11 (Defendant No. 17), an Advocate, a trustee since the year 1952 and secretary of the foundation, did not say expressly that it is a public institution. P.W. 12 admits that no puja of Hindu deity is held in the institution but puja of Sri Thakur is held, which puja is known as Satyanarayan-puja. Bhog or offering is only made to Sri Thakur.
18. Sri Thakur described himself as ''Dayamaya Satyanarayan'' (K. 2). Vedavani (Ex. 4) prints the two photographs of Sri Thakur, the first one is shown as ''Sri Sri Kaibalyanath'' and the second one is ''Sri Sri Satyanarayan''. Thus emerges the composite name.
19. A rival institution has been founded in the name of ''Kaibalya-Samgha'' by Sri Banerjee in intrigue with his cohorts (P.Ws. 16, 18) and the members of the Samgha now says that it is a public institution.
20. All this evidence is not an aimless essay in nostalgia. It''s purpose is to hammer home the point that the foundation is a private one which is unfortunately being sought to be drowned in the fuss and pother by the critics who are lacing their shrill cries with a lot of sanctimonious hollowness, but the Defendants saw the omnibus danger, a bit late. Mr. Banerjee''s calculations have gone away. His noise was friendly at first, but subsequently it changed. The suit might well have been caused by exasperation. His evidence which is the main evidence is a direct confrontation with his gross ignorance of the law about the nature and character of a Hindu religious endowment. He persists in propagating the fiction in the plaint that it is a public institution. He, either as a single individual or heading a tiny minority, had at a point of time influenced events, but it ultimately became fairly plain that it was a prodigious expenditure of mental energy and a marvellous example of double thinking. Some of the P.Ws., it is found have sneaking admiration for Sri Thakur who, accordingly, was nothing but a suggestion to them.
21. Mr. Banerjee who followed Mr. Das and placed the documents on behalf of the Appellants continued to rule for some time under the convenient cover of secrecy and thereafter made extravagant and dangerous demands during the twilight years of the Mohant by making the application u/s 93 of the CPC and thereafter by filing two suits, including the present one, with demonstrably overweening ambitions. Some of the adventurists around backed him. In retrospect, it seems clear what was supposed to be a game of Chinese checkers, turned out to be a Russian roulette with all the chambers of the revolver loaded against the Mohant and the true disciples of the Thakur. Mr. Banerjee was appointed a trustee on the death of his uncle in the year 1961. The trouble started. The proposed plaint (F 3), which is on the record in which Mr. Sitaram Bhattacharjee, the learned Advocate appearing on behalf of the Appellants in the instant appeal, was the Plaintiff No. 1, was not placed before the Board of Trustees. Mr. Banerjee tried to impress the trustees that the institution was a public one. Some of them thought also as such, but thinking by certain persons would not and did not make it a public institution. The evidence of the members of the Kaibalya Samgha cannot be accepted. The more it is asserted that it is a public institution, the more one catches a puzzled and sometimes irritated rider-breach of the law of the Hindu religious endowment. An ugly aspect of this litigation is that it generated disruption among the devotees of Thakur. We are reminded of the epigram attributed to Virgil--''Latet anguis in herbs''.
22. It is, therefore, necessary in a case of this kind to view the records, transactions, proceedings and evidence as a whole. It cannot but be too clearly premised from the evidence that the institution is a private institution. I am justified in presuming from the evidence as to user, which is all one way, that the temple and the endowment were private religious endowment. I, further, find that there was no holding out or representation to the public by the founder or his family or the Mohants.
23. Upon a review of the evidence and of the history of the endowment, it will not bear too close a scrutiny that the Plaintiffs'' witnesses were talking ridiculous rot about the public contribution and the public nature of the foundation, whose abrupt cries ought to be ignored with the contempt it deserves. It seems fairly plain that the Plaintiffs'' evidence is not entitled to any weight. Too many complaints are expressed but all with plastic explosives.
24. It is further found that there is no recognised god or deity '' of the Hindu pantheon in the composite name of Kaibalyanath Satyanarayan. Hindu public cannot and would not understand what type of a deity it is. There is no dispute that the photo or portrait and/or the wooden sandals of Sri Thakur is worshipped as the only deity.
25. The public fact remains that all the documents relating to the Dhams extending over a short period are all framed on a footing which negative the public nature of the trust but affirm the private nature of it.
26. Sri Thakur was no doubt a devout Hindu and was the upholder of righteousness. He was a spiritual savant, a religious preceptor, a pious and dedicated person. He obtained great reputation as a holy man. To his disciples and bhaktas he was a saint, incarnation, Bhagwan or Thakur. His disciples adored him as such. They have personal attachment for Sri Thakur. Thakur himself declared--''I am Satyanarayan''. This historical circumstance along with his two photographs give great weight to the settlement of the question. His utterances in Vedavani are home-spun philosophy of life. He was not an ascetic but a householder. He had his relations, knew and followed social etiquettes.
27. The general effect of the evidence, as found above, is that Sri Thakur and his disciples including the Mohants have already treated the temple as a private endowment.
28. We may safely conclude that the foundation in issue is a foundation for the worship of Sri Thakur as Guru, in the name of Kaibalyanath Satyanarayan, by a closed group of his disciples. Public as such has no right. It is not strictly and wholly a religious and charitable endowment as it is generally and legally understood. In one word, the endowment is for Guru worship, a personal relationship between the Guru and his disciples, bhaktas, asritas and anuraktas. It is not an unspoken assumption. Those who had ears to the preachings of Sri Thakur and their fingers on the pulse of his disciples, the fact becomes recognised that it was a private institution. No express grant of a public trust is produced in this case. No fact of conversion into a public trust is either suggested. It would be legitimate inference, therefore, to draw that Sri Thakur and/or the Mohants after him or the Board of Trustees had neither dedicated the temple or the endowment to the public nor held out or promised to the public as such.
29. The plaint case is that the foundation was meant also for Christians and Mohammedans. One Cherag Ali was said to be a disciple of Sri Thakur. No Christian disciple was named. Some of the witnesses say that Cherag was a mad man. But, it appears from the record that he established his own Ashram. It, further, appears from the evidence that ''nam'' of Hindu God along with ''tulsi'' and ''Hari-sankirtan'' were being performed in the temple. These rituals cannot be meant either for Muslims or Christians. In my view, it is an absurd case sought to be made out in the plaint which should be rejected at once.
30. In the circumstances, it is not enough in my opinion to deprive the Mohanl and Thakur''s true disciples, bhaktas etc., of the declaration of the private nature of the endowment only by showing that Hindus willing to worship have never been turned away or even the temple has acquired considerable popularity among the Hindus of the locality or among the persons resorting to the annual foundation day. Worshippers are naturally welcome at a temple because of the offerings they bring; they do not have to be turned away on pain of forfeiture of the temple property as having become the property belonging to a public trust. If any one maintains a detached open-eyed approach to the problems raised, I for once shall not be disappointed to hold that these types of suits (present and earlier) are attempts to sweep away and corrode the root and the structure of the foundation itself which the disciples of Sri Thakur must have realised by this time. Men regrettably seldom change. The Plaintiffs, without following the principle that there must be poverty of desire, have rubbed salt in the wounds of the founder, the Mohants and his real disciples and bhaktas. No sentence could be adequate or expiate the outrages committed on the foundation and no time will efface the memory of the sufferings of the real bhaktas. If vengeance is sought, no system or trial or punishment would have satisfied the thirst for it. But the demand of the Mohant and of the Defendants supporting him is a demand for justice. There is a glimmer of hope that the passions which work unseen and burst forth in a moment and attempt to destroy everything in their course, would now spend themselves in thin air.
31. Mr. Deb took a preliminary objection that the appeal does not lie. Here controversy raised its head and the fact remains that we are exercised over this issue. His argument is that the Plaintiffs have obtained a decree in their favour prayed for in the alternative form in the plaint and on the basis of the said decree scheme was framed with the sanction of this Court. There is no appeal by the Plaintiffs against the said alternative decree obtained. Accordingly, Sub-section (3) of Section 96 of the CPC is a bar.
32. The prayer (b), which is the main prayer in the suit put in the plaint, was in the following terms--
far declaration that the temple, deity and properties described in schedule hereunder are the public debattar and/or the subject of a public religious charitable trust, alternatively, if the religious or charitable trust is found to be of a private character then for framing a scheme for its proper management and administration.
33. The Court below did not grant the first portion of the said prayer (b) and held that the endowment was not a public religious and charitable trust as claimed by the Plaintiffs. On the alternative prayer the learned Judge in his judgment held as follows:
Although, there is no justifying need for framing of a scheme, both sides being agreeable to the framing of a scheme for setting at rest all disputes and for having an effective and smooth management of the endowment for all time to come, a scheme be framed for the institution. Let a scheme be framed. Both sides do submit respective schemes within 15 days from date. As contesting Defendants admit the alternative claim of the Plaintiffs, I make no order as to costs. All other reliefs claimed by the Plaintiffs are disallowed.
34. This is in the ordering portion of the judgment. Even in deciding issue No. 7, ''To what relief, if any, are the Plaintiffs entitled ? --the learned Judge held--
Plaintiffs'' suit succeeds so far as their alternative prayer for declaration of private nature of the endowment and the framing of a scheme is concerned.
35. In deciding issues Nos. 4 and 6 and in deciding the question as to whether the Mohant was accountable, the Court below inter alia held that--
in such context the framing of a scheme is not at all necessary. But the Mohant as also his staunch follower B.K. Mitra expressed no objection to the framing of the scheme if that entailed preservation of the Dham and the better and smooth administration of the same. Plaintiffs with regard to their alternative prayer also prayed for a scheme for Jadabpur Kaibalyadham.
36. The matter came up before this Court in connection with the Rule for stay of all further proceedings after the decree. It appears from the record that this Court on May 7, 1969, did not stay the framing of the scheme. Three draft schemes, thereafter, were submitted by the Defendant No. 2 (Mohant), by the Plaintiffs and the Defendants Nos. 26 and 27 before the trial Court. The draft scheme of the Mohant was ultimately accepted by the trial Court with certain modifications by his order No. 283 dated June 10, 1969. Mr. Deb pointed out that among all the 129 grounds, taken in the memorandum of appeal filed on September 12 1968, there is not a single ground taken by the Plaintiffs either against the alternative decree or against the said order. There is nothing on record to show that the decree for framing the scheme was not by agreement. No argument was advanced by Mr. Das, the Learned Counsel in his opening, appearing on behalf of the Appellants, on the alternative decree.
37. Mr. Das'' reply to the preliminary objection, however, is that in the circumstances the decree, passed by the Court below, was not a consent decree and therefore, there is no bar. He relies on a single Bench decision of this Court of Lord Williams J. in the case of
38. Mr. Das next contended that not only the decision of the Court but the recording of the compromise under Order 23, Rule 3 of the CPC were necessary. Only in that event no appeal would lie. He relies on a Division Bench decision of this Court in the case of Paban Sardar v. Bhupendra Nath Nag ILR (1915) Cal. 85 (88). It should not be overlooked that an appeal lies from an order under Order 23, Rule 3, but no appeal lies when the bar under Sub-section (3) of Section 96 applies. The facts in the said reported decision are distinguishable. Though the suit was not contested there, the learned Judges noted that the compromise ought to have been recorded and that such an order must precede the decree. It was a decision as to how a consent decree under Order 23, Rule 3 should be passed. In that view, the case was sent back to the Court below which is not the case here.
39. Mr. Das next relied on a decision of the Judicial Committee of the Privy Council in the case of Zahirulsaid v. Lachmi Narayan AIR 1931 P.G. 107. The circumstances in the said reported decision are peculiar which should be read carefully. The decree appealed from did not show that it was by consent which is not the case here. Moreover, there was an affidavit before their Lordships of the Judicial Committee denying the consent which is again not the case here. In that view, the Privy Council sent back the case to India to deal with the same according to law.
40. The next decision of the Nagpur High Court (Single Judge) cited is the case of Kamal Singh v. Jagannath AIR 1918 Nag. 66 (67). This decision really does not touch the point. There no objection to the relief from ejectment was raised and therefore, it was argued that the consent was to be presumed which is again not the case here.
41. Mr. Das next relies on a decision of a Single Judge of the Punjab High Court in the case of Amar Nath v. Brij Bhusan AIR 1964 pun. 443 (para. 7). The learned Judge interpreted the decree and inter alia, held that it was not a decree by consent and Section 96(3) of the CPC would not be a bar. It should be noticed that the Plaintiff in the said reported decision was helpless and made a conditional statement to save the dismissal of the suit when the secondary evidence was not allowed to be given by him. The learned Judge observed that on a fair construction of the statement made before the trial Court, it could not be said that the decree was passed with the consent of the parties. In the case in hand the trial Court specifically held that the parties agreed. It should further be noticed that in the reported decision no decree was prepared. Whereas, in the instant case, the decree specifically mentions the agreement which is quoted hereafter.
42. The next Division Bench decision of this Court, relied on by Mr. Das, is the case of Prakash Chandra Nag v. Subodh Chandra Nag Supra. Here the institution was a public institution and it was open to the public for worship, but the facts in the instant case are entirely different. It was a decision on the burden of proof in a proceeding u/s 92 of the Code and on the distinction between private and public trusts which I have dealt with earlier and not a decision on the point.
43. Lastly, Mr. Das relies on another decision of a Single Judge of the Patna High Court in the case of
44. Mr. Deb points out from the decree, in the instant case, the following portion--
Although, there is no justifying need for framing of a scheme, both sides being agreeable to the framing of a scheme for setting at rest all disputes and for having an effective and smooth management of the endowment for all time to come, a scheme should be framed. Both sides do submit respective schemes within 15 days from date. As contesting Defendants admit the alternative claim of the Plaintiffs, I make no order as to costs. All other reliefs claimed by the Plaintiffs are disallowed.
This also appears in the body of the judgment quoted earlier.
45. Mr. Deb relies on the agreement of both the sides incorporated in the said decree. If in a judgment a particular event happens and goes unchallenged, it will be taken to be correct. If the Plaintiffs were aggrieved, they could have filed a review application. See
46. Lastly, Mr. Deb cites a Bench decisions of the Court in the case of
47. When the argument on this point as well as on the whole case of both sides was almost going to be closed. Mr. Bhattacharjee found out for the first time from his papers that there was another original memorandum with the additional grounds taken against the alternative decree but which he forgot to file. His prayer for filing the said memorandum and for acceptance of the said grounds at this late stage cannot be accepted for various reasons. The preliminary objection of Mr. Deb, therefore, succeeds and the appeal is also liable to be dismissed on this count apart from the merits.
48. The next point which is observable in passing and which follows immediately from what I take leave with great respect to denominate the misapprehension upon which the argument is based that the suit should not have been held to be maintainable. It is true that the suit was on behalf of the public and not on behalf of the disciples of Sri Thakur and not as a trustee either. It is also true that the suit is not in a straight street and at times it appeared that the argument on behalf of the Appellants differed from the plaint case. It is equally true that it is admitted in evidence that there are three Dhams, two in Eastern Pakistan, now in Bangladesh and the last one is Jadabpur Kaibalyadham which Dham only is the subject-matter of the present appeal. It is again true that it appears in evidence that all the Dhams form one unit and are united by the same bond. Mr. Deb pointed out that the effect of the declaration of public nature of the Jadavpur Dham might affect the other two Dhams at Bangladesh which are not the subject-matter of the litigation. According to him, the suit is thus not maintainable and is liable to be dismissed on this ground also.
49. But, in our opinion, the evidence is so scanty on this point and as this point was not specifically taken before the trial Court and not fully argued before us, we do not think it necessary to decide this point except to keep it open. It is too much to expect that anything definite can be obtained from the two Dhams which are now in Bangladesh particularly after the devastation. There is no little confusion in all the Dhams. The singularity of the position is that it appears to be and that very rightly that upon the state of records we should not pronounce any opinion on this issue.
50. Mr. Mitter placed that on the death of Brojendra substitution application was filed. Jamini Aditya, the Respondent No. 28, claimed to be the Mohant, whereas Bhabatosh Banerjee, the Respondent No. 29, also claimed to be the Mohant. Both of them were added as the Respondents to the appeal. Mr. Mitter moved that Jamini Aditya''s name was to be expunged from the records as in the circumstances he could not be the Mohant. None objects to the said prayer. Accordingly, we order that Aditya''s name is to be expugned and we declare that Sri Bhabatosh Banerjee is the present Mohant of the foundation.
51. In the result, the appeal is dismissed with costs. The consolidated hearing fee is assessed at 100 gold mohurs to be paid by the Appellants to the Mohant, the Respondent. The costs of the main contesting Defendants-Respondents as well as the fees paid to Mr. Radha Kanta Mukherjee, the learned Advocate appearing on behalf of the Respondent No. 1, will come out from the fund of the Dham or the endowment. The costs incurred by the Appellants and the other Plaintiff-Respondent would be borne out by them personally in this Court as well as in the Court below.
52. The Plaintiffs thus made a lawless and to a mission that started in a hot-house atmosphere. Fate interferred cruelly with their plans.
53. It is now ultimately decided that the whole of this litigation has substantially been occupied by an unfounded assertion and that the endowment is a public one--as assertion by a trustee or trustees which he has or they are supposed to administer--it does not appear to us to be open on any sound principles, either of administration or of law, to permit the continuance of Mr. Banerjee, the Plaintiff No. 1 and the other trustees in the same line with him in the office of trusteeship. Most unhappily the guarantee for the trustworthiness has been destroyed.
N.C. MUKHERJI J. :
54. This appeal arises out of a suit for declaration and permanent injunction. The Plaintiffs who are nine in number filed a representative suit. Their case in short may be stated as follows:
55. Sri Sri Ram Thakur was a spiritual preceptor who was looked upon as redeemer by a large number of disciples and devotees and admirers in India and East Pakistan irrespective of caste or creed. In 1942, Sri Sri Ram Thakur with the donations and contributions made by the members of the public including the disciples and devotees founded at Jadavpur a public temple known as ''Kaibalya-dham'' and installed the pro forma Defendant No. 1, the deity Sri Sri Kaibalyanath Satyanarayan Jew. In founding the said Jadavpur Kaibalyadham, Thakur intended to provide for the general public opportunities for free worship of the deity, free lessons on religion and on moral and spiritual life of man, free food, clothings and medical treatment for the poor and open participation in all religious functions and festivals and ceremonies in the said Dham. On May 1, 1949, Thakur left his mortal frame and before that Sri Thakur appointed one of his disciples Sri Shyama Charan Chattopadhyaya to perform and carry on seva and puja of the deity and conferred upon him the title of Mohunt. Shyama Charan since his appointment till his death acted as Mohunt. On March 18, 1952, Shyama Charan executed a document describing the same as a declaration of trust in which he laid down certain rules in accordance with which the said Kaibalyadham and the said trust were to be administered and managed. It was provided by the deed of declaration that the trustees would manage the affairs of the Jadavpur Kaibalyadham with the help, if necessary, of a local committee and as a matter of fact a local committee was formed and day to day management was left to it, but the policy matters were decided by the trustees by a majority decision in meetings of trustees. Many immoveable properties were purchased which are described in sch. B. Government securities, furniture, utensils and other properties were also purchased out of the trust fund. It is alleged that during the course of administration certain disputes and differences arose. Moneys paid to the Jadavpur Kaibalyadham to be used for three Pakistani Dhams were not entered in the account books of the Dham and were set apart in some other accounts. It is also alleged that the present Mohunt appropriated to his own use the bulk of pronamees which really belonged to the institution. The present Mohunt was trying to assume the role of a dictator and usurp all powers of administration to the exclusion of the Board of Trust. On February 28, 1965, the Mohunt dissolved the Board of Trustees. It is, therefore, alleged by the Plaintiffs that the rules for administration of the trust as laid down by the declaration of trust have been found unworkable. The Plaintiff No. 1 was t authorised by the trustees to institute a suit u/s 92 of the CPC and an application u/s 93 of the Code was filed before the Collector. But the Collector declined to move the Government for sanction and held that the trust was of a private nature. The order of the Collector has cast a cloud upon the nature and character of the trust. It is stated that some of the Plaintiffs are trustees while others are members of the public and all are worshippers of the deity and receipients of benefit of the trust. Hence the Plaintiffs have filed a suit for declaration that the temple deity and the properties described in the plaint schedule were the subject of a public religious charitable trust. The Plaintiffs also prayed for framing a scheme, alternatively in case it was found that the trust was of a private character.
56. The suit was contested by the three sets of Defendants. The Defendant No. 2 comprises one set, the Defendants Nos. 3, 4, 6, 7, 9, 11, 13, 15, 16, 19, 20, 22, 23, 24 and 25 comprise another set and the added Defendants 26 and 27 comprise the third set. Written statements were filed by them accordingly. They are identical in the principal defence which is to this effect that the Jadavpur Kaibalyadham is the private debattar and private religious trust and institution of Sri Sri Ram Thakur. The institution and the temple or its properties were organised, acquired and built according to the wishes of Sri Sri Thakur by his disciples and not by the Hindu public as claimed by the Plaintiffs. The public, at large, have no right to participate in the seva and puja of the deity at the Dham and have no vested right to the worship in the temple there. The temple and the institution are arranged by the disciples and devotees of Sri Sri Thakur. The public make no contribution to the funds of the institution and no collections are made from the public. It is further stated that the temple and the institution being the absolute private debattar of Sri Sri Thakur the public have no beneficial interest therein. Sri Sri Thakur, to his disciples, is identical with Satyanarayan and all the Dhams established by Thakur are his private religious trusts and they form one unit and the Mohunts nominated by him or the succeeding Mohunt nominated as per his wishes is the sole supreme head of the said private religious trust. Regarding the deed of trust the defence is that it was merely a deed of management, which was brought into being by the last Mohunt Shyama Charan Chattopadhyaya. It was not binding on the succeeding sebait and Mohunt, the late Mohunt being not the founder was not competent to create any trusts in respect of the private debattar of Sri Sri Thakur and in fact, he did not intend to create any trust. The Board of Trustees was merely a Board of Management to be effective so long the Mohunt willed. The Plaintiffs and the Board of Trustees have nothing to do with the funds of the debattar estate. The added Defendants Nos. 26 and 27 made out a further case which was to this effect that Jamini Ranjan Aditya was the sole sebait of the deity at Jadavpur Kaibalyadham and that Jamini Aditya as sebait purchased a land on January 21, 1945 and exchanged the same with the land of Sm. Usha Bala Sen which was contiguous to the Ashram and the said land so exchanged became a land of Jadavpur Kaibalyadham. Under the sebaitship of Jamini Aditya, the Dham went on flourishing, but after the demise of Sri Sri Thakur the Plaintiffs in collusion with others compelled Jamini Aditya to execute a deed by way of renouncement of his sebaitship at Jadavpur Dham. The deed was, accordingly, void, obtained as it was by undue influence and coercion. Jamini Aditya still continued to be the sebait of Jadavpur Kaibalyadham.
57. Upon the above pleadings the following issues were framed:
(1) Is the suit maintainable?
(2) Is the suit barred u/s 92 of the Code of Civil Procedure?
(3) Does the property in suit and the institution constitute a Math within the meaning of Hindu Law?
(4) If the properties in suit form part of Hindu Religious Endowment and Charitable Trust founded by Sri Sri Ram Chandra Deb?
(5) Is the Defendant No. 2 liable for rendering account to the Plaintiff? Can this Court pass a decree for accounts?
(6) Is the institution with the properties belonging form a private debattar or religious endowment? Should there be a scheme framed by the Court?
(7) To what relief, if any, are the Plaintiffs entitled? Issues Nos. 4 and 6 were taken up together. These issues were found against the Plaintiffs. Issues Nos. 5 and 3 were answered in the negative. Issues Nos. 2 and 1 were disposed of in favour of the Plaintiffs. As regards issue No. 7, the Plaintiffs'' suit succeeded only so far as their alternative prayer for framing of a scheme in case the endowment be declared as of private nature. In the result, the suit was, decreed in part. It was declared that the temple, deity and the properties mentioned in the schedules of the Plaintiff and popularly known as Jadavpur Kaibalyadham comprise an absolute private religious endowment founded by Sri Sri Ram Thakur and now belonging to his disciples, devotees, ashritas and anuraktas, who constitute the spiritual family of the said religious preceptor. It was further declared that it was not a public religious and charitable trust as claimed by the Plaintiffs. The learned Judge then ordered--
Although there is no justifying need for framing of a scheme, both sides being agreeable to the framing of a scheme for setting at rest all disputes and for having an effective and smooth management of the endowment for all time to come, a scheme should be framed for the institution. Let a scheme be framed. Both sides do submit respective scheme within 15 days from date. Being aggrieved by the aforesaid judgment the Plaintiffs, excepting the Plaintiff No. 1, have come up in appeal. The Plaintiff No. 1 is, however, the Respondent No. 27 who supports in full the case of the Appellants.
58. Mr. Banamali Das appearing on behalf of the Appellants, in the first place, has contended that one of the criteria to hold whether an endowment is private or public is to see the nature of the beneficiaries. If the beneficiaries are indeterminate body then it goes a long way to show that the endowment is public in nature. In order to show that the disciples are indeterminate and constitute a fluctuating body and cannot be identified, Mr. Das drew our attention to the relevant portions of the oral and documentary evidence. P.W. 5 Sudhanshu Kumar Banerjee deposes that--
I do not know and it is not possible to know who are disciples of Thakur. I do not know if those offering pujas or taking prasad are disciples.
He also states that the disciples are indeterminate. In cross-examination he, however, states that he does not know if all the members of the Board of Trust are disciples of Thakur. He also admits that he does not know and it is not possible to know who are the disciples of Thakur. He also does not know if those offering pujas or taking prasad are disciples. He, however, clearly says that by public trust he means that the beneficiaries are public.
59. Mr. Das next refers to the evidence of P.W. 9 Akhil Chandra Roy who states that
there is nothing to distinguish between a man obtaining nam and one not receiving so. Those who come to Ashram and admit nati to Thakur are called ''bhakta and anurakta''. Their number fluctuates.
He admits in cross-examination that
Trustees are all disciples of Thakur. There is accommodation for 10/12 bhaktas for stay in the Ashram. It is not meant for the public.
He also states that he knew all the local committees are formed out of bhaktas. Invitation letters are issued to persons with reference to register. Indu Banerjee, Mani Banerjee and Dr. J.M. Das Gupta used to manage Dham affairs. It is not disputed that at the initial stage when Thakur was alive, Thakur entrusted those three persons to manage the affairs of the Dham. These three persons were disciples of Thakur. P.W. 11 Nripendra Narayan Bhattacharjee states that he does not know and has not seen any restriction on entry to this Dham. There is nothing to distinguish between persons obtaining nam and not obtaining any nam. Jadavpur Dham is for all who intend to come and is not confined to its disciples and devotees. In cross-examination he deposes that it seems to him that Bhakta Sammilani is the assembly of bhaktas of Ram Thakur. This Sammilani takes place immediately after the annual meeting. ''Ashritaganer Sadharan Sabha'' as recited in resolution book is identical with the Bhakta Sammilani. P.W. 3 Abhiram Mullick comes to say that he once visited Jadavpur Kaibalyadham. But he did not participate in the seva-puja. He went there without taking permission from any. Many had gone there. He did not receive objection from anybody. He is not disciple of Ram Thakur. These statement as well as the statements of other witnesses have been referred to in order to show that any one could enter into the Jadavpur Dham and there was never any objection. Simply because some persons entered the Jadavpur Dham only for the purpose of seeing the Ashram does not carry us anywhere. The point is whether the members of the public can enter the Dham and worship the deity as of right. This witness in cross-examination states that the deity referred to is a portrait of Sri Sri Ram Thakur. P.W. 4 deposes in the same line when he states that he had been in the Dham many a time and none offered resistance to his entry. P.W. 6 Krishna Mohan Mondal deposes that there is no restriction to entry into the Dham. Hindus and Muslims both receive prasad. During celebration inumerable men collect there. It is, however, his evidence that he treats Ram Thakur as his Guru. He receives prasad as Guru''s equivalent to Satyanarayan''s prasad. There is no atithisala, but there is a hall-ghar where the bhaktas may stay. P.W. 7 Amar Prasad Das Gupta wants to say that though he is not a disciple he made some donation and one appeal to public was shown to him. This witness has little knowledge of Dham as he admits that he had never been to Jadavpur Dham. P.W. 8 Pabitra Kumar Roy Choudhury deposes that he received no obstruction in entering the Dham. Hundreds of men assembled on 13th Falgoon celebration. In cross-examination he states that he is a devotee of Ram Thakur and considers him as his Guru. P.W. 12 Sm. Niva Das Gupta states that there is no discrimination between castes in this Ashram. But in cross-examination she states that she cannot say who is and who is not the disciple of Thakur. Moreover, her evidence is that the Trust Board manages the administration and all of them are disciples of Thakur. It is her further evidence that the puja of Ram Thakur is held there. This puja is known as Satyanarayan Puja. No puja of Hindu deity is held. P.W. 13 Gouri Prasad Chakrabarty, one of the Plaintiffs, states that no disference is made between disciples and non-disciples during the Mahotsab. This witness admittedly is a disciple of Thakur. P.W. 14 Prama ha Nath Chakrabarty (Defendant No. 12) admits that those who regarded Ram Thakur and those who used to come to him were his bhaktas. Ram Thakur called each of them ''atmiyas''. Those who obtained nam were Thakur''s ashritas. He regards Sri Ram Thakur as his Guru. P.W. 10 Amulya Ratan Mitra, a disciple of Ram Thakur, states that the Dham is meant for general public. In cross-examination he however admits that the Trust Board deals with management of the Dham and the members of the Trust Board are all ashrtias of Thakur. The Board determines the programmes and functions. The witness and other disciples raise and realise subscriptions and donations for their Samgha. P.W. 17 Jatindra Mohan Das Gupta states that Ram Thakur was his Gurudeb and Bhagavan. Thakur entrusted him and a few others to found and manage the Jadavpur Dham. This statement supports the case of the Defendant. He, however, in the next breath says that the Dham was not meant for the disciples only. The object of it was ''much benefit for the world and to increase happiness''. Again, in cross-examination he admits that those who come to Kaibalyadham are Thakur''s anuraktas. Exhibit M is the genesis of his statement regarding the object for which the Dham was founded by Thakur.
60. P.W. 16 Ashutosh Ganguly, who once presided over a meeting of Guruchakra, states that the meeting of Guruchakra must be a sammilan of Ram Thakur''s devotees. He, however, states that wooden sandals are worshipped in the Ashram. The most important portion of the oral evidence adduced by the witness examined on behalf of the Plaintiffs has been referred to above. It is seen that though many of the witnesses come forward to say that the Dham is a public religious endowment, from the evidence of those witnesses it again transpires that really the management of the Dham used to be made by the Trust Board which is composed of the disciples and devotees of Thakur. There is also evidence to the effect that Thakur photo and wooden sandals are worshipped at the Dham, that no Hindu deity is worshipped. It, further, transpires that though there is no restriction for any one to enter into the Dham it has not been proved that they can so enter and offer puja as a matter of right. Now, we refer to the relevant portions of the oral evidence adduced by the witnesses examined on behalf of the Defendants. D.W. 2 Jagannath Roy claims himself to be a bhakta, anurakta, sishya and ashrita of Ram Thakur. He gave a cheque of Rs. 50,000 to Mohunt Shyama Charan for the Pakistan Dham. It may be mentioned in this connection that in his evidence he states that all the four Dhams, three is Pakistan and one at Jadavpur, constitute one unit. This witness also paid donation for the Jadavpur Dham. It is his evidence that this is not an institution of the public. Public individuals has no right or control over the management. He, however, admits that the public has no restriction is offering pujas and receiving prasad. D.W. 3 Ranajit Kumar Bhowmick is Thakur''s bhakta. It is his evidence that his father-in-law, who is a bhakta, anurakta, sishya and ashirita of Thakur, bore major portion of the cost of construction of Samadhi Mandir. D.W. 4 Jogesh Chandra Guha (Defendant No. 15) is a disciple of Ram Thakur. It is his evidence that with the money of the disciples only the temple of Jadavpur Dham was constructed. Rai Bahadur Rabindra Kumar Mitra and Paresh Nath Chatterjee contributed major cost of construction. The witness is one of the trustees of Jadavpur Kaibalyadham. He further states that seba, puja, annual festivals and other ceremonies are met from contributions from the bhaktas only and not from the public. The public have not the unfettered and unrestrained right of entry into the Dham or the temple. He proves the invitation letter, Ex. 2(7), which is a letter of 1964. It is his evidence that the same form of invitation-letters was used year after year with alteration of date. The invitation-letters were never meant for the public. He, however, admits in cross-examination that the invitees were those who were disciples or bhaktas and they were asked to bring friends with them. It is his evidence that in the Ashram there is a register for the invitees. D.W. 7 Amiya (Kumar Bose, who resides near the Dham, states that from them and from the residents of the locality subscription or contribution was never invited publicly. He never received invitation card from the Dham. He had never seen any paying contribution. He, however, admits that about 10/15 thousand men participate in the annual Utsab. D.W. 8 Priya Nath Nandi states that Ram Thakur is his Gurudeb. He contributed a huge amount of money. He, however, admits that there is no restriction to enter into the Ashram if the gates remain open. He admits in cross-examination that he does not know the number of sishyas or ashritas of Ram Thakur, nor he can say how many are his bhaktas. But, it is his evidence that Jadavpur Dham is a private institution of disciples and bhaktas. According to him, general public manage and control the public religious temple. Private religious temple is managed only by the disciples of the deity. D.W. 13 Paresh Chandra Chatterjee (Defendant No. 3) is a sishya of Sri Ram Thakur. It is his evidence that the Kabalyadham at Jadavpur is a religious institution of Ram Thakur. It is strictly a private religious endowment. Public have no hand in the management and control of the institution. The disciples and bhaktas provide the fund. Public have no contribution to the fund of the Dham. No notice of invitation was ever sent to the public for donation or contribution. Public have no hand or right over the management and distribution of bhog, prasad or ceremonies. The Mohunt has abso lute discretion in this matter. Public have no unrestrained right of entry into the Dham. Accounts and administrative reports are never distributed amongst the public. In ceremonies and festivals public are not invited. He contributed Rs. 40,000 to 50,000. In cross examination again he states that it is his belief that all who assemble in the annual ceremonies are either disciples or bhaktas. D.W. 14 Rabindra Kumar Mitra (Defendant No. 16) is another disciple of Thakur. He bore the entire cost of cement and paid Rs. 12,000 to 15,000 towards labour charges. He is one of the members of the Trust Board. He asserts that Jadavpur Dham is strictly a private endowment. The management and control of it is not with the public. All expenses of this Dham are met only from contributions of Thakur''s disciples. The institution is meant for the disciples, ashritas and devotees. Only the disciples organise the ceremonies. Public are not invited to those ceremonies. This witness states that they are prapared to accept a scheme if found to be a private trust as per Ex. M. In 1951-52, towards purchase of land he contributed Rs. 9,000. He states that about forty to fifty thousand is the number of Thakur''s disciples. There is a register of disciples in the Ashram. He states that when the disciples contribute towards fund and manage and control the administration, it is private endowment, if members of the public contribute and control, it is public endowment. His further evidence is that the disciples of Thakur never accepted contribution from public. He, however, admits in cross-examination that amongst the Hindus Thakur made no discrimination between different sampradayas. He, however, never saw any Muslim or Christian coming to the Ashram or to Thakur. He wants to say that from Ex. M it will appear that Mohunt Maharaj was the supreme and final authority in all spiritual and temporal matters. Brojendra Nath Bandopadhaya, the present Mohunt, was examined on commission. It is his evidence that his predecessor Mohunt Shyama Charan Chatterjee noted down his selection in a sealed cover. Jadavpur Kaibalyadham is not a public religious trust. This Ashram is not a charitable institution. The Ashram has not been developed and built with public money and help. It has been built by the bhaktas in the shelter of Thakur and with their money it has developed. The Dham is run with the money of the sheltered devotees. The general public have no hand in the management and control of the Dham. The public have no right to offer puja and take part in the management. The public have no right to enter into the Ashram as a matter of right. In the festivals the public do not make arrangement. The public are not invited to pay subscription in connection with the affairs and festival of the Kaibalyadham. Trust deed of the Dham has been prepared under the instructions of the Mohunt Maharaj since deceased. Thakur did not give any instructions for the management of the Dham. He confered authority on the Mohunts. He states that nobody has any power to alter the direction or arrangement made by Thakur (evidently he refers to Ex. M). He states that there is a register for the ashritas, which was with him at the time of deposition.
61. On scrutiny of the entire oral evidence referred to above, it is seen that though a large gathering used to assemble at the annual festival, yet the management and control of the Dham always rested with the disciples and devotees of Thakur. Though there was no restriction for any one to enter into the Dham, yet the public had no unrestricted right to enter and offer puja as a matter of right. Contributions were never asked for from the general public either for construction of the Dham or for the annual festivals. Only a few wealthy disciples contributed major portion. Any one having any connection with the Dham was either disciple or devotee or ashrita or anurakta. It further appears that in the beginning the group which clustered round the Thakur was very small. Only three persons were entrusted to look after the affairs of the Dham. Gradually, the group became larger and larger and the number of disciples, devotees, ashritas, anuraktas increased.
62. A number of documents have been proved by both the parties. We will only refer to the most important documents which will be necessary for deciding the point in this appeal. Exhibit 4(d) is a book named ''Sankalan'' by Suresh Chandra Chakraborty. Towards the concluding portion of the book some statements said to have been uttered by Thakur have been incorporated. The statements read as follows:
...It is here that there will be a union of all the religions and spontaneous religions preached through this place will be the religions to the people of the world. In course of time some great saint will emerge and preach the greatness of this place in three worlds.
From these statements it has been sought to be proved that it was the intention of the Thakur that the Dham would be for all and hence, it cannot be a private religious institution. We do not know 3 in what context these utterances were made. Moreover, these statements have not been proved as Thakur''s statements.
63. The next document is Ex. 4(e). This is a book named ''Sri Sri Thakur Ram Chandra Deb Smarane''. In this book there is a statement that Thakur had devotees of various communities, such as Hindus, Muslims, Christians and Buddhists. There is absolutely no evidence, either oral or documentary, to show that there was any Christian or Buddhist devotees. Only there is some evidence that one Charag Ali had some attachment to Thakur. This does not prove that Jadavpur Dham was an institution where persons of all religious faith could gather. In the same document it has been stated that the chief organisers of the celebration of the foundation of the Ashram were Sri Jatindra Mohan Das Gupta, the single-minded devotee of Sri Sri Thakur and a renowned physician and his wife. The celebrations were a complete success at their indefatigable and supreme effort. There is another statement to the effect that the assembled devotees settled that a new pucca temple would be constructed. Exhibit 4 is a book titled Sri Sri Ram Thakur Abirbhab Sata-Barshiki Smarak-Grantha. At p. 40 we find--
Most of our gurubhratas perform the worship of all the gods and goddesses before the photo of Sri Sri Kaibalyanath who is worshipped daily in the houses.
It is the admitted position that the photo of Sri Sri Kaibalyanath is the photo of Ram Thakur. There is a recital in Ex. 0, the registered ekraranama executed by Jamini Ranjan Aditya and Sree Sree Kaibalyanath represented by the Mount Sree Shyama Charan Chatto-padhay, to the effect--
Thereafter the picture of Sree Sree Thakur of the name of Sree Kaibalyanath Satyanarayan is being worshipped there.
Exhibit L(1), which is a book of proceedings of local and other committees from April 18, 1960 to January 13, 1963, records that regarding the construction of Nam-Mandir (Nat-Mandir) arrangement may be made for sending the applications/petitions of the Srimat Mohunt Maharaj to the bhaktas (devotees) at an early date. In Er. 5(a), which is a registered declaration of trust executed by Shyama Charan Chattopadhaya, it has been provided that--
the trustees will convene a meeting of the disciples of my Guru-dev and his disciples through me and successive Mohunts every year generally at Jadavpur Kaibalyadham during its annual 13th Falgoon utsab in which among other things they must present a report of the income and expenditure of the previous Bengali year for their information. They may convene a general meeting of the devotees and well-wishers of the Dham. Exhibit 18, which is a book containing original record of proceedings from March 16, 1952, to April 2, 1960, contains an advertisement in the Ananda Bazar Patrika dated March 7, 1952. It was announced that the meeting of ashritas of Thakur would be held on March 16, 1952 and the presence of the ashritas was solicited. So, this is not a notice for the public. Exhibit 3(1), a letter from L. Chakraborty, Secretary, Board of Trustees, to the Iron and Steel Controller, was referred on behalf of the Appellant to show that it was stated in the same that the people of all sects feel very keenly that his place of public worship should have adequate space and a beautiful temple. This statement was made for the purpose of getting permit of iron and steel. Again, in this very letter it has been stated�
As the funds are not very fluid but limited, since the only source of it is the voluntary contributions of the devotees, it has not been possible for the Board of Trustees to purchase in advance all the requirements of iron and steel materials for the construction work.
So, it is seen that the contribution for the construction of the temple was made only by the devotees. Reliance has also been placed on Exs. 3(a) and 3(j), letters from Brojendra Nath Bandopadhaya to Kaibalyadham, wherein Sree Bandopadhaya stated--
so that it may be approved that Kaibalyadham Ashram is a Hindu religious charitable institution.
Exhibit 3(y), a printed letter, has been placed to show that Sree Brojendra Nath Bandopadhaya invited one Ganendra Mohan Das on the annual foundation day ceremony requesting him to participate in the said festival with his friends and relations and further requested him to extend his cordial invitation to all irrespective of caste and creed to join in this festival. In this connection Ex. 3(z) has also been placed which is a circular letter from Jogesh Guha, President of the Utsab Committee, wherein request was made to all to be kind and charitable on the occasion of the foundation day celebration. Exhibit 20, a printed appeal dated April 24, 1954, however, reads as follows:
We wish that every one of the persons who have been given protection by him (ashritas) or have admiration for him (anu-raktas) or are his devotees (bhaktas) be blessed by contributing his mite for this noble object.
Exhibit J(3) is an extract of a report for 1367 B.S. which records:
The circle of devotees should be aware that the local executive committee as well as the Board of Trustees are answerable to Srimat Mohunt Maharaj for all their activities.
It is clear that no member either of the Board of Trustees or of the local executive committee is other than a devotee of Thakur. Exhibit J(4) is a report for 1368 B.S. which shows that Thakur ordered his most zealous devotees Jatindra Mohan Das Gupta, late Indubhusan Bandopadhaya and late Manindra Kumar Bandopadhaya to keep an eye on this Dham. So, the management was entrusted only to three disciples on whom Thakur had great confidence. Exhibit I is an appellate order under the Gift Tax Act dated August 16, 1961, wherein it was found--"the Ashram is no doubt a public religious institution". Reliance has also been placed by the Appellant on Ex. 8(a) which is an advertisement in Ananda Bazar Patrika dated February 1, 1962. In this advertisement all persons irrespective of caste and creed were cordially invited to attend the festival. Exhibit 8(b), a news report in Ananda Bazar Patrika dated February 27, 1965, was also placed to show that the assembly at the annual function exceeded one lakh. On behalf of the Respondent, Ex. K(1) has been placed. This is a petition of objection to the review petition on behalf of Sris Chandra Ray Choudhury and others before the Collector, 24-Parganas. Herein it has been stated--
Be it mentioned that the Ashram of our Sree Sree Gurudeb is confined to our devoted brothers to the spiritual guide. It is never open to the public.
The Appellant also places Ex. E2(3), a printed circular dated February 9, 1968, by Sree Brojendra Nath Bandopadhaya. A portion ot the circular reads as follows:
It is humbly prayed that you will kindly join the said ceremony along with your friends and relations and will invite all irrespective of caste and creed to attend the ceremony.
Exhibit E(1), a printed leaflet, was referred to on behalf of the Appellant to show that
the ideal set up by Sree Thakur is neither individual nor racial. According to him, all on earth are of one genus, one soul. He never recognised the so-called racial differences.
But, in this leaflet it has been stated that the charge of management of the different functions of the Ashram was reposed on three persons. The Respondents rely on Ex. W(1) which is the opinion of the Advocate-General dated September 25, 1964. In answer to the question whether the Trust is a public or private one, the Advocate-General expresses his opinion to the effect that the Trust is a t private one. The Advocate-General also states that the decision of the Mohunt will be supreme in accordance with the declaration of Sree Sree Thakur Ram Chandra Deb founding the debaliar. The Respondent also relies on Ex. A(9) which is a letter from the Tollygunge Tax Department. Corporation of Calcutta, to Brojendra Nath Banerjee wherein it was stated that the premises of the Jadavpur Dham was found to be a private trust and as such, exemption of tax would be granted. Exhibit L(2), which is a book of proceedings of the local committee from February 17, 1963 to February 14, 1965, has been placed by the Respondent to show that Thakur had no fund of his own, the property was acquired from contributions made by the devotees. Exhibit 6 is the annual report of Sree Sree Kai-balyadham for the year 1361 B.S. In this report we find--
in the meanwhile appeals have been made a number of times to the ashritas, anuraktas and bhaktas of Sree Sree Thakur for money and other contributions for the construction of the temple.
The Appellant places Ex. L, which is a declaration dated July 15, 1963, by the Joint Secretary, Local Self-Government Department. The declaration reads as follows.
The Governor is pleased to declare the land and buildings at the premises mentioned in the schedule below, as land and buildings used by Sree Kaibalyadham solely for the advancement of an object of public utility, namely, relief of poor. The Appellant also places Ex. 3(o), a letter from Anath Bandhu Sen, Secretary, Kaibalyadham, to Dr. Jatindra Mohan Das Gupta dated March 12, 1960. In it Dr. Das Gupta was requested to do the needful for information of the trustees and the public. Exhibit 1 is the declaration by Shyama Charan Chattopadhaya dated December 25, 1958. Shyama Charan Chattopadhaya states:
Sree Sree Thakur, who is supremely worshipped, conferred as a matter of grace of my humble, unworthy and poor self, the all-comprehensive responsibility of seba, puja and management of the places of supreme pilgrimage of Kaibalyadham and Calcutta Jadavpur Kaibalyadham. After his passing away, the bhaktas of that place and of other places conferred on me the responsibility of the management of his tomb at Chaumohani.
The Respondent relies on Ex. 4(1) which is a book titled Sree Sree Ram Chandra Deber Amrita-Bani 0 Leela Prasange''. At pp. 74-75 we get-
It is the imperative duty of every bhakta (devotee) of Sree Thakur to carry out his orders.
Exhibit J (4) is the report for 1368 B.S. Besides getting that the management was entrusted with three persons. We further find a collection from Bedavani (pt. I) letter No. 328 which reads, ''endeavour to preserve the paternal legacy is dharma''. Exhibit J is the report for the year 1364 B.S. The report reads as follows:
The festival of the installation of Sree Sree Thakur in the holy temple was celebrated on 13th Falgoon, 1363 B.S. which was the date of the 15th anniversary of the foundation of this Dham.
There is absolutely no evidence that there was any pratistha of any idol. It has been contended on behalf of the Respondent that there is no idol in the temple. Only a photo of Sree Sree Thakur has been kept and the photo is worshipped as Sree Sree Satyanarayan. Now, we come to the most important document Ex. M. This is a declaration by Sree Ram Chandra Deb himself. Mr. Deb very strongly relies on the statements made by Thakur:
There is no doubt that out of grace Kaibalyanath will always grant kaibalya liberation to his devotees.
Mr. Deb contends that it is the admitted position that Kaibalyanath is no other than the Thakur himself and the promise given by Thakur is that Kaibalyanath will grant liberation to his devotees. So, it is nothing but a promise by a Guru to his disciples. The declaration further reads:
The Mohunl who is functioning in this Kaibalyadham is entrusted with fixing of the procedure and mode of seba of Kaibalyanath. Therefore, knowing this Mohunt Maharaj to be the image of Kaibalyanath, seba will go on according to his direction and this Mohunt Maharaj has become the supreme head of Kaibalyanath. Everything in Kaibalyadham will be guided according to his mandates. If he has to know any important matter, he himself will take the advice of Sriman Bidhubhusan Basu and Pramatha Nath Babu and Sudhamoy Dutta Babu, who are the sebaks of Kaibalyanath or of the devotees who are present and he will take the help of the said devotees. In this way the work of daily seba of Kaibalyanath will continue according to the mandates of the said Mohunt...It is the duty of all devotees of Kaibalyanath to abide by this rule.
This declaration is nothing but a declaration by Sree Sree Thakur only to his devotees and not to the general public.
64. Now, with regard to the legal position, Dr. Mukherjee in Hindu Law of Religious and Charitable Trusts (p. 142) states that--
A debattar like any other endowment may be public or private.... By public trusts it must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description, while private trust concerns only individuals or families....
In Hindu Law, however, it is competent for a donor to create a religious trust, the benefit of which is confined to the members of a particular family or the disciples of a particular religious preceptor. So far as debattar endowment is concerned the essential test to distinguish a private from a public place of worship is, whether the right of worshipping the idol is limited to the members of a particular family or group or extends to all persons professing the Hindu religion. In Deoki Nandan v. Murlidhar and Ors. AIR 1957 S.C. 951, the Supreme Court observed the distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.
In the said case it was further laid down that--
A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof.
The same view has been taken in Mahunt Shri Srinivas Ramanuj Das v. Surjanarayan Das and Anr. Supra. In this case observations of Dr. Mukherjee in Hindu Law of Religious and Charitable Trusts have been quoted--
By private Math should be meant those institutions where the head or superior holds the property not on behalf of an indeterminate class of persons or a section of the public but for a determinate body of individual, viz., the family or descendants of the grantors.
In Prakash Chandra Nag v. Subodh Chandra Nag Supra their Lordships laid down--
It is the extensiveness of object which affords some indication of the public nature of a trust. The test to determine is if the charity is for a large and extensive section of the community. Appeals for funds and enthusiasm for the utsab performed are hardy of nature commensurate with private religious or charitable institution. Inference of dedication of an institution to the public can be drawn if it is found that the founder held out and represented to the public that it was open to public for worship. In the absence of a deed of dedication, the question whether the Ashram 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. 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 has taken the benefit of its attached Sadabrata for a long period of time.
In Menakuru Dasarathasami Reddi v. Duddu Kuru Subba Rao Supra it has been held--
Dedication to charity need not necessarily be by instrument or grant. Dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created, but a charge in favour of the charity is attached to and follows the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact. It is naturally difficult to lay down a general rule for the solution of the problem. Each case must be considered on its facts and the intention of the parties must be determined on reading the document as a whole.
In Pujari Lakshmana Goundan v. Subramania Ayyar Supra their Lordships laid down--
The question whether Hindu temple was ever dedicated to the public must, therefore, depend upon inference which could legitimately be drawn from facts not in dispute and from unambiguous evidence on the record of the suit, regard being had to the principles of Hinduism... 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 presented to the Hindu public that the temple was a public temple at which all Hindus might worship.
In Commissioner of income tax, Calcutta v. Jogendra Nath Naskar Supra approved by the Supreme Court in Jogendra Nath Naskar v. Commissioner of income tax (Supra) their Lordships observed--
one of the relevant considerations by which to decide whether the trust was a public trust or not, will be, if by the trust deed any right of worship has been given to the public or any section of the public answering a particular description.
The Supreme Court discussed religious and charitable trust in the case Narayan v. Gopal Supra. This case also proceeded on the distinction between public and private endowment recognised in the present modern Indian Law of Hindu endowments. It is said there that the vastness of the temple, the mode of its construction, the long user by the public as of right, grant of land and cash by the Rulers, taken along with other relevant factors were consistent only with the public nature of the endowment in the particular case. In Babu Bhagwan Din''s case Supra the Privy Council laid down that
dedication to the public was not to be readily inferred when it was known that the temple property was acquired by grant to an individual or family.
In Mundaucheri''s case (17) the Board expressed itself as being slow to action the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. Applying this principle of the Privy Council, it cannot be held in this case that the mere fact that the records show that some pronamis were paid by the public outsiders will make the whole endowment in the case a public endowment. That will be too readily inferring a public endowment against which the Privy Council has cautioned. In Parmanand''s case Supra it has been held :
There can be no doubt that even in a private shrine the public may worship, but the question is whether they do so without any permission leave or licence and as of right.
In Sri Venkata Ramana Debaru v. State of Mysore Supra it has been held:
When there is a question as to the nature and extent of a dedication of a temple that has to be determined on the terms of the deed of endowment, if that is available and where it is not, on the other materials legally admissible and proved a long and uninterrupted user, it would be a cogent evidence on the terms thereof.
In S. Kannan v. All India Sai Samaj Supra is was held:
The temple is defined in Section 6(20) of the Madras Hindu Religious and Charitable Endowment Act as a place of public religious worship and dedicated to or for the benefit or used as of right by the Hindu community.
Sai Mandir constituted at Mayalpore is not a place of public religious worship dedicated solely to the members of the Hindu community, hence it is not a temple as defined in Section 6(20) of Act.
65. The principles which can be deduced from the decisions referred to above are that where the beneficiaries are specific individuals, the trust is a private one and where the beneficiaries are general public, the trust is a public trust. From the oral and documentary evidence it has been proved most satisfactorily that the beneficiaries in the present case were a limited group, namely, the disciples and devotees of Sree Sree Ram Thakur. As usual, the group was rather small in the beginning which increased day by day. Though at present the group is very large, yet the group can be separated clearly from the rest of the Hindu public. It is also in evidence that Thakur deified himself. The photo of Sree Sree Ram Thakur represented Kaibalyanath which is being worshipped. It is also in evidence that at one time wooden sandals of Thakur were also worshipped Thus, admittedly there is no idol at the temple and there was never any installation at any point of time. This Kaibalyanath is not known as a Hindu deity. A number of persons, who had personal attachment to the Thakur, gathered round him. It is also in evidence that at the instance of the devotees the temple was constructed and it was only the disciples and devotees who made contributions towards the construction. It is true that at the annual functions a large number of persons assembled, but only for that the trust cannot be declared as public. It is also in evidence that persons could enter the Dham without any obstruction, but it has not at all been proved whether any member of the public could enter the Dham and could offer worship as of right. The evidence is rather to the contrary. Sree Ram Thakur was undoubtedly a great man and a religious preceptor of a very high order. At the present moment, the number of his disciples and devotees is very large, but, nevertheless, it can be specified and ascertained. Puja which is held at the Dham is really a Guru-puja by the devotees and disciples. For all the reasons stated above we have no manner of doubt that Jadavpur Kaibalyadham is a private religious trust.
66. In the result, the appeal is dismissed.
