Judgement Appeal (No. 12 of 1937) from a decree of the High Court (June 11, 1934), which reversed a decree of the Senior Subordinate Judge of Gujranwala (May 26, 1926). On August 28, 1923, the respondents, Nihal Chand and Hara Mai, alleging that the Gurdwara known as Baghichi Thakaran, in the town of Gujranwala, and consisting of a house or asthan, with shops and lands attached to it, was wakf for Hindus for religious and charitable purposes, and that they were worshippers in the Gurdwara, applied to the District Court of Gujranwala under s. 3 of the Charitable and Religious Trusts Act (XIV. of 1920) for an order directing Mahant Narain Das, an Udasi Sadh, who was described by them as the trustee of the endowment, to furnish particulars of the nature, object and value of the trust, and for a direction that the accounts of the trust for the preceding three years be examinee and audited. Narain Das appeared on the application and denied that the property in question was wakf, and he applied under s. 5, sub-s. 3, of the Act of 1920 for a stay for three months to enable him to institute a suit for a declaration that the property was not wakf. The stay having been granted, Narain Das, on April 3, 1924, instituted the suit out of which the present appeal arises, praying for a declaration that the property in suit belonged to him and was not wakf property. The respondents pleaded in defence that the suit property had been made wakf and established as a public charitable and religious asthan Gurdwara. The appellant, Parma Nand, was the Chela and successor of Mahant Narain Das, who died in 1931, during the pendency of the appeal to the High Court, and the appellant was brought on the record in his place. The facts and the history of the foundation appear from the judgment of the Judicial Committee. The Senior Subordinate Judge held that the onus was on the defendants to prove that the property was wakf, and that they had failed to do so, and he made a decree to that effect. The facts and the history of the foundation appear from the judgment of the Judicial Committee. The Senior Subordinate Judge held that the onus was on the defendants to prove that the property was wakf, and that they had failed to do so, and he made a decree to that effect. On appeal the High Court (Coldstream and Hilton JJ.) were of opinion (inter alia) that the fact that the property passed from Guru to Chela to the exclusion of the blood-relations of the Mahants was strong evidence that the Mahants were members of a religious order who had renounced worldly affairs and that, therefore, there was an initial presumption against their ability to own private property. They held that the trust in question was a public trust within Act XIV. of 1920, and that the defendants were persons interested in the trust, and they dismissed the suit. 1938. Feb. 24, 25, 28; March 1. D. N. Pritt K.C. and Sidney Smith for the appellant. There are two issues (a) Whether the property is or is not wakf; and (b) whether the respondents are worshippers having a right to make their claim. The property could be, and in this case is, private property. There is a point whether the recitation of Katha necessarily shows, or strongly suggests, that the place where it is recited is wakf. There is a volume of authority that Katha is often recited in private property. There was no idol, no kitchen and no guest house on the suit property; the principal religious activities were the reading of the Granth Sahib and the reciting of the Katha. The two major questions are (a) Can the plaintiff, being an Udasi Sadh, hold private property at all; and (b) does the fact of descent from Guru to Chela create a presumption against the property being privately held ? There are also the following sub sidiary points (c) the effect of the will of Mahant Sant Das, made in 1875 [see the judgment of the Judicial Committee]; (d) the scope and effect of Katha and other religious activities; (e) the question whether the evidence shows that Narain Das was exempted from income-tax on the ground that the property was wakf; and (f) the scope and effect of certain transfers of the property by the person in possession. [Reference was made to the Charitable and Religious Trusts Act, XIV. [Reference was made to the Charitable and Religious Trusts Act, XIV. of 1920, ss. 3, 5, sub-s. 3.] There are concurrent findings of fact that there was no proof of dedication. The will of 1875 makes it clear that in the opinion of Sant Das, the then Mahant, he was the owner of the property and could do what he liked with it, though it may have been in his mind that a wakf would be created after his death. Its effect as possibly creating a wakf after his death is negatived, first by the fact that nobody ever acted on the will, and secondly, because it was definitely revoked. [SIR GEORGE RANKIN referred to Srimath Daivasikhamani Ponnambala Desikar v. Periyanan Chetti. (( 1936) L. R. 63 I. A. 261, 274.)] Udasis can do various things, such as marrying, and including the acquiring of private property Uttam Das v. Chanan Das (( 1913) 48 P. R. 197.); Dasaundhi Ram v. Khazan Das (( 1906) 41 P. R. 429.); Sethuramaswamiar v. Meruswamiar (( 1909) I. L. R. 34 M. 470, 477.); Maynes Hindu Law and Usage, 9th ed., p. 867, para. 590; and Mullas Principles of Hindu Law, 8th ed., p. 108, para. 111. The fact that the suit property descended from Guru to Chela does not warrant the presumption that it is religious property Kishan Das v. Lachhman Singh (A. I. R. ( 1923) Lah. 544.); Indar Singh v. Fateh Singh (( 1920) I. L. R. 1 Lah. 540, 544); Uttam Das v. Chanan Das (2); Shiromani Gurdwara Parbandhak Committee v. Harcharan Singh (A. I. R. ( 1934) Lah. 1, 4); Goshain Sheo Ghulam Puri v. Shiam Lal Bhagat (( 1927) I. L. R. 50 A. 485.); Sunday Singh v. Mahant Narain Das (A. I. R. ( 1934) Lah. 920.); and Hay Devi v. Charn Das. (( 1905) 40 P. R. 302.) There was no dedication of the place to religious or charitable purposes, and it was not proved that any trust, express or implied, was created in respect of the properties in question which would bring them within the provisions of Act XIV of 1920 Chhotabhai v. Jnan Chandra Basak (( 1935) L. R. 62 I. A. 146,158.) and Gir Har Saroop v. Bhagwan Din. (A. I. R. ( 1935) Oudh, 96.) It is not proved that Narain Das represented to the Income-tax Authorities in 1906 that the property was wakf, and that that was the basis of exemption. It is not established by the evidence that there was any public worship at the Baghichi, or that the public had a right of access to the place. The underlying principle is that private property cannot loosely or casually be turned into wakf, or into a trust obligation, merely because an active but nevertheless incomplete range of religious activities is carried on the property. There must be some definite positive act of dedication, or, at the very least, an overwhelming course of practice which shows that there must have been dedication in some circumstances. It is clear that the appellant and his predecessors have never parted with their beneficial ownership in this property, and they ought to be allowed to retain it. Dunne K.C. and W. Wallach for the respondents. There have been concurrent findings by both Courts below that the institution has been used throughout by the public for religious purposes. There is evidence which goes to show that the public user in this case was such that undoubtedly the public had a right to go there, and did go there, for the purposes of worship. The property was held in trust for public purposes of a charitable and religious nature. It was held by the plaintiff as trustee for the Hindu public, and was not his private property. It is too late in India to suggest that, if it is proved that for more than half a century a particular place has been used throughout by the public as a place to which they had recourse for religious exercises and worship, and to which they were able to go whenever they liked, it is necessary that there must have been an absolute dedication beyond the proof of user. This is a general conventional religious institution, into which all the public can come, with a regular system of ceremonial performance there. The will executed by Mahant Sant Das shows most con clusively that in his view he understood the property to be wakf. It was a genuine will and, it is submitted, was not revoked. It is clear evidence of dedication, and the Subordinate Judge so treats it. The will executed by Mahant Sant Das shows most con clusively that in his view he understood the property to be wakf. It was a genuine will and, it is submitted, was not revoked. It is clear evidence of dedication, and the Subordinate Judge so treats it. On the question whether the property having passed from Guru to Chela raises a presumption that it could not be privately owned, the High Court referred to Ram Singh v. Nehal Singh and Ram Singh (( 1889) 24 P. R. 468.) and Har Devi v. Charn Das. (( 1905) 40 P. R. 302.) That is simply a presumption which, of course, can be rebuted; it would appear to be a reasonable proposition to say that if the ordinary law of private ownership has never come in for years past, and there has been descent from Guru to Chela in spiritual succession, the particular facts of the case must be looked at to see what the truth is in regard to the interests of the public at large. It is amply proved that the reading of Granth Sahib and the reciting of Katha and other religious activities took place. Evidence was called to prove that Narain Das did claim that he was entitled to exemption from income-tax because it was wakf property. There is no evidence of any alienation by the plaintiff or his predecessors which would indicate that it was private property. [Reference was made to Mullas Principles of Hindu Law, 8th ed., p. 475, and para. 409.] Pritt K.C. replied. There are no concurrent findings because the High Court really did not arrive at a finding of public user. The reciting of Katha was stopped for a period of seventeen years. The will of Sant Das was never acted upon. In 1922 Narain Das himself made a will saying that the property was his own private property. May 3. The judgment of the Judicial Committee was delivered by Sir Shadi Lal. In the town of Gujranwala there is a building variously described as Baghichi Thakaran or Gurdwara Baghichi, and the main issue which their Lordships have to determine in this appeal is whether that building, together with the shops and other property attached to it, is the subject-matter of a trust for a public purpose of a charitable or religious nature. In the town of Gujranwala there is a building variously described as Baghichi Thakaran or Gurdwara Baghichi, and the main issue which their Lordships have to determine in this appeal is whether that building, together with the shops and other property attached to it, is the subject-matter of a trust for a public purpose of a charitable or religious nature. The issue was raised by the defendants who, claiming to be the representatives of the Hindu public, made an application to the District Judge under s. 3 of the Charitable and Religious Trusts Act (No. XIV. of 1920), alleging that the Baghichi Thakaran was a public endowment for religious and charitable purposes, and called upon Mahant Narain Das, who was described by them as the trustee of the endowment, to furnish details of the nature and purposes of the trust, and of the value of the property belonging to the trust, and also to render an account of the income and expenditure of the trust property. Their allegations were contested by Narain Das, and the controversy between the parties led to the present action, brought by Narain Das for the purpose of obtaining an authoritative pronouncement upon the nature of the trust and of the property attached to it. The trial judge found against the public character of the alleged trust; but his judgment has been reversed by the High Court of Judicature at Lahore. From the judgment pronounced by the High Court, and the decree which followed upon it, this appeal has been brought to His Majesty in Council by Pandit Parma Nand who, on the death of Narain Das, was impleaded as-his legal representative. The learned judges of the High Court, after a careful consideration of the question of onus, have endorsed the conclusion of the trial judge that it was for the defendants to prove that the plaintiff, who was admittedly in possession of the property, held it on a trust created for public purposes of charitable and religious nature. The history of the Baghichi Thakaran or Gurdwara Baghichi may be briefly stated. The Baghichi was founded by one Baba Kulla, or Kuljas, who died about 1800 A.D. He was a Khatri by caste, and migrated from a place called Saidnagar to Gujranwala, where he took up a plot of land and built a house thereon. The history of the Baghichi Thakaran or Gurdwara Baghichi may be briefly stated. The Baghichi was founded by one Baba Kulla, or Kuljas, who died about 1800 A.D. He was a Khatri by caste, and migrated from a place called Saidnagar to Gujranwala, where he took up a plot of land and built a house thereon. He also planted a garden, which was the origin of the name Baghichi (orchard) usually applied to this institution. Baba Kulla was succeeded by his Chela, Thakar Ram Das, who was an Arora by caste. It is stated that Ram Das practised as a physician, and that while he was in charge of the Baghichi Thakaran he made improvements to the building. It was, however, Ram Dass successor, Sant Das, who made considerable extensions, and also acquired house and shop property at Gujranwala. The prosperity of the institution was mainly due to Narain Das, who succeeded Sant Das on his death in 1879. Narain Das acquired properties at Nankana Sahib, and also built shops at Gujranwala. The annual income of the various properties during the time of Narain Das rose from Rs.1394 in 1905 to Rs.7664 in 1923. It was probably this abnormal rise in the income which attracted the attention of the respondents, who made the application under the Charitable and Religious Trusts Act which led to this litigation. It appears that the person who happened to be in charge of the Baghichi was called Mahant; and that the Baghichi itself was known as Gurdwara. But the main property, which is the subject-matter of the dispute, was acquired by the person or persons who occupied the office of Mahant. The principal ground upon which the judgment of the High Court proceeds is that the Baghichi and other properties have descended from Guru (religious preceptor) to Chela (religious disciple); but this circumstance does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character. It is common ground that the Mahants of this institution belonged to an ascetic order called Udasi. The Udasis rarely marry, and, if they do so, generally lose all influence, for the dharmsala or Gurdwara soon becomes a private residence closed to strangers Maclagans Census Report for the Punjab, Part I., Chap. IV., p. 152. It is common ground that the Mahants of this institution belonged to an ascetic order called Udasi. The Udasis rarely marry, and, if they do so, generally lose all influence, for the dharmsala or Gurdwara soon becomes a private residence closed to strangers Maclagans Census Report for the Punjab, Part I., Chap. IV., p. 152. When a person enters the Udasi Order he severs his connection with the members of his natural family. It follows that neither he nor his natural relative can succeed to the property held by the other. There is, however, no reason for holding that an Udasi cannot acquire private property with his own money or by his own exertions. If he does acquire private property, it cannot be inherited by his natural relatives, but passes on his death to his spiritual heir, including his Chela, who is recognized as his spiritual son. The descent of the property from a Guru to his Chela does not warrant the presumption that it is religious property. Assuming, however, that the property acquired by a Mahant is to be treated as a religious property, the question arises whether it was dedicated for the use or benefit of the public. In the case of a public trust, the beneficiaries are either the public at large or a considerable portion of it answering a particular description. Now, there is no documentary or oral evidence to show that the property was expressly dedicated for the use or the benefit of the public. Are there any circumstances from which the dedication of the property to a public trust can be implied ? It appears that in 1869 four persons applied to the Municipal Committee, Gujranwala, that a plot of land lying in front of the building of the Baghichi Thakaran might be included in the courtyard of the building, and. that, though they were themselves interested in the land as muafidars, they would not demand any compensation for surrendering their rights to the property. that, though they were themselves interested in the land as muafidars, they would not demand any compensation for surrendering their rights to the property. The Municipal Committee recommended the grant of the land, and the Deputy Commissioner considered the land to be an unsightly plot adjoining the public road, and was induced to remit the share of the price of the land which was due to the Government " in the "interest of the city." It is true that the building was then described as a holy place, and the Mahant occupying it was stated to be a "very good man"; but, as pointed out by the High Court, " the transaction itself seems to have had a "town planning motive rather than to have been prompted "by a desire to endow the Gurdwara." This assignment of land does not prove that the building was dedicated to a public trust. It is, however, argued that income-tax was sought to be imposed upon Narain Das for the year 1905--06 in respect of the income derived by him from the property of the Gurdwara, and that the income-tax was then remitted on the ground that the property constituted a public trust. There is no document to show the nature of the objection on which the order of remission was based. The oral evidence is to the effect that the tax was remitted because the property was stated to be waqf; but the expression " waqf " is vague, and may include a private trust. It cannot, therefore, be said that the Mahant at that time declared the property to be dedicated to a religious trust of a public nature. It is, however, significant that, as deposed by him, Narain Das did not succeed in securing an exemption from income-tax on a subsequent occasion, and had to pay Rs.250 or Rs.300 per annum as income-tax. Their Lordships attention has been invited to a will made by Mahant Sant Das on October 14, 1875. In this will the testator describes the property in dispute as his private property, and states that he is entitled to alienate it. There can be no doubt that Sant Das regarded the property as being his property, but the respondents contend that he himself declared the property to be a public trust to take effect after his death, and appointed a managing committee to administer the alleged trust. There can be no doubt that Sant Das regarded the property as being his property, but the respondents contend that he himself declared the property to be a public trust to take effect after his death, and appointed a managing committee to administer the alleged trust. The original will is not available, but it is common ground that the will was not acted upon after the death of the testator. There is some evidence to show that the testator revoked it by destroying it. The revocation would make the declaration of trust infructuous. Be that as it may, there can be no doubt that neither Narain Das, who succeeded Sant Das, nor any managing committee administered the property as trust property. The will, whether revoked or not, cannot be relied upon to prove that a public trust came into operation after Sant Dass death. It shows, however, that he regarded himself to be the owner of the property, and claimed the right to alienate it. This claim negatives the suggestion that it came into his hands as property dedicated to a public trust. Indeed, there is ample documentary evidence to show that alienations of several properties were made by various Mahants in exercise of their right of ownership. The plaintiff, Narain Das, himself made a will on July 9, 1922, and gifted the property to the appellant, Parma Nand, as his successor, and described himself to be the absolute owner of the Baghichi and all other property. But this declaration cannot be used for determining the point in controversy between the parties. It appears that holy scriptures were recited in the Gurdwara on various occasions, and that presents were made by the audience to the person or persons who made the recitations. But it is clear that recitations were suspended for several months. The recitations of holy books are, in no way, incompatible with the hypothesis that the trust, if any, was of a private nature. 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 license, and as of right. This test has not been satisfied in the present case. 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 license, and as of right. This test has not been satisfied in the present case. Their Lordships do not think that any user or treatment of the property has been proved, such as would justify the conclusion that it was a public, and not a private, trust. It cannot be disputed that the plaintiff can be defeated only if the defendants establish affirmatively that a trust of a public character was imposed upon the property. To constitute a trust "created or existing for a public purpose of a charitable or religious nature" within the meaning of s. 3 of Act XIV of 1920, the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purpose of the trust, the trust property, and the beneficiaries, must be indicated so as to enable the Court to administer the trust if required Chhotabhai v. Jnan Chandra Basak, (( 1935) L. R. 62 I. A. 146.) These conditions have not been fulfilled. Their Lordships are of the opinion that the onus, which rested upon the defendants, has not been discharged. They will, therefore, humbly advise His Majesty that the appeal be allowed, that the decree of the High Court be discharged, and that the decree of the Court of first instance be restored. The appellant must have his costs here, as well as in the Courts below.