Temple Shri Jagannathji v. Salharu Prasad — 1968 DIGILAW 155 (MP)

ORDER K.L. PANDEY, J. 1. This appeal under section 27 (3) of the Madhya Pradesh Public Trusts Act, 1951 (hereinafter called the Act) is directed against an order dated 7 August 1967 whereby, on an application made by the Registrar of Public Trusts under section 26 (2) of the Act, the First Additional District Judge, Bhopal, held inter alia:- (i) That the temple of Shri Jagannathji at Champa was affiliated to the Champa Math belonging to the Nihanga Sadhoos of Ramanandi Sect; (ii) That the property of the temple was an accretion to the property of the Math; (iii) That therefore, the property of the trust in favour of the temple would be governed by the customs and practices applying to the Math; (iv) That Kumar Rudra Sharan Singh, being the successor of the founder, would be recorded as the trustee; (v) That succession to the office of the trustee would be governed by the law of inheritance as applying to the founder; (vi) That succession to the office of the Mahant would be governed by the customs and practices of the Nihanga Sadhoos of Ramanandi Sect; (vii) That in accordance with those customs and practices, the Mahant of the Math would be the working trustee; (viii) That the name of Mahant Narayandas (respondent 2) would be substituted for that of Salharu Prasad (respondent 1) as the working trustee in the Register of Trusts; and (ix) That Mahant Narayandas shall replace the properties of the trust which he had sold away. 2. The material facts, which are no longer in contest, may be shortly stated. In the Samvat year 1945, Premsingh, the then Zamindar of Champa, had created a trust, now called Temple Shri Jagannathji Public Trust. On 30 October 1953, Mahant Ramcharandas, who called himself Pujari and Sarbarakar (manager) of the temple, applied for registration of the Public Trust under the provisions of the Act. In his application he disclosed that the office of the trustee (which he called working trustee) devolved by inheritance from the founder and the manager was appointed by the trustee. In due course, an enquiry was made under section 5 of the Act and it was reported that the required particulars a given in the application were correct. It was, however, stated in the report that the office of the trustee (and manager) devolved by inheritance from the first founder. In due course, an enquiry was made under section 5 of the Act and it was reported that the required particulars a given in the application were correct. It was, however, stated in the report that the office of the trustee (and manager) devolved by inheritance from the first founder. This report was accepted and the trust was then duly registered. In the register prescribed by the Act, the relevant entry relating to succession to the office of the trustee was shown to be "by inheritance from the founder." The mode of succession to the office of the Pujari or Sarbarakar (so called manager) was not shown in the register. 3. It transpired that Mahant Ramcharandas died on 28 July 1959. Thereupon, in September 1959, the trustee Rani Upman Kumari applied under section 9 of the Act for correction of the entry in the register stating that she had appointed Salharu Prasad to work in place of Mahant Ramcharandas. That application was contested by Mahant Narayandas. By an order dated 23 February 1961, the Registrar upheld the right of the trustee to appoint a Sarbarakar for the temple, directed the relevant entry in the register to be corrected accordingly and ordered the property belonging to the trust to be placed in possession of Salharu Prasad. Following this, various steps were taken with the assistance of the police to place the property in his possession. Thereupon, Mahant Narayandas filed Civil Suit No. I-A of 1961 in the Court of the Third Additional District Judge, Bilaspur, claiming a declaration that he was entitled to hold the office of the Mahant of the trust and also to remain in that capacity, in possession of the temple property. However, he withdrew that suit on 4 September 1961 and filed Miscellaneous Petition No. 279 of 1961 calling in question the order dated 23 February 1961 in its entirety. At the bearing, the attack was confined to the direction relating to delivery of possession of the temple property to Salharu Prasad. This Court, by its order dated 8 January 1962 allowed the petition and quashed the order dated 23 February 1961. At the bearing, the attack was confined to the direction relating to delivery of possession of the temple property to Salharu Prasad. This Court, by its order dated 8 January 1962 allowed the petition and quashed the order dated 23 February 1961. "In so far as it directed Salharu Prasad to be placed in possession of the temple property" on the short ground that the provisions of the Act did not empower the Registrar to interfere with possession of trust property by a person like Mahant Narayandas who himself claimed to be entitled to manage it. 4. Subsequently, on 18 January 1962, to be more precise, the Registrar made an application under section 26 (2) of the Act and stated:- "That the non-applicant No.2 Mahant Narayandas is an imposter and a trespasser on the properties of the public trust. He has been mismanaging the properties of the public trust and misusing its funds. He has also been threatening to take forcible possession of the Maths and the Temples and to interfere with their management. As such, the direction of the Court is necessary for the administration of the public trust. The non-applicant Narayandas has usurped the management of some of the trust properties and is unauthorisedly managing them resulting in the failure of the trust. He is mismanaging and misappropriating the trust property. He is indulging in these acts under claim of trusteeship. He is thus a trustee de son tort and this Court, under section 28 M.P. Public Trusts Act, has jurisdiction to pass necessary orders to prevent the mischief." 5. Mahant Narayandas too had made a long application purporting to be under section 26 of the Act, which the Registrar forwarded to the Court on 8 June 1962 with a request that the matters therein raised might be decided along with the main application under section 26 of the Act. Mahant Narayandas contested the claim of Salharu Prasad to manage the trust property of the temple and pleaded inter alia that:- (i) There existed at Champa an ancient Math founded by Digambari Nihangas during the Maratha regime; (ii) The Math was variously called Bada Math or Jagannathji Math or Ramchandraji Math; (iii) There already existed in the Math premises a temple of Shri Ramchandraji and Premsingh built in those premises another temple-that of Shri Jagannathji-somewhere in the Samvat year 1945. (iv) Separate dedications were made at different times for the upkeep of the two temples and bhograg of the two deities and not all were so made by Premsingh or his successors; (v) The management of the Math, including the two temples, always remained with the Mahant of the Math, who was the Sarbarakar, Pujari and the sole administrator; (vi) Neither Premsingh nor any of his successors even-appointed any Mahant or Sarbarakar and even Mahant Ramcharandas was not so appointed; (vii) The office of the Mahant devolved from Guru to Chela according to the usage and customs of the Nihangas; (viii) He (Mahant Narayan Prasad) succeeded Mahant Ramcharandas as his chela; and (ix) The change in the entries made under section 9 of the Act was not notified by the Registrar and therefore, it was neither binding nor final. 6. The provisions of law relevant for the disposal of this appeal are contained in sections 26 and 27 of the Act which are reproduced:- "26 (1) If the Registrar on the application of any person interested in the public trust or otherwise is satisfied that- (a) The original object of the public trust has failed; (b) The trust property is not being properly managed or administered; or (c) The direction of the Court is necessary for the administration of the public trust; He may, after giving the working trustee an opportunity to be heard, direct such trustee to apply to Court for directions within the time specified by the Registrar. (2) If the trustee so directed fails to make an application as required or if there is no trustee of the public trust or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the Court. 27 (1) On receipt of such application, the court shall make or cause to be made such inquiry into the case as it deems fit and pass such order thereon as it may consider appropriate. 27 (1) On receipt of such application, the court shall make or cause to be made such inquiry into the case as it deems fit and pass such order thereon as it may consider appropriate. (2) While exercising the power under sub-section (1) the Court shall, among other powers, have power to make an order for – (a) Removing any trustee; (b) Appointing a new trustee; (c) Declaring what portion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (d) Providing a scheme of management of the trust property; (e) Directing how the funds of a public trust whose original object has failed, shall be spent, having due regard to the original intention of the author of the trust or the object for which the trust was created; (f) Issuing any directions as the nature of the ease may require. (3) Any order passed by the Court under sub-section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court. (4) No suit relating to a public trust under section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any Court on any matter in respect of which an application can be made under section 26." 7. In this case, the Registrar did not direct Mahant Narayandas to apply nor did the latter make any application, to the Court under section 26 of the Act. But Mahant Narayandas did make an application purporting to be under that section to the Registrar, who uncritically forwarded it the Court "with the request that the matters contained in the petition may kindly be decided." It would appear from that application and the questions therein formulated that Mahant Narayandas wanted to have it declared:– (i) That there existed another public trust-a Math-at Champa; (ii) That the temple of Jagannathji with the property dedicated to it was part of the Math; (iii) That he was entitled to succeed Ramcharandas as Mahant of the Math; and (iv) That he was further entitled, in his capacity as Mahant of the Math to continue in possession of the temple property. 8. In this appeal, the main question is whether the lower Court had jurisdiction to consider the matters which Mahant Narayandas submitted to it. 8. In this appeal, the main question is whether the lower Court had jurisdiction to consider the matters which Mahant Narayandas submitted to it. It will be readily seen that those matters essentially relate to another trust, a Math, situate at Champa. Since that trust is not shown to have been registered under the Act, the provisions of sections 26 and 27 of the Act are not attracted. So in Kailashanand vs. Rewaram 1965 JLJ 716 1965 MPLJ 694, a Division Bench of this Court observed- "If the temple has not been declared as a public trust, and registered as a public trust under the Act, then clearly the Registrar had no jurisdiction to entertain any application under section 26 of the Act. The scheme of the Act is to regulate and make better provisions for the administration of public, religious and charitable trusts in the State of Madhya Pradesh. The Registrar cannot exercise the powers under the provisions contained in Chapters III, IV and V of the Act in regard to any trust unless and until the trust is first declared to be and registered as a public trust under Chapter II of the Act. It has been held by this Court in Laxmanrao vs. Narayanrao Misc. Petition No. 521 of 1954, that section 26 of the Act gives jurisdiction to the Registrar only if there is a public trust. The enquiry as to whether the trust is a public trust is covered by section 5 and unless this enquiry is completed and the trust is found to be a public trust, the Registrar's jurisdiction under section 26 cannot be invoked." 9. There is yet another reason why the matters raised by Mahant Narayandas cannot be considered in proceedings under sections 26 and 27 of the Act. It is obvious from a plain reading of sub-section (1) of section 26 of the Act that the Registrar is competent to apply to the Court only when the original object of the trust has failed or the trust property is not being properly managed or administered or the direction of the Court is necessary for the administration of the trust. The Court acting under section 27 of the Act is a statutory tribunal exercising jurisdiction of a special nature and therefore, it must not act without or in excess of, jurisdiction. The Court acting under section 27 of the Act is a statutory tribunal exercising jurisdiction of a special nature and therefore, it must not act without or in excess of, jurisdiction. Even in regard to the scope of section 92 of the Code of Civil Procedure, the Supreme Court observed in Pragdasji vs. Ishwarlalbhai, AIR 1952 SC 143 , as follows:- "A suit under section 92, Civil Procedure Code, is a suit of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof and it must pray for one or other of the relief's that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of section 92, Civil Procedure Code. As was observed by the Privy Council in Abdur Rahim vs. Mohammad Barkat Ali, 55 IA 96 (PC), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of section 92, Civil Procedure Code. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of section 12 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the Court but when the Courts found concurrently, on the evidence adduced by the parties that the allegations of breach of trust were not made out and as it was not the case of the plaintiffs, that any direction of the Court was necessary for proper administration of the trust, the very foundation of a suit under section 92, Civil P.C., became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of. It could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned counsel for the respondents that even if the plaintiffs faded to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties a tact which the defendant denied. In these circumstances, there was nothing wrong for the Court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is that in a suit framed under section 92, Civil P.C., the only relief's which the plaintiff can claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provisions of section 92, Civil P.C." Any investigation whether there exists a trust or whether certain property appertains to that trust is outside the scope of section 92 of the Code of Civil Procedure, when it is not ancillary any of the relief's claimed under it Abdur Rahim vs. Abu Mohammad Barkat Ali, AIR 1928 PC 16 and Pragdasji vs. Ishwarlalbhai (supra). Similarly, a suit for mere declaration that a person is the trustee of a trust or for the appointment of a trustee, without more is outside the scope of section 92 of the Code. Similarly, a suit for mere declaration that a person is the trustee of a trust or for the appointment of a trustee, without more is outside the scope of section 92 of the Code. In our opinion, sections 26 and 27 of the Act give to the Court a special and limited jurisdiction for the purposes therein mentioned and, for reasons similar to those given by the Supreme Court in Pragdasji vs. Ishwarlalbhai (supra) in regard to a case under section 92 of the Code, we are of the view that the jurisdiction cannot be exercised unless it is shown that the circumstance mentioned in clauses (a), (b) and (c) of section 26 (1) of the Act exist. Further, the questions submitted by Mahant Narayandas for the decision of the Court, including those specifically mentioned by him in paragraph 14 of his application, fall outside the scope of sections 26 and 27 of the Act. That being so, the lower Court was in error in assuming a wider jurisdiction and misdirected itself in considering matters falling outside the scope of limited jurisdiction created by the two sections of the statute. 11. Other provisions of the Act, which are material, are sections 6, 7, 8 and 9 of the Act. They read:- "6. On completion of the inquiry provided for under section 5, the Registrar shall record his findings with reasons therefore as to the matters mentioned in the said section. 7. (1) The Registrar shall cause entries to be made in the register in accordance with the findings recorded by him under section 6 and shall publish on the notice board of his office the entries made in the register. (2) The entries so made shall subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive. 8. (2) The entries so made shall subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive. 8. (1) Any working trustee or person having interest in a public trust or any property found to be trust property aggrieved by any finding of the Registrar under section 6 may, within six months from the date of the publication of the notice under sub-section (1) of section 7, institute a suit in a civil Court to have such finding set aside or modified (2) In every such suit, the civil Court shall give notice to the State Government through the Registrar and the State Government, if it so desires, shall be made a party the suit. (3) On the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such direction. 9. (1) Where any change occurs in any of the entries recorded in the register the working trustee shall, within ninety days from the date of the occurrence of such change or where any change is desired in such entries in the interest of the administration of such public trust, report in the prescribed manner such change or proposed change to the Registrar. (2) If, on receipt of such report and after making such inquiry as the Registrar may consider necessary, the Registrar is satisfied that a change has occurred or is necessary in any of the entries recorded in the register in regard to a particular Public Trust, it shall record a finding, with the reasons therefore and subject to the provisions contained in sub-section (3) amend the entries in the said register in accordance with such findings. (3) The provisions of section 8 shall apply to any finding under this section as they apply to a finding under section 6." It is common ground that, on an application made by Mahant Ramcharandas, there was an enquiry under section 5 of the Act, that the Registrar recorded his finding and that he also caused entries to be made in accordance therewith in the prescribed register. There was no plea that the Registrar did not get them duly published. That being so, these entries must be regarded to be, as enacted in section 7 (2) of the Act, final and conclusive. There was no plea that the Registrar did not get them duly published. That being so, these entries must be regarded to be, as enacted in section 7 (2) of the Act, final and conclusive. Our attention is, however, drawn to Abdul Karim vs. Raipur Municipality, 1965 JLJ 1112= AIR 1965 SC 1744 and it is argued that since Mahant Narayandas has been, in effect, disputing the existence of Temple Shri Jagannathji Public Trust as a separate trust, the findings are not binding on him. We are unable to accept this contention for two reasons. In the first place, Mahant Narayandas himself admitted in his application that the founder built a separate temple, installed the deity of Shri Jagannathji in that temple and made a separate endowment for the worship of that deity and the upkeep of the temple. Secondly, Mahant Narayandas claims through Mahant Ramcharandas, who was a party to the proceeding in which the relevant finding were recorded and entries in accordance therewith made in the register. He is, therefore, as much bound by those entries as Mahant Ramcharandas himself, who it is not disputed and not filed any suit under section 8 of the Act to challenge the entries which had really been made at his own instance. It follows that it is not open to Mahant Narayandas to question the separate existence of Temple Shri Jagannathji Public Trust. He cannot also challenge the entries in the register detailing the property belonging to the trust or showing that the office of the trustee would devolve by the ordinary law of inheritance. 12. It is true that there is no entry in the register in regard to the mode of devolution of the office of the Pujari and Sarbarakar. Even so, on an application made under section 9 of the Act, it was held that the trustee was entitled to appoint the Pujari and Sarbarakar and the name of the new appointee Salharu Prasad was substituted in place of that of Mahant Ramcharandas, who had died. Mahant Narayandas was a party to those proceedings and he unsuccessfully contested the application on several grounds. Then, being aggrieved by the order passed therein on 23rd February 1961, he filed in the Court of Third Additional District Judge, Bilaspur, Civil Suit No. 1-A of 1961, but he withdrew that suit on 29th September 1961. 13. Mahant Narayandas was a party to those proceedings and he unsuccessfully contested the application on several grounds. Then, being aggrieved by the order passed therein on 23rd February 1961, he filed in the Court of Third Additional District Judge, Bilaspur, Civil Suit No. 1-A of 1961, but he withdrew that suit on 29th September 1961. 13. The lower Court gave three reasons for taking the view that the existence of the corrected entry in the register which was made under section 9 of the Act did not prevent Mahant Narayandas from questioning it. The first is that the correction was not published as required by section 7 (1), that the suit was thus premature and that it was, therefore, rightly withdrawn. This view is, we think, clearly erroneous because, in such cases, the cause of action is the finding and not the entry or its publication. So, in H.M. Mulak vs. S.M. Ismail, 1967 JLJ 526=1967 MPLJ 118 SC, their Lordships of the Supreme Court observed in regard to section 8 of the Act as follows:- "Under that section, though it is the entry made under section 7 which has been given finality, a fight of suit is conferred on both the working trustee and all persons having interest in the trust or any property belonging to it and who is aggrieved by any finding. The section no doubt provides that such a suit has to be filed within six months from the date of publication of the entry. But that provision is clearly one fixing limitation. That does not mean that the suit is to set aside the entry. The section in so many terms states that such a suit would be to set aside the finding giver by the Registrar and when such a finding is set aside, the Registrar has to correct the entry made in the register in accordance with his findings. The cause of action for such a suit thus is the finding and not the entry which is merely consequential." As provided by section 9 (3) of the Act, the provisions of section 8 apply to any finding recorded under the former section, as they apply to a finding under section 6. It follows that Mahant Narayandas had unconditionally withdrawn the suit filed by him after the cause of action for it had already accrued. It follows that Mahant Narayandas had unconditionally withdrawn the suit filed by him after the cause of action for it had already accrued. That being so, he is, by virtue of the provisions of Order 23, Rule 1 (3), Civil Procedure Code, precluded from instituting a fresh suit in respect of the same cause of action. 14. Another reason given by the lower Court is that the jurisdiction of the Court under section 27 of the Act is not circumscribed by the existing entries in the register of public trust [Paragraph 42 of the judgment].The third reason is that the conclusiveness referred to in section 7 (2) of the Act attaches to the entries and not to their effect [Paragraph 43 of the judgment]. These reasons are we think erroneous because, as already indicated elsewhere in this order, the scope of the jurisdiction under section 27 is a special and limited one and the proceedings thereunder cannot be allowed to take the place of a suit under section 8 in which the findings recorded by the Registrar may be challenged. 15. As we have shown, the lower Court misapprehended the scope of sections 26 and 27 of the Act. Therefore, it failed to properly consider whether the application made by the Registrar fall within the ambit of section 26 and whether, therefore, any relief could be given under section 27. It is argued before us that Mahant Narayandas is in the position of a stranger and a claim for possession of trust property against such a person cannot be made under section 27. For this proposition, reliance is placed upon the statement of Mulla in his Commentary on the Code of Civil Procedure (thirteenth edition) at page 402. We are unable to accept this contention because Mahant Narayandas is in possession of the trust property under a claim of right to manage it for purposes of the trust and is, therefore, a trustee de son tort. As pointed out by Mulla at page 395 of the same book, such a person is also a trustee for purposes of section 92 of the Code. As pointed out by Mulla at page 395 of the same book, such a person is also a trustee for purposes of section 92 of the Code. So, Justice B.K. Mukherjee stated in his Tagore Law Lectures on the Hindu Law of religious and charitable trust:- "A person who without title chooses to take upon himself the character of a trustee becomes a trustee de son tort and is liable to account for whit he has done or what he bas received while so acting in the same way as if he were a de jure trustee. Such person may be described as a de facto trustee or a trustee de son tart and is distinguishable from a trespasser out and out who does not purport to act as a trustee at all but claims adversely to the trust." It is now well settled that section 92 of the Code applies when the prayer is for removal of a trustee de son tort. So, Mulla stated in his book, at page 394, as follows:- "The section applies even when the plaintiff's prayer is for the removal of a trustee de son tort or of a person wrongly appointed as trustee but, even so, the suit is maintainable only if there is a breach of trust alleged or the direction of the Court is sought." A Division Bench of this Court took the same view in Abdul Rahim Khan vs. Fakir Mohammad Shah, 33 MPLC 49=ILR 1946 Nag. 518, when it observed: "A suit under section 539 (equivalent to the present section 92) of the Civil Procedure Code does lie for removal of such de facto or constructive trustee as has been laid down in Nabi Shirazi vs. Province of Bengal, ILR 1942 I Cal. 211 and Ramdas Bhagat vs. Krishna Prasad, AIR 1940 Pat. 425." Nor is the submission that there can be no direction about delivery of possession against a trustee de son tort well founded. Formerly, there was a controversy on the question whether such a relief could be granted under section 92 of the Code. It was removed in the year 1956 by inserting clause (cc) in the section expressly providing for such dispossession. Before that, the relief was given under the last clause (h) which enabled the Court to grant such further or other relief as the nature of the case may require. It was removed in the year 1956 by inserting clause (cc) in the section expressly providing for such dispossession. Before that, the relief was given under the last clause (h) which enabled the Court to grant such further or other relief as the nature of the case may require. So, in Gaya Prasad vs. Bhargav, 18 MPLC 257=AIR 1934 Nag. 48, it was stated:- "It seems to me that it would be of no avail to pass a decree for removing the trustee and appointing a new trustee if the old trustee is allowed to remain in possession of the property and that, to render the decree operative, possession must be delivered to the newly appointed trustee. I see no force, then, in the contention that a decree for possession cannot be granted in such a case and I would hold that such a relief for delivery of possession would certainly fall under clause (h), section 92 (1)." Similar considerations persuade us to take the view that it is permissible in circumstances like those present here to direct delivery of possession under a similar clause (f) of section 27 (2) of the Act. 16. Although we have found that the view taken by the lower Court on several questions cannot be supported, it is not possible to dispose of this case finally because the lower Court did not consider whether there were circumstances which entitled the Registrar to invoke its jurisdiction under section 27 of the Act. That being so, the case must go back to that Court for a fresh decision. 17. In tae result, the appeal succeeds and is allowed. The order dated 7 August 1967 is set aside and the case is remanded to the lower Court for a fresh decision in accordance with law with advertence to the observations we have made in the foregoing paragraphs. Costs here shall be costs in the cause. Hearing fee in this Court is fixed at Rs. 150.