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1984 DIGILAW 322 (ALL)

Sukh Ram Singh v. Baij Nath Singh

1984-04-17

GOPI NATH, H.N.SETH, K.C.AGRAWAL, K.N.SINGH, M.N.SHUKLA

body1984
JUDGMENT K. N. Singh, J. 1. Risal Singh son of Bindra Singh, a resident of village Terha, Pargana Sumerpur, district Hamirpur, created religious endowment for the temple of Thakurji Ram Jankiji. He gifted certain land and created a trust for the temple by a registered document dated 23-9-1932. According to the Trust deed after the death of RISAL Singh, his nephew Gajedhar Singh son of Shivraj Singh, was to be the Manager and thereafter only such a person could be elected Sarbarakar who was lineal descendant of RISAL Singh provided he was religious and fit for the said office. In due course of time Sukhram Singh became Manager and Sarbarakar of the temple. Baijnath Singh and others, opposite parties, made an application under section 18 of the Religious Endowment Act, No. XX of 1963, on 10-12-1974 seeking permission to institute a suit against the Manager and Sarbarakar. The District Judge granted permission to the opposite parties to institute a suit against the applicant by his order dated 3-5-1978. The applicant thereupon filed a revision application in this Court. 2. The revision application came up for hearing before Hon'ble Satish Chandra, C. J. An objection was raised by the counsel for the applicant that in view of the Full Bench decision of this Court in Raghubar Dial v. Kesho Ramanuj Dass, (1889) ILR-XI Alld. 18 the Religious Endowment Act, 1863, (hereinafter referred to as the Act No. XX of 1863) was not applicable to religious endowment which came into existence after 1863 and as such the District Judge had no jurisdiction to grant permission. On behalf of the opposite parties a number of decisions of this Court and other Courts were relied upon in support of his contention that Act XX of 1863 was applicable to a religious endowment which may have come into being even after 1863. Since Raghubar Dial's case was decided by a Full Bench of three Judges the learned Chief Justice referred the following question to a larger Bench :- "Whether on the facts and in the circumstances of this case the Religious Endowment Act, 1863, was applicable ". The Act No. XX of 1863 was enacted to make provision relating to endowments for the support of mosques, Hindu temples and other religious purposes. The Act No. XX of 1863 was enacted to make provision relating to endowments for the support of mosques, Hindu temples and other religious purposes. Prior to Act No. XX of 1863, the control, superintendence of mosques, temples and other religious endowment of public nature were regulated by Bengal Regulation XIX of 1810, which was enforced in the Presidency of Fort William in Bengal and Regulation VII of 1817 which was enforced in the Presidency of Fort Saint George. The Regulations made provision for appropriation of the rents and produce of lands granted for the support of mosques, Hindu temples and colleges or other public purposes. Under the aforesaid Regulations mosques, temples and religious endowments were those mosques and temples for the support of which endowments were granted in land by the Government or by individuals. Under the regulations the power of general superintendence of the lands vested in the Board of Revenue. Section 3 of Regulation XIX of 1810 imposed a duty on the Board of Revenue to take care that all endowments made for the manitenance of establishments be duly appropriated for the purpose for which they were destined by the Government or the individuals by whom such endowments were made. The Regulations contained provision prescribing the mode in which this duty was to be performed. The Board was empowered to appoint agents to carry on its duties and functions which in most cases were the Collectors of the district. The agents were empowered to make recommendation for the nomination to the office of trustee, manager or superintendent. The Board of Revenue was empowered to make appointment and nomination for the office of trustee or superintendent. Under the aforesaid provision the Collector of the district and the Board of Revenue were controlling the management of the land which formed subject matter of endowment, but in majority of instances the Board of Revenue did not take charge of the land which had been granted by individuals for support of temples and mosques. It appears that the need was realised that the Board of Revenue and the Collector should be relieved of the burden of the management of the land which they had taken charge in accordance with the Regulations; in order to effectuate this purpose Act XX of 1863 was passed by the Legislature. 3. It appears that the need was realised that the Board of Revenue and the Collector should be relieved of the burden of the management of the land which they had taken charge in accordance with the Regulations; in order to effectuate this purpose Act XX of 1863 was passed by the Legislature. 3. Section 1 of the 1863 Act repealed Regulation XIX of 1810 of the Bengal Code and Regulation VII of 1817 of the Madras Code as relating to endowments for the support of mosques, Hindu temples and other religious purposes. Section 3 confers powers on the local Government to make special provision relating to mosque and temples in respect to which Regulation XIX of 1810 and VII of 1817 applied and the nomination of the trustee, manager or superintendent vested in the Government at the time the 1863 Act was enacted. Special provisions are found in sections 7, 8, 9, 10, 11 and 12 which confer power on the Government to appoint one or more committees in every division of the district and to transfer to those committees all the land or other property which previously had been under the management of the Government officers. Section 4 deals with another class of cases, namely, the cases in which the trustee, manager or superintendent was not appointed by the Government nor was the appointment subject to confirmation by the Government. Provisions relating to this class are contained in sections 4, 5 and 6 of the 1863 Act. Section 13 enjoins upon every trustee, manager or superintendent of a mosque, temple or religious establishment to keep regular accounts. Section 14 lays down that any person or persons interested in any mosque, temple or religious establishment or in the performance of the worship or of the service thereof, or of the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, file suit against the manager, trustee or superintendent of the mosque, temple or religious establishment for any misfeasance, breach of trust or neglect of duty committed by them. The civil court is empowered to direct specific performance of any act of such trustee, manager, superintendent or member of the committee and it may further pass a decree awarding damages and costs against such manager, trustee, superintendent or a member of the committee. The civil court is empowered to direct specific performance of any act of such trustee, manager, superintendent or member of the committee and it may further pass a decree awarding damages and costs against such manager, trustee, superintendent or a member of the committee. The court is further authorised under the Act to direct removal of such trustee, manager or superintendent. Sections 13 and 14 are general in nature. The provisions contained therein apply to all religious endowments including manager, trustee or superintendent to whom the provisions of Regulation XIX were applicable. Mosques, temples or other religious establishments, as mentioned in sections 4, 13 and 14 of the 1863 Act do not mean those mosques, temples or religious establishments in respect to which religious endowment has been established prior to the enactment of the 1863 Act, instead it appears that the 1863 Act applies to any mosque, temple or religious establishment for the support of which provision has been made by the Government or private individuals. The purpose and object of section 14 appears to be to confer right on the persons interested in the worship, maintenance or welfare of the mosque, temple or other religious establishment to approach the court for removal of the trustee or member of the committee. The District Judge has been invested with the power to investigate into the affairs of the endowment and religious establishment. SECTION 14 does not restrict its application as suggested by the applicant. 4. The question in the instant case has arisen on account of a Full Bench decision of this Court in Raghubar Dial's case. In that case the question referred to the Full Bench was with regard to the maintainability of the suit under the Hindu Law by the plaintiff with reference to section 30 and 539 of the Code of Civil Procedure, 1863. Straight, J. held that the suit was not maintainable under the Hindu law, as the trust was one for public religious purpose, therefore the suit was not maintainable without the sanction required by section 539 of the Code of Civil Procedure. The learned Judge further held that even if section 539 of the Code of Civil Procedure was inapplicable and the Religious Endowment Act XX of 1863 would apply, the suit could not be maintained without the sanction required by that Act. The learned Judge further held that even if section 539 of the Code of Civil Procedure was inapplicable and the Religious Endowment Act XX of 1863 would apply, the suit could not be maintained without the sanction required by that Act. Sir John Edge, C. J. also held that the suit must fail for non-compliance with the provisions of section 539 of the Code of Civil Procedure. The learned Chief Justice without considering the provisions of Act XX of 1863 in detail made the following observation : "I may say also that I also fail to see how Act XX of 1863 can apply in this case. The temple and Trust, if there was one, came into existence in 1870, and was not in existence at the date of that Act." Tyrrel, J. concurred with the opinion expressed by the learned Chief Justice. On a close scrutiny of the judgment of the Full Bench, it is evident that the question whether section 14 of the Act XX of 1863 was applicable to a mosque, temple or trust which may have come into existence after 1863 was not necessary to be decided for purposes of the case. Sir John Edge, C. J. merely made a passing observation without analysing the provisions of the Act or the Regulations. The learned Chief Justice John Edge himself realised this position in Sheo Ratun Kunweri v. Ram Pargash, (1896) ILR XVIII Alld. 227. In that case the plaintiff had brought a suit under section 14 of Act XX of 1863 to remove certain persons from the office of trustee of temple and to have the assignment and encumbrances created by the trustees set aside and to obtain appointment of new trustee or trustees. The suit was contested by the defendants, inter alia, on the ground that the District Judge had no jurisdiction as the Act XX of 1863 did not apply as the endowment in question was one to which the Board of Revenue had not appointed trustee and the nomination of the trustee was not shown to have been vested in the Board of Revenue under Regulation XIX of 1810. The District Judge decreed the suit partly. The District Judge decreed the suit partly. The Division Bench consisting of Sir John Edge, C. J. and Justice Burkitt held that the District Judge had jurisdiction to entertain the suit under section 14 of Act XX of 1863 as section 14 was not confined to those endowments, nominations to which have been exercised or had been vested in the Board of Revenue or Regulation XIX of 1910. 5. The learned Chief Justice Sir John Edge observed as under :- "It appears to me that section 14 of the Act XX of 1863 is not confined to endowments nomination to which has been exercised by or had vested in the Board of Revenue under Regulation XIX of 1810. In my opinion the decision of Norman, J. in Ganesh Singh v. Ram Gopal Singh, 5 BLR App. 55 that in order to bring a suit under Act No. XX of 1863 it is not necessary to show that the temple was one which was formerly under the control of Board of Revenue, is correct. That question was further considered by Mitter and Maclean, JJ. in Dhurram Singh v. Kissen Singh, ILR 7 Cal. 707 and so far as that decision affects the application of section 14 of Act XX of 1863, I agree with it. It is true that in the case of Raghubar Dial v. Kesho Ramanuj Dass, ILR 11 All. 26 I expressed a different opinion as to the application of section 14 of Act XX of 1863. In that case, although it was not necessary to consider the point, I expressed an opinion that Act no. XX of 1863 could not apply to any endowed temple which has come into existence after the passing of that Act. The two cases to which I have just referred have satisfied me that in that view I was wrong. In my opinion section 14 of Act XX of 1863 does apply in this case and that whether or not the Board of Revenue had under Regulation No. XIX of 1810 exercised or had vested in it the right to nominate to the trusteeship or the managership of the temple." The above observations of the learned Chief Justice leave no room for any doubt that the view taken in the Full Bench case in Raghubar Dial's case was wrong. The learned Chief Justice who had taken that view himself realised it. The learned Chief Justice who had taken that view himself realised it. In Ganesh Singh v. Ram Gopal Singh, 5 Bengal Law Reporter 55 a Division Bench of the Calcutta High Court took the view that in order to bring a suit under Act XX of 1863 it was not necessary to show that the temple was one which was formerly under the control of the Board of Revenue. In Dhurram Singh v. Kissen Singh, ILR 7 Calcutta 707 a Bench consisting of Justice Mitter and Justice Maclean held that Sec. 14 of Act XX of 1860 is generally applicable to all religious endowments, irrespective of the fact that the religious endowment was created before or after 1863. This view has consistently been followed by this Court. See Syed Hussain v.Syed Hamid, AIR 1930 Alld. 577; Bhagwan Das v. Moli Chand Ram, AIR 1949 Alld. 612= 1949 AWR 172 and Ram Narain Y. Jai Narain. AIR 1961 All. 125 = 1960 AWR 401. There is almost unanimity of opinion in various High Courts on this question and the view taken by this Court is supported by the decisions of Patna, Calcutta and Madras High Courts. Reference may be made to Dilian Ali y. Bibi Akhtari Begum, AIR 1925 Pat. 544; Ram Prasad Gupta v. Kishun Prasad, AIR 1932 Pat. 177; Venkatachal Pillai v. Taluk Board, Saidapet, ILR 34 Mad. 375 and Badar Rahim y. Badshah Meah, AIR 1934 Cal. 741. 6. Learned counsel for the applicant urged that having regard to the preamble of Act XX of 1863, the Act does not apply to an endowment or religious establishment made after the enforcement of the 1863 Act. Prior to the endowment of Act XX of 186i, religious endowments in this country were first controlled by the British Government by means of Regulation XIX of 1810 so far as the Presidency of Bengal was concerned and by Regulations VII and XVII of 1827 so far as the Madras and Bombay Presidencies were concerned. Regulations XIX of 1810 related to religious endowments as well as to certain charitable endowments and it also referred to the custody and disposal of Nazul property or escheats. Regulations XIX of 1810 related to religious endowments as well as to certain charitable endowments and it also referred to the custody and disposal of Nazul property or escheats. Under the Regulations the general superintendence of all lands granted for support of mosques, Hindu temples, colleges and other pious and beneficial purpose was vested in the Board of Revenue and Board of Commissioners in several districts subject to the control of Boards. The Regulation applied not only to the mosques, and temples which were in existence before the coming into force of Regulations but also to those mosques and temples which may have been made after the enforcement of the Regulations. In 1863 Act XX of 1863 was passed replacing the Regulations in so far as they related to mosques, Hindu temples and other religious endowments. The preamble to the Act states as under : "Whereas it is expedient to relieve the Boards of Revenue, and the Local Agents, in the Presidency of Fort William in Bengal, and the Presidency of Fort Saint George, from the duties imposed on them by Regulation XIX of 1810 of the Bengal Code (for the due appropriation of the rents and produce of lands granted for the support of mosques, Hindu temples, colleges, and other purposes; for the maintenance and repair of bridges, seroys, kuttras and other public buildings ; and for the custody and disposal of Nuzool property or escheats), and Regulation VII, 1817 of the Madras Code...............so far as those duties embrace the superintendence of lands granted for the support of mosques or Hindu temples and for other religious uses ; the appropriation of endowments mads for the maintenance of such religious establishments. The repair and preservation of buildings connected therewith, and the appointment of trustees or Managers thereof ; or involve any connexion with the management of such religious establishments; and whereas it is expedient for that purpose to repeal so much of Regulation XIX of 1810 of the Bengal Code and Regulation VII, 1817 of the Madras Code, as relate to endowments for the support of mosques, Hindu temples or other religious purposes......" The preamble no doubt refers to existing endowments, but that merely shows the necessity for the enactment of the Act of 1863. It shows that the Act was enacted to relieve the Board of Revenue and the local agents in the Presidency of Fort William in Bengal and the Presidency of Fort Saint George from the duties imposed on them by Regulation XIX of 1810 of the Bengal Code and Regulation VII of 1817 of the Madras Code. Sections 4 to 13 of the Act provide mode of transfer to the trustees etc. the trust property which were then held in charge of the Board of Revenue, for deciding aisputes as to the rights, succession of the trustess to whom the property was transferred which were till then exercised by the Board of Revenue or local agents, for the constitution of committees and qualifications of the members therefor, for their tenure of office, for the manner of filling up vacancies and for the duties of trustees and the committees as to the accounts etc. 'court' as defined by section 2 means the principal court of original civil jurisdiction in which the mosque, temple or religious establishment is situate. Sections 3 to 13 contemplate mosque, temples and religious establishments to which Regulation XIX of 1810 was applicable. Sections 13 and 18 of the 1863 Act refer to suits in respect of mosques, temples or religious establishments in general. These sections do not provide that the mosque, temple or religious establishment must be only those which are covered by sections 3 to 13 of the Act. 7. The expression "any mosque, temple or religious establishment" occurring in the section is of wide import. It is general in nature, it does not necessarily restrict its application to the mosque, temple or religious establishment as referred to in section 3 to 13. In Jan Ali v. Ram Nath Munda, ILR 1882 VIII Cal. 32 it was held that mosque, temples and religious endowments mentioned in section 14 of the Act are not confined to mosque, or temple or religious establishment whatsoever for the support of which endowment has been made by the Government or private individuals. The Bench held that section 14 applies to any mosque, temple or religious establishment to which Regulation XIX of 1810 could be applicable. The Bench held that section 14 applies to any mosque, temple or religious establishment to which Regulation XIX of 1810 could be applicable. The Bench observed that whenever question arose as to whether section 14 applies or not, the question should be considered by referring to the Regulation of 1810 and if it is found that Regulation XIX of 1810 can be applied and the endowment can come within the purview of Regulation XIX of 1810, it must be presumed that section 14 of the Act of 1863 will apply to it. 8. In Kedar Nath v. Peary Lal, AIR 1932 Oudh 152 a Full Bench of Oudh Chief court held that the preamble of the Act of 1863 is explicit enough as to the intention of the Legislature. Its intention was to relieve the Boards of Revenue from the duties imposed on them by Regulation XIX of 1810 of the Bengal Code and Regulation VII of 1817 of the Madras Code. The Full Bench held that having ascertained the intention of the 1863 Act, the sections of the Act must be construed for administration of the same institution as were administered under the said Regulation or similar institution as might have been administered under the said Regulation had they not been repealed by the 1863 Act. The Bench observed that section 14 also must be held to refer to such mosques, temples or other religious establishment as would have come under the control and management of the Boards of Revenue in pursuance of the provisions of the two Regulations had those regulations been still in force. In Bhagwan Dass' case (supra) a Division Bench of this Court considered the preamble of the Act in detail and it held that the words "any mosque, temple or religious establishment" are general and by no stretch of reasoning can be restricted to mosque, temple or religious endowments in existence in 1863 and as such there was no reason to restrict the applicability of sections 14 and 18 to endowments which were in existence in 1863. Construction of the provisions of a statute with the aid of preamble is permissible in a case where the words of the enacting section are ambiguous. Construction of the provisions of a statute with the aid of preamble is permissible in a case where the words of the enacting section are ambiguous. No doubt, the preamble of the statute is the key to the intention of the legislature but the preamble cannot regulate the construction of the provisions of the statute if the words are clear and do not admit of any doubt. In view of the above discussion, we are of the opinion that Raghubar Dial's case does not lay down correct law in holding that Act XX of 1863 is not applicable to a religious endowment established after 1863. We accordingly hold that sections 14 and 18 of the 1863 Act apply to any mosque, temple or religious endowment created after 1863. We further hold that on the facts and circumstances of the case the Religious Endowment Act, 1863, was applicable to the instant case. 9. We answer the question referred to us in the affirmative. Let the papers of the case be laid before the learned Single Judge for orders. --- Question answered.