Sita Ram Dass v. Dist. Judge, Jhansi — 1989 DIGILAW 401 (ALL)

JUDGMENT A.N. Dikshita, J. - The petitioner Sita Ram Dass has filed this petition under Article 226 of the Constitution of India for issuing a writ of certiorari for quashing the order dated 5-5-88 (Annexure 5) passed by respondent No. 1 and also for issuing a writ, order or direction in the nature of prohibition restraining the District Judge from proceeding with the trial of the suit titled as Hari Ram Agrawal v. Sita Ram Dass instituted in pursuance of the order dated 5-5-88. 2. Facts as disclosed in the petition are that Mahant Purshottam Dass was the uncle of the petitioner owning vast property and after renouncing the world dedicated it to the Deity Sri Laxman Ji Maharaj installed in a private temple. A gift-deed was executed by Mahant Purshottam Das on 14-8-1922 in favour of Deity which incorporated certain conditions as regards the proper management of the property. The petitioner has stated that it is a simple gift deed and not a trust deed. This deed gave the right to the successor Mahant by generation to generation and other public men had no concern with the managements of such property. Respondents Nos. 2 and 3 were the tenants of a part of the said property belonging to the Deity. As both the tenants were bad pay master Suit No. 158 of 1980 was filed in the Court of Judge, Small Causes against respondent No. 2 which was dismissed and a revision No. 111 of 1983 is pending in the Court of I Addl. District Judge, Jhansi. The suit filed against respondent No. 3 is pending. 3. The petition further discloses that respondents Nos. 2 and 3 with ulterior motive had filed the application under Section 92, C.P.C. for permission to institute a suit against 'the petitioner for the proper management of the trust property. It has further been disclosed in the petit ion that the respondent No. 1 issued a show cause notice to the petitioner as to why the permission may not be granted to institute the suit as contemplated under Section 92, C.P.C. 4. Objections were filed by the petitioner alleging that the respondents Nos. 2 and 3 have no interest in the property nor are they well wishers and worshipers of the temple of Laxman Ji Maharaj. Several cases are pending against the respondents Nos. Objections were filed by the petitioner alleging that the respondents Nos. 2 and 3 have no interest in the property nor are they well wishers and worshipers of the temple of Laxman Ji Maharaj. Several cases are pending against the respondents Nos. 2 and 3 and their interest is in fact adverse to that of deity. It was alleged by the petitioner that no express or constructive trust was created for public purpose of charitable or religious nature and the temple is neither a public temple nor a charitable institution. 5. It is alleged by the petitioner that the learned District Judge, Jhansi respondent No. 1 has granted the permission without recording any prima facie finding with regard to the fact whether there exists a public trust or not and also whether respondents Nos. 2 and 3 have any interest in the property of Sri Laxman Ji Maharaj. It has been alleged that the respondent No. 1 did not go through the gift deed dated 14-8-22 not has considered the two ingredients for invoking the jurisdiction under Section 92 of the Code. In fact the respondent No. I has erred in observing that the two facts regarding the trust as well as interest of the respondent No. 3 can be adjudged in the suit itself. The petitioner has thus claimed that the order dated 5-5-88 passed by respondent No. 1 is grossly illegal and without jurisdiction. Hence, this petition under Article 226 of the Constitution of India. 6. A counter-affidavit has been filed by respondents Nos. 2 and 3 repudiating the allegations as set forth with in the petition. It has been categorically stressed that respondents Nos. 2 and 3 have interest in the Deity as they regularly offer prayer at the temple. It has also been specifically alleged that it is a public trust and as they have interest in it they have a right to file the application for permission so as to institute the suit within the meaning of Section 92 of the Act. 7. The petitioner filed a rejoinder-affidavit reiterating the allegations in the petition and denying the allegations in the counter-affidavit. 8. Learned counsel for the petitioner Sri K. K. Dubey and the learned counsel for the respondents Nos. 7. The petitioner filed a rejoinder-affidavit reiterating the allegations in the petition and denying the allegations in the counter-affidavit. 8. Learned counsel for the petitioner Sri K. K. Dubey and the learned counsel for the respondents Nos. 2 and 3 Sri R. P. Tiwari have submitted that instead of disposing the stay application the whole of the petition may be finally disposed of as counter-affidavit and rejoinder-affidavit has been exchanged. 9. In view of the statements of the learned counsel for the parties the petition is being finally disposed of on merit. 10. Heard the learned counsel for the parties. 11. Learned counsel for the petitioner has vehemently urged that the provisions of Section 92 of the C.P.C. have not been complied with. Section 92, C.P.C. runs as follows :- "92. Public charities.- (1) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of t he Court may institute a suit, whether contentious or not, in the principle civil court of original jurisdiction or any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree. (a) .. .. ... ... ..." 12. It clearly provides that whereas person wishes to institute proceedings in respect of a trust created for public purposes of a charitable and religious nature, he has to seek leave of the Court and such person who wishes to institute such proceedings has to be a person "having an interest in the trust". Learned counsel for the petitioner has urged that the intendment of this provision is obvious and it was imperative for the respondent No. 1 to have recorded a finding that the person seeking permission of the Court has an interest in the trust and that the trust has been created for public purposes of a charitable nature. Reliance has been placed in the case of Gurmukh Das v. Bhupal Singh, (1987) 13 All LR 214 : (1987 All U 369). Reliance has been placed in the case of Gurmukh Das v. Bhupal Singh, (1987) 13 All LR 214 : (1987 All U 369). The respondent No. 1 has to see whether a prima facie case has been made out by the respondents Nos. 2 and 3 as regards the requisite permission. 13. Learned counsel for respondents Nos. 2 and 3 placing reliance in the case of Mahant Sita Ram Das v. Ram Chandra Arora, (1988) 14 All LR 86 : (1988 All LJ 259) has submitted that no notice is required to be issued to the other side as no rights of the parties are decided by the grant of such permission. Even a detailed and speaking order is not required. The contention of the petitioner (was) that the interest of the applicant is adverse to the Deity. The respondent No. 1 has found that such adverse interest would be examined at the stage of the trial of the suit. The only point that was to be determined was whether it is 'adverse' to the Deity. 14. In the case of Deoki Nandan v. Murlidhar, AIR 1957 SC 133 , it was held as under (at p. 136) :- "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." The position is thus stated in Lewin on Trusts, Fifteenth Edition, pp. 15, 16 : "Public trusts 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. To this class belongs all trusts for charitable purposes, and indeed public trust and charitable trusts may be considered in general as synonymous expression. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained....." 15. The respondent No. 2 has claimed to possess interest in the Deity and is a worshipper of the idol. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained....." 15. The respondent No. 2 has claimed to possess interest in the Deity and is a worshipper of the idol. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of the worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual then the endowment can only be regarded as public, intended to benefit the general body of worshippers. 16. It is settled law that to invoke Section 92 of the Civil Procedure Code three conditions have to be satisfied, namely (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. 17. In the case of Bishwanath v. Radha Ballabhji, AIR 1967 SC 1044 it was found under (at p. 1047) :- "Three legal concepts are well settled: (1) an idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and(3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have according to Hindu Law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage." From the above it is clear that the law accordingly recognises a right in persons entrusted in the endowment-to take proceeds on behalf of the idol. Respondents Nos. 2 and 3 have alleged that they are worhsippers of the deity. 18. Learned counsel for the petitioner has urged that the respondent No:, 1 (District Judge) had no jurisdiction to grant such permission as even no notice was issued to the petitioner and such action of respondent No. 1 is violative of the principles of natural justice. Moreover the permission which has been granted has been granted by non-speaking order. It is true, that while granting such permission the proceedings are judicial in character and the order passed by the District Judge would be deemed to be a judicial order. But while granting the permission the rights of the parties are not adjudicated. The District Judge has only to see at that stage that a prima facie case exists. Mere grant or the permission does not in any way affect or influence the final decision of the suit which ultimately would be decided on the basis of the evidence led by the parties. Section 92, C.P.C. nowhere contemplates of giving any notice to the opposite parties or the proposed defendants before granting leave. No doubt the permission granting leave is a judicial order. It has only to be seen that the District Judge has applied his mind before granting such leave. In the case of Mahant Sita Ram Das v. Ram Chandra Arora, (1988 All U-259) (supra) a similar view was taken. 19. Learned counsel for 'the petitioner has vehemently urged that the above case is not applicable to the instant controversy in view of the participation of the petitioner in the proceedings for the grant of permission. No doubt it was not imperative for the respondent No. 1 to have issued notice to the petitioner but once the petitioner had filed necessary objections, it was necessary that such objections were considered. No doubt it was not imperative for the respondent No. 1 to have issued notice to the petitioner but once the petitioner had filed necessary objections, it was necessary that such objections were considered. The respondent No. 1 has wrongly placed reliance in the case of Mahant Ram Das v. Ram Chandra Arora (supra) because in view of the participation of the petitioner in the proceedings the lis was liable to be resolved, as has been held in the case of Gurmukh Das v. Bhupal Singh, (1987) 13 All LR 214: (1987 All Li 369). 20. The respondent No. 1 did not consider the contention of the 'applicants that the interest of the applicants (Respondents Nos. 2 and 3) is adverse to the deity and that the temple is not the trust property on the ground that there are the facts which shall be seen subsequently in the suit. However, with the same breath, it has been held by respondent No. I that during the proceedings under Section 92 of the Act it hasto be seen whether prima facie the temple is a public trust and that it is being mismanaged But such a prima facie satisfaction is absolutely wanting. The respondent No. 1 did not consider that the temple is a public trust. No doubt on the basis of the allegations in the affidavit filed in support of the application under Section 92 of the Act the respondent No. 1 found that the petitioner is mismanaging the temple property. It was absolutely imperative for the respondent No. I to have considered the contention of the petitioner and more so when the had participated in the proceedings. The maxim audi alteram partem seems to have been completely ignored. The democratic fibres have enveloped adherence to the rule of law andonce the petitioner had raised objections as regards the grant of the permission judicial propriety warranted the consideration of such objections. It should not have been left to be determined during the proceedings in the suit. No doubt at the stage of granting ,permission a prima facie satisfaction was required. The findings arrived at would not act as estoppel to the petitioner in the proceedings in the suit. The petitioner would have ample opportunity again to contest such findings in the suit. But instantly the respondent No. 1 arrived at a finding only as regards the mismanagement of the temple property. The findings arrived at would not act as estoppel to the petitioner in the proceedings in the suit. The petitioner would have ample opportunity again to contest such findings in the suit. But instantly the respondent No. 1 arrived at a finding only as regards the mismanagement of the temple property. First it should have been determined that the temple is a public trust and it was only thereafter that the question of mismanagement would have arisen. Nowhere there is even a whisper that the respondent No. 1 has applied its mind that the temple is a public trust. Such an error of law has crept in. It appears that respondent No. I has abruptly come to the conclusion that the application under Section 92 is fit to be allowed thus granting permission to the respondents Nos. 2 and 3 to maintain the suit. Such an abrupt assumption is neither warranted nor permissible. The findings recorded by respondent No. 1 are too sketchy and manifestly there is absolutely no iota of material which may show that the objections of the petitioner were considered. Such a manifest error of law has to be set at naught. 21. Further from a perusal of the affidavit of the petitioner Sita Ram Das it is apparent that he had filed cases for the eviction of the respondents Nos. 2 and 3 and which are pending in the Civil Court. The respondents Nos. 2 and 3 in order to wreak vengeance have resorted to the exercise in the filing of the application under Section 92 and this is being alleged by the petitioner to be mala fide. This allegation in fact being serious one was required to be considered by respondent No. 1 but has been completely ignored. The intention of granting permission is to ensure that the property of the public trust is not being mismanaged. However, where the respondents Nos. 2 and3 have allegedly acted adversely to the interest of the deity then such an exercise was liable to be spurned. It would have been wholly compatible that the respondent No. 1 had also applied its mind to such an allegation of the petitioner. Moreover, this allegation being insidious in intent and mala fide in character was liable to be examined. But the respondent No. 1 did not apply his mind to scrutinise the truthfulness of such allegation. It would have been wholly compatible that the respondent No. 1 had also applied its mind to such an allegation of the petitioner. Moreover, this allegation being insidious in intent and mala fide in character was liable to be examined. But the respondent No. 1 did not apply his mind to scrutinise the truthfulness of such allegation. It is radiant that judicial approach has not been maintained. 22. Instantly the parties are at issue on the twin questions and it was necessary for the respondent No. 1 to have recorded a definite finding about it which has not been done as has been held also in the case of Gurmukh Das v. Bhupal Singh, (1987 All U 369) (supra) with which I respectfully agree. 23. The petition thus deserves to be allowed and the order dated 5-5-1988 is fit to be quashed. 24. In view of the above the petition succeeds and is hereby allowed The order dated 5-5-1988 passed by respondent No. 1 granting permission to the respondents Nos. 2 and 3 to file the suit is hereby quashed. The case is remanded back to the respondent No. 1 who in the light of the observations made above and affording reasonable opportunity to the petitioner to substantiate his allegation that the temple is not a public trust and that it is not being mismanaged and further to scan the allegation of the petitioner that the respondents Nos. 2 and 3 have no right to file the application and that the interest of respondents Nos. 2 and 3 is adverse to the deity inasmuch as that they are acting with mala fide intention to harass the petitioner. 25. In the result the petition is allowed and the order dated 5-5-1988 is hereby quashed.