Judgment:
1. Dutt Gir, defendant No. 3/ appellant (hereinafter defendant No. 3) has come up in regular second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge passing a preliminary decree in favour of the plaintiff-respondents Nos. I to 4 (hereinafter the plaintiffs) for appointment of fresh trustees for proper management of the properties of the Dera known as Assan Tirath Ram Saran at village Danoda Kalan, Tehsil Narwana (hereinafter the Dera).
2. Facts first:
The plaintiffs filed a suit purporting to be under Section 92 of the Code of CivilProcedure for retrieval of defendants, namely, Tek Ram, Avadh Puri and Datt Gir Chela Diwangir, from the trusteeship of the Dera and for appointment of new trustees for the administration of the property of the Dera. The Dera is a religious institution where persons belonging to various communities come for worship. Ahitpuri was last Mahant/ Mohtmim, who died about 4/5 years prior to the institution of the suit. Agricultural land measuring 261/; acres is attached to the Dera. The dispute between Avadh Puri and Datt Gir, defendants Nos. 2 and 3, led to initiation of the proceedings under Sections 144 and 145, Criminal Procedure Code. The property of (he Dera was attached and the same is in possession of the Receiver. A Panchayat of 52 surrounding villages met under the Presidentship of Tek Ram, defendant No. 1, at village Danoda Kalan and passed a resolution for removal of defendants Nos. 1, 2 and 3 from the trusteeship of the Dera and appointment of fresh trustees for proper administration of the Dera properties.
3. Joint written statement was filed onbehalf of Avadhpuri and Datt Gir, defendantsNos. 2 and 3. They were represented by onecounsel. Defendant No. 1 did not contest thesuit and he was proceeded ex parte. Thecounsel, who had put in appearance on behalfof Avadhpuri and Datt Gir, stated before thetrial Judge that he was contesting the suit onlyon behalf of defendant No. 3. Defence to thesuit was only offered by defendant No. 3, whois the appellant in this regular second appeal.He denied the allegations made in the plaintand stated that Ahitpuri was the previousMahant/Mohtmim of the Dera and after hisdeath, he was appointed as the Mahant of theDera. .:
4. From the pleadings of the parties, the following issues were framed by the trial Judge :--
1) Whether the defendants 2 and 3 are liable to be removed from the trusteeship of the Dera Asan Tirath Ram Saran at village Dhanauda Kalan If so, to what effect OPP
2) Whether the suit is not mainlainable in the present form ?OPD
3) Whether the plaintiffs have no .locus standi to file the present suit?OPD.
4) Whether the suit is bad for misjoinder of parrties OPD
5) Whether the Dera in question is not a charitable Institution? OPD
6) Relief.
5. Issues Nos. 2 and 3 were decided in favour of the plaintiffs and against the defendants. Under issue No. 2, it was held that the Dera was a religious institution-and, therefore, the-plaintiffs were 'interested persons' within the meaning of Section 92, Civil Procedure Code, qua the trust in question. Under issue No. 3, it was heid that the plaintiffs had locus standi to file the suit. Issue No, 4 was decided against the defendants and in favour of the plaintiffs. Issue No. 5 was held to be redundant for the reason that under issue No. 2 it was held that the Dera was a religious institution. Under issue No. 1, it was held that defendant No. 3, the appellant, was not validly appointed Mahant of the Dera and that he had offered some money to the plaintiffs so as to withdraw from the suit and this action per se was held to be sufficient for the removal of defendant No. 3 from the Mahantship of the Dera. On ultimate analysis, the suit of the plaintiffs was decreed as indicated above.
6. Defendant No. 3 aggrieved against the judgment and decree of the trial Judge assailed the same before the first appellate Court. The first appellate Court concentrated its entire energies on the question whether defendant No. 3 was validly appointed Mahant of the Dera. After scrutiny of the evidence, it held that defendant No. 3 was not validly appointed Mahant and after so holding dismissed the appeal. The first appellate Court did not understand the scope and ambit of Section 92, Civil Procedure Code, under which the suit giving rise to the present appeal had been filed. The main purpose of the section is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits can either be filed by the Advocate-General or by two persons having an interest in the trust with the written consent of the Advocate-General (now with 'leave' of the Court). Before the Advocate-General files the suit or gives his consent, he has to satisfy himself that there is a prima facie case of either a breach of trust or of the necessity of obtaining directions from the Court. This section has no application unless three conditions are fulfilled : the suit relates to a public, charitable or religious trust; it is founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust and the reliefs claimed are those which are mentioned in the section. Such a suit is one of a special nature and therefore if the allegation of breach of trust is not substantial or if the plaintiff fails to make out a case for a direction for proper administration, the very foundation of the suit would fail. It being a special remedy, where resort could be had to it, the general remedy of an ordinary suit is impliedly barred. And whether the suit falls within the section must be decided on the allegations in the plaint as on the date of its institution. The real test, therefore, for the applicability of the section is to see whether the suit is fundamentally on behalf of the public for the vindication of a public right, and, in order to apply the test the Court must look to the substance and not to the form of the suit. The suit is primarily against a trustee and can only be filed on the ground either (i) there has been a breach of trust; or (ii) that the direction of the Court is necessary for the administration of the trust Impliedly the plaintiffs admit that the trustee was validly appointed and his removal had been sought on any of the grounds enumerated in Section 92 of the Code of Civil Procedure. It is beyond the purview of Sec. 92 to embark upon an enquiry if the trustee was validly appointed. The tenor of the first appellate Court's judgment indicates that the first appellate Court only embarked upon an inquiry whether defendant No. 3 was validly appointed as a trustee of the Dera. The Courts below were not called upon to examine the matter which could not be subject-matter of enquiry in the suit. It is to be taken as a fact that defendant No. 3 was appointed as aMahant of the Dera. The evidence brought on record to which a reference has been made by the first appellate Court does not even remotely suggest that defendant No. 3 should be removed from the Mahantship of the Dera. The only evidence brought on record is to the effect that defendant No. 3 offered some, money to the plaintiffs for withdrawing from the suit. The evidence is not worthy of any reliance. Defendant No. 3 has categorically denied the insinuations. Assuming it to be correct, I am afraid that this can be treated as a ground for removing defendant No. 3 from the Mohtminiship of the Dera. He may have offered money to the plaintiffs for withdrawing from the suit in the interest of the institution. Land attached to the institution is in possession of the Receiver. The income accruing from this land is being received by the Receiver. Concededly, the Dera is in a dilapidated condition and no effort is being made for its upkeep. The plaintiffs dragged defendant No. 3 in this litigation and this has proved Costlier for the institution for the reason that the land which belongs to it is in possession of the Receiver who, admittedly, is not paying any attention to the Dera or keeping its sanctity intact. The plaintiffs, in fact, acted detrimental to the interests of the Dera. Their aim was not to act in furtherance of the interests of the Dera but jeopardise it. The Mahant is a trustee of the property belonging to the religious institution and is under an obligation to administer it with such care and caution as is possible. It is the duty of law Courts to see that Charitable trust's property is not misappropriated. Courts can amend procedure in the interest of justice and good management of the trust property. B. K. Mukerjee in his celebrated treatise on 'The Hindu Law of Religious and Charitable Trust' has traced the history of control exercised by the State over the trustees on charitable trusts in Chapter 10 at page 333. According to him:
'......In English law the Crown as parenspatrice is the constitutional protector of all property, subject to charitable trust, such trusts being essentially matters of public concern;....
The Court of Chancery in England exercised jurisdiction in cases of charitable useseven before passing of the well known Statuteof Elizabeth. The power is now vested in meHigh Court of Justice and causes and mattersfor the execution of trusts, charitable orprivate, have been assigned to the ChanceryDivision. The jurisdiction, as already indi-cated, is more extensive when the trust ifcharitable than in case of a private trust andthe court has jurisdiction not only to enforceand redress all breaches but also in certaincircumstances to alter or modify the trust in' agreater or lessor degree in accordance with thecypres doctrine:....'
7. There are indeed no clear written texts directly bearing on thes subject and the text of Narada which says that a king can reduce to slavery a Sanyasino who is guilty of in-continuence juggest only in vague way that the kind had some, sort of jurisdiction over religious bodies and institutions. As I have pointed out, however, there was undoubtedly some sort of customary law in India relating to temples and endowments which in the last resort had to be enforced by the king. The Samriti writers make.it a duty on the part of the king to uphold the customs and usages of the land unless they are contradictory to revelation; and Mitakshara in commenting upon a passage of Yajhavalkya relating to enforcement of customs expressly refers to customs in connection with management of temples. The duty of protecting endowment is one of the primary duties of the king as mentioned in Sukraniti and other treatises, and this is borne out by various historical documents which exist even at the present day. That such jurisdiction existed in ancient times has been asserted in more than one pronouncement of the Judicial Committee as well as of the other High-Courts in India. In Raju Muttu Ramlinga v. Penanayagum, it was observed by the, Privy Council that there could be no little doubt that this, superintending authority over temples and religious endowments as exercised by the old rulers. Sir Montague Smith in course of his judgment in this case relied upon the opinion expressed by Nelson in his Madura Manual that the Dharamakartas of the Pagodas hadbill little communication' with one another and regarded no earthly superior except the king himself. Each was 'independent of all control and acted altogether as he pleased. This freedom naturally led to gross abuses and the king was compelled to interfere in the management of some of the churches. Much in the same strain are the observations of West, J. in Manohar Ganesh v. Lakshmiram that 'under the native system of Government though it was looked upon as a heinous offence to appropriate' (6 secular purposes the estate that had o0nce been dedicted to pious uses, yet the State in its secular executive and judicial capacity habitually' interested to prevent fraud and waste in dealing with religious endowments.
If the Courts below had correctly appreciated the legal position that they were expected to protect the institution, they would not have committed the error of the type as done in the instant case. They would have framed a Scheme and directed defendant No. 3 to implement it and report compliance to the Court.
8. For the reasons stated above, the appeal succeeds, the judgments and decrees of the Courts below are set aside and the suit of the plaintiffs is dismissed. Defendant No. 3 is appointed as the Mohtmim/ Trustee of the Dera for proper administration thereof. It is directed as under:--
(i) The Mohtmim/trustee will take possession of the Dera as well as the properties attached thereto forthwith. The Receiver, who is in possession of the Dera properties pursuant to a direction of the Court under S. 146, Criminal Procedure Code, will hand over the same to the Mohtmim/trustee forthwith and also render him true and faithful accounts. He will also hand over the entire money received by him as lease money/licence fee from the persons through whom he got the land cultivated. Defendant No. 3 will deposit that amount in any scheduled bank in the name of the Dera through him;
(ii) The persons in possession of the agricultural land of the Dera in whatsoevercapacity shall be deemed to be in occupationof the same under defendant No. 3 'for' theunexpired period;
(iii)The Mohtmim/trustee will cultivate the land of the Dera either himself or through others. The persons to whom the land is given for cultivation will do so as licensees. The licence will be created initially for a period of . two years renewable for a further period of two years and thereafter with the permission of the Court;
(iv) The licensees will surrender possession of the land after the expiry of the period of two years;
(v) The Mohtmim/trustee will spend a reasonable amount for the renovation and upkeep of the Dera and will spend the amount for the purpose for which the institution was set up. The expenditure will be for the interest of the institution.
(vi) Defendant No. 3 will maintain and manage the institution as per tenets thereof;
(vii) The compliance will be reported within six months.
9. No case for production of additional evidence is made out. C.M. No. 549C of 1992 is dismissed.
10. Appeal dismissed.