2003 Supreme(SC) 182

2003(2) Supreme 196
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
S.B. Sinha & A.R. Lakshmanan, JJ.
Kuldip Chand & Anr. -Appellants
versus
Advocate General to Government of Himachal Pradesh & Ors. -Respondents
Civil Appeal No. 5178 of 1997
Decided on 14-2-2003
Counsel for the Parties :
For the Appellants : G.L. Sanghi, Sr. Advocate, E.C. Agrawala, Mahesh Agrawal, Rishi Agrawal, Alok Agrawal and Vivek Yadav, Advocates.
For the Respondents : Naresh Kumar Sharma, Advocate.

IMPORTANT POINT
Mere use of a part of the premises as a Dharamshala for about 125 years would not lead to an inference that the same belongs to a public trust.

Headnote:Civil Procedure Code, 1908-Section 92-Suit under that suit premises belongs to a public trust-One Raj Bir Singh was owner of suit property-Use of a part of it as a Dharamshala for about 125 years-Whether leads to an inference that the same belongs to a public trust-Single Judge holding that a public trust was not created and the Dharamshala in question was their own property-D.B. in appeal reversed it-Appeal to Supreme Court-Whether the plaintiff has been able to prove that Raj Bir Singh had created a public trust in respect of Dharamshala in question? (No)-Appeal allowed-Case law referred.

       Held : It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. (Para 21)

       Admittedly, in the instant case, no instrument in writing was created. (Para 22)

       It is not in dispute that in the revenue records the ownership of the property stands in the name of Ranzor Singh. (Para 23)

       Long user of a property as Dharamsala by itself would not lead to an inference that dedication of the property by Kunwar Bir Singh in favour of the public was complete and absolute. Had such dedication been made, the same was expected to be recorded in the revenue records. (Para 33)

       In terms of Section 35 of the Evidence Act, the entries in the revenues record would be presumed to be correct; although the same is a rebuttable one. (Para 34)

       When a dedication to a charity is sought to be established in absence of an instrument or grant, the law requires that such dedication be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. It must be proved that the donor intended to divest himself of his ownership in the dedicated property. The meaning of charitable purpose may depend upon the statute defining the same. (Para 41)

       This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature:

        (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;

        (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;

        (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;

        (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.

       None of the aforementioned test is satisfied in the instant case. It is true that the appellants herein did not produce their title deeds wherefor an adverse inference could be drawn, but transfer of the suit premises in their favour by the owner thereof stands admitted and in fact the said transaction constituted cause of action for filing the suit. In any event, their possession over the disputed premises stands admitted. We furthermore fail to understand as to why the public in general did not exercise their right, if any, in respect of the suit premises for a long time and at least since 1963. It may be that a part of the Dharamsala in question was used by the general public for a long time but continuance of such a benevolent acts/charity would not lead to creation of a trust which alone is the determinative factor for entertaining a suit at the instance of the Advocate General in terms of Section 92 of the Code of Civil Procedure. For the foregoing reasons, we are of the opinion that the judgment and decree passed by the High Court cannot be sustained. The appeal is allowed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs. (Paras 46 to 50)