Judgment

ALAGIRISWAMI, J. :- The question for decision in this appeal is whether the temple of Shree Maharaja Ram Janki Lacchuman Maharaj in the village of Mauza Deogan in the State of Bihar is a religious trust within the meaning of the term in Section 2, clause (1) of the Bihar Hindu Religious Trusts Act, or a private endowment.

2. Two brothers, Ram Adhikari Choudhary and Ram Lochan Choudhary, and Amir Prasad Choudhary, son of their brother, for himself and as guardian of Ramakant Prasad Choudhary, who were all members of a joint Hindu family executed on 17-6-1921 a samarpannama by which they dedicated certain properties to the above mentioned temple. By that deed of dedication they completely divested themselves of any interest in the properties except that they and the members of their families were to be shebaits. By the same deed five persons, who were absolute strangers to the family, were appointed panchas "to take the rendition of account of the income and expenditure from the manager, shebait for the time being year after year on the death of the executants.......... If in the opinion of the said panchas the manager and shebait for the time being be found (illegal) and extravagant or there be any loss in respect of the income of the dedicated property or the dedicated property which is at present or be acquired in future, in that case they should discharge the manager shebait for the time being and (appoint) other deserving manager, shebait, who be deemed according to the conditions mentioned above, in his place from among the members of the family of the executants." The panchas were given power to fill up vancancies in their ranks.

3. On 7-12-1928 Ram Adhikari Choudhary alone executed another samarpannama endowing some further properties in favour of the temple, containing similar terms as in the earlier samarpannama; but in the place of five panchas mentioned in the earlier deed he appointed a fresh set of five panchas, of whom only one belonged to the earlier set of panchas. In this deed also it was provided that "if any future shebait fails to manage the dedicated properties, arrange rangbhog to the aforesaid deities properly, and incur (un)-necessary expenses, the said panchas will be competent to dismiss the said shebait and appoint another one out of the members of the family of me, the executant, who happens to be honest and capable."

4. On 14-7-1934 Ram Adhikari Choudhary executed another deed called ekrarnama referring to the fact that he had adopted Bhagwat Prasad Choudhary, the present first respondent, and that he had been appointed shebait and manager of all the dedicated properties covered by the earlier two samarpannamas. He also directed that "the stipulations contained in the samarpannama dated the 7th December, 1928 in respect of maintenance of account of income and expenditure of the dedicated property, shall hold good in respect of the management of the dedicated property and maintenance of the account of income and expenditure." He mentioned nothing about the panchas mentioned in the earlier deed but provided that "as (to) the appointment of shebaits in future, the practice to be followed will be that the shebait in office shall be fully competent to (appoint) during his lifetime or that after him he who amongst his sons be alive and most capable shall be appointed shebait of the said deities one after another. In case there be no male issue in the family of the shebait in office, firstly, amongst the male issue or in case there be no capable man amongst the shebait in office shall be competent to appoint a shebait in office shall be competent to appoint a shebait amongst the children of my cousin (father s brother s sons) brothers, deemed to be capable. But the shebait in office is and shall not be competent to appoint a shebait from the family of other persons."

5. It is unnecessary for the purpose of this case to go into the question whether by executing the samarpannama of 7-12-1928 and ekrar