Kanshi Ram and Others vs Bodh Ram and Others

Grover, J.—This is an appeal under clause 10 of the Letters Patent against a judgment of a learned Single Judge who decreed the plaintiff''s suit so far as it related to a declaration to the effect that the gift in favour of Arya Samaj Gurukul, Shahabad, of the property in dispute was invalid but who dismissed the suit so far as the other reliefs were concerned.

The property, which is the subject-matter of litigation, consisting of two houses belonged at one time to the descendants of one Mula Ram. In the year 1931 an Arbitrator was appointed to decide the dispute relating to the partition of the family property. By an award dated 17th July, 1931, the Arbitrator while portioning the property among the various descendants of Mula Ram declared one house which was described as a dharamsala to be property which was to remain dedicated for the general benefit of the Hindu Public. According to the directions in the award, this property was to be administered by Surjan Mal, Beni Pershad and Ram Pershad, who were some of the members of the family. Later on, in 1943 one Mst. Raja Devi widow of the brother of Bishambar Dass, who owned a house adjacent to the property known as dharamsala dedicated the same for the benefit of the trust and empowered those trustees to use its income for the benefit of the trust and if necessary, to transfer it to the members of the founder''s family etc. It was not contested at any previous stage that the purpose of this dedication by Mst. Raja Devi was the same as the purpose of the trust which had been incorporated in the award. The trustees accepted this dedication by her. In October 1949 Beni Pershad and Ram Parshad, who were the surviving trustees, purported to gift these properties to the Arya Samaj Gurukul, Shahabad, with a stipulation that a girls'' school would be run in these buildings on certain lines which were stated to be consonant with the purposes of the dedication of the properties. A girls'' school was started and is still functioning there. In August 1952 the plaintiff-appellants filed a suit in representative capacity for a declaration that the gift made in 1949 was void and would not be binding on the general Hindu public of Shahabad and for an injunction restraining the defendants from alienating the dharamsala and the house attached to it and for using the properties for any purpose other than those which were mentioned in the plaint. The main plea on which the suit was founded was that these properties could be used only for the purposes of a dharamsala for accommodating travellers and marriage parties and for no other purpose and that the running of a girls'' school was not one of the purposes for which dedication had been made. Only two issues were framed which were as follows :

Was the property in dispute dedicated to charitable and public purposes as alleged ?

If issue No. 1 is proved, is the gift in dispute valid and binding on the plaintiffs ?

The trial Court decided both the issues in favour of the plaintiffs and decreed the suit. The lower appellate Court decided the first issue against the plaintiffs but dismissed the suit without deciding the second issue. On second appeal, the learned Single Judge held that the document executed in 1949 was void and, therefore, granted a declaration that the gift in favour of the Arya Samaj Gurukul, Shahabad, was invalid. He, however, dismissed the suit so far as the prayer regarding the injunction was concerned. Against that judgment, the present appeal has been brought.

Mr. Baldev Singh, who appears for the appellants, contends that the injunction asked for should have been granted inasmuch as it had been found by the trial Court, which finding had not been disturbed by the lower appellate court or by the learned Single Judge, that the property in dispute which was wakf had been used as a dharamsala where travellers and marriage parties were accommodated for the last about 40 years and that being the purpose of dedication it could not be used for a different purpose, namely, a school. He has relied on Jai Dayal v. Dewan Ram Saran Das A. I.R. 1938 Lah. 686, wherein it was observed that if the dedicator had declared in unequivocal terms that the house in question was to be used as a resting place for marriage processions of the Khatris of the locality, it could not be used later on by the son of the dedicator partly for residential purposes and partly for running a girls'' school as that would be contrary to the wishes of the settler and would constitute a breach of trust. The facts of that case are quite distinguishable as there the house was apparently used by the son of the dedicator partly for his residential purposes. As has been noticed by the learned Single Judge, in the award the dedication was in the following words :

"Brae rafe i-am ahal-i-hanood"

and the property was described as a dharamsala. The purpose stated in the award was, however, in such general terms that it could, not be limited or confined to use by travellers and marriage parties only. Mr. Baldev Singh contends that dedication by user had been proved long before the date of the award and, therefore, it has to be ascertained from the evidence what were the object and purposes for which the wakf had come into existence prior to the date of the award. According to him, the evidence clearly establishes that it was only for accommodating marriage partus and travellers that the properties in dispute were used as a dharamsala. The fact, however, remains that as far back as 1931 when the award was given, the purposes indicated therein were not confined to accommodating or housing travellers and marriage parties alone. At that time the parties as well as the Arbitrator were bound to know the purposes for which the buildings in question were being used and all that is stated is that it was a dharamsda meant for the general benefit of the public. It is difficult in these circumstances to hold that the wakf existed only for the purposes mentioned in the plaint. The decision in Gosain Sant Das v. Mst. Ram Bai 38 P.R. 1903 = 264 P.L.R. 1913, that even in a dharamsata a school can be run and that purpose would be public and charitable. The learned Single Judge was perfectly right in saying that in the conditions prevailing in this country it is not possible to hold that a girls'' school is not for the benefit of the Hindu public. At any rate, the only question being whether an injunction Should have been granted or not, the entire facts and circumstances have to be taken into consideration. The learned Single Judge declined to grant the injunction and it does not appear that this is a fit case in which injunction should or ought to be granted. The purpose for which the property in dispute is being used is laudable, namely, education of girls and it is essentially for the benefit of the Hindu community in general because education of children in that community must always be regarded as one for the advancement and progress of that community. Even for accommodating marriage parties etc., there is nothing to show that any serious impediment has been placed in the way of the general public when the school is closed for holidays or after school hours. If the plaintiffs are of the view that the trustees are not carrying out the true purposes of the trust or are guilty of breach of trust, they have other remedies open to them under the law to get them removed or to obtain proper directions from the Court in the management of the trust, but in the circumstances obtaining in this case we are not satisfied that the discretionary relief of injunction should have been or be granted to the plaintiffs.

For all these reasons, this appeal fails and it is dismissed with costs.

Falshaw, C. J.

I agree.