Kartar Singh and Another vs Sh. Avtar Singh and Others

K. Kannan, J.—The following substantial question of law arises for consideration in the second appeal:- Whether the Courts below were justified in finding that the plaintiffs had any interest in the charitable and religious purposes of the Dharamshala of village Dangora to maintain the action u/s 92 CPC?

The suit had been filed by the plaintiffs claiming themselves to be residents of the village Dangora on a contention that the property which is entered in the revenue records as Dharamshala was originally established for stay and residence of one Bra-ham Dass, an udasi saint, and for stay of saintly travellers. The land, which had been attached to Dharamshala was used for arranging Katha, Kirtan and religious discourses by udasi saint. Free langar service was also provided to such saints. After Braham Dass, it fell to Gobind Dass son of Braham Dass for its administration and during his management, the property had been mortgaged to one Raja Ram and he left for pilgrimage never to return back. In the year 1917-18, the management of the institution, therefore, was taken by the Lambardars of the village and since then the property was being managed for the purpose of charities connected with the Dharamshala. In the course of time, however, the Lambardars converted the Dharamshala into a school and had leased out the lands and were taking the income for themselves without actually performing any of the charities. The plaintiffs contend that they were interested in due performance and sought for the direction for settling a scheme u/s 92 CPC to direct the defendants to account for the income that they earned and for due performance of the charities connected with the trust.

Though it is contended that there was no religious or charitable purpose attached, they were in the course of trial prepared to admit that the property was not their own personal property and that it had been in the revenue records shown as belonging to Dharamshala. PW-1 Avtar Singh had admitted that the land had been gifted by the original settlors of the village to udasi sect for religious and charitable purpose. There was oral evidence of witnesses as well to vouch for dedication of the building and the property for charitable purposes and the Court on a consideration of evidence found that the property was established for charitable and religious purposes. Adverting to the issue of whether the plaintiffs have the locus standi to institute the suit and whether as persons, who are not themselves followers of udasi sect, they could maintain the action, the trial Court reasoned that an application had been filed disclosing their own interest u/s 92 CPC along with the plaint and the Court granted the permission holding that they were as members of the public interested in seeing that the property was used for the charitable purposes and allowing for religious travellers to stay and for performance of katha, kirtan and giving langar. The Court held that they were entitled to maintain the suit. It was in evidence that properties had been periodically rented out but here had been no proof of any performance of charity out of the income released therefrom. The Court, therefore, found that the defendants, who had been in possession of property and management, were not as owners but as persons, who were attending to the affairs of the Dharamshala, were liable to account and granted a decree settling a scheme directing the defendants to account for the income. The Court directed that a society will be formed and registered under the Societies Registration Act and the elected body of seven adult residents of village Dangora will constitute the managing committee. The names of the adult members will be taken from the list of voters from the Legislative Assembly at the relevant time and that the members of the acting committee shall hold office for two years from the date of election, which would be held a week prior to the expiry of previous term. The Court also provided that the scheme shall ensure that the managing committee would be constituted on 18.03.1985 or on any convenient date within a period of two months through an election under the supervision of the Naib Tehsildar, Elections stationed in the office of the Deputy Commissioner, Ludhiana. The defendants themselves were not dislocated wholly but they were given the power to hold the office for their life time.

Against the decree granted in the appeal filed, the Appellate Court also affirmed that if the character of the property as charitable trust was to be admitted, the only issue was whether there had been any error in accepting the plaintiffs'' locus standi to institute the suit. Here again, the Appellate Court referred to the fact that the defendants were themselves not followers of udasi sect and even the plaintiffs were not required to be so for all that was necessary was that the property and income of the property should be spent for charitable purposes. It also found that the scheme as provided by the Court was a fair one and there was no ground for interference with the judgment of the trial Court.

Even before the arguments on the merits of the case got underway, learned counsel appearing on the behalf of the appellants would point out that the disputes at all times had been with reference to management of the Dharamshala and the properties between plaintiffs and defendants and the plaintiffs'' motivation had been to usurp possession and put the property to their own use. Although, at the time when the appeal was admitted and notice was issued, there had been a direction for retention of status quo, the plaintiffs have literally demolished the construction which existed there and they have constructed a Gurdwara at the property. The appellants appeared to have, therefore, filed a petition for taking action for disobedience of the orders of the Court granting status quo in separate contempt petition and pursuant to the direction given by this Court, a report was also obtained from the Deputy Commissioner, who had reported that a new Gurdwara has come about and the Dharamshala building no longer existed. Learned counsel for the appellants would further urge that the only question that would fall for consideration in the appeal itself will be the locus standi of the plaintiffs to institute the suit.

As regards the issue regarding the disobedience of the order of Court and the contempt alleged to have been committed by the plaintiffs, I will not find any reason to go into the same since it is getting the attention of yet another court before which the contempt petition is pending. The only issue before us is regarding the locus standi giving out the fact that the property was used for charitable and religious purposes. Though the plaintiffs and defendants were themselves not persons belonging to udasi sect, the nature of charity having been established for performance of religious katha, kirtan and allowing for travellers to rest, there is certainly a public element of charity and not confined only to persons belonging to the same village. Rule of standing u/s 92 CPC must be liberally construed but must still only stave off vested interest to come into the property by persons claiming property as their own and if any member of the public should approach the court to enforce that the charities which were originally intended should be duly performed, the Court shall assess such a course and ensure that the charities are duly performed and settle a scheme therefor. I do not think there was any error in the approach adopted by the trial Court. The order of the trial Court is confirmed and I do not think that there is any merit in the second appeal for sustaining the same.

The trial Court has set out in broad terms the nature of constitution of a committee and its performance. It does not appear sufficient. The actual performance for which the trust shall be used shall be properly delineated. As in this case, the Court has found that even the user by the defendants for running the school could not be taken to be a mismanagement but stilt misappropriation of income without performing charity would amount to mismanagement. It would be better that the scheme which is formulated sets out specifically the terms of charity which the parties have contemplated namely of residence of udasi saints or travellers, arrangement of religious discourses, kirtans and performance of langar. It should be formulated on proper methods of collection of revenue, leasing out the property, the tenure of lease, the persons accountable for collections and for expenditure and a due audit of all the performance would require to be codified through an instrument. The Court has already directed that a society must be formed under the Societies Registration Act. It will be appropriate that parties are invited to provide for a draft scheme setting out a memorandum of association which shall be registered under the Societies Registration Act. Even while affirming the decisions already passed, I make a further direction allowing for the parties to give a draft of memorandum on the basis of the broad outline given by the plaintiffs. The decree already granted shall be treated as preliminary decree and final decree shall be passed on settling final terms of the society through its memorandum and a final decree shall also contain details of the first body of elected members pursuant to the memorandum, which will be duly settled and registered pursuant to the preliminary decree which is passed. At the time of drafting a final decree and approval of the scheme in terms of the memorandum, the Court shall secure appropriate evidence regarding the actual extent of property, the nature of constructions and description of items which constitute the assets of the trust. The second appeal filed by the appellants is dismissed with the above modifications. The decree will come into operation only after due approval of draft scheme by Court and formation of society and its approval by the trial Court through a final decree.