whether a trust is private or public trust: (a) The objects of trust. (b) Beneficiaries are specific individual or group of public. (c) Whether entry is restricted to public.=Even after re-appraisal of entire material available on record including the documentary and oral evidence, it is evident that the object of establishing trust under Ex.A.1-Will by Duvvuri Ramakrishna Rao is for benefit of public in general and not for any private individual or group of individuals. Therefore, the trial Court did commit no error in dismissing the suit holding that it is a public charitable trust within the meaning of Section 2(4) read with Clause (5) of the Act 17 of 1966 and the findings of the trial Court are free from any legal infirmity warranting interference of this Court. Hence, the finding of the trial Court is upheld holding that the plaintiff trust is a public trust. Accordingly, the point is answered in favour of the respondents/defendants and against the appellant/plaintiff.
HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
A.S.No.2009 OF 1995
29-07-2015
Duvvuri Rama Krishna Rao Trust .. Appellant(s)
The Deputy Commissioner, Endowments Department and another. .. Respondent(s)
<GIST:
>HEAD NOTE:
Counsel for Appellant: Sri Ch.Dhanamjaya
Counsel for Respondents:
? Cases referred
AIR 1957SC 133
2 AIR 1995 SC 167
3 AIR 1967 SC 256
4 AIR 1976 SC 871
5 1983(2) APLJ 276
6 AIR 1973 SC 1638
HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
A.S.No.2009 OF 1995
JUDGMENT :
The unsuccessful plaintiff in O.S.No.1 of 1985 on the file
of the I Additional District Judge, Rajahmundry, preferred this
appeal challenging the decree and judgment, dated 31.07.1995
wherein the order dated 16.02.1984 passed by the Deputy
Commissioner, Endowments in O.A.No.11 of 1981 was
confirmed.
2. The ranks given to the parties in O.S.No.1 of 1985 before
the trial Court will be adopted through out this judgment.
3. The plaintiff trust filed the suit seeking relief of setting
aside the order passed on 16.02.1984 in O.A.No.11 of 1981,
consequently declaring it as private and personal trust,
alleging that it trust came into existence on 30.04.1971, on
which date Duvvuri Ramakrishna Rao expired, by virtue of the
registered will (Ex.A.1) executed by him. As per the wishes of
testator under Ex.A.1 bequeathing all his property, created
plaintiff trust with avowed object of gathering and feasting of
trustees and friends with families on the anniversary days of
the donors father and mother, his own and on his birthday,
doing Godanam on the anniversary day of his father,
presentation of religious books to deserving pundits on the
birthday, adding additional books to the library and to do
pilgrimage to Badari for his sake which is to be done by one of
the trustees.
4. The annual income of the trust is about Rs.10,000/- and
the accounts are being submitted to the District Court,
Rajahmundry, in O.P.No.122 of 1972.
5. As per the terms of the Will, trust should be merged or
affiliated or managed by any one of the persons or body and
that no one else should have any right to interfere with its
administration, except the trustees. The donor conferred full
powers to the trustees to manage the trust as per the terms of
Will-Ex.A.1. According to the trust deed, the trust is created
by Sri Ramakrishna Rao and also according to his express
wishes, the trust is entirely a private one, un-connected with
any other. The objects of the trust are more personal in nature
than benefiting the members of the public. According to the
terms of the Will-Ex.A.1, the trustees have to perform certain
religious acts and ceremonies on specific dates and these have
no reference at all to any member of the public. Opening of
donors library to the public is only an extension of the desired
object of observing religious ceremonies and promoting
Sanskrit knowledge and research by the trustees and cannot
be understood as conferring right on any member of the public
in this behalf. Despite the established facts in terms of Ex.A.1-
Will, the 2nd defendant registered the trust on 05.12.1974 as
public trust. The plaintiff has been making appropriate
representations to the authorities concerned to treat the trust
as a private trust. However, a petition was filed before the
Deputy Commissioner, Endowments and the same was
registered as O.A.No.110 of 1981 under Section 77 of A.P.
Charitable and Hindu Religious Institutions and Endowments
Act (for short the Act 77 of 1966).
6. After keen contest of the matter, the Deputy
Commissioner, Kakinada, pronounced the order on
17.04.1984 dismissing O.A. upholding that the trust is a
public trust. The said order is not in accordance with law and
the Deputy Commissioner did not look into the object of
testator under Ex.A.1 and committed an error in dismissing
O.A.No110 of 1981. Therefore, requested the trial Court to
look into the terms of Will and nature of trust with specific
objects for creating trust. Finally, prayed to set aside the order
dated 17.04.1984 in O.A.No.110 of 1981 declaring the plaintiff
as private trust.
7. The 1st defendant resisted the claim by filing written
statement denying material allegations, inter alia, contending
that as per the terms of the Will the beneficiaries are a
particular class, namely, deserving students and pundits,
opening of donors of library to public even by adding
additional books to it, propagation of Vedic culture etc. The
fact that uncertain and fluctuating body of persons is a section
of public which are defined in a class, amounts to creation of
public trust, but not a private trust. It cannot be said that the
beneficiaries are only a particular individual and they are a
class as such. Therefore, the trust created by Duvvuri
Ramakrishna Rao under Ex.A.1 is only a public trust, but not
a private trust, as the beneficiaries described by the testator
under Ex.A.1 is quite large section of public which is
unascertainable. Therefore, the order of the Deputy
Commissioner in O.A.No.110 of 1981 cannot be set aside and
it binds the plaintiff. By any stretch of imagination, it cannot
be construed that the provisions of the Act will not applicable
to the institution, since the donor mentioned at page 8 of the
Will-Ex.A.1 are charitable in nature. The plaintiff voluntarily
filed an application under Section 38 of the Act 17 of 1966
before the Assistant Commissioner, Endowments Department,
Rajahmundry, for registration and accordingly, the same was
registered as Public Charitable Trust on 05.12.1974. Neither
the plaintiff nor any one questioned the validity of registration,
under Section 40(1) of the Act, registration of the trust
becomes final. Therefore, the conduct of the plaintiff trust
clinchingly established that the registration was done on its
own accord.
8. In view of the registration of the trust under Section 38 of
the Act, the plaintiff is estopped from contending that it is a
private trust.
9. After registration of the trust as public trust under
Section 38 of the Act, a notification was issued by the
Commissioner of Endowments under Section 6(c)(i) of the Act
vide R.C.No.J2/13964/72, dated 10.04.1972. The contention
that the plaintiff trust is only private trust and not a public
trust is not sustainable under law. As a matter of fact,
presentation of religious books to deserving students and
pundits and opening of the donors library, adding additional
books to the library and propagation of Vedic culture would
undoubtedly confer rights on the public and therefore, the
beneficiaries are wide and vast section of public at large and
consequently, the trust cannot be said to be a private trust
and it is a public trust. Therefore, the order, dated
16.02.1984, passed by the Deputy Commissioner in
O.A.No.110 of 1981 is in accordance with law and prayed to
dismiss the suit.
10. The 2nd defendant filed memo adopting the written
statement filed by the 1st defendant.
11. Basing on the above pleadings, the trial Court framed the
following issues:
a) Whether the plaintiff trust is a private one?
b) Whether the registration of Trust under Section 38 of
the Hindu Religious Charitable Endowments Act was
done?
c) Whether order of the Deputy Commissioner in
O.A.No.110 of1981 is liable to be set aside?
d) Whether the plaintiff is entitled to the declaration
prayed for?
e) To what relief?
(extracted)
12. On 21.04.1994, the trial Court also framed the following
additional issue:
Whether the plaintiff is estopped from contending that
the plaintiff trust is a private trust in view of the
registration of the trust under Section38 of the Act17 of
1966?
13. During the course of trial, on behalf of the plaintiff,
P.Subbarayudu was examined as PW.1 and marked Exs.A.1 to
A3. On behalf of the defendants M.Satyanarayana was
examined as DW.1 and marked Exs.B1. and B.2.
14. Upon hearing argument of both counsel, considering oral
and documentary evidence on record, the trial Court upheld
the order dated 16.02.1984 passed by the Deputy
Commissioner, Endowments-1st defendant in O.A.No.110 of
1981 and dismissed the suit.
a) Aggrieved by the decree and judgment of the trial Court,
the unsuccessful plaintiff preferred the present appeal raising
various contentions mainly contending that the trial Court did
not appreciate the recitals of Ex.A.1-Will in proper perspective,
so also the object of creation of trust and wish of the testator
under Ex.A.1-Will. The trust can be said to be a private trust
and not a public trust. But the trial Court committed an error
in holding that it is a public trust.
b) Appointing pundit belonging to Krishna Jajur Veda and
honouring him befittingly; presentation of book to any pundit
or Vidyarthi once in a year on the full moon day in the month
of Ashada; presenting a cow on the full moon day in the month
of Karthik; feast to the trustees on four occasions in a year
indicate that the trust is purely a private trust. Therefore, the
object of creation of trust cannot be said to be public in
nature. But the trial Court on erroneous appreciation
committed an error in dismissing the suit. It is further
contended that the word researcher in Sanskrit is only for
limited purpose of access to the library by researchers in
Sanskrit. Therefore, it cannot be said to be a public library.
But the trial Court on erroneous appreciation dismissed the
suit and therefore, the plaintiff prayed to reappraise the entire
evidence afresh and pass a decree in favour of the plaintiff
setting aside the decree and judgment under challenge in
O.S.No.1 of 1986 on the file of the I Additional District Judge,
Rajahmundry.
15. During the course of arguments, Sri V.V.S.Kameshwara
Rao, counsel for the appellant/plaintiff drawn the attention of
this Court on various recitals of Ex.A.1-Will to find out the
avowed object of creation of trust and ceremonies to be
celebrated by the trustees, more particularly, annual death
ceremony of parents and birth and death ceremony of Duvvuri
Ramakrishna Rao, who created the trust and also presentation
of cow on Karthika Poornima. So also presentation of books is
purely private in nature and merely because the library is open
to public, it cannot be said to be a public library since the
access is limited to research scholars, but the trial Court did
not consider the object of trust.
16. Finally, it is contended that the registration under
Section 38 of the Act 17 of 1966 is only on account of issue of
notice by the 2nd respondent directing the plaintiff to get the
trust registered and it is not voluntarily. Therefore, the
registration of trust under Section 38 of the Act is not
sufficient to hold that it is a public trust and prayed to set
aside the order passed by the trial Court in O.S.No.1 of 1985
and pass a decree declaring that the plaintiff is a private trust.
17. Learned Government Pleader for Endowments did not
represent the matter and advanced no arguments.
18. Considering the contentions of the learned counsel for
the appellant/plaintiff and oral and documentary evidence
available on record including the judgment and decree under
challenge, the sole point that arises for consideration is:
Whether the plaintiff trust is a public or private trust
and if it is a private trust whether the order dated
16.02.1984 passed by the 1st defendant in O.A.No.1 of
1981 be set aside?
POINT:
19. The undisputed facts are that Duvvuri Ramakrishna Rao
executed Ex.A.1-will creating plaintiff trust in the name and
style of Duvvuri Ramakrishna Rao Trust and it is represented
by its Secretary. The trust was created for various purposes.
The following are the objects of the trust.
1. gathering and feasting of trustees and friends with
families on the anniversary day of donors, beloved
father, mother and his own and on his birthday,
Godanam on the anniversary day of his father.
2. Presenting of religious books to deserving pundits on
the birthday of Duvvuri Ramakrishna Rao.
3. Adding books to the library.
4. to undertake pilgrimage to Badri for his sake.
5. The trustees have to establish a library with the
books belonging to him pertaining to Vedas, Vaidya
Sastra in the resident of testator himself and its
research library should be kept open.
6. The trustees have to purchase books worth 150
every year and add those books to the library.
20. Most important condition is No.7 at page 11 of Ex.A.1.
According to it, the trustees have to establish library with the
books belonging to the said Duvvuri Ramakrishna Rao,
pertaining to Vedas and Vaidhya Sanskar and it shall be kept
open for researchers in Sanskrit. The researchers in Sanskrit
are not an ascertained group and the researchers may contain
any number. Therefore, the nature of the trust has to be
ascertained from its objects and the purposes. According to
Section 2(4) of the A.P. Act 17 of 1966 charitable institution
means:
any establishment, undertaking, organization or
association formed for a charitable purpose and
includes a specific endowment. Section 2(5)
defined the word charitable purpose which
includes relief of poverty or distress; education;
medical relief; and advancement of any other object
of utility or welfare to the general public or a section
thereof, not being an object of an exclusively
religious nature.
21. Here the trust was created directing the trustees to
establish library with the testators Vedic books and Vaidhya
books, which are in his residence, permitting access to all
research scholars in Sanskrit and it shall be kept open. The
entry is not restricted to any one either expressly or impliedly
into the library. Therefore, opening of a library for research
scholars in Sanskrit is for advancing or for the welfare of the
Sanskrit scholars, who are conducting research in Sanskrit. It
is covered by Section 2(5)(d) of the Act 17 of 1966.
22. A.P. Act 17 of 1966 did not lay down any tests to
determine whether a trust is a public trust or private trust.
The Supreme Court in Deoki Nandan v. Murlidhar and
others in para 5 of the judgment laid down certain tests and
held as follows:
The distinction between a private and a public
trust is that whereas in the former the beneficiaries are
specific individuals, in the latter they are the general
public or a class thereof. While in the former the
beneficiaries are persons who are ascertained or
capable of being ascertained, in latter they constitute a
body which is incapable of ascertainment. A religious
endowment must, therefore, be held to be private or
public according as the beneficiaries there under are
specific persons or the general public or sections
thereof.
23. Later judgment in Bala Shaknar Maha Shankar
Bhattjee and others v. Charity Commissioner, Gujarat
State wherein the Apex Court laid down certain tests to
determine whether a trust is public or private, relying on
Deoki Nandans case (1st supra).
24. A similar question came up before the Apex Court in
Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das
and another wherein it was held as follows:
An institution which comes within the definition
of math in Section 6(7) of the Orissa Hindu Religious
Endowments Act is also a Hindu public religious
endowment within the meaning of Section 6(12) and is,
therefore, subject to the provisions of the Act. Where the
spiritual preceptor, his disciples and disciples in
succession are the persons interested in such a math
and gift of properties are made to the math though in
the name of the Mahant, such a math is a public one.
When the premises of a math are used both for
secular and religious purposes, under explanation to
Section 6(12), it is clear that it is not only deemed to be
a religious endowment but is deemed to be a Hindu
public religious endowment to which the Act applies. It
follows that an institution which comes within the
definition of math ipso facto comes within the
expression Hindu public religious endowment and
therefore, becomes subject to the provisions of the Act.
The beneficiaries of a math are the members of
the fraternity to which the math belongs and the
persons of the faith to which the spiritual head of
the math belongs and constitute, therefore, at
least a section of the public. Maths in general,
consequently are public maths. When the persons
interested in a math are not any particular family, the
spiritual preceptor of the math consisting of his
disciples, and the disciples in succession cannot be
deemed to be such a private family for whose benefit
the math is founded. The body of disciples and
disciples disciples is a very unascertainable body and
hence such a math is not a private math. Further, when
gifts of properties have been made to the math for the
enjoyment of chelas, sishyas and anusishysas, though
obtensibly in the name of the Mahant, the Mahant holds
the properties as a trustee for the indeterminate class of
beneficiaries, viz., of sishyas and anusishyas and this
stamps the math with a public character.
25. In the facts of the present case the beneficiaries are
unascertained group of Sanskrit researchers. Therefore, by
applying principle laid down under the above decision, it is a
public trust.
26. In Dhaneshwarbuwa Guru Purshottambuwa owner of
Shri Vithal Rukhamai Sansthan v. The Charity
Commissioner, State of Bombay , the Apex Court while
considering the Bombay Public Trust Act, which defined the
public trust and laid down certain tests to determine whether
a trust is a public or private trust, held as follows:
It is not always possible to have all the features
of a public trust in a given case. Even some of the tests
laid down by Supreme Court may, in a given case, be
sufficient to enable the court to come to a conclusion
about the character of the trust.
When the origin of an endowment is obscure and
no direct oral evidence is available, the Court will have
to resolve the controversy about the character of the
trust on documentary evidence, if any, the object and
purpose for which the trust was created, the consistent
manner in which the property has been dealt with or
managed by those in charge, the manner in which the
property has long been used by the public, the
contribution of the public, to all intents and purpose, as
a matter of right without the least interference or
restriction from the temple authorities, to foster
maintenance of the worship, the accretion to the trust
property by way of grants from the State or gifts from
outsiders inconsistent with the private nature of the
trust, the nature of devolution of the property, are all
important elements in determination of the question
whether a property is a private or a public religious
endowment.
27. Here also except receipt of public contributions, the other
objects of the trust in question are identical to the facts of the
above judgment. If the principles laid down in the above
judgment are applied to the present facts of the case,
establishing library with the books of Duvvuri Ramakrishna
Rao, testator under Ex.A.1-Will, relating to Vedas and Vaidya
Sastras and keeping it open to public, who are conducting
research in Sanskrit, which is an unascertained group or
class, can be said to be a public charitable trust.
28. In Rajasekharan and others v. M/s Paramartha
Bhushanam Nathella Sampathu Chetty, Charities, rep. by
Nathella Narayana Gupta , this Court in para 9 of the
judgment held as follows:
In this case the objects of the trust leave no
doubt that the beneficiaries are not exclusively persons
belonging to the Hindu Community or a class thereof.
Having regard to the objects of the trust, there is
nothing to indicate that it was exclusively Hindu in
character. The mere circumstances that one of the
objects of the trust was also to feed Brahmins during
Brahmotsvam time at the Tirupati Pilgrim Centre does
not necessarily make the Charitable endowment
exclusively Hindu in character and finally held that, the
objects of the trust is relevant consideration to decide
whether a particular institution is private Charitable
institution or public charitable institution.
29. In another judgment in Tilkayat Shri Govindlalji
Maharaj etc., v. State of Rajasthan and others , the Apex
Court at para 23 held as follows:
Where evidence in regard to the foundation of
the temple is not clearly available, sometimes, judicial
decisions rely on certain other facts which are treated
as relevant. Is the temple built in such an imposing
manner that it may prima facie appear to. be a public
temple ? The appearance of the temple of course cannot
be a decisive factor; at best it may be a relevant factor.
Are the members of the public entitled to an entry in the
temple ? Are they entitled to take part in offering service
and taking Darshan in the temple ? Are the members of
the public entitled to take part in the festivals and
ceremonies arranged in the temple? Are their offerings
accepted as a matter of right? The participation of the
members of the public in the Darshan in the temple and
in the daily Acts of worship or in the celebrations of
festival occasions may be a very important factor to
consider in determining the character of the temple.
30. From a reading of the principles laid down in the above
decisions, it is clear that the public purpose or object of
establishing a trust must be a charitable purpose. Charitable
purpose is defined under Section 2(5) of the A.P. Charitable
and Hindu Religious Institutions & Endowments Act, 1987.
Charitable purpose includes
(a) relief of poverty or distress
(b) education medical relief and
(c) advancement of any other object of utility or welfare
to the general public or a section thereof not being
an object of an exclusively religious nature.
31. In the instant case, the object of the trust is to provide
access to the Sanskrit scholars, who are conducting research,
and keeping library open for their research work can be said to
be public purpose. If it is meant for specific group of persons
or class of persons then it can be said to be a private trust.
When it is created for the benefit of unspecified class of people,
it can be said to be a public trust. Having regard to the object
of trust, there is nothing to indicate that it was created
exclusively for a specified group of persons. Mere
circumstances that one of the objects of the trust was to
celebrate death or birth anniversary of Duvvuri Ramakrishna
Rao and his parents does not necessarily make a charitable
endowment for a specified class, though, it is purely a personal
in nature. Finally, the object of the trust is relevant
consideration to decide whether a particular trust is a private
or public institution.
32. In view of the judgment of this Court in Rajasekharans
case (5th supra) in a similar situation came up for
consideration before this Court, this Court held that if the
object is to provide anything for a specified class of persons, it
would be a private trust. In the facts of the above decision, the
trust was created to feed Brahmins during Brahmotsavam time
at Tirupathi Pilgrim Centre, but still the High Court held that
the object is relevant consideration to decide whether a
particular institution is a private charitable institution or
public institution. The view expressed by the Apex Court in
Tilkayat Shri Govindlalji Maharajs case (6th supra) has also
to the same effect, wherein the Apex Court drawn distinction
between the private trust and public trust. When the
beneficiaries are unascertained or unspecified individuals and
when the library is kept open without restricting entry by the
public, it is difficult to conclude that the library is only for a
class of individuals or an ascertained group of individuals. In
the absence of any restriction of entry to the general public
though it is established for the benefit of Sanskrit research
scholars, which is again an unascertained group which can
safely be proved that the trust is a public charitable trust as
defined under Section 2(4) read with Clause (5) of the Act 17 of
1966.
33. In view of law declared by various courts, the following
are the tests to determine whether a trust is private or public
trust:
(a) The objects of trust.
(b) Beneficiaries are specific individual or group of public.
(c) Whether entry is restricted to public.
34. Yet, the contention of the defendants before the trial
Court and before this Court is that the trust itself voluntarily
registered under Section 38 of the Act 17 of 1966 and
thereafter it was notified under Section 6(1)(a) of the Act 17 of
1966. But no objections were filed questioning the declaration
under Section 6(1)(c) of Act 17 of 1966 and consequently,
registration became final.
35. Learned counsel for the appellant would submit that the
registration was only at the instance of the 2nd defendant-
Assistant Commissioner of Endowments, when he issued a
notice calling upon the trust to get itself registered under
Section 38 of the Act 17 of 1966. In fact, when PW.1 was
examined before the trial Court, he simply denied everything
and pleaded ignorance even applying for registration and
registration of the trust under Section 38 of the Act 17 of 1966.
Therefore, if really any notice was issued by the 2nd defendant
calling upon the plaintiff to apply for registration and get the
trust registered under Section 38 of the Act 17 of 1966, there
must be some evidence on record. But no such notice
allegedly issued by the 2nd defendant is brought on record to
accept the contention of the plaintiff. Even otherwise, this
contention was not substantiated by adducing any oral
evidence by PW.1. In the absence of any evidence on record, it
is difficult to accept the contention that the registration was
only at the instance of the 2nd defendant.
36. Undisputedly, the trust was registered under Section 38
and later a gazette publication under Section 6(1)(a) was
issued by the Commissioner of Endowments, Hyderabad, but
no objections were filed as contemplated under Section 40(1) of
the Act 17 of 1966. Section 40 of the Act permits any person
aggrieved by an entry or omission to make an entry in the
register maintained under Section 38, may apply to the Deputy
Commissioner for modification or annulment of such entry or
for directing the making of such entry, as the case may be.
37. But here, no such objection was raised before the
authorities concerned and allowed to attain finality. Section
40(3) of the Act 17 of 1966 enables the Deputy Commissioner
to enquire into and decide the question as if it was a dispute
within the meaning of Section 77 of the Act. Here the plaintiff
filed O.A.No.110 of 1981 to declare the trust as private trust,
but the 1st defendant declined the relief on the ground that the
trust was established for the public purpose and aggrieved by
the said order, the suit was filed before the District Judge,
Rajahmundry, who confirmed the same on the ground that the
purpose of establishing trust is only for the public at large and
not for the benefit of ascertained group of public. If it is for the
benefit of ascertained class or group of persons it can safely be
held that it is a private trust. But, here the library was
established for an unascertained group of Sanskrit pundits,
who are conducting research in Sanskrit, and similarly
presentation of books to Sanskrit pundits and students, who
are the unascertained group entry into library is not restricted.
Therefore, the plaintiff trust is only a public trust and not a
private trust.
38. Even after re-appraisal of entire material available on
record including the documentary and oral evidence, it is
evident that the object of establishing trust under Ex.A.1-Will
by Duvvuri Ramakrishna Rao is for benefit of public in general
and not for any private individual or group of individuals.
Therefore, the trial Court did commit no error in dismissing
the suit holding that it is a public charitable trust within the
meaning of Section 2(4) read with Clause (5) of the Act 17 of
1966 and the findings of the trial Court are free from any legal
infirmity warranting interference of this Court. Hence, the
finding of the trial Court is upheld holding that the plaintiff
trust is a public trust. Accordingly, the point is answered in
favour of the respondents/defendants and against the
appellant/plaintiff.
39. In view of my foregoing discussion, I find no ground
warranting interference with the judgment and decree,
consequently the appeal is devoid of merits and deserved to be
dismissed.
40. Accordingly, the appeal is dismissed confirming the
judgment and decree, dated 31.07.1995, passed by the I
Additional District Judge, Rajahmundry in O.S.No.1 of 1986
and the order, dated 16.02.1984, passed by the 1st defendant
in O.A.No.110 of 1981.
41. Pending miscellaneous petitions in this appeal, if any,
shall stand dismissed.
__________________________________
M.SATYANARAYANA MURTHY, J
Date: 29.07.2015
A.S.No.2009 OF 1995
29-07-2015
Duvvuri Rama Krishna Rao Trust .. Appellant(s)
The Deputy Commissioner, Endowments Department and another. .. Respondent(s)
<GIST:
>HEAD NOTE:
Counsel for Appellant: Sri Ch.Dhanamjaya
Counsel for Respondents:
? Cases referred
AIR 1957SC 133
2 AIR 1995 SC 167
3 AIR 1967 SC 256
4 AIR 1976 SC 871
5 1983(2) APLJ 276
6 AIR 1973 SC 1638
HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
A.S.No.2009 OF 1995
JUDGMENT :
The unsuccessful plaintiff in O.S.No.1 of 1985 on the file
of the I Additional District Judge, Rajahmundry, preferred this
appeal challenging the decree and judgment, dated 31.07.1995
wherein the order dated 16.02.1984 passed by the Deputy
Commissioner, Endowments in O.A.No.11 of 1981 was
confirmed.
2. The ranks given to the parties in O.S.No.1 of 1985 before
the trial Court will be adopted through out this judgment.
3. The plaintiff trust filed the suit seeking relief of setting
aside the order passed on 16.02.1984 in O.A.No.11 of 1981,
consequently declaring it as private and personal trust,
alleging that it trust came into existence on 30.04.1971, on
which date Duvvuri Ramakrishna Rao expired, by virtue of the
registered will (Ex.A.1) executed by him. As per the wishes of
testator under Ex.A.1 bequeathing all his property, created
plaintiff trust with avowed object of gathering and feasting of
trustees and friends with families on the anniversary days of
the donors father and mother, his own and on his birthday,
doing Godanam on the anniversary day of his father,
presentation of religious books to deserving pundits on the
birthday, adding additional books to the library and to do
pilgrimage to Badari for his sake which is to be done by one of
the trustees.
4. The annual income of the trust is about Rs.10,000/- and
the accounts are being submitted to the District Court,
Rajahmundry, in O.P.No.122 of 1972.
5. As per the terms of the Will, trust should be merged or
affiliated or managed by any one of the persons or body and
that no one else should have any right to interfere with its
administration, except the trustees. The donor conferred full
powers to the trustees to manage the trust as per the terms of
Will-Ex.A.1. According to the trust deed, the trust is created
by Sri Ramakrishna Rao and also according to his express
wishes, the trust is entirely a private one, un-connected with
any other. The objects of the trust are more personal in nature
than benefiting the members of the public. According to the
terms of the Will-Ex.A.1, the trustees have to perform certain
religious acts and ceremonies on specific dates and these have
no reference at all to any member of the public. Opening of
donors library to the public is only an extension of the desired
object of observing religious ceremonies and promoting
Sanskrit knowledge and research by the trustees and cannot
be understood as conferring right on any member of the public
in this behalf. Despite the established facts in terms of Ex.A.1-
Will, the 2nd defendant registered the trust on 05.12.1974 as
public trust. The plaintiff has been making appropriate
representations to the authorities concerned to treat the trust
as a private trust. However, a petition was filed before the
Deputy Commissioner, Endowments and the same was
registered as O.A.No.110 of 1981 under Section 77 of A.P.
Charitable and Hindu Religious Institutions and Endowments
Act (for short the Act 77 of 1966).
6. After keen contest of the matter, the Deputy
Commissioner, Kakinada, pronounced the order on
17.04.1984 dismissing O.A. upholding that the trust is a
public trust. The said order is not in accordance with law and
the Deputy Commissioner did not look into the object of
testator under Ex.A.1 and committed an error in dismissing
O.A.No110 of 1981. Therefore, requested the trial Court to
look into the terms of Will and nature of trust with specific
objects for creating trust. Finally, prayed to set aside the order
dated 17.04.1984 in O.A.No.110 of 1981 declaring the plaintiff
as private trust.
7. The 1st defendant resisted the claim by filing written
statement denying material allegations, inter alia, contending
that as per the terms of the Will the beneficiaries are a
particular class, namely, deserving students and pundits,
opening of donors of library to public even by adding
additional books to it, propagation of Vedic culture etc. The
fact that uncertain and fluctuating body of persons is a section
of public which are defined in a class, amounts to creation of
public trust, but not a private trust. It cannot be said that the
beneficiaries are only a particular individual and they are a
class as such. Therefore, the trust created by Duvvuri
Ramakrishna Rao under Ex.A.1 is only a public trust, but not
a private trust, as the beneficiaries described by the testator
under Ex.A.1 is quite large section of public which is
unascertainable. Therefore, the order of the Deputy
Commissioner in O.A.No.110 of 1981 cannot be set aside and
it binds the plaintiff. By any stretch of imagination, it cannot
be construed that the provisions of the Act will not applicable
to the institution, since the donor mentioned at page 8 of the
Will-Ex.A.1 are charitable in nature. The plaintiff voluntarily
filed an application under Section 38 of the Act 17 of 1966
before the Assistant Commissioner, Endowments Department,
Rajahmundry, for registration and accordingly, the same was
registered as Public Charitable Trust on 05.12.1974. Neither
the plaintiff nor any one questioned the validity of registration,
under Section 40(1) of the Act, registration of the trust
becomes final. Therefore, the conduct of the plaintiff trust
clinchingly established that the registration was done on its
own accord.
8. In view of the registration of the trust under Section 38 of
the Act, the plaintiff is estopped from contending that it is a
private trust.
9. After registration of the trust as public trust under
Section 38 of the Act, a notification was issued by the
Commissioner of Endowments under Section 6(c)(i) of the Act
vide R.C.No.J2/13964/72, dated 10.04.1972. The contention
that the plaintiff trust is only private trust and not a public
trust is not sustainable under law. As a matter of fact,
presentation of religious books to deserving students and
pundits and opening of the donors library, adding additional
books to the library and propagation of Vedic culture would
undoubtedly confer rights on the public and therefore, the
beneficiaries are wide and vast section of public at large and
consequently, the trust cannot be said to be a private trust
and it is a public trust. Therefore, the order, dated
16.02.1984, passed by the Deputy Commissioner in
O.A.No.110 of 1981 is in accordance with law and prayed to
dismiss the suit.
10. The 2nd defendant filed memo adopting the written
statement filed by the 1st defendant.
11. Basing on the above pleadings, the trial Court framed the
following issues:
a) Whether the plaintiff trust is a private one?
b) Whether the registration of Trust under Section 38 of
the Hindu Religious Charitable Endowments Act was
done?
c) Whether order of the Deputy Commissioner in
O.A.No.110 of1981 is liable to be set aside?
d) Whether the plaintiff is entitled to the declaration
prayed for?
e) To what relief?
(extracted)
12. On 21.04.1994, the trial Court also framed the following
additional issue:
Whether the plaintiff is estopped from contending that
the plaintiff trust is a private trust in view of the
registration of the trust under Section38 of the Act17 of
1966?
13. During the course of trial, on behalf of the plaintiff,
P.Subbarayudu was examined as PW.1 and marked Exs.A.1 to
A3. On behalf of the defendants M.Satyanarayana was
examined as DW.1 and marked Exs.B1. and B.2.
14. Upon hearing argument of both counsel, considering oral
and documentary evidence on record, the trial Court upheld
the order dated 16.02.1984 passed by the Deputy
Commissioner, Endowments-1st defendant in O.A.No.110 of
1981 and dismissed the suit.
a) Aggrieved by the decree and judgment of the trial Court,
the unsuccessful plaintiff preferred the present appeal raising
various contentions mainly contending that the trial Court did
not appreciate the recitals of Ex.A.1-Will in proper perspective,
so also the object of creation of trust and wish of the testator
under Ex.A.1-Will. The trust can be said to be a private trust
and not a public trust. But the trial Court committed an error
in holding that it is a public trust.
b) Appointing pundit belonging to Krishna Jajur Veda and
honouring him befittingly; presentation of book to any pundit
or Vidyarthi once in a year on the full moon day in the month
of Ashada; presenting a cow on the full moon day in the month
of Karthik; feast to the trustees on four occasions in a year
indicate that the trust is purely a private trust. Therefore, the
object of creation of trust cannot be said to be public in
nature. But the trial Court on erroneous appreciation
committed an error in dismissing the suit. It is further
contended that the word researcher in Sanskrit is only for
limited purpose of access to the library by researchers in
Sanskrit. Therefore, it cannot be said to be a public library.
But the trial Court on erroneous appreciation dismissed the
suit and therefore, the plaintiff prayed to reappraise the entire
evidence afresh and pass a decree in favour of the plaintiff
setting aside the decree and judgment under challenge in
O.S.No.1 of 1986 on the file of the I Additional District Judge,
Rajahmundry.
15. During the course of arguments, Sri V.V.S.Kameshwara
Rao, counsel for the appellant/plaintiff drawn the attention of
this Court on various recitals of Ex.A.1-Will to find out the
avowed object of creation of trust and ceremonies to be
celebrated by the trustees, more particularly, annual death
ceremony of parents and birth and death ceremony of Duvvuri
Ramakrishna Rao, who created the trust and also presentation
of cow on Karthika Poornima. So also presentation of books is
purely private in nature and merely because the library is open
to public, it cannot be said to be a public library since the
access is limited to research scholars, but the trial Court did
not consider the object of trust.
16. Finally, it is contended that the registration under
Section 38 of the Act 17 of 1966 is only on account of issue of
notice by the 2nd respondent directing the plaintiff to get the
trust registered and it is not voluntarily. Therefore, the
registration of trust under Section 38 of the Act is not
sufficient to hold that it is a public trust and prayed to set
aside the order passed by the trial Court in O.S.No.1 of 1985
and pass a decree declaring that the plaintiff is a private trust.
17. Learned Government Pleader for Endowments did not
represent the matter and advanced no arguments.
18. Considering the contentions of the learned counsel for
the appellant/plaintiff and oral and documentary evidence
available on record including the judgment and decree under
challenge, the sole point that arises for consideration is:
Whether the plaintiff trust is a public or private trust
and if it is a private trust whether the order dated
16.02.1984 passed by the 1st defendant in O.A.No.1 of
1981 be set aside?
POINT:
19. The undisputed facts are that Duvvuri Ramakrishna Rao
executed Ex.A.1-will creating plaintiff trust in the name and
style of Duvvuri Ramakrishna Rao Trust and it is represented
by its Secretary. The trust was created for various purposes.
The following are the objects of the trust.
1. gathering and feasting of trustees and friends with
families on the anniversary day of donors, beloved
father, mother and his own and on his birthday,
Godanam on the anniversary day of his father.
2. Presenting of religious books to deserving pundits on
the birthday of Duvvuri Ramakrishna Rao.
3. Adding books to the library.
4. to undertake pilgrimage to Badri for his sake.
5. The trustees have to establish a library with the
books belonging to him pertaining to Vedas, Vaidya
Sastra in the resident of testator himself and its
research library should be kept open.
6. The trustees have to purchase books worth 150
every year and add those books to the library.
20. Most important condition is No.7 at page 11 of Ex.A.1.
According to it, the trustees have to establish library with the
books belonging to the said Duvvuri Ramakrishna Rao,
pertaining to Vedas and Vaidhya Sanskar and it shall be kept
open for researchers in Sanskrit. The researchers in Sanskrit
are not an ascertained group and the researchers may contain
any number. Therefore, the nature of the trust has to be
ascertained from its objects and the purposes. According to
Section 2(4) of the A.P. Act 17 of 1966 charitable institution
means:
any establishment, undertaking, organization or
association formed for a charitable purpose and
includes a specific endowment. Section 2(5)
defined the word charitable purpose which
includes relief of poverty or distress; education;
medical relief; and advancement of any other object
of utility or welfare to the general public or a section
thereof, not being an object of an exclusively
religious nature.
21. Here the trust was created directing the trustees to
establish library with the testators Vedic books and Vaidhya
books, which are in his residence, permitting access to all
research scholars in Sanskrit and it shall be kept open. The
entry is not restricted to any one either expressly or impliedly
into the library. Therefore, opening of a library for research
scholars in Sanskrit is for advancing or for the welfare of the
Sanskrit scholars, who are conducting research in Sanskrit. It
is covered by Section 2(5)(d) of the Act 17 of 1966.
22. A.P. Act 17 of 1966 did not lay down any tests to
determine whether a trust is a public trust or private trust.
The Supreme Court in Deoki Nandan v. Murlidhar and
others in para 5 of the judgment laid down certain tests and
held as follows:
The distinction between a private and a public
trust is that whereas in the former the beneficiaries are
specific individuals, in the latter they are the general
public or a class thereof. While in the former the
beneficiaries are persons who are ascertained or
capable of being ascertained, in latter they constitute a
body which is incapable of ascertainment. A religious
endowment must, therefore, be held to be private or
public according as the beneficiaries there under are
specific persons or the general public or sections
thereof.
23. Later judgment in Bala Shaknar Maha Shankar
Bhattjee and others v. Charity Commissioner, Gujarat
State wherein the Apex Court laid down certain tests to
determine whether a trust is public or private, relying on
Deoki Nandans case (1st supra).
24. A similar question came up before the Apex Court in
Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das
and another wherein it was held as follows:
An institution which comes within the definition
of math in Section 6(7) of the Orissa Hindu Religious
Endowments Act is also a Hindu public religious
endowment within the meaning of Section 6(12) and is,
therefore, subject to the provisions of the Act. Where the
spiritual preceptor, his disciples and disciples in
succession are the persons interested in such a math
and gift of properties are made to the math though in
the name of the Mahant, such a math is a public one.
When the premises of a math are used both for
secular and religious purposes, under explanation to
Section 6(12), it is clear that it is not only deemed to be
a religious endowment but is deemed to be a Hindu
public religious endowment to which the Act applies. It
follows that an institution which comes within the
definition of math ipso facto comes within the
expression Hindu public religious endowment and
therefore, becomes subject to the provisions of the Act.
The beneficiaries of a math are the members of
the fraternity to which the math belongs and the
persons of the faith to which the spiritual head of
the math belongs and constitute, therefore, at
least a section of the public. Maths in general,
consequently are public maths. When the persons
interested in a math are not any particular family, the
spiritual preceptor of the math consisting of his
disciples, and the disciples in succession cannot be
deemed to be such a private family for whose benefit
the math is founded. The body of disciples and
disciples disciples is a very unascertainable body and
hence such a math is not a private math. Further, when
gifts of properties have been made to the math for the
enjoyment of chelas, sishyas and anusishysas, though
obtensibly in the name of the Mahant, the Mahant holds
the properties as a trustee for the indeterminate class of
beneficiaries, viz., of sishyas and anusishyas and this
stamps the math with a public character.
25. In the facts of the present case the beneficiaries are
unascertained group of Sanskrit researchers. Therefore, by
applying principle laid down under the above decision, it is a
public trust.
26. In Dhaneshwarbuwa Guru Purshottambuwa owner of
Shri Vithal Rukhamai Sansthan v. The Charity
Commissioner, State of Bombay , the Apex Court while
considering the Bombay Public Trust Act, which defined the
public trust and laid down certain tests to determine whether
a trust is a public or private trust, held as follows:
It is not always possible to have all the features
of a public trust in a given case. Even some of the tests
laid down by Supreme Court may, in a given case, be
sufficient to enable the court to come to a conclusion
about the character of the trust.
When the origin of an endowment is obscure and
no direct oral evidence is available, the Court will have
to resolve the controversy about the character of the
trust on documentary evidence, if any, the object and
purpose for which the trust was created, the consistent
manner in which the property has been dealt with or
managed by those in charge, the manner in which the
property has long been used by the public, the
contribution of the public, to all intents and purpose, as
a matter of right without the least interference or
restriction from the temple authorities, to foster
maintenance of the worship, the accretion to the trust
property by way of grants from the State or gifts from
outsiders inconsistent with the private nature of the
trust, the nature of devolution of the property, are all
important elements in determination of the question
whether a property is a private or a public religious
endowment.
27. Here also except receipt of public contributions, the other
objects of the trust in question are identical to the facts of the
above judgment. If the principles laid down in the above
judgment are applied to the present facts of the case,
establishing library with the books of Duvvuri Ramakrishna
Rao, testator under Ex.A.1-Will, relating to Vedas and Vaidya
Sastras and keeping it open to public, who are conducting
research in Sanskrit, which is an unascertained group or
class, can be said to be a public charitable trust.
28. In Rajasekharan and others v. M/s Paramartha
Bhushanam Nathella Sampathu Chetty, Charities, rep. by
Nathella Narayana Gupta , this Court in para 9 of the
judgment held as follows:
In this case the objects of the trust leave no
doubt that the beneficiaries are not exclusively persons
belonging to the Hindu Community or a class thereof.
Having regard to the objects of the trust, there is
nothing to indicate that it was exclusively Hindu in
character. The mere circumstances that one of the
objects of the trust was also to feed Brahmins during
Brahmotsvam time at the Tirupati Pilgrim Centre does
not necessarily make the Charitable endowment
exclusively Hindu in character and finally held that, the
objects of the trust is relevant consideration to decide
whether a particular institution is private Charitable
institution or public charitable institution.
29. In another judgment in Tilkayat Shri Govindlalji
Maharaj etc., v. State of Rajasthan and others , the Apex
Court at para 23 held as follows:
Where evidence in regard to the foundation of
the temple is not clearly available, sometimes, judicial
decisions rely on certain other facts which are treated
as relevant. Is the temple built in such an imposing
manner that it may prima facie appear to. be a public
temple ? The appearance of the temple of course cannot
be a decisive factor; at best it may be a relevant factor.
Are the members of the public entitled to an entry in the
temple ? Are they entitled to take part in offering service
and taking Darshan in the temple ? Are the members of
the public entitled to take part in the festivals and
ceremonies arranged in the temple? Are their offerings
accepted as a matter of right? The participation of the
members of the public in the Darshan in the temple and
in the daily Acts of worship or in the celebrations of
festival occasions may be a very important factor to
consider in determining the character of the temple.
30. From a reading of the principles laid down in the above
decisions, it is clear that the public purpose or object of
establishing a trust must be a charitable purpose. Charitable
purpose is defined under Section 2(5) of the A.P. Charitable
and Hindu Religious Institutions & Endowments Act, 1987.
Charitable purpose includes
(a) relief of poverty or distress
(b) education medical relief and
(c) advancement of any other object of utility or welfare
to the general public or a section thereof not being
an object of an exclusively religious nature.
31. In the instant case, the object of the trust is to provide
access to the Sanskrit scholars, who are conducting research,
and keeping library open for their research work can be said to
be public purpose. If it is meant for specific group of persons
or class of persons then it can be said to be a private trust.
When it is created for the benefit of unspecified class of people,
it can be said to be a public trust. Having regard to the object
of trust, there is nothing to indicate that it was created
exclusively for a specified group of persons. Mere
circumstances that one of the objects of the trust was to
celebrate death or birth anniversary of Duvvuri Ramakrishna
Rao and his parents does not necessarily make a charitable
endowment for a specified class, though, it is purely a personal
in nature. Finally, the object of the trust is relevant
consideration to decide whether a particular trust is a private
or public institution.
32. In view of the judgment of this Court in Rajasekharans
case (5th supra) in a similar situation came up for
consideration before this Court, this Court held that if the
object is to provide anything for a specified class of persons, it
would be a private trust. In the facts of the above decision, the
trust was created to feed Brahmins during Brahmotsavam time
at Tirupathi Pilgrim Centre, but still the High Court held that
the object is relevant consideration to decide whether a
particular institution is a private charitable institution or
public institution. The view expressed by the Apex Court in
Tilkayat Shri Govindlalji Maharajs case (6th supra) has also
to the same effect, wherein the Apex Court drawn distinction
between the private trust and public trust. When the
beneficiaries are unascertained or unspecified individuals and
when the library is kept open without restricting entry by the
public, it is difficult to conclude that the library is only for a
class of individuals or an ascertained group of individuals. In
the absence of any restriction of entry to the general public
though it is established for the benefit of Sanskrit research
scholars, which is again an unascertained group which can
safely be proved that the trust is a public charitable trust as
defined under Section 2(4) read with Clause (5) of the Act 17 of
1966.
33. In view of law declared by various courts, the following
are the tests to determine whether a trust is private or public
trust:
(a) The objects of trust.
(b) Beneficiaries are specific individual or group of public.
(c) Whether entry is restricted to public.
34. Yet, the contention of the defendants before the trial
Court and before this Court is that the trust itself voluntarily
registered under Section 38 of the Act 17 of 1966 and
thereafter it was notified under Section 6(1)(a) of the Act 17 of
1966. But no objections were filed questioning the declaration
under Section 6(1)(c) of Act 17 of 1966 and consequently,
registration became final.
35. Learned counsel for the appellant would submit that the
registration was only at the instance of the 2nd defendant-
Assistant Commissioner of Endowments, when he issued a
notice calling upon the trust to get itself registered under
Section 38 of the Act 17 of 1966. In fact, when PW.1 was
examined before the trial Court, he simply denied everything
and pleaded ignorance even applying for registration and
registration of the trust under Section 38 of the Act 17 of 1966.
Therefore, if really any notice was issued by the 2nd defendant
calling upon the plaintiff to apply for registration and get the
trust registered under Section 38 of the Act 17 of 1966, there
must be some evidence on record. But no such notice
allegedly issued by the 2nd defendant is brought on record to
accept the contention of the plaintiff. Even otherwise, this
contention was not substantiated by adducing any oral
evidence by PW.1. In the absence of any evidence on record, it
is difficult to accept the contention that the registration was
only at the instance of the 2nd defendant.
36. Undisputedly, the trust was registered under Section 38
and later a gazette publication under Section 6(1)(a) was
issued by the Commissioner of Endowments, Hyderabad, but
no objections were filed as contemplated under Section 40(1) of
the Act 17 of 1966. Section 40 of the Act permits any person
aggrieved by an entry or omission to make an entry in the
register maintained under Section 38, may apply to the Deputy
Commissioner for modification or annulment of such entry or
for directing the making of such entry, as the case may be.
37. But here, no such objection was raised before the
authorities concerned and allowed to attain finality. Section
40(3) of the Act 17 of 1966 enables the Deputy Commissioner
to enquire into and decide the question as if it was a dispute
within the meaning of Section 77 of the Act. Here the plaintiff
filed O.A.No.110 of 1981 to declare the trust as private trust,
but the 1st defendant declined the relief on the ground that the
trust was established for the public purpose and aggrieved by
the said order, the suit was filed before the District Judge,
Rajahmundry, who confirmed the same on the ground that the
purpose of establishing trust is only for the public at large and
not for the benefit of ascertained group of public. If it is for the
benefit of ascertained class or group of persons it can safely be
held that it is a private trust. But, here the library was
established for an unascertained group of Sanskrit pundits,
who are conducting research in Sanskrit, and similarly
presentation of books to Sanskrit pundits and students, who
are the unascertained group entry into library is not restricted.
Therefore, the plaintiff trust is only a public trust and not a
private trust.
38. Even after re-appraisal of entire material available on
record including the documentary and oral evidence, it is
evident that the object of establishing trust under Ex.A.1-Will
by Duvvuri Ramakrishna Rao is for benefit of public in general
and not for any private individual or group of individuals.
Therefore, the trial Court did commit no error in dismissing
the suit holding that it is a public charitable trust within the
meaning of Section 2(4) read with Clause (5) of the Act 17 of
1966 and the findings of the trial Court are free from any legal
infirmity warranting interference of this Court. Hence, the
finding of the trial Court is upheld holding that the plaintiff
trust is a public trust. Accordingly, the point is answered in
favour of the respondents/defendants and against the
appellant/plaintiff.
39. In view of my foregoing discussion, I find no ground
warranting interference with the judgment and decree,
consequently the appeal is devoid of merits and deserved to be
dismissed.
40. Accordingly, the appeal is dismissed confirming the
judgment and decree, dated 31.07.1995, passed by the I
Additional District Judge, Rajahmundry in O.S.No.1 of 1986
and the order, dated 16.02.1984, passed by the 1st defendant
in O.A.No.110 of 1981.
41. Pending miscellaneous petitions in this appeal, if any,
shall stand dismissed.
__________________________________
M.SATYANARAYANA MURTHY, J
Date: 29.07.2015
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