P L D 1975 Karachi 854 (PLP)

Naimuddin for Respondents Nos. 1 to

7. Date of hearing : 17th March 1975. In this appeal, the appellant has assailed the order of the Settlement Commissioner, dated 6th August 1969, by which he refused to grant the declaration that property No. B/851 situated at Chandiramani Gitti, Hyderabad, was a temple.

2. Briefly stated, the facts are that this property was transferred to respondents 1 to 7 against their verified claims under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in 1959‑60 vide provisional transfer orders. Later, permanent transfer deeds were issued in 1963 and 1966. The appellant, taking exception to the transfer of this property in favour of the respondents, filed an application on 24th. May 1967 before the Settlement Commissioner exercising powers of the Chief Settlement Commissioner under section 4(3) of the aforestated Act, in which the declaration referred to above was sought, but the Settlement Commissioner dismissed the application ; hence this appeal.

3. Before the Settlement Commissioner, the appellant had filed relevant extracts from the Property Register Card, Property Register and Inquiry Register. Since there is no other evidence except these extracts, against which no evidence in rebuttal has been led, it will be necessary to refer to the entries therein. In the extract from the Property Resister Card, the word 'tikano' and under it the name "Arjandas Sunderdas" appears in the column "Holder of the Title". Again, in the extract from the Property Register, in the column "Owner's name" the word 'tikano' and under it the name "Arjandas Sunderdas" are mentioned. Against this entry in column 9 meant for showing "the nature and original title" the words, "by inheritance from his brothers and by succession" are confirmed. Lastly in the remarks column, the date '17th September 1931' and the word 'statement' appear. In the extract from the Inquiry Register in column 4 "Bau Sunderdas" is mentioned. The word "Bau" means a religious head of a place of worship. One other feature of significance is that on the foot of the extract from the Property Register. there is an indication of the statement made by Himmat Singh on 30th November 1922. The entry is thus worded : "by succession the original, Sanad stands in the name of Gangaram Kishandas. He died and succeeded by Santdas. He died and has been succeeded by Sundardas."

4. Having regard to the above entries, the stand of appellant ‑ No. 1 before the Settlement Commissioner was that the word 'tikano' means a temple and that therefore in the absence of any evidence in rebuttal, the declaration should be granted. Respondents 1 to Ts stand was that the disputed property was not a temple nor was there any evidence that it was used as such for any religious purpose. During the pendency of the appeal, the Evacuee Trust Properties (Management and Disposal) Act, 1975 was promulgated. Section :0(1) gives statutory protection to the transferees to whom permanent transfer deeds have been issued prior to June 1968 subject to the sale‑proceeds of those properties being paid to the Evacuee Trust Property Board. In view of the above, the respondents could not have had a legal grievance, but the learned counsel for the appellant, in the context of this enactment, rightly contended that unless the order is set aide, the Evacuee Trust Property Board will have no claim in view of the finding of the Settle ment Commissioner. I have, therefore, considered the question whether 'tikano' can be regarded as a religious trust and the property dedicated to it as trust property. Mr. Ajmal Mian, in support of the contention that the word 'tikano' means a temple, has referred to me an unpublished judgment of Z. A. Channa, J. in Miscellaneous Appeal No. 84/69 (The District Evacuee Trust Property v. The Deputy Settlement Commissioner, Hyderabad and another) in which case the learned Single Judge has elaborately dealt with the meaning of the word 'tikano' and has reached the conclusion that it means a 'mandar' (temple), and I have no reason to differ from the view taken by him. In this view of the matter, there was a dedication to the deity and there cannot be such dedication unless the property itself is dedicated to it. In this connection, I would refer to the observations of Malik and Raghubarl Dayal, JJ. in Doongarsee Syamji Joshi and others v. Mukhia Tirbhuwan Das and others (AIR 1947 All. 375), which clearly bring out the above concept :‑ "There is really no such thing as a private idol being the private property of an individual or a family and a public idol belonging to the public. According to Hindu philosophy, an idol, when it is installed in a temple, is the physical personification of the deity and after consecration the stone image gets its soul breathed into it. Before an idol can be installed in a temple the temple must be dedicated to it and it becomes its private property. Under the strict Hindu law a temple building is the property of God and cannot be the private property of an individual or a family or a section of the public. The property dedicated to an idol in an ideal sense vests in the deity, though no Hindu professes to give the property to God. He only dedicates it to the worship of God and under the strict Hindu law the King, who is the servant and the protector of the deity, is the custodian of the property." Again, in the absence of evidence that the property was not put to that use, it would make no difference as the status of the property would not be .changed. In this connection, I would refer to the observations of Shadi Lai, C. J. and Hilton, J. in Lachhman Das v. Arya Pritinidhi Sabha, Punjab, Lahore and others (A I R 1932 Lah. 603) :‑ "Finally, it was said that there are no idols in the property and that the temple has for a long time been used as a residential house and as private property, but there is authority in 'Bljoy Chand Mohatap v. Xali Pada Chatterjee A Ik 1914 Cal. 200 for the view that a temple is still a temple even if the idol is thrown away or the building has become dilapidated. In my judgment the use of the property as private property cannot in any way detract from its character as dedicated property." Having once established that the disputed property was a 'tikano' the words "succession and inheritance" obviously refer to the office and mot to the property itself, of which the word 'Bau' is a sufficient pointer. I have, therefore, no hesitation in concluding that the disputed property is one dedicated to the deity, which cannot but be a religious trust This conclusion also repels the objection that subsection (3) of section 4 of ,the Displaced Persons (Compensation and Rehabilitation) Act concerns the property attached to the religious trust, of which a declaration can be sought, ,whereas in the instant case, the dispute is with regard to the temple.

5. Mr. Majeed, the learned counsel for the respondents 1 to 7 relied on the judgment reported as Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others (1970 S C .M R 503), which case is plainly distinguishable on facts as no evidence in that case was available to prove that the Panchayat was a religious and charitable institution or that the property acquired by it was .a trust property. Here, the religious trust was created as far back as 19221 and the entry has stood ever since then, which is evidenced by the word 'tikano' which means a dedication and it cannot, therefore, be denied that it was a religious trust. The presumption would also be in favour of it in the absence of any evidence to rebut the status of the property. The next case relied on is Sri Sri Raja Lakshmi Narayan Jew and others v. The Province of East Pakistan (1969 S C M R 898), in which case it was held that the complete divestiture of the title of the 'settler' was not established and, therefore, the mere execution of a deed, was not enough even though there was, on the face of it, a dedication of the property. Again, the facts of this case are distinguishable and the law thus stated would not apply. The last case, on which reliance is placed, is that of Badruddin v. Kazi Munshi and 2 others (P L D 1972 Kar. 101) which is also distinguishable on facts as in that case the name of the owner of the property was sought to be construed as one meaning a charitable, religious or educational institution and the property held by it is trust property which meaning was not accepted. In the instant case, the entry beyond doubt means a religious trust :and, therefore, this case will not be of any help.

6. The Settlement Commissioner, while refusing to grant the declaration, has not applied his mind to the extracts produced before him and to the implication of the word 'tikano' which existed as far back as 1922 and which beyond doubt shows that it was a religious trust. He has disposed of the application on the ground, firstly, that it was not possible to say whether a, trust was really created and if so, whether it was` a. public trust in contradis tinction to private trust. The age of the entry itself shows that such trust was created as it stood till to date and that further there is no difference between a public and private trust except in so far as its management of the persons, who worship, are concerned. Even otherwise subsection (3) of section 4 doe not create a distinction between a public and private trust and in that view of the matter, it was unnecessary for the Settlement Commissioner to have gone into that question.

7. In the result, for the foregoing reasons I would set aside the order made by the Settlement Commissioner and grant the declaration that `tikano' is a religious trust. However, by granting the declaration the transfers in favour of respondents 1 to 7 will not be affected so far as the present appeal is concerned though under the Act, the power is given to the Evacuee Trust Property Board to go into bona fides of such transfers. The appeal is ` allowed but with no order as to costs. S. A. H. Appeal allowed.