P L D 1968 Karachi 557 (PLP)

S. A. Jamali for Appellant. Akhtar Mahmud for Respondent No. 1. Ismail Munshi for Respondent No. 2. Date of hearing : 23rd February 1968. This appeal under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is directed against the order dated 21‑10‑1965 of Mr. M. A. Kazi, Settlement Commissioner, Hyderabad and raises the question whether the disputed property is attached to a charitable, religious or educational trust or institution. 2. The property in dispute bears No. C/2160, and is situated at Shahi Bazar, Hyderabad. The Settlement Department transferred this property to the respondent No. 1, namely, Muhammad Ismail. On the complaint of the respondent No. 2, Sikandar, that this property was in fact a 'mandir', the Additional Settlement Commissioner inspected the premises and came to the conclusion that there was no 'mandir' located in the property. The application of Sikandar was accordingly dismissed. Sikandar then continued to make applications again and again. Ultimately the matter came up before Settlement Commissioner at Hyderabad, in Revision Application No. 406 of 1964, filed by the District Evacuee Trust Board, Hyderabad. This application was dismissed, with the directions that the Board should approach the Civil Court for determination whether the property was 'mandir', and accordingly attached to charitable, religious or educational trust. Shortly thereafter, an amendment was intro duced in the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, by Ordinance XIII of 1964. This Ordinance added new subsections (3) and (4) to section 4, and a new section 4‑A, to the Act. Under section 4(3), if a question arises as to whether an evacuee property is attached to a charitable, religious or educational trust, it is to be referred to the Chief Settlement Commissioner for determination, whose order is to be treated as final, subject, however, to appeal to the High Court under section 4(4) of the Act. Accordingly, the District Evacuee Trust Board at Hyderabad brought the question before the Settlement Commissioner, who exercised powers as Chief Settlement Commissioner, for the purpose of determining the question arising under section 4(3) of the Act. By the impugned order, the Settlement Commissioner held that the disputed property is not a mandir, and therefore cannot be treated as being attached to a charitable, religious or educational institution. The Evacuee District Trust Board has now come in this Miscellaneous Appeal to the High Court against this order. 3. Mr. S. A. Jamali, the learned Advocate for the Board, has taken me through the evidence which was adduced before the Settlement Commissioner. This evidence consists of extract from the survey records and the statement of Muhammad Aqil, City Surveyor, Ward 'C', Hyderabad. The Survey extract shows the property as a private mandir owned by Ramumal Shamumal and Mirchumal Tiratrai, whose title is shown to have been derived by inheritance and partition. Muhammad Aqil, in his deposition, stated that the property in dispute is entered in the survey records as a private 'mandlr'. According to him, the original entry in the records showed the property as a charitable trust, with Comi Bai, wife of Gokal Mal, as manager. But this entry was found to be incorrect, and was accordingly cancelled, and a new entry was made on 18‑51929, on the basis of the statement of Ramumal Shamumal, showing him and Mirchumal Tiratrai as owners by inheritance and partition. 4. Now the question is, whether the property in dispute is one attached to a charitable, religious or educational trust or institution within the meaning of section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In this connection, it is to be noted that in Hindu Law, there is a distinction between public and private religious endowments. In a public endowment, the dedication is for the use or benefit of the public. But when a property is appropriated to the worship of a family idol, in which the public are not interested, the endowment is of a private character. Further, in the case of a private endowment, the dedication may be put to an end by the consensus of the family, for whose worship the property is appropriated. The judicial committee of the Privy Council stated in Konwar Doorganath v. Ram Chunder (4 I A 52), that "where the temple is a public temple, the dedication may be such that the family itself could not put an end to it but in the case of a family idol the consensus of the whole family might give the estate another direction." This observation, though obliter dictum, was treated as authoritative in a decision of the Calcutta High Sourt in Gobinda Kumar v. Debertdra Kumar ((1907)12 C W N 98), where it was held that a properly dedicated to a family, idol may be converted to secular property by the consensus of the family. In subsequent cases, the view was taken that the consent for the conversion of the property to secular use must be of all the members of the family, both males and females; See Gopal v. Rodha (A I R 1925 Cal. 996) and Chandi Charan v. Dulal Chandra (A I R 1926 Cal. 1083). 5. In my opinion section 4(2) of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958, does not contemplate or embrace trusts which can be put to an end to by the consent of the members of a family. The charitable, religious or educational trust or institution referred to in this provision must be one of public nature, that is, the endowment must be dedicated for the use or benefit of the public. The use of the words "charitable" and "educational" suggests that the trust or institution must be such in which the public has an interest. Since the word "religious" is used along with the expressions "charitable" and "educational", the religious endowment should also be one which is dedicated for the use and benefit of the public. 6. Assuming that section 4(2) refers to both public and private trusts, then the further question arises whether the disputed property still retains the character of a property attached to a religious trust. The admitted position, is, that this property is no longer being used, and ceased to be used since 1947, as a private temple. The property is being used as a shop by the respondent No. 2. The Settlement 'Commissioner, whose order is impugned before me, has stated that the family idols for whose worship the disputed property appears to have been used, have been taken away by the members of the family, and that the property has continued to be treated as evacuee property. The members of the family, to whom this private 'mandir' belonged, have admittedly migrated from Pakistan. They should therefore be deemed to have abandoned the 'mandir', and this fact raises the necessary implication that the members of the family, by their migration and abandonment of the 'mandir', put an end to the character of the property as a private, religious endowment and therefore this property can no longer be treated as a private temple, or attached to a charitable, religious or educational trust or institution. 7. With this conclusion, I am of the opinion that there is no substance in this appeal, which is accordingly dismiss9d with costs. K. B,. A. Appeal dismissed.