1969 PLP 898 (SCMR)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, arises out of a suit filed on the 23rd of July 1956, by, the appellants herein through their trustees for a declaration that an order made on the 28th of April 1955, by the Member, Board of Revenue, acting as the Commissioner of State Purchase, was ultra vires, null and void, and that the properties set out in the schedule to the plaint were trust properties exclusively dedicated for religious and/or charitable purposes, in respect of which the appellants were entitled to an annuity under section 6‑A of the East Bengal State Acquisition and Tenancy (Amendment) Act, 1953. According to the plaint the properties mentioned in the Schedule, which included certain properties situated in West Bengal (India), were dedicated for the worship and maintenance of the appellants by a deed of trust executed, on the 20th of June 1945, and registered at Calcutta on the 14th of July 1945. The value of the properties so alleged to have been dedicated by this deed was given therein at Rs. 3,06,730 but out of these properties only four were situated within the terri tories of what is now East Pakistan. The first was the Hossesnshahi Zamindary at Netrakona, Kishoreganj in the district of Mymensingh, the second was Nimak Mahal situated in Pargana Rai Mangal, Jessore, the third was the Zamandari Touzi No. 45 in Pargana Verchi Nepakati, thana Keshabput, district Jessore, and the fourth was Daimi Mahal Char Makkata under the Dacca Collectorate in Pargana Rgijnagar. The collective value of these properties, as given in the trust deed, aggregated to Rs. 1,69,

730. The object for which the said settlement was sought to be created as stated as follows :‑‑ "The settlors are desirous of making a perpetual provision for the expenses relating to the daily and ceremonial worship of their family deities Sri Sri Lakshmi Narayan Jew, Sri Sri Gopi Nath Jew, Sri Sri Radha Gobinda Jew and Sri Sri Radha Kanta Jew and also are desirous of making provision for the maintenance of charitable dispensary and of relief for the sick and the destitute." It was not stated in the deed itself as to where the deities were located, but out of the income of the properties dedicated a sum of only Rs. 18,600 was to be spent annually for the worship of the deities and sum of Rs. 6,000 annually was to be spent for the maintenance . of the charitable dispensary at Bhagyakul in the district of Dacca. The dispensary, it appears from the deed, was to be built and established by the trustees out of their other separate funds. The trustees were, however, not to contribute anything further towards the maintenance of the dispensary. Indeed, the deed provided that "in cases where there be not full realization of the income of the Schedule property the aforesaid expenses will be reduced proportionately". Most of the properties situated in East Pakistan were rent‑receiving interests and were acquired by the Government of East Pakistan under the East Bengal State Acquisition and Tenancy Act, 1950, by a notification issued under section 3(1) of the said Act on the 17th of December 1951. In respect of the properties so acquired the appellants claimed that they were entitled to be paid compensation in the form of a perpetual annuity of Rs. 7,400 per annum under section 6‑A of the East Bengal State Acquisition and Tenancy (Amendment) Act, 1952, but the Commissioner of State Purchase, East Pakistan, by his order of the 28th of April 1945, held that the terms of the trust were never actually acted upon and as such, neither the properties nor their Shebaits were entitled to claim payment of the above‑mentioned or any annuity. . This was the order that the appellants sought to have declared to be void and without jurisdiction after the properties were declared to have been validly dedicated for wholly charitable and religious purposes. This suit was contested by the Province of East Pakistan which denied that there was any valid dedication or that the trustees had spent any amount in building any charitable dispensary at Bhagyakul. On these pleadings the trial Court framed three issues :‑ (1) Are the properties in suit trust properties as alleged in the plaint ? (2) Is the plaintiff entitled to any annuity under section 6‑A of the East Bengal State Acquisition and Tenancy Act? and (3) Is the order dated 28‑4‑55 of the Commissioner of State Purchase null and void and illegal ? All these issues were found in favour of the plaintiffs appellants by the trial Court. The evidence of the plaintiffs with regard to the existence of the deities was accepted, as, it was said, there "was no positive evidence on the other side to prove the non‑existence of the deities." Similarly the execution of the deed was held to have been proved beyond any doubt, as there was barely any denial thereof. The trial Court was further of the view that once a valid dedication of properties has been proved it does not matter whether the same has been acted upon or not, for "once a trust it is always a trust". Mere misconduct or mismanagement of trustees was held to be insufficient to prove that the deed was never acted upon. The ultimate finding, therefore, was that the trust exists even if the plaintiffs do not act according to the terms of the trust deed Having found this, however, the trial Court went on to consider the other evidence even though it was, in its opinion, "Not necessary to see whether the trust was acted upon and if any hospital was opened. As a result of such examination it found that the trust deed had also been acted upon. This finding, it appears, was based mainly on entries contained in what were described as "old khattas kept and maintained regularly for the purposes of day to day transactions" (Exhs. 8, 9 and 13 series) and the oral evidence of some 6 witnesses, whose testimony, it was said, "corroborates the documentary evidence". One of these witnesses was one of the settlers himself who was examined on commission in India. The trial Court also found that the charitable dispensary at Bhaghakul had been constructed and completed by 1945 but it could not be started due to difficulties in obtaining equipment and medicines as a result of the Partition of the country. The fact that the properties dedicated to the deities and the dispensary had neither been mutated in the names of the donees or their trustees, nor had assessments (Exh. 16) for agricultural income‑tax been made of these properties as trust properties nor did the Dakhilas issued by the appellants to describe the proprietor as the trust, was considered to be of any consequence. The oral evidence in the case consisted of the depositions of some six witnesses examined on behalf of the appellants anti 2 on behalf of the respondent. Out of the six witnesses examined on behalf of the appellants one was, as already stated, examined on commission at Calcutta after Independence. His evidence was inadmissible according to the decision of this Court in the case of The Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (P L D 1958 S C (Pak.) 138). Out of the rest of the witnesses examined for the appellants the first was a photographer at Bhagyakul. He merely proved the photograph of a building but this photograph did not show that there was any inscription on this building to identify it as a dispensary. He further claimed that he had been seeing this building from his childhood and that it formed a part of the dwelling house of Sita Nath Babu, one of the settlors. At the time that he gave evidence in November 1958, he was 23 years old. This building could not, therefore, have been the one which was completed in 1945. The next witness was the Sadar Naib of the trustees at Calcutta. He proved the execution of the trust deed arid stated that out of the deities mentioned in the plaint Sri Sri Raja Lakshmi Narayan Jew and Sri Sri Gopinath Jew were located at Bhagyakul. The third deity was at Calcutta and the fourth at Brindaban (India). He also stated that the income of the East Bengal properties was only Rs. 7400 and that the same was actually being spent for the religious and charitable purposes, mentioned in the deed, by the performance of periodical ceremonies and daily pujas. According to him the entire income of the properties used to be first taken to Calcutta and thereafter the expenses of Bhagyakul were met out of moneys sent from Calcutta, until 1951 when a portion of the income was 'collected and disbursed by the Nrayanganj office. He also claimed that although the building of the dispensary had been completed by 1947 at a cost of Rs. 51,000 the actual working of the dispensary could not be started for want of Government permission to import equipment. Some of the account books filed on behalf of the appellants were also proved by this witness who claimed that he had himself written two of these books, namely, Exhs. 8(1) and 8(K). The other Khattas had been written by other employees, namely, Karamcharis Jitendra Lal Roy and Mukunda who lived at Calcutta. Mukunda was certainly alive at this time but he was not examined as a witness. In cross‑examination however, he admitted that he had no personal knowledge of the Bhaghakul expenses apart from the entries in the books of account. In respect of the pujas and sanpalas said to have been performed at Bhagyakul he stated that these were performed by priests, who were located at Bhagyakul, under the supervision of one Nishikanta Sarkar, an officer of the estate at Bhagyakul. But neither any priest nor the said officer was examined. According to this witness the charitable dispensary building was located at a distance of 400/500 cubits from the homestead of Sitanath Roy, and that it was not a part of the homestead as stated by the first witness examined on behalf of the appellants. He himself, it appears, came to Bhagyakul only occasionally for a few days but he could not remember as to in which month or in which year he came to Bhagyakul. The next two witnesses are merely formal witnesses but the first was another employee of the appellants who claimed that he resided at Bhagyakul. He corroborated the second witness, Amullaya Chandra Bhattacharyya, and maintained that two of the deities were actually located at Bhagyakul, where the daily worship and other periodical. religious ceremonies were regularly held. Amongst the ceremonies the "sanpala" of Lakshmi Narayan was held every tenth year but the "sanpala" of Gopinath was held every year. He also proved certain accounts relating to these ceremonies and pujas as also the construction account of the. charitable dispensary. In cross‑examination however, he admitted that he simply looked after the homestead and its adjoining lands and had no connection whatsoever with the management of the Zamindaris. Out of the witnesses examined on behalf of the respondent the first was the manager of the Government acquired Bhag yakul Estate from February 1952 to 1954. He denied that he had seen any charitable dispensary in the area, named Sita Nath Roy Charitable Dispensary. No application was ever made to him for making any contribution towards the expenses of the said dispensary. He also maintained that he never saw any Shebait or Puja or any priest at Bhagyakul, although he went there many times in the year. The next witness was the Sub‑Divisional Manager of Munshinganj. He too claimed that he had visited Bhagyakul on many occasions but had never seen any children dispensary known as the Sita Nath Charitable Dispensary there, nor had any one there sought his help for purchasing medicines cir for importing drugs or implements for this dispensary or for making payments for the expenses of the deities. Indeed, according to him he had never heard of any such charitable trust. The oral evidence adduced on behalf of the appellants, it will be observed; was far from satisfactory. The first witness clearly belied their story that the charitable dispensary was a separate building constructed at a cost of Rs. 51,000 between 1945 and 1946‑

47. According to him, the photograph that he took was of a building which formed part of the homestead of Sita Nath Roy. No Pujari or priest was called to prove that he performed the daily Pujas or the other periodical "sanpalas" of the deities at Bhagyakul. If there had been any such pujaris or priests as claimed by the appellants' witnesses Nos. 2 and 5 it would have been very easy to examine them in the case. So far as the accounts are concerned we have been taken through some of these accounts but we find that although they are maintained in books, which appear to be genuine, the entries therein when examined more carefully do not inspire any confidence. They just contain a few items of expenditure ort certain building materials said to have been utilised at the Bhagyakul charitable dispensary but they are incorporated in the general accounts and mixed up with other items of expenditure. It is not possible, therefore, to cull from these books of account the exact amount actually spent on the alleged construction of the dispensary. For this purpose reliance is sought to be placed on a: synopsis (Exh. 7) prepared by P. W. 2 Bhattacharyya, but no effort was made to trace these items of expenditure to the account books. It is, however, an admitted fact that the dispensary never functioned. The explanation given for this is that Government permission for import of surgical implements and medicines from India was not available. But in this connection it has to be remembered that there was no control or prohibition against importation; from India until 1951. If the construction of the dispensary, according to these witnesses, was completed in 1947‑48. it is difficult to appreciate what prevented the importation of these implements and medicines from India between 1947‑48 and 1950‑

51. All the correspondence that has beer, produced to show that efforts were being made to import them from India are letters written by the trustees themselves or on their behalf to various concerns for the purchase of such implements. But no letter from these concerns to the trustees has been exhibited. Some correspondence has also been filed to show that the trustees were approaching various Government officials for help in this behalf. But again we do not know as to what reply, if any, these officials gave, although it is patent that the replies of the said officials or the said concerns, if any given, must have been in the possession of the trustees and could easily have been produced. Again, there is no evidence to show why, if only a dispensary was actually intended to be set up, such surgical instruments were required and why no efforts were made to purchase medicines and drugs in East Pakistan whether from Dacca or Chittagong to put the dispensary into commission. In the books of account there is also no entry to show as to what amounts were spend for daily dev‑sheba or for daily offerings of bhog to the deities if any were located at Bhagyakul. We have only been furnished with an abstract (Exh. 9) of the accounts showing certain items of annual expenditure for the Pujas at Bhagyakul. Our attention has been drawn to certain items of expenditure for sending some vegetables from Calcutta and it is said that these were imported from Calcutta, as these being seasonal vegetables were not locally available at the relevant time of the year. But this by itself is not sufficient to show that they were spent for pujas. Admittedly the trustees, who always lived in Calcutta occasionally visited Bhagyakul and may have brought these for their own consumption. Surely if during their stay at Bhagyakul pujas and other functions were performed there would have been some expenditure on items locally purchased and there would have been some entry about these in the books of account. As regards the periodical "sanpalas" we have only the evidence that one decennial "sanpala" of Lakhi Narayan Jew was held a short time before the institution of the suit but there is no evidence to show when the annual "sanpalas" of Gopi Nath Jew were performed or what expenditure, if any, was incurred in that behalf. As regards the cost of construction we have also an abstract of account (Exh. 7) which has been filed to show how the amount of Rs. 51,000 has been made up. But there are no vouchers or receipts to support such expenditure. Surely if managers or officials at Bhagyakul were incurring expenditure in purchasing building materials or making payment to labourers at Bhagyakul they would have, in the course of their normal duties, obtained receipts and vouchers for the purposes of accounting to the settlors. Similarly there is no document to show that any of the .items claimed to have been purchased at Calcutta were actually so purchased. There are no vouchers to support any of these items nor is there any railway receipt to show that anything was, in fact, despatched from Calcutta to Bhagyakul. In this state of the evidence a Division Bench of the High Court of East Pakistan in appeal took the view that although a decd of trust might have been executed it was an illusory and sham transaction, for, it was never intended to be and was not, in fact, acted upon. The decision of the trial Court was, accordingly, reversed and the suit was dismissed. The appellants have now come up on appeal‑to this Court and it is contended on their behalf that the findings of the High Court are vitiated, because of serious misreading of the evidence and the ignoring of material evidence. We have been taken through the evidence by the learned counsel appearing in support of the appeal but we are unable to find any such misreading of the evidence or any ignoring of material evidence. The evidence on the record appears to have been examined in some detail upon correct principles. The next contention advanced is that the learned Judges of the High Court should have accepted the books of account as being genuine and relied upon them, as they had been found by the trial Court to have been kept contemporaneously and in the regular course of business. Having examined the accounts we are again unable to agree with this conclusion of the learned trial Court. Merely because the accounts were kept in books which looked like regular books usually maintained in the Katchcris of local Zamindaris it did not follow that all the entries therein were correct. It is a mistake to think that the mere production of the books of account proves each item of entry therein, particularly where the correctness of such entries is specifically challenged as it was in this case. In such circumstances, it is the duty of the part relying upon those entries either to call persons who ha themselves made those entries or produce corroborating evidence in the shape of vouchers or receipts or cash memos to show that the entries are factually correct. Nothing of the kind was done in the present case. Some of the writers of the account who were alive and available, were not even examined a witnesses to support the entries made by them. Nor was an corroborating evidence produced even though available. We are unable, therefore; to accept these entries therein as genuine. Mere proof of the existence of certain entries is not sufficient. The law requires that each item of disputed entry has to be proved, particularly since no presumption of correctness attaches e to them and their value is at best merely corroborative under section 34 of the Evidence Act. The learned trial Judge has taken the view that the respondent produced no positive evidence to prove the non existence of the deities or the charitable dispensary. It is difficult, however, to appreciate what positive evidence could have been produced to prove a negative. Two witnesses, who deposed on behalf of the respondent did state that they never saw any building at Bhagyakul which was known as the Sitanath Charitable Dispensary nor met any priest or pujari or other functionary connected with the performance 'of pujas or Shebas of deities. There is no evidence that they were ever invited to any such function nor have the appellants called any one of the local residents to show that they did attend such functions or ever offered pujas at the shrine of the deities. These officers also categorically stated that no body ever approached them for moneys in connection with these pujas or for any other kind of help or assistance for the purposes of meeting the expenses of these pujas or for running or equipping the ‑dispensary. In the circumstances, we find it difficult to appreciate how the learned trial Judge could have come to the conclusion that the appellants on whom the onus clearly lay had established that deities were in fact located at Bhagyakul and their pujas were being regularly performed there or that a building had been constructed for a dispensary. Learned counsel has lastly contended that the High Court had approached the case upon incorrect principles. According to him once it was established that a valid deed of trust had been executed and registered it should have held that the divestiture of the title of the owners was complete. The properties thereafter vested in the deities and the charitable purposes for which the trust had been created. The fact that the trustees had failed to perform their functions in accordance with the items of the trust deed or committed breaches of the trust was not sufficient to lead to the inference that the trust itself did not exist or that the trust was merely an illusory or sham transaction. It is true that where a complete divestiture has been established the principle may be applied that a breach of trust does no destroy the trust. But in the present case, this complete divestiture of the title of the settlors has not, in our opinion, been established. There is nothing on the record to show that the settlors ever got the properties mutated in the names of the deities. No revenue Khatians or mutation orders have been produced to show this. All that has been produced are certain Dakhilas or rent receipts said to have been granted to tenants of the estate. So far as these Dakhilas are concerned they do not even consistently show that the rent receiver was the trust estate. In the circumstances, the credibility of these Dakhdas is also suspect. The argument that mutation must be presumed, because in the acquisition notices issued by the Government the properties had been described as trust properties, is not tenable. The contention is that since this must have been done on the basis of entries in the D‑Registers or mutation registers, which were revenue records, the entries therein must be presumed to be correct until rebutted. Hence the descriptions in the acquisition notices must be treated as admissions under section 31 of the Evidence Act which estopped the respondent from challenging the trust character of the properties. We are unable, however, to accept this contention either in the absence of the revenue Khatians or the extracts of the D‑Registers. There is no evidence to show that any mutation was ever made or that any entries were made in the D‑Registers. The presumption, if any, attaches to the entries in the revenue records and not to the entries in the acquisition notices which have, in any event, not been proved. In the circumstances, we cannot agree that the mere execution and registration of a deed of trust established that a trust was, in fact, created or that the properties were validly or effectively dedicated for religious or charitable purposes exclusively. It is wrong, in our view, to think that once the s execution and registration of a deed has been proved it is not open to the parties who are not executants of the deed to show that nevertheless the deed was an illusory or sham document and was never intended to be given effect to. A gift or a dedication is not complete until possession has been made over to the donees or the trustees or shebiats and the owners and settlors have completely divested themselves of their right, title and interest in the dedicated or gifted properties. In the present case, the settlors who were themselves the owners and the proprietors of the rent receiving interest which were purported to have been settled on the deities and the dispensary, could well have executed such a deed and kept it in their possession without, in any way, altering the character of their interest in the properties. The mere execution of a deed, though it may purport on the face of it to dedicate property, is not enough. It is necessary for the validity of an endowment to show that the executants had divested themselves of the property. Thus if subsequent dealings whom that no idol was set up or that no part of the income was spent for the worship of the idol the dedication cannot be found to be operative. In the circumstances, it was, in our view, necessary for the appellants to show that something more was done to make the dedication complete and effective. This they have clearly failed to do, as has rightly been held by the High Court. For these reasons we are of the view that no valid grounds have been made out for setting aside the judgment of the High Court. This appeal is, accordingly, dismissed. But having regard to the fact that the state has already b‑.en acquired by Government we make no order as to costs. Appeal dismissed.