P L D 1975 Lahore 960 (PLP)

This is an appeal under section 4(4) of the Displaced Persons (Compensa tion and Rehabilitation) Act, 1958, against the order dated 13‑5‑1968, passed by the Settlement Commissioner, Lahore Division, whereby he found the properties in question to be evacuee trust properties.

2. There are as many as 21 properties on the Circular Hospital Road, Lahore, consisting of residential as well as commercial premises, occupied by more than 150 displaced families. The contention of the appellants is that the properties in question are evacuee and not evacuee trust properties. The respondents filed copies of the relevant entries of the revenue records as well as of the Lahore Municipal Corporation for the period 1913‑14 to 1954 (Exhs. R/1 to R/37 as also a certified copy of the judgment of the Lahore High Court, dated 21‑11‑1946 in R. F. A. 300 of 1943, in order to show that all the properties in question being attached with Sitla Mandir are evacuee .trust properties. The appellants, on the other hand, produced documents Exhs. P. B. to P. O., before the Settlement Commissioner, and P. 1 to P. 18, before this Court, in order to prove that the status of the properties was evacuee and they all were assessed to rental value and house‑tax etc. was paid by the owners in relation thereto. All these documents pertain to the period from 1856 to 1940/44. The learned Settlement Commissioner after appraising the evidence produced by the parties has held that according to the documents produced by the respondents (Exhs. R/1 to R/31), relating to the period 1913 to 1954, the properties in question belonged to Sitla Mandir and not to their Mahant as his private property. While referring to the documents produced by the appellants, certified copies of the relevant entries of the record maintained by the Lahore Municipal Corporation for the period 1940, it has been observed in the impugned order that the said entries also supported the case of the respondents and not that of the appellants the properties having been shown therein to be owned by the Mahant of the temple.

3. Before the necessary ingredients, which constitute a trust, may be ascertained or discussed, the relevant entries in the documents produced by the parties may be examined. Certified copy of the judgment of the Lahore High Court, dated 21‑11‑1946 shows that Regular First Appeal No. 300 of 1943 was filed by Baldev Gir, Chela Mahant. Prem Gir against the judgment of the lower Court pronounced in a case filed under section 92 of the C. P. C. It has been observed in this judgment that in the written statement filed by Baldev Gir to the suit instituted against him he expressly claimed to be the full and complete owner of the entire properties in dispute and this must carry with it the right of transfer including the right of testamentary disposition. It has further been observed that it was not Baldev's case and accordingly could not be the case of any of his legal representatives that the property in dispute appertained to the office of Mahant or belonged to an institution of which Mst. Raj Kumad might or might not be appointed the Mahantani. The certified copy of the Khasra Amarti (Exh. R/1), pertaining to the year 1913‑14, placed on record by the respondents shows Prem Gir Chela Pars Ram Gir to be the owner of the property mentioned therein. However, in column No. 13 (remarks column) it is mentioned that payment of revenue in respect of the property in question had been exempted vide letter dated 28‑7‑1886, issued by the Government of India, on account of the expenses to be incurred in connection with Sitla Mandir. Similarly Jamabandi for the year 1924‑25 (Exh. R. 3) shows Prem Gir Chela Pars Ram Gir, to be the owner of the property in question and similar remarks have been made in column No. 13 in regard to the said property. Jamabandi for the year 1941‑42 (Exh. R. 4) shows Baldev Gir, Chela Prem Gir to be the owner of the property in question and similar remarks in column No. 13 have again been made in regard to the said property. It is significant to notice that the description of the entire property as given in the said Jamabandi shows the same to be residential as well as commercial and the number of various types of properties shown there is about 44, including Sitla Mandir. Copy of the Khasra Amarti (Exh. R. 5) for the year 1953‑54, in relation to the entire property in question, shows Baldev Gir, Chela Prem Gir to be the owner of the property in question. He has been shown to be an evacuee person in ownership column. Copies of the relevant entries of the Assessment Register, maintained by the Lahore Municipal Corporation, for the years 1950 (Exh. R. 6 only) and 1953, Exhs. R. 6 to R. 17, shows some of the properties in question having been shown as Sitla Mandir property in occupation of Muslim displaced persons. Similarly entries for the year 1946, Exhs. R. 18 to R. 27, show one Mr. Parkash Chand Mahajan, Advocate, as Official Receiver of Sitla Mandir Property in the ownership column. Again, the relevant entries of the said register for the year 1953, Exhs. R. 28 to R. 57, show some of the properties to be Sitla Mandir Property.

4. According to certified copy of Missal‑e‑Haqiat Exh. P. B., for the year 1865, produced by the appellants, the property in question is shown to be in the ownership of Kirpal Gir, son of Sala. It maybe noticed that probably Sitla was the person who founded Sitla Mandir. Missal‑e‑Haqlat for the year 1868 (Exh. P. D.) shows Devi Gir, Chela Kirpal Gir to be the owner of the properties mentioned therein. At that time the property as shown was mostly agricultural land and under cultivation. Exhs. P. F. to P. L. certified copies of the relevant entries of the Assessment Register of the Lahore Municipal Corporation for the year 1940, in respect of various properties, show them to be owned by Bava Baldev Gir Exh. P. M. for the same year is in relation to property S ‑38‑R‑179 and specifically mentions the same to be Sitla Mandir. In the ownership column Sitla Mandir has been shown to be the owner and no other person. The remaining Exhs. P. N., P. O. and P. 1 to 18, certified copies of the relevant entries of the Assessment Register of the Lahore Municipal Corporation, for the year 1950, in relation to various properties, show Bava Baldev Gir to be the owner of them. Nowhere in any of the documents, mentioned above, produced by the appellants Sitla Mandir has been shown to be the owner of all the properties or the properties attached thereto.

5. It has been argued on behalf of the respondents that since the revenue or tax to be levied on the property in question was exempted from realization, as some of the income received from the property was to be spent on the maintenance of the temple, therefore, the properties in question are trust properties. It has further been argued that the properties in question have been shown to be owned by Mahant Baldev Gir, therefore, on account of his office as Mahant he was holding the property on behalf of the temple. I am afraid, none of the contentions has any force. According to Hindu Law in order to constitute a public trust the author or authority of the same must be ascertained and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purpose of trust, the trust property and the beneficiaries must be indicated so as to enable the Court to administer the trust, if required. Reliance in this respect can be placed upon Pandit Parma Nand v. Nihal Chand and another A I R 1938 P C

195. It was observed therein that assuming, however, that the property acquired by a Mahant is to be treated as a religious property, the question arises whether it was dedicated for the use or benefit of the public. In the case of public trust the beneficiaries are either the public at large or a considerable portion of it, answering a particular description. It was further held that there was no documentary or oral evidence to show that the property was expressly dedicated for the use or the benefit of the public. The land on which the shrine in that case was built upon was State land before it was granted to the persons, who applied for the same. The grant of the land was recommended by the Municipal Committee and, as the facts of the case show, the Deputy Commissioner remitted the share of the price of the land, which was due to the Government, in the interest of the city. It was argued that the land upon which the shrine was built was a kind of muafi and the .building constructed thereon was a holy place. It was observed in that context by their Lordships of the Privy Council that the assignment of land did not prove that the building was dedicated to a public trust. It was argued that income‑tax was sought to be imposed upon Narayan Dass for the year 1905‑06 in respect of the income derived by him from the property of the Gurdawara and that the income‑tax was then remitted on the ground that the property constituted a public trust. It was observed that there was no document to show the nature of the objection on which the order of remission was based. The oral evidence was, however, to the effect that the tax was remitted because the property was stated to be a Wakaf, but the expression `wakif was vague and might include a private Wakif. It was further observed that in the circumstances it could not be said that the Mahant at that time declared the property to be dedicated to a religious trust of a public nature. In Shiromani Gurdawara Parbandhak Committee and others v. Harcharan Singh A I R 1934 Lah. 1 it was held that where a grant was made to an Udasi Sadh so that he might found a ‑village in a desolate place and establish a langar for feeding Sadhs, the land or Muafi was not granted to a Gurdawara. The facts of the case further show that the land revenue in respect of the land was assigned in the name of various members of the family uptil 1911‑

12. In that year what remained was assigned in the name of Gurdawara. The argument as put forth before the learned Judges was that since the land revenue was assigned to Gurdawara, therefore, the property belonged to it. It wag held that in any case the presumption would only be that the Muafi, about which there was no dispute, pertained to the Gurdawara and not to the land. A Muafi was quite distinct from the land. It was further observed that it had not been established that the income of the land had been applied ordinarily on the service and maintenance of the Gurdawara, though in 191 t‑12 it was admitted that Muafi was for the langar and for the Gurdawara. The case of the appellant, on the basis of the said entries was that the property as such belonged to the Gurdawara. This plea was not accepted and the appeal was rejected. In the present case what the entry with regard to exemption or Muafi shows is that it was in relation to the temple known as Sitla Mandir. It is no‑1 where established on record that the income derived from the property in question was ordinarily spent on the service and maintenance of the temple. In the circumstances the mere entry with regard to Muafi would not show that the property was attached to the temple and as such was trust property. As mentioned above, unless the ingredients with regard to constitution of the trust are established on record, it cannot be found that the property constitutes a trust. Reliance in this respect can also be placed upon Evacuee Property Trust Board v. Lahore Improvement Trust and another P L D 1969 Lah.

243. In para. 11 of the judgment in the said case it was held as follows :‑ "To prove that the property is attached to a ‑Religious Trust would require the ascertainment of‑ (a) the author of the alleged trust, (b) the intention to create a trust by words or acts, (c) the purpose of the trust, (d) the trust property, and (e) the beneficiaries. All this is to be proved in such a manner that it should be possible for a Court to administer the trust if any occasion arises. As has been demonstrated above, the Sikh Association, as an Association registered under the Societies Act of 1860 had no authority to create a Religious Trust. Even otherwise there is no evidence to show that the Sikh Association of the Kin', Edward Medical College, Lahore had even intended to create a Trust of the property in dispute. It is not even alleged that Sir Kikabhai ever created such a Trust in respect of the property in dispute. The other questions do, therefore, not arise." Since the ingredients, as mentioned above, for the purpose of constituting a trust were not proved in that case, therefore, it was held that the property could not be treated to be evacuee trust property under section 4(2) of the Displaced‑Persons (Compensation and Rehabilitation) Act, 1958. It was held in Shir Tikamdas Hiranand and others v. Divisional Evacuee Trust Committee, Karachi and others P L D 1968 Kar. 703 that the essential ingredients of religious endowment, under the Hindu Law are Sankalp and Samarpan whereby the properties are given away by the owner to the public or the Almighty completely divesting himself of its ownership. Where the properties had been vested in an Association which was religious and charitable institu tion for looking after disabled animals, particularly cows, it was held that from the mere fact that cow‑worship was a cardinal principle of Hindu religion it could not be inferred that the properties of the Association vested in a diety or idol. In the present case, main reliance has been placed upon the said entry with regard to exemption or Muafi as well as description of Baldev Gir as Mahant of the temple in order to show that the property was attached to the temple and as such was trust property. As discussed above, according to Hindu Law unless the property is shown to have been given away by the owner to the public or the Almighty completely divesting himself of its ownership the same cannot be said to be trust property. Nothing has been brought on record to show that the persons such as Baldev Gir and his ancestors, shown to be owners in the ownership column of the relevant record had divested themselves of the ownership rights in the properties in question. As mentioned above, the relevant entries in this regard go to show them to be the owners and they do not help the respondents to the case. It was held in Badruddin v. Kazi Munshi and 2 others P L D 1972 Kar. 101 that it was necessary to be proved that the object of the trust was charitable, religious or educational and simply showing the house to be in the name of trust was not sufficient to treat it as trust property. The case had previously been decided under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Settlement authority concerned declaring the house to be trust property. The facts of the case show that the house in question had been shown to be in the name of a trust and this entry was mainly relied upon by the Settlement Commissioner in deciding the case against the appellant. The said entry was not found to be sufficient to declare the property as trust property. The learned Judge while deciding the case in favour of the appellant relied on Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 S C M R

503. The leave in that case was refused by the Supreme Court on the ground that no documents relating to the constitution of Nasarpuri Community Panchayat was forthcoming. Reliance was, however, placed before the Supreme Court on the copy of a sale deed of another property in favour of the Panchayat acquired for the maintenance of Hindu widows. It was held that this did not, by itself, prove that the Nasarpuri Panchayat was a religious or charitable institution or that any property acquired by the Panchayat was trust property.

6. It was held in The Province of East Pakistan v. Kshiti Dhar Roy and others P L D 1964 S C 636 that under the Hindu Law no particular form or mode to create a dedication is prescribed, but if such dedication is not evidenced by a document of dedication, it must be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. What is necessary to be established is that riot only wag there a clear and unequivocal intention to decimate, but also that such intention was in fact carried into effect. This later can only be proved by the conduct of the dedictor. both at the time of and subsequent to the dedication as also by the manner of the user of the property after the dedication. It was held in Sri Raja Lakshmi Narayan Jew and others v. The Province of East Pakistan 1969 S C M R 898 that in order to establish that a property was trust property, it is necessary to show its complete divestiture. In the present case, as shown above on the basis of various documents produced by the parties, Kirpal Girt the ancestor of Baldev Gir, was shown to be the exclusive owner of the property in 1856 vide Exh. P. B. Thereafter his successors‑in‑interest were also shown to be owners of the property in question and the same was not shown in the ownership of Sitla Mandir. It has not been shown on record that Kirpal Gir or his successors‑in‑interest ever completely divested themselves of the ownership rights in the property. Mere entry with regard to Muafi or exemption of revenue or other taxes cannot prove the title of the temple with regard to ownership of the property. If some income of the property was spent on the maintenance of the temple, that also does not prove that the property was trust property, unless the ingredients with regard to creation of trust, as discussed above, are established on record. The above discussion would show that the Settlement Commissioner has not been able to properly appreciate the relevant entries in the revenue record, certified copies of which have been produced on record. 8. 1t has not been shown by the respondents that the property in question was not acquired by Baldev Gir or his ancestors from their own private sources. They have merely relied upon the entries showing‑the property to be previously in the name of Guru and then devolving upon the Chela and have argued that since the property had been inherited by Chela from his Guru, therefore, the same was trust property. This contention has no force in law. If any property acquired by a Guru from his own private sources is inherited by his Chela, no presumption can be attached to the same, that it was religious or trust property. It was held in Baba Kartar Singh Bodi v. Dayal Das and others A I R 1939 P C 201 that if certain property is held by a person as his private property the mere circumstance that it had subsequently descend ed from Guru would not warrant the presumption that it was religious property. The same view was taken in Kishan Das v. Lachman Singh and others 75 I C 94, Geshain Sheo Ghulam Puri v. Shiam Lal Bhagat A I R 1928 All. 257 and Baghbir Lala and others v. Muhammad Said and others A I R 1943 P C

7. It was held in all the cases cited above that if property acquired by a Mahant descends to his spiritual Chelas the more circumstance that the devolution of certain property has for several generations been in the spiritual line does not prove that the property was trust property. In the present case the properties in question have been shown to have devolved in the name of Chelas of various Gurus or Mahants and it has been argued on that basis that they were trust properties. This contention has no force in view of the authorities cited above.

9. The above discussion would show that the learned Settlement Commissioner has erroneously held the properties to be evacuee trust properties The oral as well as the documentary evidence relied upon by the respondents does not prove the properties in question to be evacuee trust properties, while on the contrary the‑ evidence produced by the appellants proves otherwise. On this view of the matter the appeal is accepted with costs and the impugned order passed by the Settlement Commissioner is hereby set aside. K. B. A. Appeal accepted.