ORDER
1. This is an application for revision from an order of the Subordinate Judge, Agra, dated 13th May 1936, allowing an application of the respondents made under Section 3, Charitable and Religious Trusts Act (Act 14 of 1920). The first point taken is that the applicant had no interest in this trust. The learned Judge has found that the applicant is a worshipper at the temple, is a resident of the locality, and a member of the same caste as that of the deceased founder. It is also clear that if the income of the trust is to be spent on charitable purposes, then the applicant can have an interest in the trust and is certainly entitled to see that it is duly administered. The question is mainly one of fact, and we would not entertain this point in revision. Another point taken is that one of the trustees, Dr. Raja Earn, was not impleaded and accordingly there is a non-compliance with the imperative provisions of Order 31, Rule 2, under which where there are several trustees they shall all be made parties to the suit.
2. It is contended that these provisions are applicable to this case by virtue of Section 141, Civil P.C., which would make them applicable so far as they can be. On the other hand, it cannot be denied that there is also Order 1, Rule 9, under which no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. In the present case, however, it is not necessary to decide whether there has been any defect of non-joinder, for it appears that Dr. Baja. Bam wag duly served. The order in the order sheet is to the effect that summons was given to him personally, but he refused to take it, and on the report of the process server, the Court held that the service was sufficient and started ex parte proceedings. At a later stage, he appeared before the Court in person and wanted to know whether the applicant would make him a party. The applicant had already got summons issued to him because of an objection taken by the other defendants that he had been left out. We may also note that his own son appeared as advocate for the contesting defendants. We do not think that there has been any material irregularity in the procedure which would justify interference in revision.
3. The main point is whether the Court had at all jurisdiction under Act 14 of 1920, the contention being that the Act is not applicable to this trust. The trust was created under a will dated 22nd July 1911. After reciting that he would remain the absolute owner of the property in his lifetime, the testator provided that after the payment of a certain specified debt, a temple should be established in the house known as bungalow, and the idol of Thakur Madan Mohan should be installed in it and a pujari maintained, and the trustees should make arrangements about rajbhog from time to time. The next paragraph of the will provides how the income is to be spent and lays down that the said expenses (the arrangement about rajbhog, etc.) with the pay of the pujari, etc., should be fixed at Rs. 30 per mensem and Bs. 10 per mensem are to be given as maintenance to Mt. Devi, his widow for her life. The deed then says that from the remaining income of the property a Chhatra is to be established in the said temple and according to the opinion of the Committee of trustees the Abhyagats are to be fed or flour and gram are to be distributed.
4. Then there is provision for setting apart a room in the house for medicine to be distributed, which would continue. Another paragraph provides that the income from Mauza Bilhara is to be given to Bisheshar Nath for the expenses of the distribution of the medicines so that he may realize it and as usual distribute it. There is also a provision for the payment of Rs. 12 to the Manager of another temple in Dariya Nath and for the expenses of the said temple. The testator made further provision that the karinda should keep regular accounts and render accounts every three months to the trustees and get them signed by the trustees. There was a provision that if any one of the trustees refuses to work, or is disabled from acting, or dies, another trustee may be substituted in his place by the Board of Trustees. It is also provided that if Bisheshar Nath, who would have no right of any kind in the property or any portion of the property, does not distribute medicines, he would be ejected from the room which was meant for the distribution of medicines. Thus, apart from the maintenance of the temple, and its worship conducted by the pujari, and the arrangements for rajbhog, etc., the bulk of the income was to be spent on the distribution of food and medicines to the deserving. The allowance of Rs. 10, after the death of the widow, was to be added to the monthly expenses of the Chhatra.
5. The learned advocate for the respondents has argued before us that from the circumstances that the trustees were strangers to the family, and some of them belonged to another caste, and that there were charities connected with this temple, and that the idol is a well-known and common idol, it should be inferred that the temple was intended to be a public temple. We think it unnecessary to express any opinion on this point. The fact remains that the greater part of the income was spent on these charities. The learned Counsel for the applicant has informed us that his client estimates the income of the trust properties at Rs. 250, which may possibly be an underestimate. Thus barring the small sum of Rs. 40, the rest was to be spent on these charities. The charities cannot be regarded as private purposes, as they must of necessity be for public purposes.
6. It is however contended on behalf of the applicant that the trust being partly public and partly private, Act 14 of 1920 was altogether inapplicable to it. Strong reliance is placed on a Pull Bench ruling of the Oudh Chief Court in Shabbir Husain v. Ashiq Husain A.I.R. 1929 Oudh 225. That case does not appear to have been followed by a learned Judge of this Court in Nageshwar Prasad singh v. Ram Sarup Singh A.I.R. 1936 All. 441. The form in which the question referred to the Full Bench was answered, does prima facie support the contention of the applicant, for, the answer was worded as follows:
The Act of 1920 applies only to those cases where the entire benefit under the waqf or trust is allotted for public purposes.
7. But it is not clear whether the learned Judges meant what might appear from the words quoted above. The learned acting Chief Judge at page 228 remarked:
We should not interpret them in such a sense as to allow a trust for a public purpose in its substance and essence, though supplemented by an illusory or wholly trifling provision, the purpose of which may be not public or may be even private to be taken out of the provisions of the Act of 1920. We must look to the real substance of the trust and the primary intention of the creator of the trust in every case.
8. Misra, J. also observed:
In determining the question whether a trust is one intended purely for a public purpose, the substance of the trust and real intention of the author of the trust have to be looked into. In cases where substantial portion of the property is dedicated for a private purpose, it cannot be said that the dedication is one for public purposes simply because a portion of the property is given for public purposes.
9. Raza, J. also appears to have agreed with that view. The answer of the Full Bench must therefore be taken to mean that the Act applies only to cases where the bulk of the income is allotted for public purposes, leaving out a substantial amount which may either be illusory or trifling. The case before the Oudh Chief Court was a case between parties governed by the Imamia law. The learned acting Chief Judge, therefore, remarked:
Mahomedan law includes the Imamia law, and this is the particular law with which we are particularly concerned in the present case.
10. If the decision turned on an interpretation of the rule of Imamia law, then the decision would be irrelevant for the purposes of the present case. The view ex-pressed by the Full Bench appears to be that "where a trust is partly for a public purpose and partly for a private purpose... the Act is inapplicable". The arguments in favour of the view may be summarised as follows: First, the Act of 1920 uses the words "public purposes", and does not use the expression 'partly public and partly private purposes'. But the Act also does not use the words "partly public purposes." The question in each case must depend on the interpretation of the document after taking into consideration all the provisions in it. If the trust is in sub-stance a trust for public purposes, then even though part of the income might have been specifically allotted to purposes which cannot be regarded as public, the trust would, nevertheless, be for public purposes. On the other hand, if the trust is substantially for private purposes, then even though a small and negligible amount may be set apart for public purposes either in the present time or in a future eventuality, the trust in itself would not be for public purposes. But where under the same deed either a specified part of the property, for example, a defined share in property, or a specified part of the income has been definitely set apart for public purposes, then the mere fact that any other part of the property or any other specified part of the income is for private purposes would not take the ease out of the provisions of Act 14 of 1920. For, if that were to be the interpretation of the section, the result would be that a testator would be incapable of creating a trust for public purposes unless he were prepared to dedicate his entire property for such purposes. He would be incompetent under the same document to create two trusts, one public and the other private.
11. A person may create a trust under which a specified part of the property, e.g. four annas out of the sixteen annas, is set apart for charitable, religious and public purposes, and the rest for private purposes ; or he may out of the entire income set apart a specified share, for example, 25 per cent, for such public, charitable or religious purposes, or he may, under the same document, create a trust of properties in this country, to which the Act may apply, and properties in some other country, not governed by this Act. It would be difficult to say that in such cases the waqf ceased to be a waqf for public purposes merely because a part of the property or a portion of the income is not allotted for such purposes, or that a part of the property is situated outside the jurisdiction of the Court which cannot apply the Act. Of course, where there is no such distinctness and the whole expenditure is left at the discretion of the trustee, the trust may be illusory. There appears no justification, therefore, for the view that if under one document there are provisions for public as well as private purposes, which can be separated, the whole trust is for private purposes and is of such a nature as not to be governed by the provisions of this Act. Such an interpretation is tantamount to introducing into Section 3 words like 'public purposes only', or 'public purposes exclusively' or 'public purposes simply', which is not justifiable.
12. Secondly, it is said that the Act of 1920 must be interpreted in the light of the later Act of 1923, because the two have to be administered simultaneously, and the interpretation should be such that they should not overlap each other. With great respect, we are unable to accept this view, because the Act of 1920 was passed earlier and was applicable to persons of all creeds, whereas the later Act of 1923 was confined to Mussalmans only. The general Act has laid down certain provisions which are applicable to all trusts. The mere fact that the two Acts contain provisions which are overlapping would not necessarily justify an inference that the two Acts should necessarily be mutually exclusive. An examination of the two Acts shows that there is really no contradiction. The learned Chief Judge has remarked that If both the Acts are held to cover the same subject matter qua the Mussalmans, we may find contradictory orders passed by Courts of coordinate jurisdiction.
13. It has not been suggested what con. tradictory orders can be passed. The only reliefs which an applicant under Section 3, Charitable Religious Trusts Act, can ask for are: (1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject matter of the trust, and of the in come belonging thereto, or as to any of these matters, and (2) directing that accounts of the trust shall be examined and audited. The Court when allowing such an application would in no way pass orders which would be contrary to the Mussalmans Waqf Act. Under that Act it is the duty of the trustee to file a statement of account as the trust is governed by that Act; and where such a statement of account has been furnished, any person may apply to the Court requiring the mutwalli to furnish further particulars and documents under Section 4, and under Sub-section 2 of that section the Court may, if it thinks fit, order that such particulars be supplied and full information obtained regarding the origin, nature, or the condition of the management of the property, and such other particulars or documents as the Court may direct. Under Act of 1920 the applicant can ask for the auditing of the accounts. Under Act of 1923 the auditing has to be done automatically without any such request. The later Act is a special Act intended to apply to waqfs of the Mussalmans, which has more stringent provisions and can in no way derogate from the provisions of the earlier Act. It seems to us that there is no justification for trying to interpret the earlier Act of 1920 in the light of the later Act, which was intended to be applicable to one particular community only.
14. Thirdly, it is said that as the substantive provisions of the two Acts overlap each other, the later Act would be superfluous. With great respect, there is no superfluity in the later Act at all except this that in both the applicants can apply for the particulars of the nature and management of the trust; but the consequences involved are entirely different, for instance, the later Act contains certain penal provisions which the earlier one does not. If a person applies under Act 14 of 1920, his application is governed by that Act. If the person applies under the later Act, his application will be governed by the later Act. If he applies under both the Acts, it would be for the Judge to pass suitable orders in the exercise of his jurisdiction under either of the Acts.
15. Fourthly, it is suggested that the two Acts are mutually exclusive because the Act of 1923 deals with a trust by a person professing Muslim faith for purposes partly public and partly private. It is true that the later Act deals with waqfs whether for purposes public, private, or partly private and partly public; but it does not follow that the earlier Act must deal with only such public trusts as are created by deeds in which there are no provisions for private purposes.
16. Ganga Nath, J. in Nageshwar Prasad singh v. Ram Sarup Singh A.I.R. 1936 All. 441, which has been quoted above, rightly observed that:
There is no difficulty in applying Section 3 to a deed which contains more than one trust, one of which may be a trust for a public purpose of a charitable and religious nature and the other for a private purpose.
17. In the present ease there is no doubt that the primary intention of the testator was to create an endowment with the help of the income of which a Chhatra and a dispensary would be established and food and medicines supplied free to the needy and the deserving. Only a small part of the income was set apart for religious purposes, namely the maintenance of the temple. The insignificant sum of Rs. 10 was allowed to the widow for her life only as her maintenance allowance, which was to lapse to charity after her death. The other sum of Rs. 12 was also for religious purposes, namely to meet the expenses of a temple of Dariya Nath, which is not suggested before, is to be a private temple. We see no reason to hold that the Act of 1920 is not applicable to this trust merely because a small sum was reserved for those purposes which may not be strictly public purposes. We accordingly dismiss this application with costs.
18. A point which was never taken in the Court below and which is not raised in the grounds of revision, was suggested on behalf of the applicant in the course of argument, namely that possibly the learned Subordinate Judge of Agra had no jurisdiction to entertain this application. It appears that the application was originally filed in the Court of the District Judge and was transferred to the Court of the Subordinate Judge. It is not necessary to go into this matter, as we have no doubt that if it turns out that the learned Subordinate Judge has no jurisdiction, the District Judge on being informed of this fact would re-call this case and dispose of it finally according to law.