LexKULDIP CHAND AND ANR. versus ADVOCATE GENERAL TO GOVERNMENT OF HIMACHAL PRADESH AND ORS.
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KULDIP CHAND AND ANR. V. ADVOCATE GENERAL TO GOVERNMENT OF HIMACHAL PRADESH AND ORS. FEBRUARY 14. 2003 [S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.) Trusts: A B Code of Civil Procedure, 1908-Section 92-0riginal owner dedicating C dharamsala to general public-Property being used as dharamsala for long period-Successor-in-interest of original 011•ner selling the sa111e - Suit on ground that property a trust property, dedica1ed lo public for public purpose-- Single Judge of High Court dismissing the suit holding that public trust never created-However, Division Bench setting aside the same-Sustainability of- D Held, public in general did not exercise their right, if any, in respect of suit premises for long time since 1963-Mere fact that part of dharamsala was used by general public for long time but continuance of such benevolent act would not lead to creation of trust-Creation of trust being determinative factor of entertaining such suit, order of Division Bench unsustainable. The original owner constructed a Dharamsala and dedicated it to the general public. After his death it devolved upon the successors-in- interest. Then heir 'J' inherited the property and later sold it to the appellants. The property was used as Dharamsala for a continuous period E of about 125 years. Respondent-State Government filed suit under Section F 92 CPC on the ground that the property was a trust property and was dedicated to the public for public purpose by the original owner. Single Judge of High Court dismissed the suit holding that the public trust was not created and the property was treated by the original owner and his successors-in-interest as their own property and not as trustees thereof. Respondents filed Letters Patent Appeal. Division Bench set aside the G order, Hence the present appeal. Appellants contended that the Division Bench erred in setting aside the judgment of the High Court; and that a suit under Section 92 CPC would be maintainable only in the event it is proved beyond any pale of 1195 H 1196 SUPREME COURT REPORTS [2003] I S.C.R. A doubt that the trust is a public trust and not otherwise. Respondent No. I contended that the user of the property as Dharamsala has not been and could not be disputed, such user having been continued for a period of 125 years the same could not have been treated as private property and, thus a complete dedication thereof for user of B the public must be inferred. Allowing the appeal, the Court HELD: 1.1. A benevolent act on the part of a ruler of the State for C the benefit of the general public may or may not amount of dedication for charitable purpose. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the D institution and the conduct of the founder and his heirs. Such dedication may either be complete or partial. A right of easement in favour of a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user E but such right in the instant case, is not wholly unrestricted. Apart from the fact that the public in general and/or any particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. 11206-D-GI F 2.1. Whether an endowment is of a public or private nature, the following tests are sufficient guidelines to determine on the facts of each case, namely, where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; the fact that the control and management vests either in a large G body of persons or in the members of the public and the founder does not retain any control over the management, allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the
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