2. The plaintiff's case, as set out in the plaint, is that one Seth Chhatrapal constructed a temple near Naka Chandrabadni Road, Lashkar, and installed in it the idol of Shri Radhakrishanji in the year 1934. It is further alleged that for the maintenance and upkeep of the temple some residential apartments and shops were also constructed near it so that the expenses for the 'Seva Pooja' of the idol may be defrayed from their income. It was stated that the temple is Debuttar and the property in question is Debuttar property. The plaintiff further alleges, that Seth Chhatrapal had no issue and, therefore, he executed a will on 26-1-1944, whereby he bequeathed his property to Pooranchand, defendant No. 1, grandson of his brother Gappulal. By a subsequent will dated 3-8-1945, Seth Chhatrapal appointed five trustees for management of the said temple, among whom were also Lallomal the next friend of the plaintiff, and the defendant No. 1, Pooranchand as well as Bharosilal, co-defendant. The plaintiff's case is that after the death of Seth Chhatrapal, defendant No. 1 Pooranchand had been managing the affairs of the temple on behalf of all the trustees. But, since four to six months before the filing of the suit, it is alleged by the plaintiff, the defendant No. 1 Pooranchand had begun acting adversely to the interest of the idol inasmuch as he had started using the income of the property belonging to the temple for his personal purposes. The plaintiff, therefore, filed the present suit for declaration that the temple is Debuttar property and the defendant is not the owner of the same,
3. The suit was resisted by defendant No. 1 Pooranchand alone, as the other defendant Bharosilal remained ex parte. The main defence of the defendant No. 1 Pooranchand (who will hereinafter be referred to as 'defendant'), was that the property belonged to him and was not Debuttar property.
4. After recording the evidence produced by the parties, the learned Third Additional District Judge, Gwalior decreed the suit, as stated above. Hence, this appeal by the defendant.
5. At the very outset, learned counsel for the defendant-appellant has urged two points which, according to him, go to the root of the matter and obviate the necessity of examining the case on merits. His first contention is that the learned Additional District Judge has not determined the nature of the trust, viz., whether the temple in question is a public trust or a private trust, and (2) that the suit for declaration only without relief of possession is not maintainable.
6. We have heard learned counsel for the parties on the aforesaid two points and since we felt that the appeal can be disposed of on these points, we have not addressed ourselves to the merits of the case.
7. Mr. B. D. Gupta, learned counsel for the plaintiff-respondent, has strenuously urged that the question whether the subject-matter of the suit is a public trust or a private trust does not at all arise inasmuch as it is a suit, pure and simple, by the idol installed in the temple for declaration that the property belongs to the idol and not to the defendant and the defendant is wrongly treating the property in question as his private property. In support of his contention, he has relied on AIR 1067 SC 1044 and AIR 1973 Mys 280.
8. In our opinion, the proposition, that an idol or deity is a juristic person and can sue as such admits of no doubt, as it has been established by a series of authorities that an idol as a juristic person, can sue through a next friend. The question here, however, is different. The point canvassed before us is whether the temple in question is a public trust and, if so, is there a bar to hear and decide the suit, as the public trust has not been registered under the M. P. Public Trust Act, 1951 (which will hereinafter be called the 'Act')?
9. Section 32 of the Act reads as under:--
32. Bar to hear or decide suits:-- (1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court, (2) The provisions of Sub-section (1) shall apply to a claim or set-off or other proceeding to enforce a right on behalf of such public trust.
10. It is clear to us that dedication of the property for religious purposes, such as establishment and worship of an I idol, is a religious endowment, and in the present case, it is alleged to have been created by a writing made by the creator of the trust, viz., Seth Chhatrapal. in 1945. If the dedication is held to have been proved, there is no doubt in our minds that it is an endowment and, consequently, a trust.
11. 'Trust' has been defined in Section 3 of the Indian Trusts Act (No. II of 1882) as follows:
"3. Interpretation clause. 'Trust' is an obligation annexed to the ownership of property, and arising out of confidence reposed, in and accepted by the owner, or declared and acceptetd by him, for the benefit of another, or of another and the owner."
The word 'trust' has not been defined in the Act, but by virtue of a direction contained in Section 2 (1) of the Act words and expressions used but not defined in the Act and defined in the Indian Trusts Act (II of 1882) may be adopted for the purposes of the Act. Accordingly, the definition of 'trust' given in the Indian Trusts Act (II of 1882)' may be taken to be the definition for the purposes of the Act.
12. In Deoki Nandan v. Murlidhar, AIR 1957 SC 133 their Lordships observed:--
"It is a settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but, absence of such proof would not be conclusive against it."
13. Now, in the present case, it would not be out of place to refer to the notice (Ex. P-13) produced by the plaintiff himself. This notice was. admittedly, issued by the plaintiff Lallomal to the defendant Pooranchand. It is specifically mentioned therein by Lallomal that he and Pooranchand along with Bharosilal had been appointed trustees of 'Gopalji ka temple' and it was necessary that the account of the trust should be audited and the property belonging to it be verified and checked. It is again the admitted case of the parties that an idol was installed in the temple and certain property including the property in dispute was permanently endowed to it. Consequently, a trust in legal sense or religi-
ous endowment known as 'Debuttar' came into existence.
14. In Deoki Nandan's case (AIR 1957 SC 133) (supra) it was further observed that according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. Their Lordships further held that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers. Our conclusion, therefore, is that the endowment made by Seth Chhatrapal in the present case for the maintenance of worship of the idol was a trust and, consequently, it was necessary for the trial Court to determine whether it was a public or a private trust.
15. Learned counsel for the respondent has strenuously urged that the defendant had never come forward with a plea that the endowment in question was public trust and, therefore, he is not entitled to raise the objection regarding bar to the maintainability of the suit under Section 32 of the Act at this stage. We may point out that in the additional pleas (para 1) the defendant has submitted that the plaintiff has not specified in the plaint whether the De-buttar and the property belonging to it is a public trust or a private trust, though the defendant has at the same time taken the plea that the property in question is his private property. In our opinion, it was necessary for the trial Court to have called upon the plaintiff to give further and better particulars on this point. Even if the plaintiff did not choose to do so, it was necessary for the trial Court to determine whether the Debuttar in the present case was a public trust or a private trust. We may also point out even at the risk of repetition that at more than one place the plaintiff has alleged in the plaint that the property in question is Debuttar (e. g., para 8). Again in the relief clause it has been prayed that the property be declared as Debuttar and it be held that it is not the private property of the defendant. We have also referred earlier to the notice (Ex. P. 13) wherein the plaintiff Lallo-
mal has specifically stated that the property in question was dedicated for the upkeep of the temple and, as such, is a trust.
16. In this state of pleadings, it cannot be said that the point had not cropped up at all before the trial Court. In the operative part of the judgment the trial Court has held that the deity installed in the temple is a juristic person. It appears to us that this was not the point in dispute at all. In case of Debut-tar, a trust may be public or private and, therefore, the point for decision in the case was whether the trust is public or private, and this point has to be decided with reference to terms of documents, if any, and upon inferences which could be legitimately drawn from the evidence adduced in the case, the material evidenc'e being of actual user and public repute.
17. As observed by B. K. Mukherjea in his Book on 'Hindu Law of Religious and Charitable Trusts', the question whether the trust is public or private at times becomes undoubtedly difficult, and although certain indicia of a public foundation have been enunciated in several decided authorities, yet none of them can be regarded as conclusive. He has observed that this question generally arises in regard to temples. It was held by the Privy Council in Bhagwan Din v. Gir Har Saroop, 44 Cal WN 294: (AIR 1940 PC 7) that it is possible that a temple which was a priate one at its inception might be so dealt with, that in course of years it might become a public temple. In that case, the temple had grown but the family had always treated it as private property, without any interference by the public, dividing the various forms of profit, whether offerings or rents, letting out portions of lands in their own names, closing the temple to the public when necessary for family purposes and erecting samadhies on the land in honour of the dead. Having regard to these circumstances, particularly to the fact that the original grant was in favour of an individual, it was held by the Priviy Council that no public trust could be inferred.
18. We shall not endeavour to determine at this stage whether the temple in the present case is a public or private trust. But we are firmly of the opinion that the trial Court should have first determined whether the trust was a public or private trust and in case it came to a finding that it was a public trust, then it should have decided the defendant's objection whether Section 32 of the Act operated as a bar to the maintainability of the suit unless the trust was registered. We are further of opinion that it must do so now. In case it comes to the conclusion that it is public trust and Section 32 applies, then it must stay its hands and direct the plaintiff to get the trust registered, and then, proceed with the suit in accordance with law after decision by the Registrar.
19. In view of our decision on the first point, we do not consider it necessary to dispose of the second point regarding absence of relief of possession and leave it open to the parties to agitate the same before the lower Court, as and when advised.
20. In the result, we partly allow this appeal, set aside the judgment and decree by the trial Court and remand the case to the trial Court with a direction to restore the suit to its original number and dispose it of on the lines indicated above. In the circumstances, we leave the parties to bear their own costs.