Birendra Pd. Singh, J.:— This is an appeal by the plaintiff. The plaintiff filed a suit for declaration that the Radha Krishnaji temple along with the properties attached to it, situate in Am Bagan, in the town of Jamshedpur, is a public temple, and for setting aside the order dated the 12th December, 1963, passed under Section 43 of the Bihar Hindu Religious Trusts Act, by the competent authority.

2. The plaintiff's case, inter alia, was that defendant Madan Lal Joshi is a Shebait of the public Thakurbari known as the Am Bagan Thakurbari. The land upon which this temple stands was donated by the pradhan of Sakchi by a Hukumnama, dated the 8th of Baishakhi, 1319 Fs., for the construction of the temple. The general public liberally contributed for the construction and establishment of the Thakurbari. Since its very inception members of the public have access to the temple where they perform puja without any let or hindrance. The general public of the locality have always trued this Thakurbari as a public Thakurbari.

3. The defendant contested the suit and pleaded that the Thakurbari was known as Marwari Thakurbari and it was not a public Thakurbari. There was a Shivalaya which was not part of the Thakurbari and the temple of Shivaji does not own any immovable property except a piece of land over which it stands. The Survey entry in regard to the suit property was wrong. The pradhan granted the lands to the defendant and Hiralai Joshi, on the request of the latter, for their use and for the construction of a temple for their family deity Radha Krishnaji. The pradhan did not claim any interest in the temple as its founder nor his heir claim any interest in it. According to the defendant, the general public did not make any contribution for the construction of the Thakurbari. The defendant and Hiralai begged and borrowed money from some merchants who made contributions only with the object of helping the defendant and Hiralai. The defendant further pleaded that there was a title Suit No. 8 of 1936 in which it was held that the temple of Radha Krishnaji was the exclusive property of the defendant and Hiralai and the public had no freedom of worship. The defendant and the heirs of Hiralai sometimes allowed their Jajmans to go into the Thakurbari for puja and they go there with the consent and permission of the defendant and the heirs of Hiralai. The Thakurbari is surrounded by Kholies and the residential house of the defendant and Hiralai and they have been appropriating the income from the Kholies.

4. The trial court found that in its opinion this Thakurbari has been in the exclusive possession and control of Madan Lal and Hiralai and their heirs and they had practically treated this property as their own. It has held that the Thakurbari was not a public Thakurbari and within the purview of the Bihar Hindu Religious Trusts Act. The suit was, therefore, dismissed. Hence this appeal.

5. Before I take up the issues that arise for consideration in this case, it is relevant to state that the plaintiff had filed a petition in the court of the Authority under Section 43 of the Act for a declaration that the Thakurbari along with the Shivalaya was a public Thakurbari. The petition was allowed in part. The Shivalaya together with the land on which it stands and the passage land from the public road to the Shivalaya was declared to be a public trust. The Radha Krishnaji Thakurbari together with all the land appertaining to it save and except the land of the Shivalya, was held to be private endowment of the defendant.

6. Shri Tribeni Prasad Sinha appearing on behalf of the appellant submitted that the Thakurbari is a public trust and not a private one. According to him, apart from the documents, there is sufficient evidence of long user of this temple by the public as a matter of right. He also submitted that the manner in which the affairs of the temple are managed and the nature and extent of liberal grants and donations received for the construction of the temple are factors that go to establish that it is a public temple and not a private one. Shri Rajgarhia appearing for the defendant respondent has, on the other hand, seriously contested this submission and asserted that there is no evidence to establish that the Thakurbari is a public trust.

7. The main question for consideration, therefore, in this case is as to whether this Thakurbari is a public trust or a private one.

8. The principle of law for determination of the question whether an endowment is public or private is well settled by a series of decisions of the Supreme Court. In (1) Deoki Nandan v. Murlidhar (A.I.R 1957 Supreme Court 133), it was observed as follows:

“The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof, while in the former the beneficiaries are persons who are ascertained, in the latter they constitute a body which is incapable of ascertainment.”

9. It was further held:

“When once it is understood 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, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, for the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.”

10. The same principles were re-iterated in (2) Mahanth Moti Das v. S.P Sahi (A.I.R 1959 Supreme Court 942); in (3) Mahanth Ram Saroop Dasji v. S.P Sahi (A.I.R 1959 Supreme Court 951) and in (4) State of Bihar v. Sm. Charusila Dasi (A.I.R 1959 Supreme Court 1002). In the case of State of Bihar v. Sm. Charusila Dasi (Supra) the Supreme Court observed that in order to determine the question whether an endowment is public or private, the cardinal point to be decided was whether it was the intention of the founder that specific individuals are to have the right of worship at the shrine or the general public, or any specific portion thereof. When the property was dedicated for the worship of a family idol, it was a private and not a public endowment as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that was an ascertained group of individuals. But where the beneficiaries were not members of a family or a specified individual, then the endowment could only be regarded as public intended to benefit the general body of worshippers.

11. It is in the light of these principles that the facts of the present case must be examined. I propose to deal first with the documentary evidence in this case. It is common ground that the land on which the Thakurbari is situate was gifted by the pradhan of the village (Gorai Das) in 1319 Fs. Unfortunately the said document is not on the records of this case. It should be in the possession of the defendant, but he did not choose, to file it. He examined Gouri Shankar Bauri (D.W 4) record keeper of the District judge's Court at Chaibassa, who stated that C and C1 files of Title Suit No. 8 of 1936, which contained depositions and documents, were not in the Record Room as they had been destroyed. From his evidence, it is not clear as to whether this Hukumnama had also been destroyed. It will appear that in the year 1936 a suit had been filed by Kamla Prasad Joshi (D.W 6) son of Hiralai Joshi, and another, against Gajraj Gosain and others for a declaration that the plaintiffs were the sole trustees or Shebaits of the deities installed in the Thakurbari and that the defendants had no such rights in respect of the Shivalaya established others. In short, the plaintiffs' case in tint suit was that in the year 1319 Fs. an idea was conceived to construct a temple and instal the idols of the deities known as Shri Radha Krishnaji therein. The Hindu gentlemen of the locality were approached who sympathised with the idea and promised to make contributions. The pradhan of the village was who approached, who granted a Hukumnama to the plaintiffs appointing them as trustees and Shebaits. Some money was raised and a Chabutra was built in 1969 Samvat. Later, the idol of Radha Krishnaji was installed in one of the rooms. The sankalp and pratistha ceremonies were performed in presence of the pradhan and several gentlemen of the locality who were representatives of the Hindu community and all of them relinquished their rights and interests and gave a written sankalp with a view to avoid future troubles. It was further stated in that suit that a pucca temple for the deity with the help of the gentlemen of the locality was constructed. Upon the same land, a pucca Shiva temple was also constructed with the permission of the Shebaits where a Shivaling had been established. Defendant nos. 1 and 2, Gajraj Gossain and his mother, were described as the servants of the plaintiffs and it was stated that the defendants had falsely set up themselves as the representative of the Hindu community of Jamshedpur. The defence taken in that suit was that the temple in question belonged to the Hindu community of Jamshedpur and the plaintiffs had been only acting as the servants of the Hindu community. It was also stated that the temple and the houses were constructed by the Hindus with public subscriptions and the plaintiffs were only pujaris. On the basis of the oral and documentary evidence adduced in that case, the court came to the conclusion that the plaintiffs had all along been treated as the Shebaits of the Thakurji and that they had been in possession of the Thakurbari as its sole Shebaits. Accordingly, the plaintiffs were declared as the sole Shebaits of the Thakurbari in question but no declaration was given with regard to the Shivalaya. The judgment of Title Suit no. 8 of 1936 has been filed in this case and has been marked as Exhibit 2. Kamla Prasad Joshi (D.W 6), who is son of Hiralal Joshi was one of the plaintiffs in that suit. Defendant Madan Lal Joshi was the co-plaintiff. The trial court held that the Thakurbari was not a public trust. In appeal Mr. Narasimham (as the then was) declared the Thakurbari also to be public. In second appeal No. 880 of 1942, the High Court left this question open. These facts are stated in the judgment of the authority (Exhibit A) and were also admitted during the arguments. The plaintiffs had filed the Hukumnama granted by the Pradhan, relevant portion whereof has been quoted in Exhibit 2 as hereunder:

“I bestow about one bigha and a half of land for Sri Sri Radha Krishna Thakur. No rent will be assessed for the land. I make pandit Hiralal Madanlal the Shebait of the Thakurbari. You will render assistance in the matter of Bhog and construction of the temple, (torn) one else will be able to make a gift of, or sell away the aforesaid land. I give the land to the Thakur as long as the Thakur will exist. Year 1319 8th Baisakh.

12. This shows that the land was gifted by the Pradhan for the deity Shri Radha Krishnajee and Hiralal and Madan Lal were only appointed as Shebaits of the Thakurbari and they had no right to transfer the property. Shri Rajgarhia appearing on behalf of the defendants submitted that the contents of the Hukumnama quoted in Exhibit 2 could not be considered in the present case as the same was inadmissible. In (5) Parbutty Dassi v. Purno Chander Singh (I.L.R 9 Calcutta 586) the plaintiff sought to put in evidence an admission alleged to have been made by the defendants, predecessor in title in a written statement in a former suit. The only evidence of the admission was that contained in the decree in the former suit, the ordinary part of which was prefaced with a short statement of the pleadings in the suit. It was held that the statement in the decree was evidence of the admission under Section 35 of the Evidence Act. In (6) Krishnasami v. Rajagopala Ayyangar (I.L.R 18 Madras 73) a statement amounting to an admission which was contained in a judgment was received in evidence under Section 35. Similar views were taken in (7) Collector of Gorakhpur v. Ram Sundar Mal (A.I.R 1934 Privy Council 157) and (8) Hariram Serowgee v. Madan Gopal Bagla (A.I.R 1929 Privy Council 77). It cannot, therefore, be said that the terms of the deed quoted in Exhibit 2 are inadmissible and can not be taken into consideration.

13. The next document is the Khatian which has been filed and marked as Exhibit I. In its tenant column, the following has been recorded:

“Deity Shri Radha Krishnaji and deity Shri Shivaji through Shebait Hiralal and Madan Lal and Gajaraj Gossain son of late Darsan Gossain resident of Sakchi.”

14. This also shows that the gift was made not to any individual but to the deity Radha Krishnaji and Shivaji and the defendant Madan Lal along with Hiralal and Gajraj Gossain were only appointed as Shebaits. Such a description of the property only leads to an unerring Inference that the property is a public religious endowment. It is clear that the beneficiary was the deity.

15. The defendant also tried to lead some oral evidence in this connection in order to prove that the temple was private and not public. Kritibas Chatterji (D.W 3), a nephew of Goraidas, Pradhan of Mouza Sakchi, who had donated this land, stated that the land on which Radha Krishna temple stands was gifted to Hiralal and Madan Lal. This is against the entry made in the Khatian (Exhibit 1) as also the terms of the deed quoted in Exhibit 2. He further stated that Hiralal and Madan had an idol of Radha Krishnaji which they had kept in the house of D.W 3. So, the land was given for the installation of Radha Krishnaji. In cross-examination he stated that the Hukumnama had been written by Gorai das, but he did not remember what was written therein. He also did not remember if it was written in the deed that Hiralal and Madan Lal were Shebaits. D.W 6 is son of Hiralal Joshi, one of the Shebaits named in Exhibit 1. He stated that his father and uncle got the land from the Pradhan, that Shri Radha Krishnaji was their family deity and the public had no right of worship. In cross-examination, he stated that the land had been gifted before his birth his evidence is also against the entries made in the Khatian. If the land had been gifted to the defendant and others it does not stand to reason why the same will not be recorded in these names but in the name of the deity, the defendant having been shown only as a Shebait. D.W 6 Kamla Prasad Joshi was one of the plaintiffs in Title Suit no. 8 of 1936. It was not his case there that the temple was a private one. As stated earlier, his case was for a declaration that he along with Madan Lal was the sole trustee or Shebait of the deity installed in the Thakurbari. In fact, it was held in the said title suit that the Shiva temple was of the nature of a public temple but in respect of the temple of Radha Krishnaji it was held that it was under the control and supervision of Madan Lal and the heirs of Hiralal. By the Hukumnama, plot nos. 2586, 2565/5792, 2366/5793 and 2566/5794 having an area of 1½ bighas were donated. It is the common case of the parties that the Shiva temple is also located on a portion of these lands. If, therefore, by reason of the nature of the deed of gift, the Shiva temple became a public trust, how could it be that the Thakurbari situated on another portion of the same donated land will have a different character. Thus, the documentary evidence in my opinion, clearly shows that was in favour of the deity itself and that must be held to be a cogent evidence for deciding the question whether the endowment was a private one or a public one.

16. Shri Rajgarhia relied upon a decision of the Supreme Court in (9) the Bihar State Board Religious Trusts, Patna v. Mahanth Sri Biseshwar Das [1971 (1) Supreme court cases 574.] In that case the Asthal and its properties were claimed by the Mahanth as his personal property, the gift of the lands having originally been made personally to the founding Mahanth. The Sanads under which the Mahanth claimed to have acquired the properties were not produced in that case. The trial court decided against the Mahanth. The judgment was reversed by the High Court on the ground that the temple was constructed by one Gaibiram Das and it was he who had installed the deities; that the appointment of successor had been all throughout from Guru to Chela; that the properties had always been, recorded in the names of the Mahanths as proprietors and not in the name of the deities in the D register, Khewats and Khatians; that the Mahanths had been in possession and management of the properties throughout and that the Mahanths acquired properties from time to time in their own names as proprietors and never in the name of the deities or the Asthal. It was held by the Supreme Court that the properties of the temple being, thus, admittedly in possession of the Mahanths ever since the time of Gaibiram Dasji the onus to prove that the Mahanths held the trust for public purposes of a religious or charitable character was clearly on the Board who alleged that it was so. So far as the present case is concerned, the land is, admittedly, recorded in the name of the deity in the Khatian and not in the name of the defendant-respondent. To that extent, the onus has been discharged by the appellant Board that the grant originally was made for public purposes. The idol, being a juristic person in Hindu Law, is capable of holding properties. Shri Rajgarhia then relied upon the decision in (10) The Bihar State Board of Religious Trusts v. Palat Lal (1971 PLJR 186 = A.I.R 1972 Supreme Court 57). In that case it was held that where by a will certain properties were endowed in favour of an idol which was worshipped all along by family members and the public were not allowed to worship as of right, and in the will also it was not made clear whether public would be admitted as of right and the intervention of public was neither intended nor allowed, it was a private endowment. This case also does not help Shri Rajgarhia. In the present case the grant was made in favour of Shri Shri Radha Krishna Thakur free of rent and the defendant and two others were made Shebaits. They were only required to render assistance in the matter of ragg-bhog and construction of the temple and were not given a right either to make a gift of or to sell the aforesaid land. Some evidence was also led in the case regarding the outsiders coming to the temple and offering Puja. P.W I stated that he used to go to the Radha Krishna Mandir sometimes and there was no obstruction in going there. P.W 2 also saw many people from outside worshipping in the temple. P.W 3, an old man of 70 years and a resident of that place, stated that he used to go to the temple to get Prasad. D.W 1 also stated that he used to go to the temple and sometimes offered Paisa in the temple. D.W 2, no doubt, stated that he used to go to the temple when invited in any function, but he also stated that he used to offer narial and batasa and gave dakshina to the Pujari. D.Ws 5 and 6 denied the entry of the outsiders, but their evidence is that of highly interested persons and is not consistent with the evidence of the other witnesses of the defendant. The evidence shows that outsiders were admitted to the temple where they offered puja and got prasad. The admissions made by the witnesses of the defendant are very significant and leads me to the conclusion that the temple was treated by the general public as a public temple where they could go and offer puja and give dakshina to the Pujari. There is yet another important circumstance which would indicate that the idol itself became a public idol after a certain ceremony. In Title Suit No. 8 of 1936, it was the case of the plaintiff Kamla Prasad Joshi (D.W 6) and Madan Lal Joshi that there was an installation cererooney of the idol of Shri Radha Krishnaji at which sankalp and pran pratishtha ceremony was performed in presence of the Pradhan and several other gentlemen of the locality who were representatives of the Hindu community. In the case of an idol, sankalp and pran pratlshtha would indicate dedication to the public. The installation ceremony was a public ceremony. An effort was made by the defendant in this case to show that the idol of Radha Krishnaji was his family idol. D.Ws 3 and 6 have spoken about it. But before the pran pratlshtha ceremony, the idol was lifeless. It was only after the pran pratlshtha ceremony, which was performed in public, that life was instilled in the idol.

17. There is still another factor which resolves the controversy with regard to the character of the trust. It is the plaintiff's case that the general public had made sufficient contribution for the construction and establishment of the Thakurbari. In the written statement, it was stated that defendant Hira Lal begged and borrowed from a few merchants who made the contribution with the object of helping the defendant. P.W 3 stated that the temple was constructed with the chanda collected from the public. On the other hand, D.W 1 stated that the temple was constructed with the money which Madan Lal and Hiralal got as dakshlna and loan. D.W 1 stated that it was not a fact that he constructed the house by public contribution. In cross, examination, he admitted that the house was constructed before his hosh. He was speaking about some rooms which were constructed later on, but he did not speak about the construction of the temple and how it was constructed. Obviously, this witness, who was only 40 years old at the time of his deposition, could not say how money was raised for the construction of the temple. Thus, it would appear that practically no evidence was led on behalf of the defendant to show from where he got the funds for construction of the temple. As stated by D.W 1, he received dakshina which helped him in constructing the temple; but I do not think that any dakshina to D.W 1 could be so heavy as to enable him to construct a temple. The evidence of P.W 3, an old man of 70 years, is very specific on the point and there does not seem to be any reason why his evidence should not be believed.

18. In the case of (11) Bhaneshwarbuwa Guru Purshottambua Owner of Shri Vithal Sukhmai Sansthan v. The Charity Commissioner, State of Bombay (Civil Appeal No. 1231 of 1968 decided on the 1st of March, 1976), it was held by the Supreme Court as follows:

“When the origin of an endowment is obscure and no direct oral evidence is available, the court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purpose, as a matter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship, the accretion to the trust property by way of grants from the state of gifts from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property are all important elements in determination of the question whether a property is a private or a public religious endowment. We are satisfied that in the case all the above tests are fulfilled.”

19. Thus, considering the origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, the rights exercised by the devotees in regard to the worship therein and the contributions made by the public are factors that go to establish that the temple in question is a public temple and not a private one. I accordingly find that the Pradhan by donating the land in favour of the deity intended it to be a public trust, that the general public without any restriction have been worshiping the deity over a long cumber of years and that the temple was constructed with the liberal donations and subscriptions made by the members of the public. All these facts lead to the inescapable conclusion that the Radha Krishnaji Mandir aforesaid is a public temple within the meaning of the Act.

20. In the result, this appeal succeeds and the judgment and decree of the court below are set aside. The decision given by the Authority under Section 43 of the Act, dated the 12th December, 1963, is also set aside and the Radha Krishnaji temple situate in Am Bagan in the town of Jamshedpur is declared to be a public temple. However, in the circumstances of the case, there shall be no order as to costs.

21. Lalit Mohan Sharma, J.:— I agree.

Appeal allowed.