Harries, C.J:— This is a first appeal by the plaintiff from a decree of the learned Subordinate Judge of Monghyr dismissing his suit for a declaration that certain properties were not held by him on a trust created for public purposes of a charitable or religious nature and were not governed by the provisions of the Charitable and Religious Trusts Act (Act XIV of 1920).

The plaintiff is the mahant of an asthal situate in village Rampur Habib in the Monghyr district. According to the plaint, this asthal was founded a long time ago by Mahant Bahkhandi Das. This mahant installed in the asthal an idol of Sri Thakur Sita Ramchandraji Maharaj. It is alleged that for his maintenance the mahant secured a jagir of 15 bighas from the landlords and later purchased 7 bighas of lakheraj lands. After his death Bankhandi Das was suceeded by his chela Mahant Jagannath Das who in turn was succeeded by his chela Mahant Banwari Das. After the latter, his chela Basudeo Das became the mahant, and there mahants had acquired various properties in their own name, which are set out in schedule I of the plaint. Mahant. Basudeo Das was succeeded by his chela Mahant Chintaman Das who acquired during his lifetime a large number of properties, which are set out in schedule 2 of the plaint. According to the plaintiff, these properties were acquired by Chintaman Das out of his own personal properties. It is said that Chintaman Das before his death executed an arpannama dedicating all the properties acquired by him and his predecessors to the deity Sri Thakur Sita Ramchandraji Maharaj. But it is said that this arpannama was unauthorized and could not change in law the nature of the properties.

Mahant Chintaman Das was succeeded by Mahant Shyamsundar Das, and after the latter's death in 1338F., he was succeeded by the plaintiff, the present mahant. The properties acquired by Mahant Shyamsundar Das and the plaintiff are set out in schedule 3 of the plaint. It is contended that these properties, like the properties in schedules 1 and 2, are the personal properties of the mahant and are not trust properties.

In the plaint it is stated that the defendants, who are junior chelas of the late Mahant Chintaman Das, with a view to creaing trouble, filed an application under section 3 of Act XIV of 1920 before the learned District Judge of Monghyr calling upon the plaintiff to produce accounts alleging that, the plaintiff was holding under a trust created for public purposes of a charitable or religious nature. The District Judge, by an order dated the 26th of November, 197, gave the plaintiff as provided by section 1937 of that Act an opportunity to bring a suit within three months for a declaration that the Act did not apply to the properties. The present suit was filed for that purpose within the said period.

The defendants in their written statement admit that the asthal was founded by Bankhandi Das about two hundred years ago, and they allege that the zamindars being attracted by the saintly character of Bankhandi Das gave him some land free of rent for building a thakurbari and other lands free of rent, for the upkeep and maintenance of the idol to be installed therein for the benefit of the Hindus in general and those of the locality in particular. They denied that Bankhandi Das ever purchased any land and alleged on the contrary that all the land he held was gifted to him by the local zamindars. According to the defendants, the profits from these lands and the lands subsequently purchased by successive mahants went to meet the expenses of the worship of the idol and of the various festivals. As these profits were not sufficient, substantial help was given by the various chelas of the mahanis and by the public who made, generous offerings. It is said that in course of time the mahants became wealthier and purchased the various properties set out in schedules 1, 2 and 3 of the plaint. These properties, though purchased in the names of the various mahants, are said to be properties belonging to the idol. The defendants deny that the arpannama executed by Mahant Chintaman Das was unauthorized transaction but, on the contrary, contend that it was a document making clear that the properties held by him were debottar properties and not the personal properties of the mahant. The defendants pleaded that all the properties set out in the schedules to the plaint are properties held by the mahant on a trust for public purposes and are properties to which Act XIV of 1920 applies.

The defendants also took a plea that the decision of the learned District Judge, dated the 26th of November, 1937, operated as res judicata, but this plea was abandoned in this Court.

The learned Subordinate Judge, who heard the suit, eventually came to the conclusion that the properties mentioned in the plaint were debottar properties and were held on trust for public purposes of a religious and charitable nature and accordingly dismissed the plaintiff's suit.

The plaintiff-appellant did not urge before us that the properties were the private properties of the plaintiff. Whatever the position may have been before the days of Mahant Chintaman Das, it is clear that during his period of office these properties were dedicated to the idol by an arpannama on the 24th of May, 1921 (Exh. 3). That document applied to all the properties acquired not only by Mahant Chintaman Das but also by his predecessors, and it is conceded that, all the properties subsequently acquired were acquired from the income of the properties dedicated by Chintaman Das. This arpannama dedicates in the clearest terms all the properties to the deity, and there can be no question whatsoever that after that document the properties were no longer the personal properties of the mahant even if they had been such previously. In the court below the plaintiff contended that this arpannama was not an effective document and did not and could not change the nature of the properties. Mr. L.K Jha, who appeared on behalf of the appellant in this Court, realised that such a contention could not possibly succeed, and he has argued this case on the footing that after the arpannama of Mahant Chintaman Das of the 24th of May, 1921, the properties were debottar properties dedicated to the idol installed in the asthal.

Mr. Jha, however, rightly pointed out that even if these properties are the properties of the idol, yet such will not entitle the defendants to call upon the plaintiff to render accounts. The Charitable and Religious Trusts Act, 1920, applies only to trusts created for a public purpose of a charitable and religious nature, and the defendants would have no right to ask for accounts if the trust is a private one, and this position was accepted before us by Counsel for the defendants.

On behalf of the plaintiff-appellant it was contended that the onus lay on the defendants to establish that the properties in suit were held under a trust for public purposes. On the other hand, the defendants contended that the plaintiff must prove his case in order to obtain a declaration and, therefore, that he must establish that the properties were not held on a trust for public purposes of a religious or charitable nature.

It is common ground that the properties originally stood in the names of various mahants and now stand recorded in the name of the idol with the reigning mahant as the shebait. The properties are admittedly, in possession of the shebaits on behalf of the idol, and in such a case the onus must rest on the party alleging that the property is trust property held for public purposes. This, in my view, is clearly laid down by their Lordships of the Privy Council in the case of Pandit Parma Nand v. Nihal Chand in which it was held that in a suit by a trustee under section 5(3), Charitable and Religious Trusts Act, that the trust is not a public trust and the Act does not apply thereto, the onus is upon the defendant to prove affirmatively that a trust of a public character was imposed upon the property. It was further held that by mere acquisition by a mahant a property does not lose its secular character and assume a religious character and that the descent of property from guru to chela does not warrant the presumption that it is religious property. At page 1017 Sir Shadi Lal, who delivered the judgment of the Board, observed:—

“Their Lordships do not think that any user or treatment of the property has been proved, such as would justify the conclusion that it was a public, and not a private, trust. It cannot be disputed that the plaintiff can be defeated only if the defendants establish affirmatively that a trust of a public character was imposed upon the property.

To constitute a trust ‘created or existing for a public purpose of a charitable or religious nature’ within the meaning of Act XIV of 1920, the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purpose of the trust, the trust property, and the beneficiaries must be indicated so as to enable the court to administer the trust if required: Chhotabhai v. Jnan Chandra Basak. These conditions have not been fulfilled.

Their Lordships are of the opinion that the onus, which rested upon the defendants, has not been discharged.”

The question of onus is of some importance ins this case having regard to the finding of the learned Subordinate Judge. In dealing with this is question as to whether the trust was for a public purpose, the learned Subordinate Judge says:—

“No doubt, these facts by themselves would not show whether the asthal and the temple are public or private institutions but when coupled with the farther fact that the institutions were founded with the help of jagirs granted by others, the presumption is more towards being a public one.”

This is hardly a finding that the defendants had affirmatively proved that the trust was of a public nature.

I shall however, in this judgment consider the whole of the evidence which was called as to the nature of this trust. I shall deal, firstly, with the evidence relating to the foundation of the asthal and of the purchases of property up to the time of Mahant Chintaman Das.

It is common ground, as I have already stated, that the asthal was founded by Mahant Bankhandi Das who came to the district about two hundred years ago. Both parties also agree that Mahant Bankhandi Das installed an idol in the asthal; but whether he brought the idol with him or obtained it later from Ajodhya is a matter of controversy. The learned Subordinate Judge rightly points out that the evidence relating to the installation of the idol is purely hearsay and all that can be said with certainty is that the asthal was founded by Mahant Bankhandi Das who installed the idol therein.

It seems clear that Mahant Bankhandi Das obtained property either for himself or for the idol, though no document evidencing any grant or errands have been produced. Exhibits 1 and 2, however, are extracts from the Lakheraj register C for 1892 which show 15 and 7 bighas of land in the nanie of Mahant Bankhandi Das under Kushal Singh and Raghunaudan Sahu respectively. The 15 bighas of land is shown to have been in possession of the Mahant from 1168F, and the 7 bighas from 1192 F.

In the remarks column in these exhibits, the land is described as “Bishunprit” land in the name of the person in possession. The plaintiff contends that all that this means is that the Mahant was given the properties by grantees out of love of Vishnu. It is contended that the word “Bishunprit” means nothing more than a grantor, influenced by his love for God Vishnu, making a grant to a holy man. On the other hand, the defendants contend that the word “Bishunprit” strongly suggests that the gift was really to the idol. There are observations of Fazl Ali, J. in the case of Munshi Naurangi Lal v. Maliant Ramchandra Das which support this suggestion. At page 412 Fazl Ali, J. observed:—

“I should, however, like to say that if the case was to be decided on the construction of these two documents alone (that is, the documents Exhibits B and C in which the properties in dispute were recorded as Khairat and Bishunprit) I would have been inclined to hold that the lands in question were endowed property and were not the personal property of Rampat Das (Mahant)…………………. I find that in a number of cases the words “Bishunprit”, “Sheoprit” and “Shebuiter” have been held to indicate strongly that the property with reference to which one or other of these terms was used was not the private property of a Mahant or “shebait”. This case in which Fazl Ali, J. made the observation, which I have quoted, was subsequently reversed by their Lordships of the Privy Council but only on a point of limitation. Whether their Lordships approved of this observation of the learned Judge, it is impossible to say; but it is an observation of weight. But, as the learned Subordinate Judge himself points out, the use of the word “Bishunprit” is not conclusive. In any event, there is nothing in the word “Bishunprit” to indicate that the property was gifted to the idol for public purposes.

The first document evidencing a grant of property to these mahants is a sanad (Exh. 13) of the 8th of Bhado 1206 F (that is the 23rd of July, 1800). This document evidences a grant of 21 bighas of land by Bhairodutt Singh to Mahant Jagannath Das, the immediate successor of the founder. On this document there is an endorsement “Sree Raghunathji sanad Manjur”. The defendants contend that this endorsement strongly suggests that the gift was to the idol; but the learned Subordinate Judge rightly observes that this endorsement is by no means conclusive. It might mean that it was a gift to an idol or it might mean that the grantee was a holy man and wrote the name of God before accepting the sanad. There are words in the sanad, however, which tend to negative any suggestion that this particular grant was to the idol. The grant is described as “gurudakshina”—that is, a gift by a disciple to his guru. Further, the property is to be held by the grantee generation after generation, and as pointed out by their Lordships of the Privy Council in Bhagwan Din v. Gir Har Saroop such words are not reconcilable with the view that the grantor was in fact making a dedication. At page 298 Sir George Rankin observed:—

“and the Arabic terminology ‘naslan ba'da naslin wa batnan ba'da batnin’ (descendant after descendant and generation after generation) are not reconcilable with the view that the grantor was in effect making a wakf for a Hindu religious purpose, even if it be assumed that this is not otherwise an untenable hypothesis.”

In my view, this sanad rather suggests that the gift was to the Mahant personally.

It is not contested that the subsequent acquisitions of property up to the time of Mahant Chintaman Das were made in the names of the various mahants. This, of course, is by no means conclusive that these properties were the personal properties of the mahant; but the fact remains that until the arpannama of Chintaman Das in the year 1921 no document was produced other than Exhibits 1 and 2 which would suggest that the properties were the properties of the idol. In my view, the documentary evidence up to 1921 in no way supports the defendants' case that the properties were held in trust for public purposes. On the contrary, they rather go to show that the properties were always regarded by the mahants as their personal properties. Putting the case at its very highest in favour, of the defendants, Exhibits 1 and 2 can only show that the properties mentioned therein belonged to the idol and not to the mahant. They in no way show that the properties were trust properties held for public purposes.

As I have stated, Mahant Chintaman Das executed an arpannama on the 24th of May, 1921, dedicating the whole of the properties to the idol. From the terms of this document it is clear that Chintaman Das regarded the properties as his own, and there is no reference in the document to previous ownership by the idol. The document clearly dedicates the properties to the idol; but that cannot assist the defendants, unless the trust created or affirmed by this document is a trust for public purposes.

On behalf of the plaintiff it is contended that the arpannama makes no reference whatsoever to the public and gives the public no rights of any kind. The management of the property is retained entirely by the dedicator, who appointed himself the shebait and gave himself the sole power to appoint his successor. Further, each succeeding shebait is given the sole power to appoint his successor. No trustees are appointed and no committee of management is formed. Nothing is entrusted to the public and there is no reference to the public generally throughout the document. According to the plaintiff, the arpannama is a document dedicating properties to an idol and creating only a private trust.

On the other hand the defendants contend that paragraph 3 of the arpannama suggests that the trust had all along been a public one. In this paragraph it is stated that in the past the income from the properties had not been sufficient to carry on the worship of the idol properly and that on occasions help had to be taken from the sevaks and bhakts for performing occasional ceremenies and for the service of the sadhus and abhyagatas. In my judgment there is nothing in this paragraph which suggests that the trust had always been a public one. At most the paragraph only suggests that the income was insufficient to meet the expenses of the proper worship of the idol.

The defendants strongly rely on paragraph 7 of the arpannama and contend that it clearly creates a trust for public purposes. Paragraph 7 is in these terms:—

“I, the executant, shall make management of the endowed properties mentioned in paragraph no. 6 of this deed or of the properties which may be acquired in future, as manager and shevait of the said Sri Thakurji. I shall get the name of the said Sri Thakurji recorded in the offices of the Government and the zamindar. Whatever may be the income from the endowed property, the Government demands, i.e, the revenue and cess and the zamindar's rent, shall be considered to be the first and important item and payment thereof shall be made in time; and whatever may be the residue after meeting the penses of puja path, ragbhog, occasional utsavs, sevas of sadhus, atithis and abhyagatas it shall be spent in making improvement in the property of the said Thakurji.”

The argument is that a trust for feeding and housing sadhus, occasional guests and travellers is a trust for public purposes and, therefore, after this document executed by Chintaman Das the trust became clearly for public purposes.

Had the trust been created solely for the service of sadhus, atithis and abhyagatas, much could be said for the contention that it created a public trust. A trust which benefits only a small section of the public may be a public trust—see Mahant Puran Atal v. Darshan Das in which it was held that a trust for the support of fakirs, entertaining visitors and giving of alms and generally for charitable purposes was a public trust. In Jadaba Jha v. Satdeo Jha a trust benefiting a limited number of the public was also held to be a public trust.

It is to be observed, however, that this provision for the sevas of sadhus, guests and travellers is only one of the purposes of the trust. From a perusal of the whole document, it seems to me clear that the main purpose of the trust was making provision for the due worship of the idol and performance of the necessary ceremonies. Indeed, it must be remembered that the feeding of sadhus and giving hospitality to occasional guests and wayfarers is inevitable where the worship of an idol is carried on. In fact, these duties are regarded in a sense as part of the due worship of the particular god. It must also be remembered that this asthal was situate in a small village in the Monghyr district, and the number of sadhus and travellers could not be great. Bearing these facts in mind, it seems to me clear that the seva of sadhus, guests and travellers was not the main object of the trust but was merely incidental or ancillary to the wordship of the idol.

For Act XIV of 1920 to apply to a trust, the trust must be substantially for public purposes. It not sufficient if one of the purposes of a trust is public. This is clearly laid down in a Bench decision—Pratap Singh v. Brijnath Das. In that case, the Bench of which I was a member, held that if a trust is in substance a trust for public purposes of a charitable or religious nature, then even though a part of the income may have been specifically allotted to purposes which cannot be regarded as public the trust would nevertheless be one for public purposes and would come within the scope of the Charitable and Religious Trusts Act, 1920. Where under the same deed either a specified part of the property, for example a defined share thereof, 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 case out of the provisions of that Act. At page 6 Sulaiman, C.J observed:—

“If the trust is in substance 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.”

This case lays down, in my view, the true test as to whether the trust is or is not for public purposes. The question to be answered is whether the trust is or is not substantially for public purposes. A mere provision for the service of sadhus, occasional guests and wayfarers in a dedication to an idol does not render the dedication substantially for public purposes.

A point very similar to the present one arose in the case of Sathappayyar v. Periasami. In that case there was a dedication by a zamindar to his guru for the erection and maintenance of a math and the performance of certain religious exercises in perpetuity. In the document provision was made for the feeding of paradesis and others during gurupuja and for the maintenance of a water pandal during the hot season. It was contended that these provisions made the trust one of a public nature. Dealing with these trusts, Muttusami Ayyar, J. at page 7 observed:—

“Although a few paradesis and others are fed when gurupuja is performed and a water pandal is maintained in the math during the hot season, these were not contemplated as independent charities in which any class of the public was to have a direct and independent interest.”

These objects were regarded as incidental to the main object of the trust.

In Prosad Das Pal v. Jagannath Pal it was held that where a deed of endowment provided for devaseva and inter alia for feeding of the poor and of students if the income increased, such did not make the document anything but a private trust. At page 183 Ghose, A.C.J observed:—

“With regard to the second contention it is argued that the provision that the whole of the income of the debutter property shall be wholly spent for the purposes of the debsheba and feeding of the poor does not make the endowment a public charitable one. It is argued that this provision about feeding of the poor is part and parcel of the debsheba and cannot be regarded as independent charity in which any class of the public was to have a direct and independent interest. The argument is that the feeding of the poor is really incidental to the Puja. Mr. Pugh who appears for the respondent argues that the trust is principally public, seeing that the feeding of the poor and the feeding of students of educational institutions have been provided for in the deed of endowment. We are unable to accept this contention of the respondent, for it seems to us that the feeding of the poor and the feeding of students if the income of the debutter property increases are really incidental to the main purpose of the endowment, namely, the puja of the deity. The view we take is supported by the decision of Sathappayyar v. Periasami.”

It appears to me that the present case is very similar to the Calcutta case to which I have made reference. The seva of sadhus and guests, etc., is merely incidental to the worship of the idol and does not give any branch of the public a real interest.

The arpannama, therefore, does not really assist the defendants' case. It makes it clear that thereafter the properties were debottar properties, but by the terms of the arpannama nothing was dedicated to the public and the trust created was, in my view, a private one.

Both parties also called verbal evidence as to the nature of the worship at this temple. The evidence called by the plaintiff suggested that no worship was carried on at this asthal without the permission of the mahant, whereas the defendants' evidence was to the effect that the public was free to worship the idol without let or hindrance and had done so in the past and still did so as of right.

The Subordinate Judge rejected the plaintiff's evidence and pointed out that the witnesses were either disciples of the asthal or otherwise connected with it. That being so, he was of opinion that their evidence had to be received with caution. It is true that most of the witnesses were connected with the asthal but not all of them as I shall mention later. It is also clear that a large number of the plaintiff's witnesses had deposed that even at the present day the properties, belonged to the mahant personally. As this part of the plaintiff's case was disbelieved by the learned Subordinate Judge, he may not have been inclined to accept the evidence of such witnesses on the question as to the right of worship. It is difficult for any outsider to say, who is the owner of a property belonging to a math. Some of these witnesses might have honestly believed that the mahant was the owner. He would certainly appear to the outside world to be so as he was managing the property. I cannot say that the learned Subordinate Judge was wrong in not accepting the evidence of a large-number of plaintiff's witnesses; but is my view the evidence of two of these witnesses was too lightly brushed aside.

Shib Barat Narain Singh (p.w 1) is the descendant of Bhairodutt Singh, the grantor, who made a grant to Jagannath Das in 1800. He is a man of some substance and knew the asthal, though he was not a frequent visitor. He gives no evidence as to the ownership of the properties; but he does say that the public had no right to worship in the asthal. The Subordinate Judge gives no reason for rejecting the evidence of this witness beyond the reason which he gave for rejecting the whole of the plaintiff's evidence, namely, that it was the evidence of interested parties. I cannot see that this witness was an interested party, and there seems to be no reason why a descendant of one of the grantors of property should wish to deny the public their rights if they had any.

Govind Das (p.w 3) is a mahant of an asthal in the neighbourhood, and it is to be observed that this asthal is not connected in any way with that of Rampur. He knew the Rampur asthal and he also says that the public have no right to worship in that asthal. He also does not offer any opinion as to the ownership of the property connected with the asthal. The evidence of this witness is dismissed by the Subordinate Judge with the remark that he could be easily purchased. The asthal, of which he is a mahant, is not a wealthy one; but the fact that a man is of comparatively humble status is no reason for rejecting his evidence out of hand. The evidence of every poor man could be rejected on such a ground as that he could be easily purchased. These two witnesses, to my mind, appear to be independent, and their evidence is entitled to considerable weight. There is no suggestion that they deposed falsely on the question of ownership, and they do not appear to have been guilty of exaggeration in giving their evidence.

The Subordinate Judge says that all the defendants' witnesses were hostile to the plaintiff and to the asthal, which is clearly the case, yet he eventually accepts their evidence. He sums up the matter in these words:—

“No doubt, the witnesses examined on behalf of the defendants are persons who bear ill-feeling against the present mahant, who is the plaintiff in suit or against the Asthal itself. But when at the some time it is also admitted on behalf of the plaintiff that the public worship the idols in the temple, that on the occasion of Janmasthami and Ramnavami celebrations offerings are made by them to the idols, and also that sadhus come to the Asthal and are fed there by the Mahanth, though it is said that all this is done with the permission of the mahanth, I am inclined to attach more weight to the evidence of the defendants' witnesses on these points than to that of the plaintiff.”

In other words, because it is admitted by the plaintiff's witnesses that the villagers do worship this idol and do attend at festivals the Subordinate Judge is prepared to believe them when they say that all this is done as of right.

Apart from enmity, the evidence of the defendant No. 2, Jairam Das (d.w 2) and Govind Roy (d.w 3) must be regarded with great caution. They deposed in earlier litigation when the validity of the arpannama executed by Mahant Chintaman Das was in issue. In that litigation these two witnesses went so far as to say that Mahant Chintaman Das was wholly unfit to execute the arpannama that he did so in circumstances which rendered the document wholly invalid. It is to be observed that both these witnesses say the exact opposite in this case and the defendants rely upon this arpannama as one of the strong points in their case. It appears to me that these two witnesses are persons who are prepared to say anything which happens to suit their case at the moment. That being so, I find it difficult to accept their evidence that the public of this village and of the neighbourhood worship the idol in the asthal as of right.

Chitra Narain Kumar (d.w 1) stated that every Hindu has a right to worship at this temple without permission; but he then stated that the entire basti is invited to the asthal on Ramnavami and Janmastami festivals. In cross-examination he admitted that the mahant sent invitations to the basti people through the barber to attend these festivals. This is also borne out by Govind Roy (d.w 3) who also stated that the public were invited to attend these festivals. The fact that invitations are sent to the basti people by the mahant suggests strongly that members of the public attend, these festivals as guests of the mahant and not as of right.

Chitra Narain Kumar also stated that one Nityanand Das had a private temple in Rampur and admitted that the public worship there, attend festivals and are fed and also that properties had been dedicated to that idol. The only difference in his description of what happens at the two temples is that sadhus and bairagis do not go to Nityanand's temple. The defendant Jairam Das in his cross-examination had to admit that the public appear to have the same right in Nityanand's temple as they had in the plaintiff's asthal. The defendant Jairam Das contradicts Chitra Narain Kumar and says that sadhus, fakirs and musafirs go to the thakurbari of Nityanand and take their food in the same way as they do at Rampur asthal. It would appear from this evidence that the public have no greater rights in plaintiff's asthal than they have in what is admitted to be a private temple.

Batto Lall (d.w 4) supports the defendants, and he appears to have been in his early days a servant of the asthal. He stated that the public worshipped in the asthal without the permission of the mahant, and according to him the pujari alone does puja there, while the others have only darsan of the idol from outside. No one but the pujari enters the temple and the worshippers, have to remain on the verandah and cannot go inside the door of the room in which the idol is situate.

According to Govind Roy (d.w 3) Brahmans and Chattris have a right to do puja in the temple, whereas other Hindus can only have darsan of the Thakurji though no one can prevent them from having such darsan. A third version is given by Jairam Das who stated that only Brahmans and sadhus could go inside the temple, but others could have darsan from outside without permission. But quite a different version is again given by Ramgulam Das (d.w 5). According to him, Brahmans and Kshatriyas, who are chelas of the asthal, can worship the idols there. Brahmans, Kshatriyas and Kayesthas of other villages who are chelas also worship the idol. Others appear to have only a right to darsan of the Thakurji. From these different versions it would appear that these witnesses know very little as to what, really happens in this asthal. If their evidence be true that all the villagers worship this idol as of right, it is extremely strange that only five persons were called to give evidence on behalf of the defendants, and as the Subordinate Judge has found all five persons are either bitterly opposed to the plaintiff or to the asthal.

The defendants' witnesses also stated that the reigning mahant and the public elected the mahant's successor from amongst the chelas whereas the plaintiff's witnesses alleged that the eldest chela succeeded the mahant on his death. If the public were concerned in the election of a new mahant, it would be evidence that the public were intimately concerned with the trust and would suggest the trust was for public purposes. It is to be observed, however, that the Subordinate Judge rejects the defendants' case and accepts the plaintiff's case that the eldest chela of the mahant succeeded on the latter's death.

It appears to me that the only part of the defendants' evidence which can be accepted is that which shows that the public did worship at this temple and attended ceremonies on invitation and made offerings. But, as pointed out by their Lordships of the Privy Council in the case of Bhagwan Din v. Gir Har Saroop the public nature of a trust must not be too readily inferred from the fact that worship by the public has not been interfered with or discouraged and offerings by the public even accepted. At page 299, Sir George Rankin observed:—

“In these circumstances it is not enough, in their Lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol: they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity.”

From these observations the fact that Hindus worship at a temple without let or hindrance is only one of the factors to be considered. They certainly do worship the idol at this asthal and attend festivals; but it is also clear to my mind that they do so on the mahant's invitation or with his permission.

As I have already stated, the learned Subordinate Judge was not wholly satisfied with the defendants evidence, but he thought that evidence found support from the facts relating to the foundation of this asthal and, therefore, accepted the evidence that the idol was a public one. As I have pointed out earlier in this judgment, the facts relating to the foundation of the asthal and the early grants do not in any way establish that the trust was of a public nature. The early history of this asthal is more consistent with the property being the private property of the mahant. Putting the case at its highest in favour of the defendants, that evidence can only suggest that possibly the properties were debottar and no more. The fact that the properties belong to an idol in no way establishes that the trust was public.

In my view, the defendants wholly failed to show that the property of this asthal was held in trust for public purposes. On the contrary, I am prepared to accept the evidence of Shib Barat Narain Singh (p.w 1) and Govind Das (p.w 3) that the public had no legal right to worship but did so only by permission and invitation. Further, the admitted facts of the case relating to the foundation and earlier grants show that the trust, if any, was not for public purposes and that Mahant Chintaman Das's arpannama did not give the public any rights. That being so, the plaintiff's suit for a declaration that the trust was not for public purposes of a religious and charitable nature should have been decreed.

I would, therefore, allow this appeal, set aside the decree of the learned Subordinate Judge and decree the plaintiff's suit for the declaration aimed. I would give the plaintiff the costs of this appeal and of the proceedings in the court below.

Manohar Lall, J.:— I agree.

K.D

Appeal allowed.