JUDGMENT
1. The Bihar State Board
of Religious Trusts, through the special Officer, has preferred an appeal to this Court against the judgment of the lower appellate court dated 21st April, 1971.
2. The plaintiff-respondent filed the suit for a declaration that the temple of Shri Pita Maheshwar Jee and the properties attached to the temple be declared as private trust of the plaintiff. The plaintiff also prayed that the provisions of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the Act), do not apply to the present case.
3. The defendant, Bihar State Board of Religious Trusts (hereinafter referred to as the Board) resisted the claim of the plaintiff on the ground that the temple in question is a public temple.
4. On these facts both the courts below concurrently held that the temple in question is a private temple belonging to
the plaintiff.
5. The short point for consideration in this appeal is : whether the temple in question is a public trust or private trust under the provisions of the Bihar Hindu Religious Trusts Act (Act No. 1 of 1951)? 6. According to the plaintiff, the temple in question originally belonged to Most Sita Dai, wife of Bihari Lal Maharwar Gayawal. Mostt. Sita Dai being the proprietress of the temple, transferred her proprietary interest into the temple and the properties attached thereto to Chaman Lal Pandey by virtue of deed of gift dated April. 1852 and since that date Chaman Lal Pandey became the absolute owner of the temple in question. By virtue of the deed of gift, Chaman Lal Pandey became the absolute owner of the temple as well as in respect of the properties attached to the temple. One Mohan Lal Kanthia had brought Title Suit No. 174 of 1886 against Chaman Lal Pandey, challenging the title of Chaman Lal Pandey in that suit. By the judgment dated 30th Nov. 1886 Chaman Lal
was declared to be the absolute proprietor of the temple of Pita Maheshwar Jee.
7. When Chaman Lal became old, he executed a will dated 3th June, 1896 in favour of his daughter Mostt. Aiyana Dai bequeathing the temple and properties attached thereto in her favour. In the will it was also mentioned that after the death of Aiyana Dai her son Kashi Lal shall be the absolute proprietor of the subject matter of the will. By virtue of the will. Mostt. Aiyana Dai became the absolute proprietress of the temple and the properties attached thereto and her son Kashi Lal became the absolute proprietor after the death of Aiyana Dai. When Kashi Lal attained majority, he executed an “Izara” deed dated 8th April, 1907 in respect of the entire temple of Shri Pita Maheshwar Jee for a term of five years in favour of Raghunandan Gir. On 15-4-1909 Kashi Lal executed a sale deed for a condideration of Rs. 6998/- in favour of Raghunandan Gir in respect of the entire temple of Shri Pita Maheshwar Jee and the properties attached to the temple. On 1st March, 1948 Raghunandan Gir executed a will in favour of his nephew Baldeo Gir (Plaintiff) in respect of the temple of Shri Pita Maheshwar Jee and the properties attached to the temple. Baldeo Gir applied for grant of probate of the will and the probate was granted by the subordinate Judge III Court, Gaya by judgment dated 20th Dec. 1951. In an appeal also the High Court confirmed the order of probate granted by the Subordinate Judge III Court, Gaya by the judgment dated 15th Jan. 1954. The subject-matter of the will was the temple of Shri Pita Maheshwar Jee and the properties attached to the temple, it is on the basis of the will dated 1st March. 1948 that the plaintiff claims the proprietary interest in the temple in question and in the properties attached to the temple.
8. The abovementioned documents were also considered by Shri Dawsan Miller, C. J. and Shri H. Foster, J. in a judgment in First Appeal No. 94 of 1920 (Ext. 10 (a)). While considering these documents their Lordships came to the following conclusions :–
“Having regard to the documentary evidence in the case from which it appears that since the year 1852 the property in suit has been disposed of or dealt with by those from time to time in possession as if they had a proprietary and transferable interest therein…..”
It is on the basis of this judgment (Ext. 10 (a)), we hold that since 1852 the pre-decessors-in-interest of the plaintiff was claiming the suit properties as private properties. In other words, since 1852 Sita Devi was claiming the temple of Shri Pita Maheshwar Jee and the properties attached thereto as her private trust. It is in this view of the matter that Sita Devi transferred her entire proprietary right in the temple to Chaman Lal Pandey. Chaman Lal Pan-dey also transferred his interest by virtue of a will in favour of Mostt. Aiyana Dai and Kashi Lal. Kashi Lal transferred his proprietary interest to Raghunandan Gir and Raghunandan Gir transferred his proprietary interest in favour of Baldeo Gir. In our opinion, these documents clearly suggest that since 1852 the pre-decessors-in-interest of the plaintiff were treating the temple of Pita Maheshwar Jee and the properties attached to the temple as a private trust and not a public trust. This fact is also being supported by a decision of the Division Bench of this Court in First Appeal No. 94 of 1920 (Ext. 10 (a)).
9. The word “Religious Trust” Is defined under Section 2 (1) of the Bihar Hindu Religious Trusts Act which runs as follows :–
” “religious trust” means any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable, but shall not include a trust created according to the Sikh religion or purely for the benefit of the Sikh community and a private endowment created for the worship of a family idol in which the public are not interested:”
According to this definition, a private endowment created for the worship of family idol in which public are not interested, Is not included within the purview of the definition of “religious trust”. Hence on the materials on record, we hold that the temple of “Pita Maheshwar Jee” was created for the worship of the family of the plaintiff and his predecessors-in-interest and the public are not Interested and as such the temple in question Is a private trust.
10. There is another circumstance which suggests that the temple in question is a private trust. In this connection the lower appellate Court held in para 9 that the plaintiff resides in the compound of the temple. This fact itself is enough to suggest that the temple in question is a private temple. In this connection a
reference was made to a Division Bench judgment of this Court in Bihar State Board of Religious Trust v. Lakshman Prasad Singh (judgment dated 14th April, 1978 in F. A. No. 362 of 1969). In para 11 of the judgment it has been held as follows s-
“In order to ascertain as to whether a trust is a private trust or ft public trust, the test is whether the beneficiaries are definite and ascertained individuals or uncertain and fluctuating individuals. If the answer comes to the effect that the beneficiaries are definite and ascertained individuals then it is a private trust. If the beneficiaries are uncertain and general public then it is a public trust, If the beneficiaries of the trust are limited to the guru and the chelas of the guru, then also it is a private trust for the simple reason that the beneficiaries of the trust are ascertained individuals. The other test to decide as to whether a trust is a private or public trust is that whether the management of the trust is being controlled by the Shebait or by the public. If there is an averment in the deed of dedication to the effect that the income and expenditure account shall be scrutinised by a body consisting of the local persons each year, then it will be a public trust. If the day to day management is being controlled by the Shebait in respect of a family idol, then it will be deemed to be a private trust. The third test is whether the temple or the trust is situated within the campus of the residential building or at a public place. If the deity is situated inside the residential building, then an inference can be drawn that it is a private trust. If the deity is situated in a public place outside the residential compound, then an inference can be drawn that it is a public trust. Each case will depend on the facts and circumstances of each case.
The Court should not draw inference on the basis of an individual circumstance but on the basis of the cumulative effect of all the circumstances in the case. An inference should not be ordinarily drawn that a trust is a public trust, merely because the Sadhus are entertained in the temple and the villagers attend the temple in a certain function. The Court should also be cautious in drawing the inference from the facts and circumstances of the case as a whole.
The main test is : Whether the beneficiaries of the temple are ascertained individuals or general public ? If on the evi-
dence an inference can be drawn that the general public are freely admitted in the temple as a matter of right, then certainly it is a public trust The mere fact that the public are freely admitted to the temple cannot mean that the public are admitted as a matter of right and the Court should not readily infer therefrom that it is a public trust.”
Relying on these tests, we hold that the beneficiaries of the temple in question are ascertained individuals. In that case (referred to above) it has been held that if the trust is situated within the campus of the residential building then an inference can be drawn that it is a private trust. We hold that the temple in question is a private trust on two grounds, namely, (1) that the beneficiaries of the temple are ascertained individuals, namely, the plaintiff and his predecessors and (2) that it is a private trust because the temple is situated within the campus of the residential building of the plaintiff.
11. Learned counsel for the appellant contends that it is a public temple because the public are freely admitted to the temple. It has been held in the Bihai State Board of Religious Trust v. Mahant Sri Biseshwar Das (AIR 1971 SC 2057) that the mere fact that the public are admitted to the temple without any hindrance does not necessarily mean that the public are admitted as a matter of right and the Court should not, therefore, infer that this is a public trust. Relying on the Supreme Court decision, we hold that the mere fact that the public are freely admitted to the temple, it does not mean that it is a public temple,
12. Learned counsel for the appellant also relied on a decision in Deoki Nandan v. Murlidhar (AIR 1957 SC 133). In this connection he referred to para. 7 of the decision. The relevant portion is quoted herein below :–
“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, or the general public or any specified portion thereof.”
In this connection we hold that the documents suggest that the intention was that only the specific individual shall worship the deity and not the public The documents further suggest that since 1852 the predecessors-in-interest of the plaintiff have been treating the temple of Pita Mahehwar Jee as private trust and the plaintiff is also treating the same
as private trust. Both the Courts below have not found that the public were authorised to enter inside the temple as a matter of right. Learned counsel for the appellant also relied on a portion of para. 13 of the aforesaid decision, which runs as follows :–
“In the absence of a deed of endowment constituting the Thakurwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public.”
In the present case, there are documents since 1852 to suggest that the proprietary interest in the temple was transferred from one person to another. This finding Is also supported by a Division Bench decision of this Court in First Appeal No. 94 of 1920 (Ext. 10 (a) quoted above). Hence, we hold that the decision in Deoki Nandan’s case (supra) does not help! the appellant. On the other hand the decision in Deoki Nandan’s case (supra) supports the case of the plaintiff. In that case it has been held that if the temple is situated within the precincts of the residential building, then an inference can be drawn that it is a private temple. In that case the Supreme Court held that as the idol was not installed within the precincts of the residential quarters bul in a separate building constructed for that very purpose and hence It was a public temple. In the present case also the temple is situted within the residential campus of the plaintiff and hence wa hold that it is a private temple.
13. Learned counsel also relied on a decision rn Goswami Shrt Mahalaxmi Vehuji v. Shah Ranchhoddas Kalidas (AIR 1970 SC 2025). It is on the basis of this decision that learned counsel for the appellant contends that If a temple is originated as a public temple then nothing more is required to be proved that it is a public temple. In that decision it has also been held that if the temple has been proved to have originated as a private temple, then there must be proof to show that this is being used as a public temple. In the present case it has been proved by various documents that the temple originated as a private temple and as such the Board (the appellant) was required to prove that it is a public temple. In the present case both the Courts below have concurrently held that the temple in question origi- nated as a private temple and the defendant failed to prove that it is a public temple. Hence this decision also does not help the defendant.
14. Both the Courts have concurrently held that it is a private temple. In this connection, the Courts below rejected the evidence of the defendant and accepted the evidence of the plaintiff. In view of the concurrent findings of facts arrived at by the Courts below, we do not Intend to interfere with the judgment of the lower appellate Court.
15. In the result, the appeal is dismissed. The parties will bear their own costs.