Appeal No 800 of 1967
Appeal from the judgment and decree dated January 15 1964 of the Patna High Court in Appeal from Original Decree No 321 of 1959
D Goburdhun and R Goburdhun for the appellant
R C Prasad for respondent No 1
The Judgment of the Court was delivered by Hidayatullah CJ
This is an appeal against the judgment of the High Court at Patna dated January 15 1964 affirming the decision of the court of first instance
The case arose in thefollowing circumstances One Chaudhary Lal Behari Sinha who was the uncle of the two plaintiffs respondents in this appeal made an endowment by a will executed by him on December2 1908 by which certain properties were endowed in favour of an Idol called Ram Janakiji  also known as Shri Thakurji installed in the family house of the testator
The testator said that his parents had installed this idol inside their house and they used to perform the puja and he had also been performing the puja since the time he had attained the age of discretion
The testator went on to say that he had married two wives but no son had been born to him from either of them al though he had a daughter and there was also a daughter s daughter
When he made the will he had his two wives living two sister s sons Babu Uma Kant Prasad and Babu Gauri Kant Prasad and a daughter s daughter Giriraj Nandini Kuari
By the will he ar 6 5 2 ranged for the seba puja ragbhog samaiya utsava of Thakurji and for the festivals and expenses of the sadabart of the visitors to be carried on just as he had been doing
He nominated his two wives and his sister Ram Sakhi Kuari widow of Babu Gudar Sahai as mutwallie managers and executives  so long as they remained alive
He ordained that they should look after the management of the estate of Shri Thakurji with unanimous opinion as had been done since long that after their death a son of a Srivastava Kayastha and Visnu upasak worshipper of Lord Visnu should be appointed Mutawalli manager and executive  of the estate of Shri Thakurji and that his wives and sister should appoint him during their life time with the advice of and in consultation with a certain Shri Jawharikh resident of Baikunthpur who was his guru
He divided the house into two parts
The inner apartment of the house was to remain in the possession of his wives and sister during their life time and the entire outer house together with the house situated at Sitamarhi was to belong to the estate of Shri Thakurji
All money in cash and the movable properties belonging to him would remain in the custody of his wives
To the will was appended a schedule which showed the details of the properties
That included four villages in sixteen annas share three villages in eight annas share and one village in twelve annas share
The will also made certain bequests in favour of some of his other relations but with them we are not concerned
They are minor as compared with the properties dedicated for the upkeep of Shri Thakurji
When the Bihar Hindu Religious Trusts Act 1950 came to be passed a notice was sent to the plaintiffs by the Board constituted under that Act calling upon them to file certain particulars on the basis of the Act in view as the notice said of the properties constituting a public Hindu Religious trust
The present suit out of which this appeal arises was thereupon filed by the plaintiffs after serving a notice under section 78 of the Act upon the Board for a de claration that the suit properties were not subject to the Bihar Religious Trusts Act and were private endowments
Vast oral evidence was tendered in the case on behalf of the plaintiffs and certain documents were filed
On the basis of the evidence in the case which was accepted by the learned trial judge it was decided that the endowment was private to which the Act was not applicable
Before the learned trial judge reference was made to a decision of this Court reported in Deoki Nandan vs Murlidhar1
To that case we shall come presently
The learned trial judge distinguished that case and held that endowment in the present case could not be held to be a public trust because it was in favour of a family deity
11961 3 section C R 220
653 An appeal was unsuccessful in the High Court
The High Court agreed with the learned trial judge that the endowment created a private and not a public trust
The High Court did not consider the evidence in the case which according to the leamed Judges had been adequately summed up by the trial judge and whose conclusion was accepted
Before the High Court also the same case of this court was cited
But it was also again distinguished on the grounds
that this idol was a family idol and had not changed its character since the endowment or at the time of the endowment
In this appeal the only question that has been raised is whether the trust is a public trust to which the Bihar Hindu Religious Trusts Act attaches or is a private trust which does not come within the purview of that Act
Mr Goburdhun who argued the case pointed out a number of circumstances from which he said it could be easily inferred that the endowment was a public one and that the Act applied According to him the testator was childless and therefore there was no need for him to preserve the property for his family that he had dedicated large properties for the upkeep of the idol and the largeness of the properties indicated that it must have been for the benefit of the worshippers drawn from the public and not from the family that on the extinction of the line of shebaits consisting of the two wives and the sister of the testator the shebaitship was to go to a person of a different community on the advice of a stranger and that there was no mention in any of the deeds that the public were not to be admitted to the worship of Thakurji
He also relied upon the same case to which we have referred and also upon a decision of this Court in Swami Saligramacharya vs Raghavacharya and others1
As early as Babu Bhagwan Din and others vs Gir Har Saroop and others 2 the Privy Council distinguished between public and private endowments of religious institutions particularly temples and idols and Sir George Rankin laid down certain principles to which attention may be drawn because they were referred to in that Supreme Court ruling on which Mr Goburdhun strongly relies
Sir George Rankin said that the dedication to the public was not to be readily inferred when it was known that a temple property was acquired by grant to an individual or family
He also observed that the fact that the worshippers from the public were admitted to the temple was not a decisive fact because worshippers would not be turned away as they brought in offerings and the popularity of the idol among the public was not indicative of the fact that the dedication of the properties was for public
This ruling was referred to in the case on which Mr Goburdhunrelies
1 CA
No 645 of 1964 decided on 4 11 15
2 67 IA 1
654 In that case emphasis was laid on two matters and they are decis ive of the case we have here
The first no doubt was that the dedicator in that case had no male issue and that it would be unusual for a person to tie up the property for the use of a diety without creating a public trust but the second was that a ceremony or pratishtha installation of the idol which was equivalent to utsarg dedication was performed and therefore the idol itself became a _public idol after the ceremonies
This is not the case here where an idol had existed from before as a family idol
In the earlier case of this Court the installation of the idol and the dedication were both done at the same time and the installation was public
This in our opinion was a very cardinal fact in that case
This was emphasized not only by the trial judge but also by the learned Judges of the High Court
The facts here are that the idol had been in the family for a number of ears and only the family was doing the seba puja in the Thakur Dwara and there is no mention anywhere that the public ever looked after this idol and were allowed a share in the worship as of right
Further by the will also the author of the dedication did not make it clear that the public were to be admitted as of right thereafter
The whole of the arrangement shows that the further looking after of the Thakurji was to be the concern of the family and it was only under the nomination of the family that a particular person of the Vaishavanava belief was to be in charge after the demise of the members of the family who were to become the mutawalls after the death of the testator
It is obvious that in this family there was no male issue and there fore there was nobody to carry on worship and make arrangements for the seba puja of the Thakurji as had been done in the family Some other kind of arrangement had to be made and this arrangement was made by the will
No more can be read into it than what is said there
Now if it was intended that this should have been a public endowment it is quite obvious that when the testator died the testator would have thought of somebody from the public instead of the ladies who could not carry on the puja except through others
It was after his own death and his wives and sister were not available that a particular person was to be chosen for the seba puja
There is no arrangement here that public were to look after or manage the Thakurji
At no stage any intervention of the public is either intended or allowed by the will in question
Two other documents were brought to our notice but they may be disposed of summarily
The first is a mortgage deed exh
B in which there is a recital about the property which was the subject of the endowment
But that document is silent about the nature of the endowment and is of no significance
The other document is a judgment of the Assistant Commissioner of Agricultural 655 Income tax exh
C in which exemption was claimed in regard to income as was set apart for charitable and religious trusts in terms of the trust deed
This is an attempt to show that the family regarded it as a public trust
What a person does with a view to claiming exemption from income tax or for that matter agricultural income tax is not decisive of the nature of the endowment
The nature of the endowment is to be discovered only from the tenor of the document by which the endowment is created the dealings of the public and the conduct and habits of the people who visit such a temple or Thakur Dwara
The claim to exemption was with a view to saving some income of the endowed property
It might have been motivated from other considerations and not that it was a public endowment
This brings us to the second case which was cited before us
But even in that case a reference was made by the learned Judges to the earlier case and they have extracted a passage from the earlier judgment in which it was observed 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 bene ficiaries 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 worsh ippers
In the present case the idol was a family idol and the worshippers had all along
been the members of the family
Indeed the evidence is overwhelming on that score
The learned trial judge mentions that very important and leading persons gave evidence in that behalf
In the judgment of the trial judge a list is given which includes PWs
37121415 and 16 of village Kusmari
In addition there are PW 17 who is an advocate of Sitamarhi PW 6 who is a respectable witness being a chemist PW 8 who is also a pleader and PWs II and 13 who are mokhtears and acquainted with Somari Kuer
These respectable persons had occasion to know the family of Chaudhury Lal Behari Singh and therefore were competent to speak on the fact that Shri Ram Janakiji were the family deities of Chaudhury Lal Behari Singh
In the case to which we were presently referring the circumstances connected with the establishment of the temple were such that they could be only consonant with a public endowment
It was no doubt at private temple of which the sole proprietor was one Madrasi Swamiji but he however by the execution of the deed decided to open the temple to the public
He was a man with no family and could not have installed the deity for the members of his family
It was pointed out in that case that the deed was of such a recent date that evidence of subsequent conduct would not alter nature of the endowment as determined from the deed and that the decision was on a 6 56 question of fact
Even if we were to treat it as a question of law because whether the trust is public or private partakes of both fact and law and we are satisfied in the present case the evidence is entirely one sided
There is not one circumstance to show that the endowment was public endowment and this being the case we do not see any reasons to differ from the decision already arrived at
On the whole we have not been able to discover any reason why we should depart from the unanimous opinion of the High Court and the court below
Both the courts are agreed that the oral evidence as well as the documents indicate only a private trust and that there is nothing to show that the endowment enjoyed a public character at any time
The cases before this Court which were cited earlier are easily distinguishable
The result is that the appeal fails
The High Court in its order did not award costs to the plaintiffs
The reasons given by the High Court for denying costs to the Plaintiffs apply here also
We accordingly order that the costs shall be borne as incurred
RKPS Appeal dismissed


Summary:
An uncle of the two respondents made a will in December 1908 by which certain properties were endowed by him in favour of an idol which certain properties were endowed by him in favour of an idol will that he had two wives and no son had been born to either of them
He nominated his two wives and his sister as Mutawallies managers and executives to administer the endowment during their life time and also provided that in consultation with his Guru they should appoint a successor to themselves
Upon the coming into force of the Bihar Hindu Religious Trusts Act 1950 a notice was sent to the respondents by the Board constituted under the Act calling upon them to file certain particulars as required under the provisions of the Act on the view that the properties constituted a Public Hindu Religious Trust
The respondents thereafter filed a suit against the Board for a declaration that the said properties were not subject to the Act and were private endowments
After considering substantial oral and documentary evidence the Trial Court held that the endowment was private to which the Act was not applicable
An appeal to the High Court was dismissed
In the appeal to this Court it was contended that it could easily be inferred from the facts and circumstances that the endowment was a public one
The testator was childless and therefore there was no need for
him to preserve the property for his family that he had dedicated large properties for the upkeep of the idol and the largeness of the properties indicated that it must have been for the benefit of the worshippers drawn from the public and not from the family that on the extinction of the line of shebaits consisting of the two wives and the sister of the testator the shebaitship was to go to a person of a different community on the advice of a stranger and that there was no mention in any of the deeds that the public were not to be admitted to the worship of the idol
HELD Dismissing the appeal i On the facts it was clear that the idol had been in the family for a number of years and only the family was doing its regular worship there was nothing to show that the public ever looked after this idol or were allowed a share in the worship as of right
Nor did the author of the dedication by his will make it clear that the public were to be admitted as of right
The whole arrangement showed that the further looking after of the idol was to be the concern of the family and it was only under the nomination of the family that a particular person of the Vaishavnava belief was to be in charge after the demise of the members of the family who were to become mutawallis after the death of the testator
 It was obvious that in this family as there was no male issue and therefore there was nobody to carry on worship and make arrangements for the seba puja 651 of the idol as had been done in the family for a long time some other kind of arrangement had to be made and this arrangement was made by the will
No more can be read into it than what was said there
654 C ii There was no force in the contention that merely because an exemption was claimed in regard to the income of the endowment as being for charitable and religious purposes this would make the endowment a public one
What a person does with a view to claiming exemption from income tax or agricultural income tax is not decisive of the nature of the endowment
The nature of the endowment is to be discovered only from the tenor of the document by which the endowment is created the dealings of the public and the conduct and habits of the people who visit such a temple or Thakur Dwara
The claim to exemption was with a view to saving some income of the endowed property
It might have been motivated from other considerations and not that it was a public endowment
655 A C Babu Bhagwan Din and others vs Gir Har Saroop and others referred to
Deoki Nandan vs Murlidhar   Sivami Saligrama
charya vs Raghavacharya and others Civil Appeal 645 of 1964 decided on 4 11 65 distinguished