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PETITIONER: DEOKI NANDAN

       Vs.

RESPONDENT: MURLIDHAR.

DATE OF JUDGMENT: 04/10/1956

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA JAGANNADHADAS, B. SINHA, BHUVNESHWAR P. DAS, S.K.

CITATION:  1957 AIR  133            1956 SCR  756

ACT: Hindu   Law-Religious  endowment-Temple-Public  or   private -Question  of  mixed  fact  and  law-Gift  to  idol--Whether worshippers  are  the  beneficiaries-Dedication  to  public- Construction of will -Ceremonies relating to installation of idol-User of temple.

HEADNOTE: The  issue  whether a religious endowment is a public  or  a private one is a mixed question of law and fact the decision of which must depend on the application of legal concepts of a  public and a private endowment to the facts found and  is open to consideration by the Supreme Court. Lakshmidhar Misra v. Bangalal ([1949] L.R. 76 I.A. 271), re- ferred to. The distinction between a private and a public endowment  is that  whereas in the former the beneficiaries  are  specific individuals, in the latter they are the general public or  a class thereof. 757 Though under Hindu law an idol is a juristic person  capable of  holding  property, and the properties  endowed  for  the temple vest in it, it can have no beneficial interest in the endowment,  and the true beneficiaries are the  worshippers, as  the real purpose of a gift of properties to an  idol  is not  to  confer any benefit on God, but the  acquisition  of spiritual benefit by providing opportunities and  facilities for those who desire to worship. Prosunno Kumari Debya v. Golab Chand Baboo ([1875] L.R. 2  I A.  -145),  Maharaja  Jagadindra Nath Boy  Bahadur  v.  Bani Hemanta Kumari Debi ([1904] L.R. 31 I.A. 203), Pramatha Nath Mullik v. Pradhyumna Kumar Mullik ([1924] L.R. 52 I.A.  245) and  Bhupati  Nath Smrititirtha v. Bam  Lal  Maitra  ([1910] I.L.R. 37 Cal. 128), referred to. A pious Hindu who was childless constructed a temple and was in  management  of it till his death.  He  executed  a  will whereby  he bequeathed all his lands to the temple and  made provision  for  its  proper management.   The  question  was whether the provisions of the will disclosed an intention on the  part  of  the testator to dedicate the  temple  to  the

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public or merely to the members of the family. Hold  that the recital in the will that the testator had  no sons coupled with provisions for the management of the trust by  strangers was an indication that the dedication  was  to the public. Nabi  Shirazi  v. Province of Bengal (I.L.R. [1942]  1  Cal. 211), referred to. Held further, that the performance of ceremonies at the con- secration of the temple (Prathista), the user of the  temple and  other evidence in the case showed that  the  dedication was for worship by the general public.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 250 of 1953, Appeal  from the judgment and decree dated July 14, 1948  of the Chief Court of Audh, Lucknow in Second Appeal No. 365 of 1945  arising  out of the decree dated May 30, 1945  of  the Court  of  District Judge, Sitapur in Appeal No. 4  of  1945 against  the decree dated November 25, 1944 of the Court  of Additional Civil Judge, Sitapur in Regular Civil Suit No. 14 of 1944. A.  D.  Mathur,  for  the  appellant. Jagdish, Chandra, for respondent No. 1.      758 1956. October 4. The Judgment of the Court   was  delivered by           VENKATARAMA  AYYAR  J.-The point for  decision  in this  appeal is whether a Thakurdwara of Sri  Radhakrishnaji in  the village of Bhadesia in the District of Sitapur is  a private  temple or a public one in which all the Hindus  are entitled to worship. One  Sheo Ghulam, a pious Hindu and a resident of  the  said village,  had the Thakurdwara constructed during  the  years 1914-1916, and the idol of Shri Radhakrishnaji ceremoniously installed  therein.   He was himself in  management  of  the temple  and its affairs till 1928 when he died  without  any issue.  On March 6, 1919, he had executed a will whereby  he bequeathed  all his lands to the Thakur.  The provisions  of the will, in so far as they are material, will presently  be referred  to.   The testator had two wives one of  whom  Ram Kuar, had predeceased him and the surviving widow, Raj Kuar, succeeded  him as Mutawalli in terms of the will and was  in management.  till  her  death  in  1933.   Then  the   first defendant who is the nephew of Sheo Ghulam, got into posses- sion  of  the  properties as manager  of  the  endowment  in accordance  with the provisions of the will.  The  appellant is  a distant agnate of Sheo Ghulam, and on  the  allegation that the first defendant bad been mismanaging the temple and denyinng  the  rightg of the public therein,  he  moved  the District Court of Sitapur for relief under the Religious and Charitable  Endowments  Act  XIV  of  1920,  but  the  court declined  to interfere on the ground that the endowment  was private.    An  application  to  the  Advocate-General   for sanction to institute a suit under section’92 of the Code of Civil  Procedure was also refused for the same reason.   The appellant  then  filed the suit, out of  which  the  present appeal  arises, for a declaration that the Thakurdwara is  a public  temple  in  which all the Hindus  have  a  right  to worship.   The  first  defendant  contested  the  suit,  and claimed  that  "the  Thakurdwara  an  -  d  the  idols  were private", and that "the general public had no right to  make any interference".                    759

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The Additional Civil Judge, Sitapur, who tried the suit  was of  the opinion that the Thakurdwara had been built by  Sheo Ghulam  "for  worship  by his family", and  that  it  was  a private  temple.  He accordingly dismissed the  suit.   This judgment  was  affirmed  on appeal by  the  District  Judge, Sitapur,  whose  decision again was affirmed  by  the  Chief Court  of  Oudh  in  second  appeal.   The  learned  Judges, however, granted a’ certificate under s. 109(c) of the  Code of  Civil  Procedure that the question involved was  one  of great  importance, and that is how the appeal  comes  before Us. The question that arises for decision in this appeal whether the  Thakurdwara  of  Sri Radhakrishnaji at  Bhadesia  is  a public  endowment or a private one is one of mixed  law  and fact.   In Lakshmidhar Misra v. Rang-alal(1), in  which  the question  was  whether certain lands had been  dedicated  as cremation ground, it was observed by the Privy Council  that it  was "essentially a mixed question of law and fact",  and that while the findings of fact of the lower appellate court must  be  accepted as binding, its "actual  conclusion  that there  has been a dedication or lost grant is more  properly regarded  as a proposition of law derived from  those  facts than as a finding of fact itself".  In the present case,  it was  admitted  that there was a formal dedication;  and  the controversy is only as to the scope of- the dedication,  and that is also a mixed question of law and fact, the  decision of which must depend on the application of legal concepts of a  public  and a private endowment to the facts  found,  and that is open to consideration in this appeal. It  will be convenient first to consider the  principles  of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in  the light  of those principles, the facts found or  established. 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 (1)  [1949] L.R. 76 I.A. 271.                  761 laid  down in the Sanskrit Texts.  Thus, in his  Bhashya  on the  Purva Mimamsa, Adhyaya 9, Pada 1, Sahara Swami has  the following: "Words  such as ’village of the Gods’land of the  Gods’  are used  in a figurative sense.  That is property which can  be said  to belong to a person, which he can make use of as  he desires.   God however does not make use of the  village  or lands,  according to its desires.  Therefore nobody makes  a gift  (to Gods).  Whatever property is abandoned  for  Gods, brings prosperity to those who serve Gods". Likewise,  Medhathithi  in  commenting  on  the   expression "Devaswam" in Manu, Chapter XI, Verse 26 writes: "Property of the Gods, Devaswam, means whatever is abandoned for  Gods, for purposes of sacrifice and the  like,  because ownership in the primary sense, as showing the  relationship between  the owner and the property owned, is impossible  of application  to Gods.  For the Gods do not make use  of  the property according to their desire nor are they seen’ to act for protecting the same". Thus,  according to the texts, the Gods have  no  beneficial enjoyment  of the properties, and they can be  described  as their owners only in a figurative sense (Gainartha), and the true  purpose of a gift of properties to the idol is not  to confer any benefit on God, but to acquire spiritual  benefit by  providing  opportunities and facilities  for  those  who

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desire to worship. 762 In  Bhupati  Nath Smritititha v. Ram Lal Maitra(1),  it  was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer  to  a  ’sentient being’, and  that  dedication  of properties  to an idol consisted in the abandonment  by  the owner  of  his dominion over them for the purpose  of  their being appropriated for the purposes which he intends.  Thus, it was observed by Sir Lawrence Jenkins C. J. at p. 138 that "the pious purpose is still the legate, the establishment of the  image is merely the mode in which the pious purpose  is to be effected" and that "the dedication to a deity" may  be "a  compendious expression of the pious purposes  for  which the dedication is designed".  Vide also the observations  of Sir  Ashutosh  Mookerjee  at p.  155.   In  Hindu  Religious Endowments Board v. Yeeraraghavachariar(2), Varadachariar J. dealing  with  this question, referred to  the  decision  in Bhupati  Nath  Smrititirtha v. Ram Lal  Maitra  (supra)  and observed:  "As explained in that case, the purpose of making a gift to a  temple is not to confer a benefit on God but to confer  a benefit  on those who worship in that temple, by  making  it possible for them to have the worship conducted in a  proper and impressive manner.  This is the sense in which a  temple and its endowments are regarded as a public trust". 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, or 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, (1) [1910] I.L.R. 37 Cal. 128. (2) A.I.R. 1937 Macl. 750. 763 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. In the light of these principles, we must examine the  facts of this case.  The materials bearing on the question whether the  Thakurdwara is a public temple or a private one may  be considered under four heads:(1)    the will of Sheo  Ghulam, Exhibit A-1, (2) user of the  temple  by  the  public,   (3) ceremonies relating to the    dedication of the  Thakurdwara and  the installation of the idol with special reference  to Sankalpa  and Uthsarga, and (4) other facts relating to  the character of the temple. (1)  The  will, Exhibit A-1, is the most important  evidence on record as to the intention of the testator and the  scope of  the  dedication.   Its provisions, so far  as  they  are material,  may  now be noticed.  The will  begins  with  the recital  that the testator has two wives and no male  issue, that he has constructed a Thakurdwara and installed the idol of  Sri  Radhakrishnaji  therein, and that he  is  making  a disposition of the properties with a view to avoid disputes. Clause I of Exhibit A-1 provides that after the death of the

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testator "in the absence of male issue, the entire immovable property  given below existing at present or which may  come into being hereafter shall stand endowed in the name of  Sri Radhakrisbnan,  and mutation of names shall be  effected  in favour of Sri Radhakrishnan in the Government papers and  my wives  Mst.  Raj Kuer and Mst.  Ram kuer shall be the  Muta- wallis of the waqf".  Half the income from the properties is to  be taken by the two wives for their  maintenance  during their  lifetime, and the remaining half was to "continue  to be  spent  for  the expenses of  the  Thakurdwara".   It  is implicit  in this provision that after the lifetime  of  the wives,  the  whole of the income is to be utilised  for  the purpose of the Thakurdwara.  Clause 4 provides that if a son is  born  to  the testator, then the properties  are  to  be divided between the son and the Thakurdwara in a specified 764 proportion;  but as no son was born, this clause never  came into  operation.  Clause 5 provides that the Mutawallis  are to have no power to sell or mortgage the property, that they are  to  maintain  accounts, that the  surplus  money  after meeting the expenses should be deposited in a safe bank  and when funds permit, property should be purchased in the  name of  Sri  Radhakrishnaji.  Clause 2 appoints a  committee  of four  persons to look after the , management of  the  temple and  its properties, and of these, two are not relations  of the testator and belong to a different caste.  It is further provided  in  that clause that after the death  of  the  two wives  the  committee "may appoint my  nephew  Murlidhar  as Mutawalli by their unanimous opinion".  This Murlidhar is  a divided nephew of the testator and he is the first defendant in  this  action.   Clause  3 provides  for  filling  up  of vacancies in the committee.  Then finally there is cl. 6, which runs as follows: "If any person alleging himself to be my near or remote heir files  a  claim  in respect of whole or  part  of  the  waqf property  his  suit shall be improper on the  face  of  this deed". The question is whether the provisions of the will  disclose an   intention  on  the  part  of  the  testator  that   the Thakurdwara should be a private endowment, or that it should be  public.   The  learned  Judges of  the  Chief  Court  in affirming the decisions of the courts below that the  temple was  built  for the benefit of the members  of  the  family, observed  that there was nothing in the will pointing "to  a conclusion  that the trust was a public one", and  that  its provisions were not "inconsistent with the property being  a private endowment".  We are unable to endorse this  opinion. We  think that the will read as a whole indubitably  reveals an  intention  on the part of the testator to  dedicate  the Thakurdwara  to the public and not merely to the members  of his family. The  testator begins by stating that he had no  male  issue. In Nabi Shirazi v. Province of Bengal (supra), the  question was whether a wakf created by a deed of the year 1806 was  a public or a private 765 endowment.   Referring  to a recital in the  deed  that  the settlor had no children, Khundkar J. observed at p. 217: "The deed recites that the founder has neither children  nor grandchildren, a circumstance which in itself suggests  that the  imambara  was  not  to  remain  a  private  or   family institution". Vide  also  the observations of Mitter J. at  p.  228.   The reasoning  on which the above view is based  is,  obviously, that the word ’family’ in its popular sense means  children,

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and  when the settlor recites that he has no children,  that is an indication that the dedication is not for the  benefit of the family but for the public. Then we have clause 2, under which the testator  constitutes a committee of management consisting of four persons, two of whom were wholly unrelated to him.  Clause 3 confers on  the committee  power  to  fill up vacancies;  but  there  is  no restriction  therein on the persons who could  be  appointed under  that  clause,  and conceivably,  even  all  the  four members  might be strangers to the family.  It is  difficult to  believe  that if Sheo Ghulam intended  to  restrict  the right  of worship in the temple to his relations,  he  would have  entrusted the management thereof to a body  consisting of  strangers.  Lastly, there is clause 6, which shows  that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial, and it is noteworthy that under clause 2, even the appointment of the first defendant as manager of the endowment is left to the option of the committee.  It is inconceivable  that  with  such  scant  solicitude  for  his relations, Sheo Ghulam would have endowed a temple for their benefit.  And if he did not intend them to be  beneficiaries under the endowment, who are the members of the, family  who could take the benefit thereunder after the lifetime of  his two  wives?   If we are to hold that the  endowment  was  in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects.   But it is clear from the provisions of  the  will that the testator contemplated the continuance 766 of  the  endowment  beyond the lifetime of  his  wives.   He directed  that the properties should be endowed in the  name of  the deity, and that lands are to be purchased in  future in  the  name  of  the deity.   He  also  provides  for  the management  of  the trust after the lifetime of  his  wives. And  to effectuate this intention, it is necessary  to  hold that  the Thakurdwara was dedicated for worship by  -members of  the public, and not merely of his family.   In  deciding that the endowment was a -private one, the learned Judges of the  Chief Court failed to advert to these aspects,  and  we are unable to accept their decision as correct. 2.   In the absence of a deed of endowment constituting  the Thakurdwara,  the  plaintiff sought to  establish  the  true scope  of the dedication from the user of the temple by  the public.   The witnesses examined on his behalf deposed  that the  villagers  were worshipping in the  temple  freely  and without  any  interference, and indeed, it was  even  stated that  the  Thakurdwara  was  built by  Sheo  Ghulam  at  the instance  of  the villagers, as there was no temple  in  the village.   The trial Judge did not discard this evidence  as unworthy of credence, but he held that the proper  inference to be drawn from the evidence of P.W. 2 was that the  public were  admitted into the temple not as a matter of right  but as  a matter of grace.  P.W. 2 was a pujari in  the  temple, and be deposed that while Sheo Ghulam’s wife was doing  puja within  the temple, he stopped outsiders in  whose  presence she  used to observe purdah, from going inside.  We  are  of opinion that this fact does not afford sufficient ground for the  conclusion  that the villagers did not worship  at  the temple as a matter of right.  It is nothing unusual even  in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and  the act  of the pujari in stopping the public is  expression  of the regard which the entire villagers must have had for  the wife  of the founder, who was a pardanashin lady,  when  she came in for worship, and cannot be construed as a denial  of

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their  rights.  The learned Judges of the Chief  Court  also relied on the decision 767 of  the  Privy  Council  in Babu  Bhagwan  Din  v.  Gir  Har Saroon(1)  as an authority for the position that  "the  mere fact  that  the  public  is allowed to  visit  a  temple  or thakurdwara  cannot necessarily indicate that the  trust  is public  as  opposed  to private".   In  that  case,  certain properties  were granted not in favour of an idol or  temple but  in  favour  of one Daryao Gir, who  was  maintaining  a temple  and to his heirs in perpetuity.  The  contention  of the  public was that subsequent to the grant, the family  of Daryao Gir must be held to have dedicated the temple to  the public  for  purpose of worship, and the  circumstance  that members of the public were allowed to worship at the  temple and   make  offerings  was  relied  on  in  proof  of   such dedication.  In repelling this contention, the Privy Council observed that as the grant was initially to an individual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out, and it was not  made out merely by showing that the public was allowed to worship at  the temple "since it would not in general  be  consonant with Hindu sentiments or practice that worshippers should be turned  away".  But, in the present case, the endowment  was in favour of the idol itself, and the point for decision is- whether  it was a private or public endowment.  And in  such circumstances,   proof  of  user  by  the   public   without interference  would be cogent evidence that  the  dedication was  in  favour  of the public.   In  Mundancheri  Koman  v. Achuthan(2),  which  was referred to and  followed  in  Babu Bhagwan  Din  v Gir Har Saroon(1), the  distinction  between user in respect of an institution which is initially  proved to  have  been  private  and  one  which  is  not,  is  thus expressed: "Had there been any sufficient reason for holding that these temples  and their endowment were originally  dedicated  for the  tarwad,  and so were private  trusts,  their  Lordships would  have  been  slow to hold that the  admission  of  the public in later times possibly owing to altered  conditions, would affect the private character of the trusts.  As it is, they are of (1) [1939] L.R. 67 I.A. 1. (2) [1984] L.R. 61 I.A. 405. 768 opinion  that  the  learned Judges of the  High  Court  were justified  in presuming from the evidence as to public  user which  is all one way that the temples and  their  endowment were public religious trusts". We  are accordingly of opinion that the user of  the  temple such  as is established by the evidence is  more  consistent with its being a public endowment. 3.   It  is  settled law that an endowment  can  validly  be created  in  favour  of  an  idol  or  temple  without   the performance  of  any  particular  ceremonies,  provided  the settlor   has  clearly  and  unambiguously   expressed   his intention   in  that  behalf.   Where  it  is  proved   that ceremonies  were performed, that would be valuable  evidence of  endowment,  but  absence  of such  proof  would  not  be conclusive  against it.  In the present case, it  is  common ground   that  the  consecration  of  the  temple  and   the installation  of  the idol of Sri Radhakrishnaji  were  made with great solemnity and in accordance with the Sastras.  P. W. 10, who officiated as Acharya at the function has deposed that  it lasted for seven days, and that all the  ceremonies commencing  with  Kalasa Puja and ending  with  Sthapana  or

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Prathista   were  duly  performed  and  the  idols  of   Sri Radhakrishnaji, Sri Shivji and Sri Hanumanji were  installed as  ordained  in the Prathista Mayukha.  Not much  turns  on this  evidence, as the defendants admit both the  dedication and the ceremonies, but dispute only that the dedication was to the public. In the court below, the appellant raised the contention that the  performance  of Uthsarga ceremony at the  time  of  the consecration was conclusive to show that the dedication  was to   the  public,  and  that  as  P.  W.  10   stated   that Prasadothsarga was performed, the endowment must be held  to be  public.  The learned Judges considered that this  was  a substantial question calling for an authoritative  decision, and  for  that reason granted a certificate  under  section, 109(c)  of the Code of Civil Procedure.  We  have  ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds  on a  misapprehension.  The ceremonies relating  to  dedication are Sankalpa, Uthsarga and Pra- 769 thista.  Sankalpa means determination, and is really  formal declaration by the settlor of his intention to dedicate  the property.   Uthsarga  is  the  formal  renunciation  by  the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which  he dedicates   it.   Vide  The  Hindu  Law  of  Religious   and Charitable  Trust  by B. K. Mukherea, 1952 Edition,  p.  36. The formulae to be adopted in Sankalpa and Uthsarga are  set out  in Kane’s History of Dharmasastras, Volume 11, p.  892. It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutebyah).  It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public.  But the difficulty in  the  way  of the appellant is  that  the  formula  which according  to  P. W.-IO was recited on the occasion  of  the foundation  was  not Uthsarga but  Prasadoasarga,  which  is something  totally  different. Prasada’  is  the  ’mandira’, wherein the deity is placed before the final installation or Prathista takes placer’ and the Prathista Mayukha prescribes the  ceremonies that have to be performed when the  idol  is installed in the Prasada.  Prasadothsarga is the formula  to be  used  on that occasion, and the text relating to  it  as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without the Uthsarga,  and there are no words therein showing  that  the dedication  is  to  the public.  Indeed,  according  to  the texts,  Uthsarga  is  to be performed  only  for  charitable endowments,  like construction of tanks, rearing of  gardens and  the  like, and not for religious  foundations.   It  is observed  by Mr. Mandlik in the Vyavahara Mayukha, Part  11, Appendix II, II,p. 339 770 that "there is no utsarga of a temple except in the case  of repair  of old temples".  In the, History of  Dharmasastras, Volume  II, Part II, p. 893, it is pointed out by  Mr.  Kane that  in  the  case of temples the proper  word  to  use  is Prathista  and  not Uthsarga.  Therefore,  the  question  of inferring  a  dedication  to the public  by  reason  of  the performance  of  the Uthsarga ceremony cannot arise  in  the case of temples.  The appellant is correct in his contention that  if  Uthsarga  is performed the dedication  is  to  the public,  but  the fallacy in his argument lies  in  equating Prasadothsarga with Uthsarga.  But it is also clear from the

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texts  that  Prathista  takes  the  place  of  Uthsarga   in dedication  of temples, and that there was Prathista of  Sri Radhakrishnaji  as spoken to by P.W. 10, is not in  dispute. In our opinion, this establishes that the dedication was  to the public. (4)We may now refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public.   Firstly,  there  is the fact  that  the  idol  was installed  not within the precincts of residential  quarters but  in.  a  separate building  constructed  for  that  very purpose  on  a vacant site.  And as pointed out  in  Delroos Banoo  Begum  v.  Nawab Syud Ashgur Ally Khan(1),  it  is  a factor  to  be  taken into account in  deciding  whether  an endowment is private or public, whether the place of worship is  located  inside a private house or  a  public  building. Secondly,  it  is  admitted  that  some  of  the  idols  are permanently  installed  on  a  pedestal  within  the  temple precincts.  That is more consistent with the endowment being public  rather  than  private.  Thirdly,  the  puja  in  the ’temple  is performed by an archaka appointed from  time  to time.   And  lastly,  there is the fact that  there  was  no temple in the village, and there is evidence on the side  of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for  them. This  evidence has not been considered by the courts  below, and  if it is true, that will be decisive to prove that  the endowment is public. (1)  [1875] 16 Ben.  L.R. 167,186. 771 It  should  be observed in this connection that  though  the plaintiff  expressly pleaded that the temple  was  dedicated "for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and  the  idols  were ’private.  He did not  aver  that  the temple  was  founded for the benefit of the members  of  the family.  At the trial, while the witnesses for the plaintiff deposed  that  the  temple  was built  with  the  object  of providing  a  place  of  worship for  all  the  Hindus,  the witnesses  examined  by the defendants merely  deposed  that Sheo  Ghulam built the Thakurdwara for his own use and  "for his puja only".  The view of the lower court that the temple must  be taken to have been dedicated to the members of  the family goes beyond the pleading, and is not supported by the evidence in the case.  Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple. In  the  result, the appeal is allowed, the decrees  of  the courts  below  are set aside, and a declaration  granted  in terms  of  para  17 (a) of the plaint.  The  costs  of  -the appellant  in  all  the courts will come out  of  the  trust properties.   The first defendant will himself bear his  own costs throughout. Appeal allowed. 100 772