Judgment

HIDAYATULLAH, C.J.I. :- 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 the following 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 December 2, 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, although 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 Gouri Kant Prasad, and a daughter s daughter Giriraj Nandini Kuari. By the will, he arranged for the sebapuja, 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 mutwallis, 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 lifetime 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 lifetime 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.

2. 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 declaration that the suit properties were not subject to the Bihar Religious Trusts Act and were private endowments.

3. 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 Act was not applicable. Before the learned trial Judge, reference was made to a decision of this Court, reported in Deoki Nandan v. Murlidhar, 1956 SCR 756. To that case, we shall come presently. The learned trial Judge distinguished that case and held that the endowment in the present case could not be held to be a public trust, because it was in favour of a family deity.

4. An appeal was unsuccessful in the