JUDGMENT

NATARAJAN, J.:— This appeal by certificate is directed against a judgment of the High Court of Gujarat reversing the judgment of the Assistant Judge, Baroda and restoring the finding of the Charity Commissioner that a property known as Laxman Maharaj Math is a public trust and not the private property of the appellant herein. The property is also alternatively referred to as Ramji Mandir. It consists of two items viz. the main property known as Laxman Maharaj Math and its adjunct known as Nagarkhana on the other side of the road. As the Charity Commissioner has held that both the items form part and parcel of the Math and constitute a single unit we will refer to both the items under the common name of Laxman Maharaj Math.

2. One Haribhat Maharaj is the propositus of the appellant and his brothers. As per the genealogy table furnished by the appellant, he and his brothers are the descendents of Haribhat Maharaj in the fifth generation.

(See table below)

3. In the year 1835 A.D. (S.Y. 1891) Haribhat Maharaj built a Samadhi for his maternal uncle Laxman Maharaj, who was a brahmchari and an ascetic. In front of the Samadhi he also built a Mandir with the idols of Ram, Laxman and Janki installed on a Sinhasan. Thenceforth the property came to be known as Laxman Maharaj Math. On the death of Haribhat Maharaj, his descendants built a Samadhi for him also adjoining the Mandir.

4. When the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act) was enacted the appellant filed an application under S. 18, though the Math was a private institution, by way of abundant caution, to secure a declaration in that behalf in order to avoid any complications at a later period. Though no member of the public appeared at the inquiry to claim that the Math is a public trust, the Assistant Charity Commissioner rendered a finding that the Math is a public trust within the meaning of the Act. The finding was confirmed by the Charity Commissioner in the appeal preferred to him. Thereupon a reference was made under S. 72 of the Act and the Assistant Judge, Baroda set aside the finding and held that the Math is the private property of the appellant. On further appeal, the High Court has reversed the judgment of the Assistant Judge and restored the finding of the Charity Commissioner. This appeal has been filed against that judgment to challenge its correctness.

5. Mr. K. L. Hathi, learned counsel for the appellant advanced various arguments to contend that the High Court has failed to view the appellants case in its entire conspectus and it has also failed to notice relevant features of distinctive nature which clearly establish the private character of the Math. Controverting these arguments Mr. Mehta, learned counsel for the respondent placed reliance upon the physical features of the Mandir and also upon the contents of Exhibits 38 to 41 and argued that these materials afforded adequate grounds for the High Court to hold that the Math is a public trust

6. On an examination of the materials on record we find that the arguments of Mr. Hathi to have merit and force in them. We find that the High Court has failed to take notice of pertinent features in the case and draw the necessary inferences therefrom. We shall therefore advert to those features and point out the failings in the judgment of the High Court.

7. The Charity Commissioner, who dealt with the appeal against the order of the Assistant Charity Commissioner realised that the burden of proving that the Math is a public trust was upon the department. He, therefore, set out the legal position correctly as under : -

"It is therefore, for those who assert otherwise to prove that it is not a private property but the property of a public trust and that a public trust exists. The burden, is, in this case on the Organisation to establish these facts satisfactorily".

8. After enunciating the onus of proof, in such terms, the Charity Commissioner reapprised the evidence and summarised the posit