The characterization of a temple as a public trust or a private trust depends on factors such as the nature of the dedication, public access to the temple, and the provisions of the trust deed.

1. This judgment will also govern the disposal Of First Appeal No. 153 of 1950.

2. Both the appeals arise out of a suit Instituted by Namdeo Gore and Dattatraya Fulkar under Section 92 of the Code of Civil Procedure for the removal of the defendant No. 1 Bhagwan son of Sitaram from the trusteeship of Shrce Datta Deo-sthan Kalamb. The relevant facts are as follows:

One Kasabai, the widow of Krishnaji Gore, executed a deed of trust on 3-6-1928 whereunder she dedicated S. No. 34/1 area 10 acres 32 gunthas of Kasba Kalamb to the temple of Shree Datta Saunsthan appointed five persons including the defendant No. 1 Bhagwan as trustees. Other persons who were appointed trustees were Dattatraya Balaji Sarde, who is no longer alive, defendant No. 3 Dada Vitlioba, plaintiff No. 2 Dattatraya Fulkar and defendant No. 2 Laxman Gangaram.

3. According to the plaintiffs, the defendant No. 1 was in the sole possession and management of the field that he had not rendered any accounts of the income thereof and that he had not maintained the temple in good condition nor did he carry on certain directions regarding the giving of dinners contained in the wyawastha patra executed by Kasabai.

4. On behalf of the defendant No. 1 it was urged that the trust is not a public trust and as such the suit was not maintainable. He further contended that he has maintained proper accounts of the income of the temple, has applied that income for the purposes of the temple and has carried out all the directions contained in the wyawastha parta and that he has no way rendered himself liable for being removed from trusteeship.

5. The Court below has negatived the plaintiffs plea for the removal of the defendant No. 1 from the trusteeship but has directed that two posts of trustees which were vacant should be fill-ed and that accounts should be rendered by the defendant No. 1. Accordingly, it appointed a commissioner for going into the accounts, and we are told that accounts have since been taken by the commissioner.

6. The defendant No. 1 is not content with this decision and has come up in appeal. The plaintiffs have also filed an appral in which they have reiterated their contentions that the defendant No. 1 has rendered himself liable for being removed from trusteeship and that the Court below was in error in refusing to remove him from trusteeship.

7. We will first deal with the contention of the defendant No. 1 to the effect that this is not a public trust. According to the learned counsel for the defendant No. 1 dedication was to a private deity and that consequently the trust is not a public trust. In our opinion there is no substance in this contention. No doubt, the Hindu law does recognise endowments to a public temple as well as a private temple and it does not mean that wherever any property is endowed for the purposes of a deity a public trust is created and the temple in which the deity is installed is to be deemed to be a publip temple, in this connection we were referred to one decision in Manohar Ganesh v. Lakh-miram Govindram, ILR. 12 Bom 247 (A) by the learned counsel for the plaintiffs. The first placi-turn of that case reads as follows.

"A trust for a Hindu idol and temple is to be regarded in India as one created for public charitable purposes, within the meaning of Section 539 of the Code of Civil Procedure, Act 10 of 1877 Which corresponds to Section. 92 of the Code of Civil Procedure. 1908)"

No doubt this seems to lay down a general proposition but having perused the judgment, we do not find anything therein from which such a proposition could be deduced. This is also the view which has been expressed in Amardas Mangaldas v. Hannanbhai Jethabhai 44 Bom LR 643 at p 650: (AIR 1942 Bom 291 at p 295) (B) where the learned judges have observed.

"It (i.e. the point raised in the first placitum) seems rather to rest on the Judgment in a previous suit relating to the temple which was not brought by relators under Section 539 and which was dismisse