Arvind V. Savant, J.:---Heard all the learned Counsel; Shri R. S. Apte for the heirs of Appellant No. 1, Shri A. A. Kumbhakoni for the heirs of original respondent No. 1. Shri K.K. Tated, Assistant Government Pleader for Charity Commissioner, and State of Maharashtra, Respondents Nos. 2 and 3.

2. This appeal of 1979 has been placed before us pursuant to the order passed by the learned Chief Justice on a reference made by a learned Single Judge on 17th August 1994 for deciding the following three questions:

(1) Whether an appeal filed under section 72(4) of Bombay Public Trusts Act, 1950 is subject to restrictions and limitations imposed on a "Second Appeal" as prescribed under section 100 of the Code of Civil Procedure? Whether an appeal under section 72(4) of the Act is maintainable even on questions of fact, mixed questions of fact and law or mere question of law?

(2) Whether the trust known as Gangubai's Shri Datta Trust, situate at Solapur created under the Deed of Trust dated 13th November 1941 is a public trust or is a private trust and whether the properties of the said trust including the income thereof are liable to be considered as income of public religious or charitable trust or as private income?

(3) Whether in any event the said trust is a public charitable trust in so far as it provides for utilization of 20% of its income for education of poor students, maintenance of poor widows and for assistance to the poor in connection with marriage or death. If so, whether the said trust is in any event liable to be registered under the Bombay Public Trusts Act, 1950?

In view of the conflicting opinions expressed by some of the Single Judges of this Court, it has become necessary for us to decide, principally, question No. 1. framed above. However, before coming to the questions of law, few facts may be stated.

3. On 13th November 1941 Smt. Muniyabai @ Gangubai Sevakram Pardeshi of Solapur created a trust known as "Gangubai's Datta Trust". The Deed of Trust is at Exhibit 66. The original respondent No. 1 Leelabai was the daughter of Kausalyabai, who was the daughter of the settlor Smt. Muniabai alias Gangubai. Gangubai also executed a Will (Exhibit 100) on August 30, 1946. It appears that Leelabai also claimed that on the 9th April 1948, her grand mother Gangubai, had orally gifted the properties in her favour. The properties which are the subject matter of dispute before us are (i) House No. 95/B, corresponding to C.T.S. No. 8489/2 admeasuring 135.45 sq. mtrs. Murarji Peth, Solapur, on which the "Datta Mandir" is situated and (ii) House No. 95/C, corresponding to C.T.S. No. 8489/1, admeasuring 1.31 Acres on which the chawl is situated. We will refer to the details of the trust deed in the latter part of this judgment; suffice it to say that nearly 80% of the income viz. the rent derived from the tenements in the chawl situated in house No. 95/C was to be spent for performing pooja and observing religious festivals at the Datta Mandir as per the wishes of the settlor and only 20% of the income was to be spent for purposes, which could be called public purposes.

4. On 29th May 1952 Leelabai filed an application before the Assistant Charity Commissioner, Pune Region, Pune claiming that the properties in dispute were her private properties and were not the properties of a public trust. By his order dated 9th June 1953, the Assistant Charity Commissioner, on consideration of the deed of trust and other materials before him, held that the trust was not a public trust but was the private property of Gangubai, the settlor. In a suo motu proceeding by the Charity Commissioner, the order dated 9th June 1953 was set aside on 24th January 1959 and the matter was remanded to the Assistant Charity Commissioner for a fresh enquiry in accordance with law. The original appellant in this Court Shivprasad Pardeshi filed an application on 6-8-1959 under section 19 of the Bombay Public Trusts Act, 1950 for registration of the trust cl