The character of a trust is determined by the intention of the founder, the beneficiaries of the trust, and the control of the management of the trust.

B. P. Jha, J.

1. The plaintiff, the Bihar State Board of Religious Trusts, preferred this appeal before this court against the judgment dated 29th september, 1969, passed by Shri S. M. Ahmad Second Additional Subordinate judge, Arrah, in Title suit no.54 of 1965.

2. The plaintiff, the Bihar State Board of Religious Trust, instituted the suit for a declaration that the temple and the properties described in the plaint are Hindu Religious Trust Properties and not private trust properties. The plaintiff also prayed that the Judgment and order of the authority under section 43 of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the Act) be set aside. The property comprises of a temple and 5.98 acres of land. In other words, the case of the plaintiff, in short, is that the temple and the properties attached to the temple are Trust properties, and, as such, the provisions of the Act apply to the case of the defendant.

3. The suit was resisted by the defendant, Shebait, on the ground that it is a private trust, and, as sucb, the provision of the act do not apply to the temple in question.

4. The short point for decision in this case is : whether the temple in question is a private trust property or public trust property?

5. In order to ascertain as to whether the temple in question is a private trust or a public trust, the deed of endowment (Tamlikaama) dated 22nd february, 1943 (Ext. F) is the relevant document. In this document, it is stated that Ramlakhan Choubey and Most. Sona Kueri widow of Ramcharan choubey constructed a temple in village Rewatia, Police Station Dumraon, district Shahabad, and in the temple they installed Sri Lakshman Jankiji, shankarji, Bhagwan Shri Narwadeshwar Maharaji and Shri Mahabirji. It is also stated in the deed of endowment (Ext. F) that they dedicated 5.98 acres of land for the rag-bhog of the temple as well as for payment of the rent. It is further stated in the deed that after meeting all these expenses (payment of rent, rag-bhog, etc.), the balance income shall be applied to the family of the Shebait and Pujari, Sheo Kumar Mishra, and his heirs during the life-time of the executants as well as after their death. In other words, the recital in the deed is clear that after meeting the expenses of rag-bhog and the payment of rent, the balance income of the property attached to the temple shall be applied for the maintenance of Sheo Kumar Mishra and his heirs. It is also stated in the deed that the descendants and heirs of Sheo Kumar Mishra shall remain shebait of the temple in question. On a perusal of the deed of endowment (Ext. F ). It is clear that the intention of the founder was that Sheo Kumar mishra and his heirs shall worship the deities in question and no other person shall have the right to worship the deities. If it is so, in my opinion, the temple and the properties attached to the temple form a private trust. It is a settled law that in order to ascertain as to whether a trust is a private trust or a public trust, the test is whether the beneficiaries are definite and ascertained individuals or unascertained and fluctuating individuals. In the present case the beneficiaries of the temple are Sheo Kumar Mishra and his heirs. In this view of the matter, I hold that it is a private trust. It has been held in several cases that the intention of the founder is to be gathered from the deed of endowment and not from any other circumstances. In the present case, the intention of the founder was that Sheo Kumar Mishra and his heirs shall worship the deities and after incurring expenses on rag-bhog and payment of rent, the balance of the income shall be applied for the maintenance of the family of Sheo Kumar Mishra and his heirs.

6. In my opinion, in order to ascertain as to whether a temple is a private trust or a public trust, there are two important tests, namely (1)whether the beneficiaries of the trust are definite and ascertained individuals and (2) Whether the