The distinction between public and private trusts and the factors to consider in determining whether a trust is public or private.

1. The defendant has preferred an appeal before this Court against the judgement and decree of the trial Judge.

2. The Bihar State Board of Religious Trusts (hereinafter referred to as the Board) instituted a suit for a declaration that the Thakurbari and the properties mentioned in schedule A of the plaint are Hindu Public Trust properties and not private trust properties. It was also prayed that the Court be pleased to declare that the judgement passed by the authorities under S.43 of the Bihar Hindu Religious Trusts Act 1951 (hereinafter referred to as the Act) in case No.40 of 1963 (Ext. F) is illegal, void and inoperative.

3. On these facts, the trial Court decreed the suit of the plaintiff and declared the temple and the lands mentioned in schedule A in village Nagri to be the religious trust under S.2(1) of the Act. It is relevant at this stage to quote the definition of religious trust as given under S.2(1) of the Act which runs as follows :

" religious trust means any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable, but shall not include a trust created according to the Sikh religion or purely for the benefit of the Sikh community and a private endowment created for the worship of a family idol in which the public are not interested."

4. The definition given in S.2(1) of the Act clearly suggests that if a private endowment is created for the worship of a family idol in which the public are not interested, such an endowment shall not be a religious trust within the meaning of S.2(1) of the Act.

5. The simple point for consideration is whether the temple in village Nagri, Police Station Piro, in the district of Bhojpur and the properties mentioned in schedule A are "religious trust" properties or not?

6. In order to know as to whether a crtain property or a temple is a religious trust within the meaning of S.2(1) of the Act, the Court will have to look into the original document of the founder of the trust in order to know the intention of the founder. In the present case, the samarpanama (deed of dedication) is Ext. D. We have to gather the intention of the founder from Ext. D. The main test is whether the beneficiaries of the temple are ascertained individuals or the general public? If the answer is to the effect that the beneficiaries are ascertained individuals, then it will be a private trust. This view was taken by a Division Bench of this Court in Bihar State Board of Religious Trusts V/s. Baldeo Gir, (AIR 1979 Patna 175). This was also the view of the Supreme Court in the case of Ram Saroop Dasji V/s. S.P. Sahi (AIR 1959 SC 951). In that case, the Supreme Court has held that the essential distinction between a public trust and a private trust is that in the former, the beneficiaries are uncertain and fluctuating bodies of persons and in the latter the beneficiaries are definite and ascertained individuals. On a perusal of the samarpanama (Ext. D), it is clear that the beneficiaries of the Samarpanama are Ramchandra Mishra (defendant) and after his death, his family members. In other words, the beneficiaries are ascertained individuals, namely, Ramchandra Mishra (defendant) and, after his death, his family members. There is no mention in the deed that the public will have any right of worship of the deities, namely, Ram, Lakshman and Jankiji. There is no reliable evidence on the record that the temple of Ram, Lakshman and Jankiji was constructed with the public subscription. The evidence of the plaintiffs witnesses is that Ram Prasad Kuer executed a deed of endowment in favour of Ram, Lakshman and Jankiji, and Ramchandra Mishra (defendant) was appointed the shebait of the temple. It is also stated by almost all the witnesses except P.W.1 that the temple was constructed by Ram Prasad Kuer. The finding of the Court below in paragraph No.15 is that the temple was constructed, on cadastral plot No.1274 which belonged to the defenda