JUDGMENT

1. We have come to the conclusion that the learned Judge has misdirected himself in this case as to what really is a public trust and that he has failed to appreciate the strong points in the evidence. The respondent has not been represented, but perhaps in view of the overwhelming character of the evidence it is not surprising. The suit is brought alleging that a certain temple and idol constituted a public trust, having been built and dedicated for the use and benefit of the Hindu public. That it was built and dedicated by the original owner out of his private purse, and as his private property, to be used for religious purposes, there can bi no doubt whatever. No doubt also a man can create a private trust by building a temple and an idol and endowing it with funds or income for strictly private purposes, not merely retaining the management and control in the hands of himself and he family but restricting the enjoyment to himself and his family or other individuals, and he may out of the warmth of his heart allow other persons but side the original beneficiaries to enjoy from time to time the advantages thereby created but in such cases "especially with a temple and idol publicly constituted and publicly accessible in which the appearance may be what one may describe as ambiguous, one would expect and ought to insist upon clear evidence of permission given or license given and permission withheld because it is equally' true that activate individual may construct out of his private purse a private temple and idol retaining the control and management in his own hands and in that of his family or some other selected individuals and yet so conduct himself as to provide conclusive evidence of dedication by implication and by conduct. Once he has shown his intention to dedicate, the matter passes out of his hands and the beneficiaries to whom the use is dedicated have a right in such use. Where there -is no express deed of dedication or document creating the trust, the Court's have to depend almost entirely upon the history of the place and the' user by people generally from time to time, lo decide whether it is private or was intended to be a public trust. The words "public" and "private" in this connection do; not bear the same significance that they 'do in popular language: A public trust for worship by, for example, Hindus may be as private a place as well as can be conceived. Perhaps the best statement' of the distinction between public and private trusts is to be found in Lewin on Trusts in Chapter II, page 18 of the 12th Edition. By public must be understood such as are constituted for the benefit either of the public, at large or some portion of it answering a particular description. "In private trusts' the beneficial interest is vested absolutely in one or more individuals who are, or Within a given time may be definitely ascertained. On the other hand public trust has for its objects the members of an uncertain and fluctuating body, and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement upon a private trust." An equally useful definition is to be found in the notes to Section 92 in Woodroffe and Ameer Ali's Commentary on the Code. "Private trusts," they say, "concern only individuals or families for. private convenience or support. By public trust may be understood such a are constituted either for the benefit of the public at large," and for the rest of the definition they follow the notes precisely as in Lewin. There are passages in the learned Judge's judgment which show that he has confused this issue in his own mind.

2. There is a broad difference, when one comes to construe a dedication, between conduct which shows that the owner of the property is giving express permission from time to time to particulars individuals and conduct which shows that he intends certain members 01 av, class whom he desires to benefit to actf indiscriminate