( 1 ) THIS is a defendant's first appeal arising out of a suit for declaration to the effect that the idol, Shri Radhakrishanji, installed in the temple, is the owner of the suit property, bearing Municipal No. 22/163, described in para 11 of the plaint.

( 2 ) THE plaintiff's case, as set out in the plaint, is that one Seth Chhatrapal constructed a temple near Naka Chandrabadni Road, Lashkar, and installed in it the idol of Shri Radhakrishanji in the year 1934. It is further alleged that for the maintenance and upkeep of the temple some residential apartments and shops were also constructed near it so that the expenses for the 'seva Pooja' of the idol may be defrayed from their income. It was stated that the temple is debuttar and the property in question is Debuttar property. The plaintiff further alleges, that Seth Chhatrapal had no issue and, therefore, he executed a will on 26-1-1944, whereby he bequeathed his property to Pooranchand, defendant no. 1, grandson of his brother Gappulal. By a subsequent will dated 3-8-1945, seth Chhatrapal appointed five trustees for management of the said temple, among whom were also Lallomal the next friend of the plaintiff, and the defendant No. 1, Pooranchand as well as Bharosilal, co-defendant. The plaintiff's case is that after the death of Seth Chhatrapal, defendant No. 1 pooranchand had been managing the affairs of the temple on behalf of all the trustees. But, since four to six months before the filing of the suit, it is alleged by the plaintiff, the defendant No. 1 Pooranchand had begun acting adversely to the interest of the idol inasmuch as he had started using the income of the property belonging to the temple for his personal purposes. The plaintiff, therefore, filed the present suit for declaration that the temple is Debuttar property and the defendant is not the owner of the same,

( 3 ) THE suit was resisted by defendant No. 1 Pooranchand alone, as the other defendant Bharosilal remained ex parte. The main defence of the defendant No. 1 Pooranchand (who will hereinafter be referred to as 'defendant'), was that the property belonged to him and was not Debuttar property.

( 4 ) AFTER recording the evidence produced by the parties, the learned Third additional District Judge, Gwalior decreed the suit, as stated above. Hence, this appeal by the defendant.

( 5 ) AT the very outset, learned counsel for the defendant-appellant has urged two points which, according to him, go to the root of the matter and obviate the necessity of examining the case on merits. His first contention is that the learned Additional District Judge has not determined the nature of the trust, viz. , whether the temple in question is a public trust or a private trust, and (2)that the suit for declaration only without relief of possession is not maintainable.

( 6 ) WE have heard learned counsel for the parties on the aforesaid two points and since we felt that the appeal can be disposed of on these points, we have not addressed ourselves to the merits of the case.

( 7 ) MR. B. D. Gupta, learned counsel for the plaintiff-respondent, has strenuously urged that the question whether the subject-matter of the suit is a public trust or a private trust does not at all arise inasmuch as it is a suit, pure and simple, by the idol installed in the temple for declaration that the property belongs to the idol and not to the defendant and the defendant is wrongly treating the property in question as his private property. In support of his contention, he has relied on AIR 1067 SC 1044 and AIR 1973 Mys 280.

( 8 ) IN our opinion, the proposition, that an idol or deity is a juristic person and can sue as such admits of no doubt, as it has been established by a series of authorities that an idol as a juristic person, can sue through a next friend. The question here, however, is different. The point canvassed before us is whether the temple in question is a public trust and, if so, is there a bar to hear and decide