1. This judgment will also govern the disposal Of First Appeal No. 153 of 1950.
2. Both the appeals arise out of a suit Instituted by Namdeo Gore and Dattatraya Fulkar under Section 92 of the Code of Civil Procedure for the removal of the defendant No. 1 Bhagwan son of Sitaram from the trusteeship of Shrce Datta Deo-sthan Kalamb. The relevant facts are as follows:
One Kasabai, the widow of Krishnaji Gore, executed a deed of trust on 3-6-1928 whereunder she dedicated S. No. 34/1 area 10 acres 32 gunthas of Kasba Kalamb to the temple of Shree Datta Saunsthan & appointed five persons including the defendant No. 1 Bhagwan as trustees. Other persons who were appointed trustees were Dattatraya Balaji Sarde, who is no longer alive, defendant No. 3 Dada Vitlioba, plaintiff No. 2 Dattatraya Fulkar and defendant No. 2 Laxman Gangaram.
3. According to the plaintiffs, the defendant No. 1 was in the sole possession and management of the field that he had not rendered any accounts of the income thereof and that he had not maintained the temple in good condition nor did he carry on certain directions regarding the giving of dinners contained in the wyawastha patra executed by Kasabai.
4. On behalf of the defendant No. 1 it was urged that the trust is not a public trust and as such the suit was not maintainable. He further contended that he has maintained proper accounts of the income of the temple, has applied that income for the purposes of the temple and has carried out all the directions contained in the wyawastha parta and that he has no way rendered himself liable for being removed from trusteeship.
5. The Court below has negatived the plaintiff's plea for the removal of the defendant No. 1 from the trusteeship but has directed that two posts of trustees which were vacant should be fill-ed and that accounts should be rendered by the defendant No. 1. Accordingly, it appointed a commissioner for going into the accounts, and we are told that accounts have since been taken by the commissioner.
6. The defendant No. 1 is not content with this decision and has come up in appeal. The plaintiffs have also filed an appral in which they have reiterated their contentions that the defendant No. 1 has rendered himself liable for being removed from trusteeship and that the Court below was in error in refusing to remove him from trusteeship.
7. We will first deal with the contention of the defendant No. 1 to the effect that this is not a public trust. According to the learned counsel for the defendant No. 1 dedication was to a private deity and that consequently the trust is not a public trust. In our opinion there is no substance in this contention. No doubt, the Hindu law does recognise endowments to a public temple as well as a private temple and it does not mean that wherever any property is endowed for the purposes of a deity a public trust is created and the temple in which the deity is installed is to be deemed to be a publip temple, in this connection we were referred to one decision in Manohar Ganesh v. Lakh-miram Govindram ILR. 12 Bom 247 by the learned counsel for the plaintiffs. The first placi-turn of that case reads as follows.
'A trust for a Hindu idol and temple is to be regarded in India as one created for public charitable purposes, within the meaning of Section 53 of the Code of Civil Procedure, Act 10 of 1877 Which corresponds to Section. 92 of the Code of Civil Procedure. 1908)'
No doubt this seems to lay down a general proposition but having perused the judgment, we do not find anything therein from which such a proposition could be deduced. This is also the view which has been expressed in Amardas Mangaldas v. Hannanbhai Jethabhai : AIR1942Bom291 where the learned judges have observed.
'It (i.e. the point raised in the first placitum) seems rather to rest on the Judgment in a previous suit relating to the temple which was not brought by relators under Section 53 and which was dismissed by Mr. Justice West..... We ihink that no such general proposition can be laid down without qualification. It is well settled that family idols may be endowed with property without any auestion of a public trust arising and the same we think may be true of some idols which are not family idols. We may refer in that connection to Prasaddas Pal v. Jagannath Pal : AIR1933Cal519 .'
8. Even though we do not agree with the view Propounded by the learned counsel for the plaintiffs on the basis of the decision cited above, we are satisfied that there is sufficient material in this case from which it could be deduced that the temple is not a private temple but a public temple.
9. In the first place, there, the dedication is not to a family deity at all but as set out in Exhibit D-1. wyawastha patra a temple Of Shree Datta was actually constructed by Kasabai after the death of her husband. This temple has admittedly not been constructed within the precincts of the house of Kasabai. According to the plaintiffs it has been constructed on a piece of land which did not belong to Kasabai, while according to the defendant No. 1, it was constructed upon a site which did belong to her. However, the preponderance of evidence is in favour of the plaintiff's contention that this temple was constructed on a site which did not belong to Kasabai.
10. Then there is the circumstance, as admitted by the defendant No. 1 himself, that the temple is open for worship to any member of the public, irrespective of caste right Jrom 1927. No doubt, as has been observed by their Lordships of the Privy Council in two cases Mundachari Koman v. Achuthan Nair and Babu Ehagwaii Din v air Har Saro-on the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right and that where user it proved in a particular case it does not necessarily follow therefrom that the temple is a public temple and not a private temple. We have already indicated two circumstances from which an inference could be drawn that the temple is a public one and not a private one and these circumstances receive further strength from the fact that the members of the public were allowed free access to the temple. Indeed in a previous case Lakshmana Goundan v. Subramania Ayyar 29 Cal WN 112: AIR. 1924 PC 44 their Lordships inferred from a number of facts, among which was the fact that the temple was open to the Hindu public in general, that it was a public temple. All that we say is that this is a relevant circumstance for determining the character of the temple whether it is public or private.
11. We would also point out that the usual cases in which it is claimed that an endowment is a private trust are those where a deity is installed in the family house, or where the temple has been erected on land belonging to the family, or where the trust of the property intended for the up-keep of the temple is made in favour of particular individuals from generation to generation. That is not the case here. Here, five persons have been named as trustees. The trust also provides for the removal of any of them for misconduct or mis-management. In our opinion therefore, there is very little scope for the contention that the temple is a private temple and not a public temple. The appeal of the defendant No. 1 is therefore dismissed with co.sts.
12. Now corning to the appeal of the plain-tiffs. the question is whether the Court below was right in refusing to remove defendant No. 1 from tho office of managing trustee or not.
13. On behalf of the plaintiffs it is said that the defendant No. 1 did not keep accounts, that he refused to show any accounts to the other trustees, that he did not even consult them in the management of the trust property and that for these reasons he should have been removed. On behalf of the defendant No. 1 it is pointed out that though the trust deed was executed in the year 1928 he actually got possession in the year 1933 after the death of Kasabai and that the in-come which he obtained from the property after he got possession thereof was not very much. At the same time, he however says that he had kept memos of the income and expenditure. He has also stated that he showed the accounts to the defendants 2 and 3.
14. There is no doubt that the defendant No. 1 flid not show the accounts to the plaintiff No. 2 who was also named as one of the trustees in the trust deed and that is because this person had actually resigned in the year 1932. As regards the fourth trustee, it is pointed out that he is no longer alive. We see no reason for not accepting the evidence adduced by the defendant No. 1 in this regard, particularly because it was not controverted on this point by the defendants 2 and 3 who are also co-trustees. In regard to consultations, the defendant No. 1 has no doubt admitted that he did not hold any formal consultations with the co-trustees because there was really hardly anything which required consultations but he has also stated that whenever there used to be an annual dinner he used to discuss the matters pertaining to the Saunsthan with the co-trustees. In the circumstances, We do not think that there is any substance in the contentions raised on behalf of the plaintiffs.
15. Accordingly, we dismiss the appeal of theplaintiffs with costs.
16. Appeal dismissed.