Somnath Iyer, J.
1. The question which arises in this appeal preferred under Section 72(4) of the Bombay Public Trusts Act, 1950, is whether a public trust was created by an award which became transformed into a decree by which a partition was made between two persons who belonged to a Hindu joint family. The appellant's father Chanmallappa was one of them and the respondent Kadepna is the other. The award bv the arbitrators was made on December 24, 1934. and it became subsequently transmuted into decree of the civil court In Order Section 60 of 1935. in the Court of the Civil Judge of Belgaum.
2. The relevant provision in the decree provides for the utilisation of the income from one part of the property which belonged to the joint family for a certain religious purpose to which we shall presently refer. That land was therefore, not partitioned and the decree stated that the seniormost member in the senior branch of the family should perform the duties enjoined in that way.
3. After the death of Chanmallappa, his younger brother Kadeppa made an application under Section 18 of the Bombay Public Trusts Act for a declaration that the decree created a public trust. In that application he made the complaint that the appellant Rudrappa had committed breach of trust and had neglected the performance of his duties as trustee The Assistant Charity Commissioner made under Section 19 the declaration sought by Kadeppa and that declaration was confirmed by the Charity Commissioner in the appeal preferred by Rudrappa under Section 70 of the Act
4. The sequel to these two adjudications was an application presented by Rurappa to the District Judge. Belgaum under Section 72 of the Act. The prayer is that application was that the District Judge should set aside the decision of the Charity Commissioner But that application was dismissed by the District 'Judge, and so Rudrappa appeals.
5. The relevant part of the decree which was understood by the District Judge as dialing a public trust provides that the income from the property set apart for religious purposes should be utilised for taking the family God described as 'Kambi' annually to the temple of Sree Mallikarjuna Devaru of Srisaila on theoccasion of the annual Abhisheka ceremony conducted in that temple, and that after the family God was brought back to the family house, there should be a feeding of the. Tanzaniawho belonged to a holy order.
6. The District Judge was of the view that the cumulative effect of these provisions in the decree was that the properties belonged to a public trust. It should be mentioned that the Assistant Charity Commissioner felt influenced to take the same view for the reason that the Shreeshaila Mallikarjuna Temple to which the family God had to be annually taken was a public temple and that that was so should impel the conclusion that there was a public trust. Similar in effect is the reasoning of the Charity Commissioner.
7. We are of the opinion that the ratiocination of the District Judge and of the Charity and Assistant Charity Commissioners suffers from the infirmity that they overlooked the essential distinction between a public and a private trust. A public trust is defined by Section 2(13) of the Bombay Public Trusts Actthus:
' 'Public trust' means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act. 1860.'
8. The question is whether we could say that the provision for the employment of the Income from a part of the property belonging to the family for a religious purpose brings into being an express or constructive trust for either a public, religious or charitable purpose or any other religious or charitable endowment such as the one of which the definition speaks. This is the restricted investigation which we should make, since in the case before us we find no temple, math, wakf, a dharmada or society for a religious or charitable purpose or for both and registered under the Societies Registration Ad 1860.
9. The definition speaks of three categories of public trusts One is an express or constructive trust for religious or charitable purposes or both The second consists of temples, maths, wakf dharmadas or any other religious or charitable endowments In the third are included societies formed for a religious or charitable purpose or both and registered under the Societies Registration Act 1860.
10. Although there was no discussion by either the District Judge, or by the Assistant Charity Commissioner or Charity Commissioner of any other question than whether there was a public trust for a religious or charitable purpose, it becomes necessary for us by reason of the comprehensive definition contained in the Act, to ask ourselves whether there is atrust in the case before us falling within the first or the second category since it is obvious that there is none inside the third.
11. It can be within the first category if there is an express or constructive trust for a public, religious or charitable purpose or for both. It would be in the second if we could say that there is any other religious or charitable endowment. There would be a public trust within his first category only if a religious or charitable purpose is a public purpose. That is what the definition expressly says. The second part of the definition says that a pub-lie trust includes 'a temple, a math, wakf, a dharmada or any other religious or charitable endowment.' But in has to he remembered that a math, temple and wakf are defined by Section 2 of the Act and those definitions make it clear that the beneficiaries of those institutions are either the general public or a section thereof. Although in the context of the words 'any other religious or charitable endowment' occurring in the definition, we do not find the word 'public', it is obvious that 'any other religious or charitable endowment' becomes a public trust only if it is ejusdem generis and the religious or charitable endowment is for a public purpose. It is clear that a private endowment even if It be for a religious or charitable pur-1 pose is not within the definition, since it is clear from the earlier part of the definition that the emphasis is not upon the religious or charitable nature of the trust, but is upon the benefit it confers upon the general public or a section thereof.
12. So, the question is whether a trust or endowment was created by the decree for a religious or charitable purpose or for both.
13. Mr Sirgurkar, at one stage during the arguments asked us to say that the 'Kambi' which had to be carried to the public temple at Srisaila was not really a family God or idol and that it was a mere 'Kalasa' which had to be carried by a 'Jangam' on behalf of the family to that temple once every year on the day of the annual 'Abhishek' He maintained that the purpose of the decretal command was that there should be an annual feeding of the 'Jangams' belonging to the holy order out of the income set apart for that purpose, and that since the beneficiaries belonged to an indefinite fluctuating body. The trust was impressed with the character of a public trust within the meaning of the elucidation made by the Supreme Court in State of Bihar v Sm Charusila Dasi, AIR 1059 SC 1002. It was explained by the Supreme Court in that case that the essential distinction between a public and private trust was that in the case of the former the beneficiaries were specified individuals whereas a public trust was for the benefit of the general public or a section thereof so we must proceed to understand his true meaning of that part of the decree which incorporates the relevant direction.
14. In his own application which Kadeppa made to the Assistant Charity Commissionerhe described the 'Kambi' which had to be carried to the Shreeshaila temple as 'our Kambi'. In his evidence before the Assistant Charity Commissioner, he stated thus:
'Our Kambi as well as the other Kambis all over India are sent there in honour of the Principal Deity The Abhishek ceremony of Shri Mallikarjun Dev is performed in the presence of all these Kambis.'
In the appellant's application to the District Judge under Section 72 of the Act, he made it clear that the family God was 'Kambi Dev' The averment in that application reads:
'The family God is 'Kambi Dev'. It is a custom of the family to send this family God 'Kambi Dev' to Shreeshaila at the time of the Abhisheka Mahatsava once in a year ....'
It is thus perfectly manifest that the 'Kambi' to which the award of the arbitrators and the decree refer is the family God or icon, It is this family idol which under the terms of the decree had to be taken to Shreeshaila for participation in the annual 'Abhishek1 celebration. The mandate of the decree was that a 'Jangam' appointed by the concerned member of the family should carry It to Shree Mallikarjuna Temple at Shreeshaila and bring it back. The feeding of the 'Jangams' belonging to the holy order was directed to be conducted after the family Idol's return from Shreeshaila These provisions of the decree demonstrate that the main and dominantly purpose of the decree was the ritual which consisted of the participation of the family idol in the 'Abhisheka' at Shreeshaila temple. The main feature of the ritual was the worship of the idol in that temple and It was for that purpose that the income of the family property had to be expended so that a 'Jangam' belonging to the holy order may carry the idol and bring it back. If, In addition, the decree provided that after the return of the family idol to the family house, persons belonging to a holy order should be fed, is it possible to say that a trust or endowment which was of a charitable nature, was created for a public purpose?
15. That part of the ritual which consists of the taking of the family idol to the Shreeshaila temple and its worship in that temple on the occasion of the annual 'Abhishek' and its journey back is of course, religious in character, and there is no charitable purpose behind it A religious purpose is founded in piety whereas charity is founded upon benevolence the two journey vs to be performed by the 'Jangam' who had to take his idol to Shreeshaila temple have, for their object the customary religious ritual which the family has been performing and that is undisputed and fully established by the evidence in the case With that ritual the members of the family alone are concerned and neither the general public nor any section thereof can have any beneficial interest in it it is an 'arrangement made for the private purposes of thefamily and so did not stand impressed with the character of a public trust.
16. Mr. Sirgurkar who did not dispute the correctness of the proposition that the ritual does not involve any public trust, strenuously maintained that the trust comes into being in consequence of the direction in the decree that after the return of the family idol to the family house, there should be a feeding of the 'Jangams' He asked attention to the evidence given by Rudrappa the appellant that the number of 'Jangams' and other caste people who were then fed. used to range between 50 and 400 while the expenses amounted to Rs. 200 depending upon the numerical strength. The number of persons who were fed in that wav. and the magnitude of the cost involved, were, according to Mr. Sirgurkar indications that the primary purpose of the relevant provisions of the decree was the creation of a beneficial interest in that section of the public which was composed of 'Jangams' who belonged to a holy order.
17. But the primary and basic purpose of the arrangement was to make provision for the participation of the family idol in the annual 'Abhishek' in the Shreeshaila temple. In more than one part of the award the arbitrators discussed the necessity for the continuance of the customary religious practice. The relevant part of the award begins with the direction that the family idol should be taken to the Shreeshaila temple by a 'Jangam' and next speaks of the participation of the family idol so taken, in the annual 'Abhishek' in the Shreeshaila temple It again speaks of the return journey to be performed by the 'Jangam' who was entrusted with the duty of bringing the idol back to the family house These essential features of the trust thus created, which preclude the concept of a trust for the general public or a section thereof, demonstrate that its principal and dominant purpose was a dedication for the conduct of religious services in which none but the members of the family had, any concern or interest. That the Shreeshaila, temple to which the family idol has to be taken is a public temple makes no difference, since, the evidence of the respondent is that it is customary for persons to take their family idols in that way And, it is obvious that such participation in the Abhisekam in the public temple is the homage offered by the members of the family to the deity in the public temple. That, indeed, is what the respondent himself slates in his evidence
18. The provision for feeding is, it is plain, merely ancillary to the main object of the trust The feeding of the pious or the poor which is incidental to many forms of worship for the propitiation of family idols or of deities in private temples, is animated by the faith that the offering of food in that wav adds efficacy to the ritual. But the dedication, nevertheless, is for the performance of religious services with which the general public or any sec-tion thereof has no association or concern, and, does not create any independent trust or charity having for Its object the offering of food to the general public or a segment thereof.
19. The contrary view pressed on ua overlooks the distinction between the true object of the trust and what is only auxiliary to It in a very subsidiary sphere And its acceptance involves the recognition of an impossible public trust completely dependent upon an essentially private trust without which it cannot have any independent operation. We cannot, therefore, deduce a public trust from that part of the provision in the decree which directs the feeding of the 'Jangams.
20. The view that we take receives sup port from a decision of the High Court of Madras in Sathappayyar v Perlasaml. (1891) ILR 14 Mad 1 which was followed by the High Court of Calcutta in Prasaddas Pal v. Jagannath Pal, ILR 60 Cal 538=(AIR 1933 Cal 519). The question before the High Court of Madras was whether a dedication for religious purposes which incorporated a direction for distribution of food among the poor or ascetics created an independent trust. Muttusami Ayyar J. holding that it did not observed:
'Apart from the specific trusts indicated by the terms of the grant, there are two more trusts to be noticed The first of them consists In the distribution of food among parades is or Sudra ascetics and others whenever gurupuja is performed, but it must be observed that it is not an independent trust but only the accompaniment or incident of gurupuja according to religious usage'
21. In Prasaddas Pal's case. ILR 60 Cal 538=(AIR 1933 Cal RIB) an endowment was made for the Sheba of the Idol Sree Sree An-napurna established by a person who made the dedication of his house and premises for feeding the poor and carrying out other charitable objects. A question arose whether that provision for the feeding of the poor created a public trust Matter J was of the opinion that it did not and observed:
'With regard to the second contention it is argued that the whole of the income of the Debattar property shall be wholly spent for the purposes of the Debsheba and the feeding of the poor does not make the endowment a public charitable one It is argued that this provision about feeding of the poor is part and parcel of the Debsheba and cannot be regarded as independent charity in which any class of the public was to have a direct and independent interest The argument is that the feeding of the poor is really incidental to the Puja Mr Pugh, who appears for the respondent, argues that the trust is principally public seeing thai the feeding of the poor and the feeding of students of educational institutions have been provided for in the deed of endowment. We are unable to accept this contentionof the respondent, for it seems to us that the feeding of the poor and the feeding of students, if the income of the Debattar property increases are really incidental lo the main purposes of the endowment name. The Puja of the deity The view we take is supported by the decision of (1891) ILR H Mad I Were, therefore, of opinion that the learned Judge was not right in the view that this trust was partly of a private and partly of a public nature and not one wholly of a private nature.'
22. There is great similitude between the case before us and those decided by the High Courts of Madras and Calcutta As in those cases, the primary and dominant purpose of the dedication is the performance of the Puja of the family idol and the feeding of the poor directed by the dedication was incidental and subservient. That feeding was not possible unless the family idol participated in the annual Abhishek in the Shreeshaila temple and was brought back to the family house. So, since there could be no feeding without the ritual in the Shreeshaila temple, it should be plain that there was no independent trust for any charity In which the general public or any section thereof could have any interest.
23. Any other view would lead to the oddity that the worship of the family idol could be controlled and regulated by courts or by the administrative authorities functioning under the Bombay Public Trusts Act. An interpretation which empowers such interference in the worship of the family idol cannot be sound.
24. In our opinion, the trust created bythe decree was purely a private trust and isnot a public trust as defined by the BombayPublic Trusts Act. We therefore, allow thisappeal and set aside the decisions of the Dis-trict Judge the Charity Commissioner, and wedismiss the application presented by the res-pondent Kadeppa to the Assistant Charity Commissioner for a declaration that there was a public trust In the circumstances we make adirection that each party shall bear his owncosts throughout.
25. Appeal allowed.