1. The plaintiff sued for a declaration that a certain trust was of a private nature and that he and defendants 1 to 4, being descendants of Gauri Shankar, who was the founder of the trust, had a right to manage the said trust and to perform worship in a temple forming part of the trust property. The plaintiff's case was that Gauri Shankar built a thakurdwara and a shevala and installed the family idols therein and he then built a few houses and some shops appertaining to the temple. On 20th November 1873 he executed a will under which he laid down certain rules of management. The plaintiff alleged that during his absence from Benares in which town the property in suit is situate - certain individuals filed a suit before the District Judge and wrongly obtained declaration that the trust was of a public nature, and defendants 5 and 6 were thereupon appointed trustees by the District Judge. The plaintiff accordingly sued for a declaration that defendants 5 and 6 aforesaid had no right be interfere with the trust property. Defendants 5 and 6 alone contested the suit and they pleaded inter alia that the trust was of a public nature and that the suit was barred by Section 42, Specific Relief Act. The Court below finds that the trust is of a public character and that the plaintiff is not in possession and it has therefore dismissed the suit.
2. The criterion for deciding whether a particular trust is or is not of a private nature is whether the said trust is or is not for the benefit of individuals. In the present suit the question whether the trust is of a private or of a public nature rests upon the construction of Gauri Shanker's will dated 20th November 1873. In para. 1 of that will the testator recites that so long as he remains alive he shall be the owner of his property. In para. 2 he provides that after his death his heirs shall take the property in equal shares with the exception of shcvala and thakurdwara:
which I have built and dedicated for the benefit of my son (or, more correctly, for the sake at spiritual merits) in the next world.
3. In para. 5 the testator lays down that the heirs shall defray the expenses of worship at the shevala and thakurdwara from the income of the houses and shops appertaining thereto; and out of the balance of the income they should do all necessary repairs of the thakurdwara and shevala and also of the houses and shops, and if any balance should remain thereafter, they were to devote it to charitable purposes and not to their own private expenses. There is nothing what so evcr in this document to indicate that the trust was of a private-nature; on the contrary its recitals show that the intention of the testator was that the property be dedicated for the benefit of the idols, which in, its wider sense means, for the benefit of the public. There is the evidence of a witness for the defendants, a Khatri merchant of the name of Arjun Mal, who swears that the public are in the habit of worshipping in the temple and that no one is ever prohibited from doing so. There is no evidence in rebuttal of this statement. In our opinion the recitals in the will of the founder of the trust - corroborated as it is by the evidence of Arjun Mal - leaves no room for doubt, that the trust is of a public nature and is not for the benefit of the individual members of the family.
4. As regards the plea of the defendants that the suit is barred by Section 42, Specific Relief Act, the Court below has found that Kashi Shanker, defendant, is in possession and that he obtained possession by virtue of the fact that he along with defendants 5 and 6 was appointed a trustee by the District Judge of Benares and thus his possession must be deemed to, be in the capacity of a trustee and not on behalf of the plaintiff. We have not been referred to any evidence on the record to shake this finding of the Court below that Kashi Shanker trustee is in, possession and that the plaintiff is out of possession. This being so, the suit fails on this ground also. The result of our findings is that this appeal fails and is dismissed with costs.