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 indiscriminately without permission, that is to say, as of right. A useful test of a Judge to apply to see whether the evidence satisfies the conditions of the private trust, is to ask.himself whether any of the acts testified to by the witnesses could have been prevented or penalised by proceedings lor trespass. It is impossible to suppose, after reading the. large body of evidence, of respectable persons in this record, that anybody thought for a moment ihat they were committing acts of trespass. There is evidence that Kanhaiya I^al the father, of the principal witness gave a house to Sri Kam the pujari not a s his own, for he. was prohibited from selling it, but as a residence for hynself as, pujari for the time being instead of living in the temple. This witness says that his father and grand-father used to contribute monthly expenses and also that his father did some formal act by way of appo.nting Sri Ram pujari. One witness said that lectures were held for Hindus on religious subjects. Other witnesses say that Hindu festivals were recognised and attended by members of tjie Hindu public in the neighbourhood. Others testify to a practice from time immemorial not merely of giving offerings of food -which might be expected in any event but to definite subscriptions 01 Periodical contributions for the purpose of repair and whitewash. One old gentleman in the service of the Raja Saheb says that the Reja Saheb used to contribute to the up-keep A Bania, who was called, said that as account-book was kept, a fact which is not alleged by anybody else, but which would appeal to, him. This same bania explain that they used, to present the present pujari no merely with money bat with brckhats, which probably means something different, from what it sounds to be and which we imagine must have been building material. So far as we know this, evidence was uncontradicted. At any rate it stands very 'high as evidence which is palpably true in the main and given; by persons of position 'find good. caste and many of them of advanced age with no' possible interest, and the conclusion is inevitable that, however much the property might have beep in private ownership and the control intended to remain in private ownership, the use and benefit of 'the temple was dedicated and intended for the use and enjoyment of the Hindu, community, and the case must, therefore, go back for trial upon the remaining issues.
3. Unfortunately we cannot leave the matter here. The learned Judge has-not settled the issues satisfactorily and it being found to be a public charity one or two nice questions remain to be decided on which we propose to give some further directions. The remaining issues which have not been disposed Pf strike us as embarrassing in form. In deed the issues generally in the, case were not well conceived. It being now decided that it is a public trust the next question that arises is in whom is the appointment of the pujari vested. Probably little remains to be decided;on this question. Everything points to' its being vested in the family of the donor and having rightly descended to the present occupant, Musammxt Basanti. That may be treated as the second issue.
4. The third issue then arises whether the present occupant has conducted herself improperly in such matters as to constitute a preach of trust. The evidence before us is all one, way although not going into much detail, but if it, is at all true that she is of bad-character, or has allowed wine to be introduced into the temple, or, has left it and gone away, of has wilfully excluded Hindu s who, have a right to worship there, she is clearly not a fit and proper person. Her absence to-dry and the absence of anything helpful from hear point of view on the record by rather looks as though she has not got much to say, but it is possible that it is due to the Judge having taken a strong view on the legal question in her favour. If this third issue is decided in her favour, that is to say, if the Judge thinks she is a proper person to administer this trust and to act as pujari, then it, seems that this suit must fail and no-further step can be taken until she dies either childless or any member of the family claims to succeed her. But if this, issue is determined, against her then the fourth issue arises what is the best direction for the Court to give with a view to filing the vacancy in accordance with the intention of the donor.' Upon this issue the plaintiffs were in an obvious difficulty apparently not having cleared their own minds or having obtained advice upon the subject. They suggested in their claim for relief that 'some' other Person may be appointed pujari and mutwalli and necessary directions may, be given in that behalf. This is really, if the plaintiffs had the courage to ask for it, asking, the Court under Section 2(g) to settle a scheme and we think the Court must, take this duty upon itself; that is to say, having come to the conclusion, if does, that the last successor and. present occupant is unfit and that there is nix, fit person answering the description of the donors original intention, then he must by his decree formulate a scheme which will result in the appointment of a fit person most nearly approaching the wishes of the donor, and so frame his decree as not merely to dispose of the present crisis but to appoint the future, pujari in such a Way that no dispute can subsequently arise as to the legal title of the person appointed either by him or under his new scheme. It is not possible for us to formulate a scheme. We can do no more than suggest a convenient and useful way of providing for such an emergency, namely, by the appointment of a small committee of electors or trustees, always providing for an odd number in case of con teat, who shall by a majority of votes appoint the new pujari and in such scheme the Judge may, if satisfied on proper material's with the individual, start the ball rolling by selecting in individual as pujari as the first successor, subsequent appointments to be made under the scheme. We may and that the Judge must do his best when formulating his scheme to put it into the decree in such a form that everybody can understand it; that it is decisive and simple so as to be warkable not by those only who have heard and understood the case, but by those who come after and have nothing to guide them except the Judge's decree. The appeal must he allowed and the case remitted to the lower Court for re-hearing on the remaining issues in lieu of what we have stated Under Order. XLI, Rule 23, the fresh issues to be settled not necessarily in the exact words but as near as possible approximately in the following form, (1) In whom according to the intention of the original donor, is the office of the pujari vested? (2) Is the defendant Musammat Basanti a fit and proper person to remain pujari of this public trust? (3) If not what is the best scheme most nearly approximating the original intention of the trust for providing for the existing and future vacancy in the office of the pujari?
5. The costs of this appeal and of the first hearing to abide the result of the Suit.