S.L. Talati, J.
1. All the three appeals are directed against one judgment delivered by the learned Assistant Judge, Baroda on 16th September, 1974 in Miscellaneous Application No. 187 of 1971. The facts which gave rise to this litigation may be briefly stated as under:
2. One Purshottam Sadashiv Deuskar of Baroda died on 16-3-1961. He had executed a registered Will, dated 14-7-1958. The litigation started when the three applicants of Miscellaneous Application No. 187 of 1971 filed Miscellaneous Civil Application No. 150 of 1961 in the Court of the Civil Judge (S.D.), Baroda for obtaining probate with Will annexed or succession certificate in respect of the estate of the deceased basing their claim on the Will, dated 25-4-1954 made by the deceased. That application was opposed by one Laxmi who had appeared in response to the public notice issued by the Court. She was sister of deceased Purshottam Deuskar, She has also now expired. Opponent no. 1 had also appeared in these proceedings and present opponents nos. 3 and 4 also appeared in those proceedings and ultimately the learned Civil Judge (S.D.) came to the conclusion that the application was liable to be rejected inasmuch as Will, dated 25-4-1954 was not the last will of the deceased but the last Will of the deceased was dated 14-7-1958 which was a registered document.
3. The present applicants were not satisfied with the judgment and filed appeal in High Court which was numbered as First Appeal No. 467 of 1963 and that appeal came to be dismissed by judgment dated 15-2-1970. During the pendency of the above proceedings, opponent No. 2 made a complaint to the Assistant Charity Commissioner, Baroda. His complaint was that by a registered Will, dated 14-7-1958 the deceased had given certain legacies for public religious and charitable purposes and, therefore, a public trust was created under the said Will, dated 14-7-1958. In view of this complaint, Inspector Shri S.M. Desai of the office of the Assistant Charity Commissioner started inquiry and ultimately the Assistant Charity Commissioner on report being submitted to him started a suo motu inquiry under Section 19 to determine whether public trust was created under the said Will, dated 14-7-1958 made by deceased Purshottam Deuskar. Notices were issued to opponents nos. 3 and 4. Notices were also issued to the first three applicants and to Bai Laxmi and also to opponents nos. 1 and 2. The Assistant Charity Commissioner after an elaborate inquiry came to the conclusion that the last Will made by the deceased dated 14-7-1958 was duly proved and a public trust was created by the deceased under the said Will. Now according to this Will a public trust was created in respect of (1) securities of Rs. 33,200/-directed by the testator to be given to Baroda University for giving scholarships; (2) securities of Rs. 8,000/-directed by the testator to be given to Brabmin Sabha. Baroda and (3) Rs. 500/-directed by the testator to be given to Sanskrit Mahavidyalaya, Baroda. The Assistant Charity Commissioner in view of the above findings ordered that a public trust should be registered. Against the said orders the present applicants preferred Appeal to the Charity Commissioner being Appeal No. 32 of 1967. That appeal was dismissed on 25-9-1971. After dismissal of the appeal by the Charity Commissioner the present applicants preferred Application under Section 72 of the Bombay Public Trust Act in Court of the District Judge, Baroda who transferred the matter to the Assistant Judge, Baroda and the matter was decided by the learned Assistant Judge, Baroda. The learned Assistant Judge came to the conclusion that the Will dated 14-7-1958 was proved to be the last Will of deceased Purshottam. He also came to the conclusion that Sitaram was proved to be an executor of the said Will. However, the learned Assistant Judge came to the conclusion that no public trust was created in regard to securities which were directed by the testator to be given to Baroda University for giving scholarships and also in respect of securities directed by the testator to be given to Brahmin Sabha. However, according to the learned Assistant Judge a public trust was created in regard to a sum of Rs. 500/-directed by the testator to be given to Sanskrit Mahavidyalaya, Baroda. That judgment is challenged by the appellants.
4. M.S. University of Baroda filed one appeal while another appeal is filed by the Charity Commissioner and the third appeal is filed by the Secretary, Brahmin Sabha, Baroda.
5. The learned Assistant Judge referred to the definition of 'public trust'. That definition is as under:
'Public trust' means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a 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 Societies Registration Act, 1860.
6. Thereafter the learned Assistant Judge referred to a ruling Manilal Pitambardas Bhatt v. Kantilal Hargovandas Soni and Ors. reported in 1967 (4) G.L.T. at page 260 where it was held that the members of Soni caste cannot be said to be a fluctuating body of individuals but it is obvious that they are persons who are ascertained or capable of being ascertained and it cannot be said that the members of the Soni caste constitute a body which is incapable of ascertainment.
7. Reliance was also placed on a ruling Deoki Nandan v. Murlidhar and Ors. reported in : 1SCR756 . The distinction between a private trust and a public trust is made in that ruling and it is observed as under:
The distinction between a private and a public' trust is that whereas in the former the beneficiaries are specific individuals. In the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof.
Relying on these two rulings, the learned Assistant Judge came to the conclusion that so far as securities worth Rs. 33,200/-and Rs. 8,009/-were to be given to two institutions viz. Baroda University and Brahmin Sabha, public trust was not created and only a private trust was created. It may be stated here that 'so far as M.S. University is concerned the funds were to be utilised as under:
8. Out of the securities scholarships were to be given to the students. It is mentioned that four students each studying in Arts and Science Faculties in the said University i.e. in all eight students who are Maharashtrian Brahmins and who are residents of Baroda, be given Rs. 10/-per month as scholarship in the name of the testator's father Sadashiv. It was also directed that only one scholarship be given for the first year student of Arts, the second to the first year student of science and so on. It would thus mean that eight students were to be given scholarships in such a way that in each class there would be at least one scholar who would be given the scholarship in the name of the testator's father. For that purpose M.S. University was to be given securities amounting to Rs. 33,200/-. The above directions would clearly show that scholarships were required to be given in the name of the testator's father--Sadashiv. That was so provided. Further it was provided that eight students were to be chosen from Maharashtrian Brahmins who are residents of Baroda. Now this class of persons can never be said to be such which could be capable of ascertainment and not a fluctuating class. Three factors were to be considered; viz. (1) he must be a Maharashtrian, (2) he must be a Brahmin and (3) he must be a resident of Baroda. After all the three factors were satisfied, the fourth factor mast be satisfied that he must be a student in M.S. University. In a particular class every year, therefore, the scholar would be different and no one would be able to know as to who would be the scholar in a particular given year. The second security which was meant for Brahmin Samaj provided that Rs. 25/-should be given for cremating a dead body of a Dakshini Brahmin. Thus the Brahmin Sabha was directed to spend Rs. 25/-each for the cremation of the dead bodies of such persons who might not have sufficient monies to get the dead bodies burnt. Here also a person must be a Dakshini Brahmin, coming from southern region of this country. Further he must die. After his death the persons should be incapable of having sufficient means to get the dead bodies burnt. How could such a person be ascertained at any given point of time? That person is always unknown and no one knows as to which Dakshini Brahmin is going to die in Baroda on a particular day and that other persons behind him would find themselves incapable financially to find out money for burning the dead-bodies. It is sufficient to say that the learned Assistant Judge failed into a grave error which is required to be corrected.
9. The learned advocate Shri Pandir who appeared on behalf of the respondents submitted that the name of deceased Purshottam must be shown as a person on whose behalf a person is getting scholarship. It is sufficient to say that a direction already exists in the will itself by which M.S. University is directed to give scholarship in the name of Testator's father Sadashiv. Now, therefore, such a direction already exists and, therefore, so far as the scholarship is concerned, no such direction is necessary. So far as Brahmin Sabha is concerned it appears that there is no such direction. However, at the time of passing receipts Brahmin Sabha could mention the name of the testator or testator's father in whose memory the money is being given. It may be stated that the learned advocate Shri Pandit who appeared on behalf of the respondents conceded that a public trust was being created and the judgments of the Assistant Charity Commissioner and the Charity Commissioner are correct and they were right in registering the public trust. Under these circumstances it is now directed that the securities amounting to Rs. 33,200/-which were set apart by the deceased may be handed over to M.S. University with all amounts of interest accrued on those securities so that M.S. University might act according to the desire expressed in the Will of 1958, atleast after a period of 22 years. It is also directed that the securities of Rs. 8,000/-together with interest accrued on that may be handed over to Brahmin Sabha, Baroda so that they may also start using money for the purpose for which the testator gave directions. 10. In the result all the three appeals are required to be allowed and the judgment of the Assistant Charity Commissioner as confirmed by the Charity Commissioner are hereby confirmed. There will be no order as to costs.
10. However, cost of Charity Commissioner shall be made from the estate.