JUDGMENT : S. Acharya, J. - This is an appeal by Defendant No. 1, the Commissioner of Hindu Religious Endowments, Orissa, (hereinafter referred to as Commissioner) against the decision of the Subordinate Judge, Puri, declaring the temple in question to be a private temple of the family of the Plaintiff and Defendants 2 and 3, an d as such outside the scope and provisions of the Orissa. Hindu Religious Endowments Act, 1939 (hereinafter referred to &s the Act). 2. In a proceeding before the Commissioner u/s 64(1) of the Act the temple was declared to be a public temple and the member's of the Plaintiff's family were recognised to be hereditary trustees thereof. The Plaintiff filed the suit against the said declaration of the Commissioner, and the suit having been decreed as aforesaid this appeal was preferred by the Commissioner. This appeal coming up for hearing before a Division Bench of this Court on the 22nd of November, 1960 was allowed on the preliminary ground that the suit was not maintainable as the Plaintiff had not impleaded the public in accordance with the requirements of Order 1, Rule 8, Code of Civil Procedure. Against the said decision, an appeal was preferred in the Supreme Court on behalf of the Plaintiff, which was allowed on the ground that the High Court was in error in holding that in the suit brought by the Plaintiff u/s 64(2) of the Act, the members of the public were necessary parties and it was incumbent on the Plaintiff to follow the provisions of Order 1, Rule 8, Code of Civil Procedure. The High Court's view being thus overruled, the judgment and decree of this Court were set aside, and this appeal was remanded to this Court for disposal in accordance with law. 3. The Plaintiff's case may be stated as follows: The ancestor of the Plaintiff Dayanidhi constructed a temple out of his own funds and established a family deity and made endowments for the maintenance and seva puja of the deity. After the death of Dayanidhi the Plaintiff became the manager and Sebayat of the family deity. The Plaintiff's main contention in the suit is to the effect that the temple and the endowments were never dedicated to the public nor had the public any kind of right in the temple, the deities there in, or the endowed properties. After the death of Dayanidhi the Plaintiff became the manager and Sebayat of the family deity. The Plaintiff's main contention in the suit is to the effect that the temple and the endowments were never dedicated to the public nor had the public any kind of right in the temple, the deities there in, or the endowed properties. It is averred further that the public never contributed anything for the establishment or maintenance of the temple and never exercised any right whatsoever or control in the matter of management of the said temple. It is also asserted that after separation from the other branches of the family the Plaintiff acquired some more properties with his own funds and endowed the same for the maintenance and seva-puja of the deities in the temple and accordingly became the sole marfatdar of the (sic). The Commissioner acting under the provisions of Section 49 of the Act realised by distress a sum of Rs. 386/- as contribution from the Plaintiff, and so he filed an application u/s 64 of the Act for a declaration that the temple in question was a private one and did not fall within the purview of the Act. But as Defendant No. 1 rejected,the contention of the Plaintiff and declared the temple as a 'public excepted temple' within the meaning of the Act, and appointed members of the Plaintiff's family as the hereditary trustees, the Plaintiff filed this suit for a declaration that the order passed by Defendant No. I was illegal and should be set aside. 4. Defendant No. 1, the Commissioner of Endowments; in his written statement contested the suit, infer alia, on the following grounds: That the suit deity was never the family deity of Dayanidhi; that the members of the public freely offered bhog to the deity and had unrestricted Darshan thereof, and the temple which is a fairly big temple situate at a conspicuous place just by the side of the public road and away from the residential house of the Plaintiff and other members of the family, and that the temple has all the general features of a public temple such as the Garudastambha, the Jagamohan and the Mukhasala and that the feeding of Abhyagatas, the manner of performing the different annual festivals and such other circumstances make it quite clear that the institution is a public one and not a private temple. Mostly on the above grounds Defendant No. 1 supported the Commissioner's order declaring the institution to be a public excepted temple. Defendants and 3 filed a separate written statement supporting the Plaintiff's case to the extent that the suit deity was not a public deity and that the aforesaid order of the Commissioner was illegal. They however asserted that the suit deity was their family deity as also of the Plaintiff, having been installed by their ancestor Dayanidhi Mohapatra and that the Plaintiff alone was not the sole marfatdar of the temple. 5. At the commencement of the hearing of the suit, as agreed and consented to by all the lawyers concerned, for reasons stated in the judgment it was ordered that the issue whether the Plaintiff was the sole marfatar of the deity should be left open. 6. The learned Subordinate Judge, in discussing the most important and relevant issue in the suit as to whether the temple in question was a private temple as claimed by the Plaintiff, held on a lengthy discussion and consideration of the oral and documentary evidence on record, that the disputed institution is a private temple of the family of the Plaintiff and Defendants 2 and 3 and not a public excepted temple as erroneously held by the Commissioner in his order dated 1-11-1963. So the Court below set aside the aforesaid order and declared that no contribution was leviable in respect of the said institution as it would not come within the provisions of the Act. 7. The sole question for determination in this appeal is whether the suit 'temple is a private temple as claimed by the Plaintiff and Defendants 2 and 3, or a public temple as held by the Commissioner. 8. Mr. S. Mohanty, the learned Counsel for the Appellant (Defendant No. 1, the Commissioner) contended that the Court below lost sight of the salient features appearing in the evidence on record, on a proper consideration of which it would be evident that the temple in question was a public temple. He further asserted that from the contents of Ext. 2, the deed of dedication dated 3rd October, 1907, and from the manner of its management, and the performance of the seva-puja it would be evident that the said temple is a public one. 9. He further asserted that from the contents of Ext. 2, the deed of dedication dated 3rd October, 1907, and from the manner of its management, and the performance of the seva-puja it would be evident that the said temple is a public one. 9. The tests to ascertain whether an endowment is a public or a private one, have been laid down from time to time in innumerably decisions of High Courts, the Privy Council and the Supreme Court, where the main distinction between private and public endowments has been clearly stated. In Deoki Nandan Vs. Murlidhar the Supreme Court laid down as follows: The distinction between a private and a public trust is that whereas in the former the beneficiaries are specified 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. In Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others it is stated: To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or Borne considerable portion of it answering a particular description; in a private trust, the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. In The State of Bihar and Others Vs. Charusila Dasi their Lordships quoted and reaffirmed their own views taken in Deoki Nandan Vs. Murlidhar, which is as follows: xxx The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. In accordance with this theory it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers. Their Lordships of the Supreme Court have further explained the principle that the true beneficiaries of the religious endowment are not the idols, but the worshippers, and the purpose of the endowment is maintenance of the worship for the benefit of the worshippers. They also expressed that the mere fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site is not by itself decisive of the question. The fact that the temple is outside the dwelling house is only a circumstance in favour of it being regarded as a public temple particularly in Madras. Their Lordships on a reference to the Hindu law of Religious and Charitable Trusts, Tagore Law Lectures by late Dr. B.K. Mukherjea, noted the fact that there are private temples in Bengal which are built outside the residential quarters of donors. In Poohari Fakir Sadavarlhy of Bondilipuram v. The Commissioner Hindu Religious and Charitable Endowments 1962 S.C.D. 648 it is said that an institution will be a public temple if two conditions are satisfied. B.K. Mukherjea, noted the fact that there are private temples in Bengal which are built outside the residential quarters of donors. In Poohari Fakir Sadavarlhy of Bondilipuram v. The Commissioner Hindu Religious and Charitable Endowments 1962 S.C.D. 648 it is said that an institution will be a public temple if two conditions are satisfied. "One is that it is a place of public religious worship and the other is that it is dedicated to or is for the benefit of, or is used as of right by, the Hindu community, or any section thereof, as a place of religious worship." Their Lordships also opined that "When there be good evidence about the temple being a private one, the mere fact that a number of people worship at the temple, is not sufficient to come to the conclusion that the temple must be a public temple to which those people go as a matter of right as it is not usual for the owner of the temple to disallow visitors to the temple, even if it be a private one". 10. In the above mentioned decision reported in The State of Bihar and Others Vs. Charusila Dasi it is observed that the question regarding the public and private nature of a temple has to be construed by taking into consideration the material clauses of the deed executed by the settlers as well as other circumstances. In The Commissioner of Endowments, Orissa v. Sri Radhakanta Deb and Anr. 35 (1969) C.L.T. 992, it has been observed that where there exists a document creating an endowment and the intention of the founder is unambiguous or clearly ascertainable from the terms of the document, the question whether the founder intended to create a dedication in favour of the public or for the benefit of ascertained or ascertainable individuals becomes somewhat easy and the other evidence, both oral and documentary, necessarily assumes lessor significance. I would, therefore proceed to deal at first with the deed executed by the settlers in order to ascertain if the endowment in question is a public or a private one, keeping in view the law on the point as summarised in the preceding paragraph. 11. Ext. 2 is the registered deed of endowment of the year 1907 executed by Dayanidhi Mohapatra, Madhab Mohapatra, Raghunath Mohapatra and Baman Mohapatra in favour of the deity Sri Kunjabehari Deb. 11. Ext. 2 is the registered deed of endowment of the year 1907 executed by Dayanidhi Mohapatra, Madhab Mohapatra, Raghunath Mohapatra and Baman Mohapatra in favour of the deity Sri Kunjabehari Deb. It is stated in the deed, amongst other things, that the above named persons being members of 80 Mitakshara joint family had constructed the temple by spending a large amount of money from their own self acquired property and had installed therein the idols of Sri Kunjabihari Deb, his companion Goddess, and the several other idols mentioned therein after purifying the temple in the proper manner; and that since the erection of the temple and the installation of the idols therein, they as marfatdars were managing the seva puja, daily offerings, religious festivals, (sic) and all other ceremonies of the deity by themselves and through cooks and servants in a smooth and befitting manner, bearing all the expense out of their own self-acquired properties. In so doing they also looked after the guests and strangers by offering Pressed to them. It is categorically mentioned in the deed that they erected the temple, installed the idols therein and looked after the management of the temple and performance of the seva puja of the deities in all possible manner as specifically mentioned in the deed, for their own (sic) being in this life and in their after-life. By this deed they dedicated in favour of the deity Kunjabehari Deb certain immovable properties, described in the deed, which exclusively belonged to them, and expressed therein that they would get the name of the deity Sri Kunjabehari Deb mutated as the owner of the said property, and their own names recorded as joint marfatdars thereof in four equal shares. They would continue to manage the temple, the seva puja of the idols and the properties so dedicated, in all their aspects as marfatdars, and would pay all rents and taxes, and bear all expenses for the (sic), seva puja, bhograga, festivals and ceremonies of the idols. In the deed it is specifically provided that after the death of the settlers, the marfatdari right would strictly devolve on and remain confined to the members of the family as per the scheme drawn out in the deed itself. 12. In the deed it is specifically provided that after the death of the settlers, the marfatdari right would strictly devolve on and remain confined to the members of the family as per the scheme drawn out in the deed itself. 12. There is no mention in the said deed that either the villagers or the public at large or some considerable portion of it have any right to perform worship or to exercise any kind of right in the said temple. There is absolutely no mention or reference about any right of any nature whatsoever for any other person other than the family members. The endowment is made by specific individual persons in favour of the deities installed by them in the temple erected by themselves on their own land. The marfatdari right in respect of the temple and the endowed property is reserved and confined only to the members of the family; who meet all expense for the seva puja, (sic) and for anything concerning the deities and the temple. The purpose for erecting the temple, installing the idols therein and setting apart properties for the management of the temple is for the (sic) being of the settlers and their family members as specifically mentioned in the deed. From all these, it is evident that the purpose of the endowment was and is to maintain the worship of the deities for the benefit only of the settlers and now the Plaintiff and their family member who distinctly are an ascertainable group of individuals belonging to the family of the settlers. 13. Towards the end of the deed it is of course provided that in case any of the marfatdars or their successors do not act in accordance with the mandates in the deed, then the other marfatdars may on intimating the District Collector and/or his subordinate officers remove him legally from marfatdariship, and in that event they can appoint another elderly person of the family (sic) a marfatdars. The learned Counsel on behalf of the Appellant contended that the above provision for the interference by the Collector and his subordinates sufficiently indicates the public character of the institution. In our opinion, there is nothing in this clause which gives rise to an inference that the endowment as a whole is of a public nature. The learned Counsel on behalf of the Appellant contended that the above provision for the interference by the Collector and his subordinates sufficiently indicates the public character of the institution. In our opinion, there is nothing in this clause which gives rise to an inference that the endowment as a whole is of a public nature. It merely provides for future eventualities arising due to mis-behaviour or unreasonable conduct of a particular marfatdar, and even in that contingency the Collector or his subordinates by themselves are not authorised to appoint a marfatdar of their own liking or choice. The power of appointment remains with the other existing marfatdars, and the selection for fresh appointment remains confined only to the members of the family. There is nothing in the deed which empowers the said officers to meddle or interfere with the management of the temple and the endowed property in any manner whatsoever. 14. Apart from the recitals in the above mentioned deed, Ext. 6 shows that in 1906 there was a cause for a criminal case between Dayanidhi Mohapatra, one of the settlers and one Natabar Choudhury and some others of village Tantipada, as these villagers strongly opposed the performance of Chandan Jatra of this deity in the tank in village Tantipada mostly on sectarian grounds. P.w. 1 in his deposition also supports the above fact. The trial Court considered certain other documents exhibited in this case, and arrived at the finding that the suit deity was not regarded either by the people of mouza Bolgarh or by the people of the neighbouring villages as their presiding deity. As the said documents are not in the paper book, we are unable to examine and express any opinion on the same. However, ext. 6 and the evidence of p.w. 1 go to show that the people in the neighbouring villages were not interested and were rather opposed to the several jani-jatra festivals and ceremonies pertaining to the deity in this temple, and were not accepting the same as their own. 15. There is absolutely no evidence on record that the members of the public visit the temple, offer bhog to the deities and perform pujas in the temple as of right. 15. There is absolutely no evidence on record that the members of the public visit the temple, offer bhog to the deities and perform pujas in the temple as of right. There is nothing to show that any member of the public contributes any money either for the seva puja of any of the deities in the temple or for the maintenance of the temple as such. The Plaintiff on the other hand adduced reliable evidence to show that all the expenses for the worship of the deities and the maintenance of the temple are borne by the Plaintiff's family and nothing whatsoever is contributed by the public. There is no evidence also to the effect that the deity in the temple is regarded as the presiding deity of the villagers. It is significant to note that none from the public of the locality has been examined by the Appellant in support of his assertion that the members of the public freely go to this temple for worship as a matter of right. If that was really a fact, quite a number of people should have been available for the purpose. The copious evidence to the contrary adduced by the Plaintiff on this aspect remains (sic) and unchallenged. 16. The installation of the idol at a place other than the precincts of the residential quarters of the Plaintiff's family, is not by itself a decisive factor The State of Bihar and Others Vs. Charusila Dasi. The description size and the observances and the forms of worship are by themselves not sufficient to rebut the strong inference, from other evidence discussed above, that the temple is not a public temple. 17. Considering all the above facts in the light of the well settled law on the point, we are of the opinion that the suit temple is not a public temple, but is a private temple of the family of the Plaintiff and Defendants 2 and 3. 18. We therefore bold that the temple in suit is not a public temple as erroneously held by the Commissioner of Endowments in his order dated 1-11-1953. We therefore confirm the decree of the Court below and dismiss this appeal. Both parties will hear their own costs, A. Misra, J. 19. I agree. Final Result : Dismissed