JUDGMENT : S.K. Ray, J. - Appellants' filed an application u/s 41 of the Orissa Hindu Religious Endowments Act for a declaration that the institution of Sri Radhagobind Mahaprabhu at Manikagoda P.S. Bolagarh Dt. Puri with its endowments is a private institution and they are its hereditary trustees and are not liable to pay contribution. The Assistant Commissioner of Endowments before whom the proceeding was initiated declared them as hereditary trustees of the institution, but held that the institution is a public temple. On appeal to the Commissioner of Endowments, the decision of the Assistant Endowment Commissioner was confirmed. Hence this appeal to the High Court u/s 44 of the Orissa Hindu Religious Endowments Act. 2. The case of the Appellants is that in the year 1944 some of their family members, namely Banchanidhi, Daitari, Lingaraj, 'Nabakishore and Appellant No. 1 installed the deity and endowed some of their family properties for the worship of the deity. Subsequently, another ancestor of this family, Sadlabani Bewa dedicated some of her properties for the worship of the deity described as Isthadebata. These lands have been recorded in the name of the deity in the last settlement with Appellants as marfatdars. The deity has been installed in a thatched house on a piece of land belonging to the family members, but outside the precinct of their residential quarters and a pucca building is under construction at the place. The expenses of the installation and construction of the pucca building are all borne by the Appellants. The public have no concern with the same and have absolutely no access to the deity for darshan or worship. The deity was installed solely for the spiritual benefit and worship of the Appellants and their family members. The cause of action for the proceeding u/s 41 arose when the Appellants received a demand notice from the Endowment Commissioner for payment of contribution on 29-10-1958. No one on behalf of the general public has come forward to contest the claim of the Appellants. 3. The sole question in this appeal is whether the institution is a public or private one. It is appropriate before dealing with the evidence on record, to notice the tests laid down in numerable judicial decisions to determine whether a religious institution is a public or private one. 3. The sole question in this appeal is whether the institution is a public or private one. It is appropriate before dealing with the evidence on record, to notice the tests laid down in numerable judicial decisions to determine whether a religious institution is a public or private one. In this connection, I would like to first extract a few passages from the Hindu Law of Religious and Charitable Trust by B.K. Mukherjee, 1952 Edition at page 185: In Hindu Law however, it is competent for a donor to create a religious trust, the benefit of which is confined to the members of a particular family or the disciples of a particular religious preceptor. So far as Debutter endowment is concerned the essential test to distinguish a private from a public place of worship is, whether the right of worshipping the idol is limited to the members of a particular family or group or extends to all persons professing the Hindu religion. x x x x The question frequently comes up before our Courts of law, and several circumstances have been held by Judges to be material for the purpose of determining the question. When the donor has expressed his intention of dedicating the temple to the public by a document or otherwise, no difficulty arises. In cases where no express dedication is proved the character of the endowment must always be a legal inference from proved facts. x x x x So far as the Province of Bengal is concerned there can be no presumption that a temple is a public one unless the contrary is proved. Private temples are quite numerous in this province and for outnumber the public shrines, We find large number of private temples also in Bengal which are built outside the residential houses of donors. In the case of Deoki Nandan Vs. Murlidhar the test laid down in the following form: The distinction between a private and a public trust is that whereas in the former the beneficiaries art 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. 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. x x x x 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. Thus where property is dedicated for the worship of a family idol, it is a private and not a I public endowment, then 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 further said that: It is a settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies provided the settlor has dearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but, absence of such proof would not be conclusive against it. 4. This Court relying upon the aforesaid decision and other decisions of the Supreme Court pointed out the factors to be considered for deciding the nature of a temple, in the case of The Commissioner of Hindu Religious Endowments Orissa v. Baman Mohapatra and Ors. 36 C.L.T. 929. I will extract the headnote from that decision which runs as follows: The true beneficiaries of the religious endowments are not the idols, but the worshippers, and the purpose of the endowment is maintenance of the worship for the benefit of the worshippers. 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 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 public temple particularly in Madras. A reference to the Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures by late Dr. B.K. Mukherjee, would show the fact that there are private temples in Bengal which are built outside the residential quarters of donors. An institution will be a public temple if two conditions are satisfied: (1) it is a place of public religious worship, and (ii) 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." "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 private one. 5. In the context of the above principles I will now proceed to scan the evidence. The Appellants have examined one witness and exhibited a number of documents. It appears from the evidence that the institution was created by the members of the Appellants' family, and the deity was recently installed in 1944. The Bijesthali of the deity is also the private property of the family of the Appellants. The deity has been described in various documents as Isthadebata which means family deity of the Appellants. The settlement of the properties in favour of the deity was made by Ex. 1, the deed of gift dated 25-10-1944. This deed was executed by some of the Appellants and their co-sharers at the time in respect of property which was kept joint in a private partition in favour of the family idol to be held under the hereditary marfatdariship of the very executants from generation to generation. 1, the deed of gift dated 25-10-1944. This deed was executed by some of the Appellants and their co-sharers at the time in respect of property which was kept joint in a private partition in favour of the family idol to be held under the hereditary marfatdariship of the very executants from generation to generation. There is a recital that properties so endowed cannot be alienated nor their usufructs utilised for any purpose other than for the deity. Contemporaneously further properties were also endowed by Sadhabi Bewa, widow of Banchanidhi in favour of the family deity (Ex. 2) which has been referred to in the documents as Ishtadebata with identical recital as in Ex. 1 as to power of alienation and appropriation of the usufructs. Ext. 3 is another settlement deed dated 16-8-1955 by Daitari Mohapatra, another member of the family of the Appellant. There is no recital in this deed restricting alienation. On the contrary the recital is that the marfatdars will be in enjoyment of the endowed properties. The sole witness in this case is Gangadhar Mohapatra who is one of the founders as well as one of the settlers in Ex.. This is what he has deposed "...thought that no body can sell land we got the name of the deity settled in the name of the deity. We also thought that one person cannot sell the lands and if it is to be sold a 11 co-sharers would sell the same together. Even if one co-sharer intended to sell his share he cannot sell and if sold, the same would not be valid. We all had intended that a co-sharer would not be able to sell his share." There is also no proof that the income of the so called endowed lands had been continuously devoted to the service of the idol. There is no evidence as to mode of dealing with the usufructs of these endowed lands. The evidence of p.w. 1 is that no festivals are performed except Janmastami and Radhastami and daily worship. Such acts of worship would not explain the total consumption of the income of about 14 acres of endowed properties and no fresh properties have been acquired out of the income of the endowed lands despite lapse of 25 years since creation of endowment and despite recitals in Ex. Such acts of worship would not explain the total consumption of the income of about 14 acres of endowed properties and no fresh properties have been acquired out of the income of the endowed lands despite lapse of 25 years since creation of endowment and despite recitals in Ex. 1 that excess income after meeting the expenses of ordinary seba-puja of the family idol would be utilised for acquiring new properties for the deity. That is quite compatible with what has been stated by p.w. 1 that the primary intention was to prevent anyone of the co-sharers from selling his interest alone and that all together might sell jointly. Thus it appears to me that the endowment was not a partial (sic). It is a case of a charge being credited on the properties in favour of the idol and casting an obligation on the holders for the time being to apply the income first for the religious purpose indicated in the deed. The categorical and un contradicted statement of p.w. 1 further is that no member of the public is admitted into the temple for Darshan or worship of the deity except the family members. The deity does not go outside its temple to participate in community religious festivals. The size of the idol is of 12 Anguli, i.e. 9 inches and it is indicative of the fact that it is a private family deity since normally idols of such sizes are found in many house-holds. The members of the Appellants' family have installed the deity and have constructed a temple for the deity with their own money without public contribution or aid. In a family partition provision has been made for the deity which was not at all likely if the temple had been dedicated to the public. The fact that the deity has been installed outside the precincts of the residential house of the family is no indicia by itself of its public character because in Orissa as in Bengal private temples are large in number and are frequently built outside the residential precincts of the donors and no presumption from that fact alone can be drawn that such a temple is public. Evidence is one sided in this case that the temple is being set up exclusively at the expesnses of the family members for their own benefit and that general public have no right of worship in the temple. Total absence of any protest or objection to the claim of the Appellants from the local general public when the latter's right of worship is being loudly denied, lends strong corroboration to the claim of the Appellants. Section 41 of the Orissa Hindu Religious Endowments Act has cast the burden of proof on the Appellants establish that the institution in question is a private temple and I am clear in my mind that in this case the Appellants have discharged that onus by amply-proving that the temple is a private one. 6. For the aforesaid reasons, I am of opinion that the institution is private temple and the members of the family of the Appellants are the beneficiaries under this particular religious endowment in question. Accordingly, the decisions of the Assistant Endowment Commissioner and Endowment commissioner are set aside, and the temple is hereby declared to be a private one. Appeal allowed but in the circumstance without costs.