JUDGMENT N.N. Mithal, J. - This first appeal is directed against the decree of court below in a suit filed under S. 92, C. P. C. the facts relevant for the purpose of appeal may be stated as under : - One Mahabir Prasad was owner of the house bearing Municipal No. 150 in the Mohalla Nai Basti, Karelibagh, Allahabad, and there was temple of Shiv Ji to the south of it. By a will dated 22nd June, 1943 he bequeathed his property in favour of the deity (Shive Ji) installed in the adjoining temple and appointed a committee of five persons to look after the management of the property as its 'shebaits' with a direction that from the income of the house bequeathed firstly repairs of the house will be done and municipal taxes, etc. will be paid and whatever balance be left will be used for the worship of Shiv Ji and for organising a function on thp occasion of Shivratri. One of the shaibats appointed under the will there is cousion Khunnu, whose widow is Srimati Uttima Devi. It was alleged in the plaint that one by one all the shabaits died and despite direction given in the will of Mahabir Prasad the vacancies were never filled up with the result that since the death of Khunnu in 1959 no one was looking after the upkeep of the temple and to the worship of Shiv Ji in the temple. Plaintiff 2 being one of the tenants in the bequeathed house and since he was a devout worshipper of Shiv Ji he started spending money over the upkeep of the house and the temple and for arranging worship of deity from his own pocket. None of the tenants was paying any rent to any, but for some time past Srimati Uttima Devi had started claiming to be Shabait of the temple and has kept her name mutated in the municipal records. It is alleged that she wants illegally to grab the property and for that purpose she had colluded with the various tenants of the property which is now Municipal No. 25 and with their active collusion she claims to grab the trust property. It is alleged that she wants illegally to grab the property and for that purpose she had colluded with the various tenants of the property which is now Municipal No. 25 and with their active collusion she claims to grab the trust property. Under these circumstances, it is prayed that the court should remove the defendant and appoint five persons mentioned in the plaint or such other persons as the court may deem proper as trustees to administer the Trust with a direction to the defendants to submit accounts in the court and for the delivery of the vacant possession of the trust property to the only appointed persons. Curiously the suit was contested only by defendants 2 and 4. In the written statement the main pleas taken by them were that plaintiff 2 was not spending anything on either the upkeep or worship of the deity of the temple and it was defendant 3 who was paying Rs. 3/- per month since 1965 and also paid the house tax to the Municipal Board from 1956 to 1975. It was further alleged that Srimati Uttima Devi had instituted suits against various tenants for their ejectment as widow of Khunnu and the present suit is alleged to have been filed with a view to avoid ejectment in those suits. Plaintiffs right as persons interested in the Trust has been questioned. It was also contended that the temple was private property of Mahabir Prasad and, therefore, no proceedings could be taken in a suit under S. 92, C. P. C., in respect thereof. The court below framed the following six issues : 1. Whether the plaintiffs have right to file suit? 2. Whether the consent of Advocate General is without jurisdiction? -r 3. Whether the trust in suit is public trust, or private trust? 4. Whether this court has jurisdiction to try the suit? 5. Whether the suit is undervalued and the court-fee paid is sufficient? 6. To what relief, if any, are the plaintiffs entitled? 2. All the issues were decided in favour of the plaintiff and the suit of the plaintiff was decreed appointing five persons named in para 16 of the plaint as new trustees. Aggrieved by the decision defendant 4 alone has come up in appeal. 6. To what relief, if any, are the plaintiffs entitled? 2. All the issues were decided in favour of the plaintiff and the suit of the plaintiff was decreed appointing five persons named in para 16 of the plaint as new trustees. Aggrieved by the decision defendant 4 alone has come up in appeal. It would be relevant to mention here that Srimati Uttima Devi neither filed any written statement in the trial court nor she has filed any appeal here. 3. Dr. Gyan Prakash, learned counsel for the appellant has made submission only on two points. His first submission was that the endowment in this case was of a private nature and as such proceedings under S. 92, C. P. C., could not be taken in respect thereof. The deity in question was a family deity of the testator and the burden was on the plaintiffs to prove that it was a public temple and the endowment was also of a public charitable institution. The second submission was that according to law after the death of all the original trustees who had died without filling up the vacancies the right of shabiaitship would revert of the family of testator and since Srimati Uttima Devi was a widow of Khunnu, a cousin of the testator, she would automatically become the shabait of the property in question and unless she is removed from the shabaitship no proceedings could validly be taken for her ouster or for appointing new set of trustees. 4. Taking up the first submission first have no hesitation in saying that the temple in question is a public temple and not a private one. The will dated 25-6-1943 clearly recites that Mahabir Prasad claimed to be the owner of only one house, No. 150 in Naibasti, Karelibagh Road, Allahabad. In para 2 of this will he had specifically mentioned that the property described at the foot of the will was owned by him and after his death it was to stand bequeathed in favour of the deity (Shiv Ji) installed in the temple which is contiguous to the house bequeathed under the will. In para 2 of this will he had specifically mentioned that the property described at the foot of the will was owned by him and after his death it was to stand bequeathed in favour of the deity (Shiv Ji) installed in the temple which is contiguous to the house bequeathed under the will. In Schedule 1 of this will he has mentioned the details of the property which was bequeathed in favour of Shiv Ji on the death of the testator and while showing the boundaries of that house the temple of Shivji is shown towards south of the bequeathed house whereafter exists a lane. This description of the property in the will itself really suggest that the temple was not his property otherwise and assertion to this effect must have been made somewhere in the body of the will itself. The very fact that he bequeathed only his house with a direction that the income from it should be utilised for the worship of the deity installed in the temple and for performing the religious ceremonies on the occasion of Shivratri indicates that he did not claim any proprietary interest in the temple. The persons who are named as trustees in para 3 of the will also shows that they belonged to different communities and not limited to the members of his own family or even to members of his own community. This again is a factor which goes against the temple being a private temple. The appellant has appeared as D. W. 2 and he admitted in his cross-examination that some people from hearby come to this temple for 'Darshan'. They include Hindus of all communities. He also admits that the trustees appointed earlier were of different communities, but he desired that only persons belonging to Yadav community, could be appointed to the trust. He himself was Yadav. The distinction between a private or a public trust was clearly brough out in the case of Deoki Nandan v. Murli Dhar ( AIR 1957 SC 133 ) where the Supreme Court held (at p. 136): "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." Further, the Supreme Court held : - Under the Hindu law, an idol is a juristic person capable of holding property and the property endowed for the institution vest in it. But it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed property and it cannot have any beneficial interest in the endowment." When once it is understood that the true beneficiaries of endowment are not the idols but the worshippers and that the purpose of the endowment is the maintenance of worship in the benefit of the worshippers, the question whether the endowment is private or public can present no difficulty. The cardinal point to be decided is whether it was the intention of the founder that only specific individuals must have the right to worship at the assigned or in specified portion thereof. Where the beneficiaries are not members of a family or specified individual, then the endowment can only be regarded as public intended to benefit the general body of worshippers." 5. In this very case at another place the Supreme Court observed as under (at p. 139) : "It was difficult to believe that if the settler intended to restrict right of worship only to his relations he would have entrusted the management thereof to a body consisting of strangers." 6. On the evidence on record, therefore, there is hardly any room for doubt in this regard. The entire evidence shows that the temple was never intended to be a private or a family temple and was accepted as a public temple and, therefore, endowment in its favour made by Mahabir Prasad must be one of a public nature. I, therefore, fully agree with the findings of the court below in this respect. 7. Coming now to the other question, it has been observed that five persons had been appointed as trustees or shebaits of the endowment. Paragraph 4 of the will prohibits the trustees from mortgaging or transferring the endowed property. Paragraph 5 provides for the manner in which vacancies in the office of the trustees were to be filled up. 7. Coming now to the other question, it has been observed that five persons had been appointed as trustees or shebaits of the endowment. Paragraph 4 of the will prohibits the trustees from mortgaging or transferring the endowed property. Paragraph 5 provides for the manner in which vacancies in the office of the trustees were to be filled up. According to it on the death of any of the trustees appointed under the will the remaining trustees had a right to elect a new one by majority vote. However, all the five trustees died during the period starting from 1946 to 1959 without on any occasion filling up the vacancies. The last trustee to die was Khunnu who was cousion of the founder. He died in 1959. The question arises as to whether on the death of Khunnu the right of shabaitship will survive in the legal heir of the founder or it will be deemed to be in abeyance so as to entitle the court to appoint new trustees under S. 92, C. P. C. According to Sri Gyan Prakash Srimati Uttima Devi is the legal heir being the widow of Khunnu. Even though she did not file her written statement in the court below nor she preferred any appeal here, yet according to law she alone is the shebait of the endowment after the death of Khunnu. Unless she was validly removed from that office no one could be appointed as a trustee. According to the respondents, however, this question was never raised and there is no evidence to show on the record that Uttima Devi is the widow of Khunnu. Since the parties were never at issue on this point, the plaintiff could lead no evidence in this respect. Evidence also lacks as to whether Uttima Devi is a nearest heir of the founder of the endowment or that she is a fit person to continue as a shabait. It is said that she had already become old and was now incapable of looking after the interest of the property. It appears to me that the appellant cannot be allowed to raise this plea now. No, such plea was raised by him in the written statement and no issue on this point was raised. It is said that she had already become old and was now incapable of looking after the interest of the property. It appears to me that the appellant cannot be allowed to raise this plea now. No, such plea was raised by him in the written statement and no issue on this point was raised. To allow this plea to be raised now would result in reopening the whole controversy which do not consider proper in the facts and circumstances of the present case. 8. The appellant placed reliance on Bhabatarini Debi v. Ashalata Debi reported in AIR 1943 P. C. 89. A perusal of that case would, however, reveal that there the idol installed was a family idol and the founder of the endowment had not completely divested himself of the rights in debutter property. In those circumstances it was held that on the death of the shabait appointed under deed of endowment the right of shabaitship would rest with the founder or his heirs, 9. The next case relied upon is Dharam Narain v. Suraj Narain ( AIR 1941 All 1 ) where a Division Bench of this Court held as under: 1. "The principles applicable to a case where the shebait is dead are as follows : (a) If there is a provision in the deed of endowment about the mode in which the office is to be filled up, the next shabait is to be appointed in pursuance of the provision, that is, the devolution of the trust depends upon the terms on which it was cheated; (b) If there are no such provisions, then it depends on the usage of a particular institution; (c) In the absence of all these, the office of shebait reverts to the heir of the founder." 2 "Now in the present case Bibi Savitri did not nominate anybody as the next she bait, although she had reserved that right in herself, nor did the managing committee to whom she had given such right nominate anybody as the she bait. Indeed the managing committee never took the slightest interest in this endowment and they did not care to fill the vacancies as they occurred, and so it is argued that when their number was reduced to two it could not be said that they retained any such power because it was not the intention of the author of the trust that a committee of two should have the right to nominate a she bait. The appellant argues that either these two could have appointed four more members to act on the managing committee and then could have appointed a she bait by majority of votes or that these two alone could have appointed a she bait. The respondents, on the other hand, drugs that the committee of two had lapsed almost into nothingness and they lost all power in the matter inasmuch as the directions of the author could not be reasonably carried out. The fact, however remains that even these two did not exert in this direction and we are of the opinion that the title to the property and its management and control followed the line of inheritance from the founder and Lachhmi Narain, who was the next heir-at-law of Bibi Savitri became the shebait. Such a vesting could not be prevented by the likelihood of any power if there was any such power left outstanding in the committee of two being exercised. At best, it may be said that the vesting could be defeated when the power was exercised, supposing the power was outstanding. 10. General consensus of judicial opinion now is that the founder has a right to prescribe the line of succession to the office of she bait, but once he has laid down the line of succession in the deed of (endowment, he is not entitled to make any (alteration in the same or to interfere in the (management unless in .the deed itself he has reserved a right to do so. The conditions of Succession in the deed of endowment form Ian integral part of the dedication and once the dedication of property has been made in favour of the deity it becomes irrevocable. In the same manner the right of succession to the office of she bait as laid down in the (deed must also be deemed to be beyond revocability. In the same manner the right of succession to the office of she bait as laid down in the (deed must also be deemed to be beyond revocability. If the course of succession as laid down in the deed of endowment by its founder fails for any reason the she bait ship would not revert to the heirs of the founder unless such a power was reserved by the founder in the deed of endowment itself. In my opinion, in such cases vacancy in the office of she bait ship can be supplied only by the court in a proper proceedings taken in that behalf. The case referred to above is, therefore, not at all applicable to facts of the present case. In that case the founder herself had become the first she bait. She has also formed another committee of five members to look after the management of the endowed property. On the failure of the trustees to fill in the vacancy it was held that the right of she bait ship would revert back to the heirs of the founder as no order of she bait ship had been laid down in the deed. In this case, however, the founder did not appoint himself as the first she bait. In fact the endowment itself was to come into operation only on the death of the founder and the committee appointed by him was then to take over and look after the management of the endowed property. Since the founder did not reserve any right in himself or his heirs it must be deemed that the whole right of management had been entrusted to the committee and, as such, the right to manage cannot and would not revert to the heirs of the founder. If the trustees have failed to fill in the vacancy occasioned due to a succession of deaths amongst them and no trustee remained alive then, in these circumstances, the vacancy can be filled up only by the court which has rightly been done in this case. 11. Even if for the sake of argument the appellant's contention be accepted, Smt. Ottima Devi will not be the nearest reversioner of the rights. Khunnoo, the last of the trustees to die, was soo of Sheo Dayal, resident of Nai Basti, Khuldabad. 11. Even if for the sake of argument the appellant's contention be accepted, Smt. Ottima Devi will not be the nearest reversioner of the rights. Khunnoo, the last of the trustees to die, was soo of Sheo Dayal, resident of Nai Basti, Khuldabad. In the plaint Pushkar Dutta plaintiff is also shown as son of Sheo Dayal, resident of Nai Basti, Khuldabad. That means that Khunno and Puskh Dutta are real brothers. If Khunno was the nephew of the donor plaintiff too will be a nephew and thus entitled to have preferential right compared of that claimed by Smt. Ottima Devi. Since plaintiff has nowhere staked his claim to she bait ship nor being appointed trustee, the defendant appellant cannot assail the trial court's decision on this ground. 12. In my opinion under these circumstances there is no question of the right of she bait ship reverting to the heirs at law of the founder. The right, if any, died with the last of the trustees and in the absence of any trustee now the court stepped in to appoint fresh trustees. The court after having taken into consideration the relative merits has come to the conclusion that the persons named in para 16 of the plaint should be appointed trustees of the endowment and certain directions have been given to them regarding holding of meetings and maintaining the accounts and their submission in the court. The merits of their appointment was not assailed during arguments before me. It appears to me that the scheme, as framed, by the court below is quite reasonable and proper and no interference in the same ought to be made. 13. In the result find no merit in the appeal and the same is accordingly dismissed with costs.