JUDGMENT Arun Mishra, J. 1. The single Bench has referred the second appeal to be heard by Division Bench of this Court as per order dated 20-1-2005, as limited question has not been referred to the larger bench, entire appeal has been referred. Consequently, we are required to decide this appeal on merits. 2. The plaintiff-respondents instituted instant Civil Suit No. 17-A/83 for setting aside an order dated 6-5-1974 passed by the Registrar, Public Trust under M.P. Public Trusts Act, 1951 (hereinafter referred to as 'the Act of 1951') and for holding that temple Shri Dev Kishore Ji, Idols of deity Radha Krishna is a public trust, since it is not a private trust defendant-appellant Asharam Dixit has no right to manage the same. Prayer was made in the civil suit for declaration that the trust constituted vide deed dated 29-1-1947 is a public trust. 3. The plaintiffs averred that late Bhagwandas Pathak in the year 1947 constructed a temple 'Shri Dev Kishore Ji', Idols of deity Radha Krishna were installed. Vide registered deed dated 29-1-1947 temple was declared to be a public trust. The temple situated at village Koushalpur, Tehsil Hata. Late Bhagwandas Pathak reserved the right of himself, sister Parvati Bai, daughter-in-law Sahjadi Bahu to maintain the trust as its Sarvarahakar with the condition that after their death the committee consisting of persons named in the deed shall manage the affairs of the trust. Sahjadi Bahu died in the lifetime of late Bhagwandas Pathak. Bhagwandas Pathak died in the year 1967. Parvati Bai also died in the year 1969-70. The defendant-appellant Asharam on the basis of deeds dated 2-3-1967 and 24-4-1967 assumed the management of the trust and declared it to be a private trust. He proclaimed himself to be its Sarvarahakar. Consequently Narayan Prasad Pathak filed an application before the Registrar, Public Trust, Hata seeking declaration that the trust is a public trust as per deed dated 29-1-1947. The application was dismissed by the Registrar, Public Trust as per the impugned order dated 6-5-1974. 4. The defendant-appellant resisted the claim on the basis of a registered deed dated 24-4-1967 by which an earlier deed dated 29-1-1947 constituting a public trust of Shri Dev Nand Kishore Ji temple was cancelled and by a registered deed dated 2-3-1967 late Bhagwandas declared it to be a private trust. Asharam was appointed to be Sarvarahakar. 5. 4. The defendant-appellant resisted the claim on the basis of a registered deed dated 24-4-1967 by which an earlier deed dated 29-1-1947 constituting a public trust of Shri Dev Nand Kishore Ji temple was cancelled and by a registered deed dated 2-3-1967 late Bhagwandas declared it to be a private trust. Asharam was appointed to be Sarvarahakar. 5. The trial Court as per judgment and decree dated 10-3-1988 dismissed the suit. An appeal was preferred by the plaintiff-respondents before 1st ADJ, Damoh. Same has been allowed. The suit has been decreed. The Appellate Court has held that it was declared to be a public trust vide deed dated 29-1-1947, temple being a public temple, after execution of deed dated 29-1-1947, it could not have been converted into a private trust. Consequently, defendant-appellant Asharam could not have been appointed as a Sarvarahakar. Being aggrieved by the decision of first Appellate Court decreeing the suit this appeal has been preferred under section 100 of the Civil Procedure Code. This appeal has been admitted by this Court on the following substantial questions of law: (1) "Whether the reversing finding of the First Appellate Court that the suit properties belonged to a Public Trust is sustainable on the basis of evidence on record? (2) Whether the suit was liable to be dismissed for non-joinder of deity as a necessary party? (3) Whether the suit was bad for want of due permission of the Advocate General under section 92, Civil Procedure Code and locus standi of the plaintiff under section 8(1) of the M.P. Public Trust Act. (4) Whether the State of Madhya Pradesh and the Registrar, Public Trust were necessary parties in the suit and without joining them, the suit was bad in law and was liable to be dismissed? (5) Whether notices under section 80 of the Civil Procedure Code were necessary to be served on the State of M.P. and the Registrar Public-Trust without which the suit was liable to be dismissed? It was submitted before a single Judge that State of M.P. and Registrar, Public Trust were necessary parties and without joining them the suit was liable to be dismissed. Notice under section 80 of Civil Procedure Code was also required to be served on the State of M.P. and Registrar, Public Trust. As notice was not served, suit was liable to be dismissed. Notice under section 80 of Civil Procedure Code was also required to be served on the State of M.P. and Registrar, Public Trust. As notice was not served, suit was liable to be dismissed. The decisions rendered in Moolchand vs. Babulal, 1982 MPWN 450 , Bhagwatidhar Bajpai vs. Hajarilal, 1987(1) MPWN 142 and State of Maharashtra and another vs. Shri Chanderkant, AIR 1977 SC 148 were relied upon wherein it has been laid down that in such cases Registrar, Public Trust is a necessary party and notice under section 80 of Civil Procedure Code is also required to be served. The learned single Judge has felt it necessary to refer the case to the larger bench on the ground that section 8 of the Act of 1951 does not say as to who would be arrayed as a party. What law enjoins upon the Court to issue a notice to the State Government through Registrar of Public Trust. It would be for the State Government to decide whether they should be arrayed as a party. The Civil Judge issued a required notice under section 8(2) as per order dated 18-12-1978 to the State Government and the Registrar, Public Trust. On their behalf it was submitted in a reply dated 9-11-1979 that they decline to become party to the suit and further participate in the proceedings. Consequently as per option exercised by the State Government and Registrar the trial Court proceeded further with the suit in the absence of State Government and Registrar, Public Trust. It was also observed by the learned single Judge that in State of Maharashtra and another vs. Shri Chanderkant (supra), as the suit was filed against the State of M.P. and the Registrar, Public Trust, as such compliance with a statutory requirement of notice under section 80 of Civil Procedure Code was considered necessary, thus, the single Judge has opined that another decision rendered by single Judge may be in conflict with the yet another decision of Single Bench of this Court in Bhagwatidhar Bajpai vs. Hajarilal (supra). Both the counsel have submitted that entire appeal has been referred, hence, they have addressed this Court on all the issues on merits. 6. Shri Ravish Agrawal, learned Senior Counsel with Shri Siddharth Patel appearing on behalf of appellant, has pressed 3 substantial questions of law Nos. 1, 4 and 5. Both the counsel have submitted that entire appeal has been referred, hence, they have addressed this Court on all the issues on merits. 6. Shri Ravish Agrawal, learned Senior Counsel with Shri Siddharth Patel appearing on behalf of appellant, has pressed 3 substantial questions of law Nos. 1, 4 and 5. He has submitted that substantial questions of law Nos. 2 and 3 do not arise, thus, he has not pressed the substantial questions of law Nos. 2 and 3. While pressing a substantial question of law No. 1, Shri Ravish Agrawal, learned Senior Counsel, has submitted that finding of Appellate Court that it is a public trust is bad in law in view of subsequent deed (Ex. D.2) dated 2-3-1967 and another deed (Ex. D.3) dated 24-4-1967, thus, an order (Ex. P. 2) passed by Registrar, Public Trust on 6-5-1974 could not have been set aside. He has further submitted that notice under section 80 of Civil Procedure Code was necessary to be served. He has further relied upon decisions in Moolchand vs. Babulal (supra) and Bhagwatidhar Bajpai vs. Hazarilal (supra) to contend that State of M.P. and Registrar, Public Trust were necessary parties beside it was mandatory to serve a notice under section 80 of Civil Procedure Code; there cannot be any waiver of such a notice. He has relied upon a decision in Ramkrishna Ganapayya Hegde vs. Lakshminarayana Timmayya Hegde, AIR 1984 Kar 45 . He has further submitted that Registrar Public Trust was enjoined with duty to make an entry in the register of Public Trust; whether his finding is in affirmative or negative as to the character of the Trust being public or private trust. He has pressed into service sections 5, 6, 7 and 8 of the Act of 1951, in such a suit finding recorded by a Registrar of Public Trust is a subject-matter of challenge. 7. Shri N.S. Kale, learned Senior counsel with Shri Raghvendra Kumar appearing on behalf of respondents, has submitted that considering the enjoyment of the temple by public at large, it is not a private temple, it was dedicated to the public in the year 1947, general public had been performing "Pooja" ceremony, there was no surviving member in the family of late Bhagwandas Pathak, there was no subsequent power left with late Bhagwandas Pathak to execute the deeds (Ex. D. 2 and Ex. D. 2 and Ex. D. 3) in the year 1967. The committee of the villagers was constituted to manage the temple after death of three persons named in the deed dated 29-1-1947. A plea that a notice under section 80 of Civil Procedure Code was not served on the State of M.P. and Registrar, Public Trust, has been raised for the first time in second appeal; such a plea was not raised in the written statement, no issue was framed, such a plea could have been raised by State of M.P. and Registrar of Public Trust not by a third party, when they were noticed by the trial Court under section 8(2) of the Act of 1951 on 18-12-1978, they filed a reply on 9-11-1979 declining to be a party to the suit, thus, by their conduct they have waived such a notice. No notice under section 80 of Civil Procedure Code was served, was not a plea raised by State of M.P. or Registrar of Public Trust. It was further submitted by Shri N.S. Kale, learned Senior counsel that in view of section 8(2) of the Act of 1951 the requirement of impleadment of State of M.P. Registrar, Public Trust was complied with, both have chosen not to become a party to the suit at their option envisaged under section 8 of the Act of 1951, hence, the suit cannot be dismissed on the ground of non joinder of State of M.P. and Registrar of Public Trust. In reference substantial question of law No. 5 : 8. First we consider the question whether a notice under section 80 of Civil Procedure Code was necessary to be served. In our opinion, a notice under section 80 of Civil Procedure Code was necessary to be served as a Registrar has passed an order in discharge of official function. Section 4 of the Act of 1951 provides for Registration of public trusts. Section 5 provides Inquiry to be done by a Registrar. Section 6 provides on completion of the inquiry provided for under section 5, a Registrar shall record his findings with reasons therefore as to the matters mentioned in the said section. Under section 7 Registrar shall cause entries to be made in register in accordance with the findings recorded by him under section 6 and shall publish on a notice board of his office the entries made in the register. Under section 7 Registrar shall cause entries to be made in register in accordance with the findings recorded by him under section 6 and shall publish on a notice board of his office the entries made in the register. Sub-section (2) of section 7 provides such an entry to be final and conclusive, subject to the provisions of the Act and subject to any change recorded under any provision of the Act. Section 8 contains a provision that any working trustee or person having interest in a public trust or any property found to be a trust property, aggrieved by any finding of the Registrar under section 6 may, within six months from the date of the publication of a notice under subsection (1) of section 7, institute a suit in a Civil Court to have such finding set aside or modified. On the final decision of the suit, the Registrar is enjoined upon, if necessary, to correct the entries made in a register maintained under section 3(2) of the Act. In sub-section (2) of section 8 also provides that a notice shall be given by the Court to the State Government through the Registrar, and the State Government, if it so desires, shall be made a party to the suit. The Apex Court in Hasan Nurani Malak vs. S.M. Ismail, Assistant Charity Commissioner, Nagpur and others, AIR 1967 SC 1742 , considered the Act of 1951 and has laid down that Registrar is enjoined upon to make entry in register of public trusts irrespective of whether trust is found to be public trust or not. As the Registrar held it to be a private trust, thus, it was an order passed in exercise of the function under the Act of 1951 in terms of sections 6 and 7, thus, it was necessary to serve a notice under section 80 of Civil Procedure Code to the State Government and the Registrar. The Apex Court in State of Maharashtra and another vs. Shri Chanderkant (supra), considered the provisions of aforesaid Act of 1951 and has laid down unequivocally that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purporting to be done in his official capacity. The Apex Court in State of Maharashtra and another vs. Shri Chanderkant (supra), considered the provisions of aforesaid Act of 1951 and has laid down unequivocally that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purporting to be done in his official capacity. The word "act" extends to illegal omission and no distinction can be made between acts done illegally, in bad faith and acts done bona fide in official capacity. The Apex Court has further held that the Registrar under the Act of 1951 is a public officer and the order passed by him declaring a sansthan to be a public trust is an act purporting to be done in his official capacity. Therefore, for a suit under section 8 of the Act of 1951 to set aside the order, a notice under section 80 of Civil Procedure Code was necessary. The Apex Court has held, thus: 13. These provisions indicate that the Registrar is a Public Officer. The words "act purporting to be done in official capacity" have been construed to apply to nonfeasance as well as to misfeasance. The word "act" extends to illegal omissions. See Prasaddas vs. Bannerjee, ILR 57 Cal 1127 : AIR 1931 Cal 61. No distinction can be made between acts done illegally and in bad faith and acts done bona fide in official capacity. See Bhagchand Dagadusa's case AIR 1927 PC 176 (supra). Section 80 of the Code of Civil Procedure therefore is attracted when any suit is filed against a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity. 14. The language of section 80 of the Code of Civil Procedure is that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purporting to be done in his official capacity. The Registrar is a Public Officer. The order is an act purporting to be done in his official capacity. In view of the aforesaid discussions, we have no hesitation to hold that serving a notice under section 80 of Civil Procedure Code was necessary to the State Government and Registrar of Public Trust so as to maintain a suit under section 8 of the Act of 1951. 9. In view of the aforesaid discussions, we have no hesitation to hold that serving a notice under section 80 of Civil Procedure Code was necessary to the State Government and Registrar of Public Trust so as to maintain a suit under section 8 of the Act of 1951. 9. A further question arises whether instant suit is liable to be dismissed due to the aforesaid omission or it can be said that a notice under section 80 of Civil Procedure Code has been waived by the State Government and the Registrar, Public Trust they have not chosen to take such a plea when they were noticed by the Court to become a party, in their reply dated 6th November, 1979 the Registrar of Public Trust on behalf of the State Government had intimated to the Civil Court that State of M.P. was not having any interest in the suit since it is held to be a private trust, thus, State of M.P. was not interested in defending a suit filed for declaring it to be a public trust. Communication of the Collector, Damoh has also been relied upon. In our opinion, a notice under section 80 of Civil Procedure Code is for the benefit of the State Government and the Public Officers and it intends that before a dispute is taken to the Court, the State Government and Public Officers have sufficient notice so that they are able to take steps if necessary so as to prevent a litigation. A Division Bench in Hirachand Himatlal Marwari vs. Kashinath Thakurji Jadhav, AIR (29) 1942 Bom 339, has laid down that a notice under section 80 of Civil Procedure Code can be waived by a party protected by section 80, his rights to a notice and his waiver binds the rest of the parties and a party who has himself no right to a notice cannot challenge a suit on the ground of want of notice to the only party entitled to receive it. The delay in taking objection in case it prejudices the plaintiff, amounts to waiver of notice. In Vellayan Chettiar and others vs. The Government of the Province of Madras and another, AIR 1947 PC 197, it was laid down that a notice required to be given under section 80 of Civil Procedure Code is for the protection of the authority concerned. In Vellayan Chettiar and others vs. The Government of the Province of Madras and another, AIR 1947 PC 197, it was laid down that a notice required to be given under section 80 of Civil Procedure Code is for the protection of the authority concerned. If in a particular case he does not require that protection and says so, he can lawfully waive his right to the notice. In Dhian Singh Sobha Singh and another vs. Union of India, AIR 1958 SC 274 , in the facts of the case the Apex Court observed in para 30 of the report that a point was not taken in the written statement as to the invalidity of the notice and this may justify the inference that the objection under section 80 had been waived. The point was taken for the first time before the High Court. In State of Rajasthan vs. Girdharilal Chunnilal Modi, AIR 1959 Raj 126 . State of Rajasthan did not raise a plea that notice given to them was not sufficient compliance of section 80 of Civil Procedure Code, no issue was framed. The Court held that it was not open to the Rajasthan State to raise that plea for the first time in appeal as it must be deemed to have been waived. Reliance was placed on decisions of Apex Court in Dhian Singh Sobha Singh and another vs. Union of India (supra) and Vellayan Chettiar and others vs. The Government of the Province of Madras and another (supra). In Lalchand Chowdhury vs. Union of India, AIR 1960 Cal 270 , the Court held that if the provisions of law are waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver. In case it prejudices the opponent, such an objection cannot be allowed to be raised at a later stage. Specific issue has to be raised on the invalidity or insufficiency of a notice under section 80 of Civil Procedure Code. In case it prejudices the opponent, such an objection cannot be allowed to be raised at a later stage. Specific issue has to be raised on the invalidity or insufficiency of a notice under section 80 of Civil Procedure Code. In Gaja and others vs. Dasa Koeri and others, AIR 1964 All 471 , the Court held that if the State Government could be said to have waived its objection regarding want of a notice by not taking a plea to that effect in a written statement filed by it, it can be said with equal reason that the State Government waived it by filing no written statement at all. A Division Bench in Union of India vs. Jyotirmoyee Sharma, AIR 1967 Cal 461 , has held that in the backdrop of the fact that question of notice under section 80 of Civil Procedure Code was neither argued in trial Court nor raised as issue, point was not taken even in grounds of appeal. It has been held that a notice under section 80 of Civil Procedure Code could be waived. In Ishtiyaq Husain Abbas Husain vs. Zafrul Islam Afzal Husain and others, AIR 1969 All 161 , the Court held that State Government not putting in appearance, the want of a notice under section 80 of Civil Procedure Code cannot be raised by private individual to assail the decree; State Government by non appearance must be deemed to have waived the plea. In Raghunath Das vs. Union of India and another, AIR 1969 SC 674 , the Apex Court has laid down that object of notice contemplated by section 80 of Civil Procedure Code is to give to the concerned Governments and Public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The purpose of law is advancement of justice. The provisions in section 80 are not intended to be used as boobytraps against ignorant and illiterate persons. In State of Orissa and another vs. Bamadeb Panigrahi and another, AIR 1971 Ori 227 , it was held that plea as to absence of notice under section 80 of Civil Procedure Code though raised in written statement cannot be permitted to be argued for the first time in second appeal if no issue was raised in the Courts below. The plea will be deemed to have been waived. The plea will be deemed to have been waived. In Paleti Sivaramakrishnaiah vs. Executive Engineer, N.C. Canals Sathenapalli and another, AIR 1978 AP 389 , and in State of Bihar and another vs. Smt. Panchratna Devi and another, AIR 1980 Pat 212 , a similar view has been expressed. Finally we deem it appropriate to refer the decision of the Apex Court in Bishandayal and sons vs. State of Orissa and others, (2001)1 SCC 555 , wherein the Apex Court has laid down that there can be no dispute to the proposition that a notice under section 80 of Civil Procedure Code can be waived. However, in the facts of the said case, a plaint was substantially amended, fresh notice under section 80 of Civil Procedure Code was required after amendment of the plaint, as the amended plaint was based on completely new cause of action, hence, fresh notice under section 80 of Civil Procedure Code will be required to be given. 10. When we consider the facts of the instant case, whether there was waiver of the notice or not, we find that State of M.P. and Registrar were noticed by the Civil Court and they have filed a reply on 9-11-1978, a notice under section 80 of Civil Procedure Code was for their benefit, they declined to defend a suit, thus, they were not arrayed as a party, they did not file any written statement. This plea was open to be taken by the State of M.P. and the Registrar of Public Trust, they having failed to do so, there was waiver of a notice under section 80 of Civil Procedure Code by them. As such a notice was for their benefit, such an objection cannot be raised by the defendant-appellant as no such notice was required to be given to them. Apart from that admittedly they have not taken this ground in the written statement, no issue was framed before the trial Court, no evidence was adduced. This plea was not raised before the trial Court or the first Appellate Court. Apart from that admittedly they have not taken this ground in the written statement, no issue was framed before the trial Court, no evidence was adduced. This plea was not raised before the trial Court or the first Appellate Court. Even if this plea was available the defendant-appellant, defendant-appellant has waived it by his conduct, this plea cannot be allowed to be raised for the first time at the second appellate stage, as it causes prejudice to the plaintiff-respondents due to the delay, thus, suit cannot be dismissed for want of service of a notice under section 80 of Civil Procedure Code, on the State Government or a Registrar of Public Trust. Thus, we hold that though a notice under section 80 Civil Procedure Code was necessary but suit was not liable to be dismissed on this ground as requirement of a notice had been waived in this case. 11. Shri Ravish Agrawal, learned Senior counsel appearing for appellant, has relied upon a decision of Karnataka High Court rendered in Ramakrishna Ganapayya Hegde vs. Lakshminarayana Timmayya Hegde, AIR 1984 Kar 45 , in which it was laid down that question of necessary party and want of a notice under section 80 of Civil Procedure Code can be raised even in second appeal and there can be no waiver in the matter of public policy. With respect to the necessary party we have to deal with the matter as per requirement of section 8(2) of the Act of 1951 hereinafter and with respect to the notice under section 80 of Civil Procedure Code we find ourselves respectfully unable to accept the view taken by the Karnataka High Court in the aforesaid decision. In reference substantial question of law No. 4 : 12. Coming to the next legal question -substantial question of law No. 4 whether the State of M.P. and the Registrar, Public Trust were necessary parties in such a suit and without joining them, it was liable to be dismissed? In this regard, consideration of the provision of section 8 of the Act of 1951 is material. Same is quoted below: 8. In this regard, consideration of the provision of section 8 of the Act of 1951 is material. Same is quoted below: 8. Civil suit against the finding of the Registrar.-- (1) Any working trustee or person having interest in a public trust or any property found to be trust property, aggrieved by any finding of the Registrar under section 6 may, within six months from the date of the publication of the notice under sub-section (1) of section 7; institute a suit in a Civil Court to have such finding set aside or modified. (2) In every such suit, the Civil Court shall give notice to the State Government through the Registrar, and the State Government, if it so desires, shall be made a party to the suit. (3) On the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision. Bare reading of the aforesaid section makes it clear that in a suit filed to set aside a finding of the Registrar recorded under section 6 the Civil Court shall give notice to the State Government through the Registrar, and the State Government, "if it so desires", shall be made a party to the suit. Sub-section (3) provides that on the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision. In the instant case, a notice was issued to the State Government through Registrar, Public Trust, Registrar, Public Trust has filed a reply on the strength of letter of the Collector that State Government was not having any interest in the matter as it was declared to be a private trust, it was not interested in defending the case for declaration of private trust to be a public trust. As clearly an option has been provided under section 8 of the Act of 1951 after State Government has been noticed through Registrar, Public Trust, then it has to take a decision, whether it wants to defend proceedings or not. As clearly an option has been provided under section 8 of the Act of 1951 after State Government has been noticed through Registrar, Public Trust, then it has to take a decision, whether it wants to defend proceedings or not. In case it is held that State of M.P. and Registrar are necessary parties to be heard, even after the exercise of an option under section 8(2) of the Act of 1951 not to be made a party to the suit, it would defeat intendment of the aforesaid provision, thus, in our opinion, it is necessary to issue a notice to the State Government through Registrar as the Registrar has acted on behalf of the State Government not in the individual capacity, at their option the State Government and Registrar can become a party to defend such a suit, it cannot be dismissed after issuance of a notice under section 8(2) of the Act of 1951 in case State Government through Registrar have chosen not to defend such a suit, as a mandate of section 8(2) is clear, they cannot be made a party in case they decide that they do not want to be a party to the suit. As the State Government has to be noticed through the Registrar, on the same analogy we hold that it was not necessary to implead the Registrar, after Registrar has exercised an option not to be a defendant in the case by filing a reply dated 9-11-1979. In Moolchand vs. Babulal (supra) reliance was placed on a decision of the Apex Court in State of Maharashtra and another vs. Shri Chander Kant (supra) but the Apex Court in the aforesaid decision has dealt with the proposition that it was necessary to serve a notice under section 80 of Civil Procedure Code on the Registrar of Public Trust before filing of the suit, it was not the question raised or decided by the Apex Court as to requirement of section 8(2) of the Act of 1951 in Moolchand vs. Babulal (supra). We have already held that notice under section 80 of Civil Procedure Code was necessary but that has been waived, in the instant case question is of option to be exercised by the State Government on being noticed through Registrar to be a party to such a suit. We have already held that notice under section 80 of Civil Procedure Code was necessary but that has been waived, in the instant case question is of option to be exercised by the State Government on being noticed through Registrar to be a party to such a suit. In Moolchand vs. Babulal (supra) and Bhagwatidhar Bajpai vs. Hajarilal (supra) a similar view was taken that a suit is not maintainable due to non-joinder of the Registrar. In the instant case, on being noticed under section 8(2) of the Act of 1951, Registrar of Public Trust has intimated that it was not interested in defending the case as well as the State Government, once an option has been exercised under section 8(2) not to defend the case, in our opinion, the suit cannot be dismissed after that on the ground that State of M.P. and Registrar, Public Trust have not been arrayed as party to the suit. State of M.P. has to be noticed through the Registrar of Public Trust, Registrar being official of Government, it comes to the proposition that State Government and Registrar have exercised their option not to defend the suit, thus, once they have been noticed and chosen not to become a party to such a suit, in our opinion, the suit cannot be dismissed for their non joinder in view of option available under section 8(2) of the Act of 1951. The decision rendered in Moolchand vs. Babulal (supra) and Bhagwatidhar Bajpai vs. Hajarilal (supra) have to be applied duly considering the option as per provision of section 8(2) of the Act of 1951 not in isolation. The said decisions cannot be said to be dealing with an option available under section 8(2) of the Act of 1951. In reference substantial question of law No. 1: 13. Now we advert the substantial question of law No. 1, whether the reversing finding of the first Appellate Court that the suit properties belonged to a Public Trust is sustainable on the basis of evidence on record. First Appellate Court has found that on the basis of assessment of evidence that the temple was constructed by Bhagwandas in his life time, at the time when deity were installed a public function was held. First Appellate Court has found that on the basis of assessment of evidence that the temple was constructed by Bhagwandas in his life time, at the time when deity were installed a public function was held. In Deoki Nandan vs. Murlidhar and others, 1957 MPLJ (S.C.) 214 = AIR 1957 SC 133 , the Apex Court has laid down 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. The Apex Court has further observed that an idol is a juristic person capable of holding property and the properties 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 properties and it cannot have any beneficial interest in the endowment. Even according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. It was further observed by the Apex Court that it is difficult to believe that if the settlor intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangers. The Apex Court has further observed that in an endowment in favour of the idol itself, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public. The Apex Court has further dealt with Sankalpa, Uthsarga and Prathista. The ceremonies relating to dedication are Sankalpa, Uthsarga and Prathista, Sankalpa means determination, and is really a formal declaration by the settlor of his intention to dedicate the property. The Apex Court has further dealt with Sankalpa, Uthsarga and Prathista. The ceremonies relating to dedication are Sankalpa, Uthsarga and Prathista, Sankalpa means determination, and is really a formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof is that it becomes impressed with the trust for which he dedicates it. While the Sankalpa states the objects for the realization of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutebyah). It would therefore follow that if Uthsarga is proved to have performed, the dedication must be held to have been to the public. The Apex Court has further held that where the evidence shows that there was Prathista of certain idol in a temple, it establishes that the dedication was to the public. The Apex Court has held thus: (15) In the Court below, the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as P.W. 10 stated that Prasadothsarga was performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under section 109(c) of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension. The ceremonies relating to dedication are Sankalpa, Uthsarga and Prathista. Sankalpa means determination, and is really a formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership on the property, the result whereof being that it becomes impressed with the trust for which he dedicates it. Vide the Hindu Law of Religious and Charitable Trust by B.K. Mukherjea, 1952 Edition, P.36. The formulae to be adopted in Sankalpa and Uthsarga are set out in Kan's History of Dharmasastras, Vol. II, p. 892. It will be seen therefrom that while the sankalpa states the objects for the realization of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (sarvabhutebyah). The formulae to be adopted in Sankalpa and Uthsarga are set out in Kan's History of Dharmasastras, Vol. II, p. 892. It will be seen therefrom that while the sankalpa states the objects for the realization of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (sarvabhutebyah). It would, therefore, follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. But the difficulty in the way of the appellant is that the formula which according to P.W. 10 was recited on the occasion of the foundation was not Uthsarga but Prasadothsarga, which is something totally different. 'Prasada' is the 'mandira', wherein the deity is placed before the final installation or Prathista takes place, and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada. Prasadothsarga is the formula to be used on that occasion and the text relating to it as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without the Uthsarga, and there are no words therein showing that the dedication is to the public. Indeed, according to the texts, Uthsarga is to be performed only for charitable endowments, like construction of tanks, rearing of gardens and the like and not for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part II, Appendix II, p. 339 that "there is no utsarga of a temple except in the case of repair of old temples." In the History of Dharmasastras, Vol II, Part II, p. 893, it is pointed out by Mr. Kane that in the case of temples the proper word to use is Prathista and not Uthsarga. Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radha Krishnaji as spoken to by P.W. 10, is not in dispute. But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radha Krishnaji as spoken to by P.W. 10, is not in dispute. In our opinion, this establishes that the dedication was to the public. In the instant case, there was not only Prathista but we find on record a deed dated 29-1-1947 Bhagwandas had dedicated the property to the idol, he has created an endowment, a dedicatipn was made to the public, that is why he included the strangers in the managing committee in the deed (Ex. P. 1) dated 29-1-1947 to manage temple after death of 3 persons named in the deed. Asharam, a family member, was not included in the managing committee, thus, Bhagwandas Pathak intended it to be a public trust. There is evidence on record that public at large used the temple unobstructed, at the time of performance of marriage also bride and groom used to be brought to the temple for having "Darshana" of idol. The plaintiffs' witnesses Ramratan, Ghanshyam, Jairam and Harinarayan have clearly stated that public at large used to perform "Pooja" in the temple. Thus, in our opinion, there was a total dedication to the public, thereafter there was no subsisting right left with Bhagwandas to execute a deed dated 2-3-1967 and another on 24-4-1967, the nature of property could not have been changed by execution of aforesaid deeds. He had no subsisting right except to manage it as mentioned in the deed of 1947. There was gift of the property, in the year 1947 for the purpose mentioned in the deed, thus, it was final. Consequently, first Appellate Court has rightly held that suit property belong to a public trust. The finding has not been shown to be perverse in any manner. Thus, we have no hesitation in affirming it. An elaborate discussion has been made by the Appellate Court, thus, in the absence of finding being a perverse finding or suffering with an infirmity. No ground to interfere is made out. 14. Thus, in view of our answer to the aforesaid 3 substantial question of law, we find no merit in this appeal. It deserves dismissal and is hereby dismissed. No costs. Appeal dismissed