JUDGMENT : 1. Heard Sri Atul Kumar Dwivedi, learned counsel for the appellants and Sri Brijesh Kumar Saxena, assisted by Sri Avtar Singh, learned counsel for respondents no. 1 and 2. 2. Permission for marking respondents no. 3 and 5 as ‘dead’ was granted on the pointing out of a defect in the appeal due to their death while pendency of the suit. 3. The instant First Appeal From Order under Section 104 of Code of Civil Procedure (CPC) has arisen out of a judgment/order dated 16.1.2020 passed in Misc. Case No. 350/2013 instituted under Section 92 CPC seeking leave to initiate a suit proceeding for protection of the properties stated to belong to a public trust and maintaining accounts thereof. 4. After filing of the misc. case, parties appear to have exchanged objections and counter objections. The counter objections which were not filed along with the appeal were also placed before this Court during the course of arguments. The court below by means of the impugned judgment/order has refused to grant leave observing that the Mandir Shri Mahabir Ji Trust, Bajranj Nagar, Gosainganj, Lucknow is not a religious public trust hence the prayer was turned down. 5. The point that crops up for consideration before this Court is as to whether the court below has rightly rejected the application filed by the appellants observing that the trust in question is not a public trust within the meaning of Section 92 of CPC and; as to whether the finding so recorded suffers from any illegality. 6. In our life we are governed by constitutional morality but there is freedom of religion too within the scope of Article 25 of the Constitution of India, therefore, this freedom is equally significant and personal. It is within the scope of this personal right that the Religious Endowments Act still has its application to sub-serve the will of an individual within our constitutional framework. 7. It is well settled that the essence of a public or private trust is to be derived and ascertained from the expression of any trust deed or on the basis of any constructive criteria which may be relevant for the purpose. In the present case, there does not appear to be much difficulty for the reason that the trust in question was established on the basis of a deed duly registered on 16.10.1973. 8. In the present case, there does not appear to be much difficulty for the reason that the trust in question was established on the basis of a deed duly registered on 16.10.1973. 8. The issue as to whether Religious Endowment Trust is a public or private trust is essentially a question of facts and law both, but as stated above, the controversy in the present case hinges on the construction of registered trust deed. 9. The appellants have taken this Court through the contents of the trust deed in reply to which the respondents have also referred to the same by pointing out an empirical consideration thereof. 10. This Court has carefully noted the submissions put forth by learned counsel for the appellants to the effect that the trust deed does not exclude the worship by the public at large and the endowments mentioned in the trust deed being utilized for various public purposes thus, would lead to one and the only inference that the trust in question is a public trust. The details of income derived through properties was pointed out which is stated to have been aligned with the objects set out in the rules of governance that were registered by the successor-Manager after the death of the founder of the trust. 11. It is in the light of these objects that the appellants have heavily stressed to construe the nature of the trust as public. 12. Learned counsel for the appellants has further argued that the court below somehow has failed to consider the judgment rendered by the apex court reported in AIR 1957 SC 133 (Deoki Nandan v. Murlidhar and others) along with the judgment reported in (2003) 11 SCC 772 (I) (Mulla Gulam Ali & Safiabai D. Trust v. Deelip Kumar & Co.), which clearly indicate that once the beneficiaries are public, the religious trust must be construed as ‘Public’. 13. 13. Per contra, Sri Brijesh Kumar Saxena, learned counsel for the respondents drawing attention of this Court to the trust deed has specifically pointed out the purpose of the trust within the meaning of sentences which for ready reference may be extracted hereunder: ^^feueqfdj us Jh egkchj th egjkt dk efUnj okdS ctjax uxj xkslkbZxat etdwj cuok dj mles Jh egkchj th egjkt dh LFkkiuk djkbZ gS vkSj le; le; ij Jh egkchj th ds fy, tk;nkns Hkh [kjhnh gS vkSj bl efUnj o tk;nkn ds izcU/k ds fy, Jh egkchj th ds gd es ,uMkmesUV endownment dj fn;k gS ftlds fd bl le; feueqfdj eSustj VªLVh gS vkSj blds vykok Jh x.ks’k izlkn iq= feueqfdj ia0 pUnzHkw"k.k 'kkL=h iq= Jh cYnso izlkn th o Jh fo|k/kj f=ikBh iq= Jh pUnzHkw"k.k 'kkL=h o Jh yfNeu izlkn iq= Jh cYnso izlkn dqehZ fuoklh xkslkbZxat etdwj VªLVh gSa vkSj eueqfdj us ;g O;oLFkk dh gS fd vius thou Hkj og eSustj jgsxk vkSj mlds ckn mlds [kkunku esa ls ftldks og uketn dj nsxk og eSustj gksxk vkSj blh izdkj gj eSustj dks vf/kdkj gksxk fd og vius ckn ds fy, tgkW rd gks lds esjs gh [kkunkfu;ksa esa ls fdlh dks uketn dj nsos vkSj vxj og fdlh dkj.k uketn u dj lds rks ml le; ftrus VªLVh gks og tgkW rd gks lds esjs [kkunkfu;ksa esa ls fdlh dks tks mldh jk; esa eSustjh dh dkfcfy;r j[krk gks dljr jk; ls pqu ysos ;fn esjh jk; esa dksbZ VªLVh Bhd izdkj ls dke u djsa rks eq>s vf/kdkj gS fd mldks gVk nwW vkSj ;fn Åij fy[ks pkj VªfLV;ksa esa ls fdlh dk LFkku fdlh Hkh dkj.k ls [kkyh gks tkos rks ml fd txg ij eq>dks ;k blh izdkj tks dksbZ Hkh eSustj gks mldks vf/kdkj gksxk fd ftl fdlh dks bl dk;Z ds ;ksX; le>s fu;qDr dj nsos bl izdkj bl efUnj dk lqpk: :i ls dke py jgk gS vc esjh bPNk gS fd viuh Åij fy[kh tk;nkn Jh egkchj th egjkt fojkteku efUnj okdS ctjax uxj dks lefiZr djds blh Åij fy[ks ,uMkmesUV endowment esa 'kkfey dj nwW vr% eSus viuh Åij fy[ks tk;nkn Jh egkchj th egjkt dks lefiZr dj nh vkSj vc Jh egkchj th egkjkt ds lkjs v[R;kjkr ekfydkuk o Hkwfe/kjh tks eq>dks Fks og mudks izkIr gks x;s vkSj bl tk;nkn dk nkf[ky [kkfjt eS Jh egkchj th ds uke fu;ekuqlkj djk nWwxk vc eq>dks ;k esjs okfjlku ;k dk;e eqdkeku dks dksbZ v[R;kj bl tk;nkn es ckdh ugh jg x;k vkSj bldh ikcUnh lc ij ykfte o vk;n gksxh vkSj vxj dksbZ 'k[l blds f[kykQ dksbZ nkok ;k mtz djs rks og dkfcy lquokbZ u gksxkA** 14. Pointing out the essence of the trust being private, it is submitted that once the trust deed itself mentions the use of endowments to be utilized in the maintenance of temple, the intention of the testator is doubtlessly clear. It is submitted that not only the construction of Mahabirji temple was made by the founder trustee out of his own means and property but for future maintenance /management of the same, endowments were dedicated to the deity the management whereof was entrusted to his own family members. Thus, the future maintenance of the temple as per the trust deed stood secured through the means of dedicated property which also belonged to the founder trustee. 15. Having pointed out these two aspects of the trust deed very clearly, it is submitted that the judgment placed reliance upon by the court below, in fact, proceeds on a clear understanding of the apex court judgment reported in (1981) 2 SCC 226 (Sri Radhakanta Deb v. Commissioner of Hindu Religious Endowments) as followed in the case reported in (2003) 5 SCC 46 (Kuldip Chand and another Vs. Advocate General to Government of H.P. and others). The appeal is thus prayed to be dismissed. 16. Learned counsel for the appellant has ably argued the matter, however, he was unable to dispute the purpose and management of the endowments for the maintenance of Mahabirji temple. The trust deed has placed a blanket ban on the alienation of trust property for the same having been vested in the deity. The trust deed clearly makes out that the intention of the founder trustee was to constitute a Hindu Religious Endowment for a specific purpose of which the management was circumscribed in the descendants of the founder. It may be useful to extract para-14 of the judgment reported in (1981) 2 SCC 226 (supra) as under:- “14. The trust deed clearly makes out that the intention of the founder trustee was to constitute a Hindu Religious Endowment for a specific purpose of which the management was circumscribed in the descendants of the founder. It may be useful to extract para-14 of the judgment reported in (1981) 2 SCC 226 (supra) as under:- “14. Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” 17. Analysing the present case in the light of principles embodied in the apex court judgment, it is found that the trust deed succinctly provides that the endowments stand dedicated for maintenance of temple and shall vest in the deity. The management of the dedicated properties circumscribed amongst the family descendants of the founder trustee is yet another significant dimension which leans towards the nature of trust being a private Hindu Religious Endowment Trust. 18. The management of the dedicated properties circumscribed amongst the family descendants of the founder trustee is yet another significant dimension which leans towards the nature of trust being a private Hindu Religious Endowment Trust. 18. This Court may also note that by virtue of Section 92(2) CPC, for any trust which falls within the trappings of Religious Endowments Act, 1863, no relief specified in Section 92(1) CPC would lie through a suit under the said Rule. 19. Lastly learned counsel for the appellants has submitted that the public worship and the dedicated properties being utilised for public purpose in terms of the registered rules of administration have altered the status of the trust to be public, hence the impugned order passed by the Court below is in gross violation of law. 20. The submissions made are attractive but unconvincing. The rules registered subsequently cannot eclipse the intention of trust deed but are rather a guidance for management evolved subsequently. This Court may note that the dedicated properties are a means to preserve the religious heritage which is inclusive of deity worship of Lord Hanuman unlike in Islam, Christianity or Judaism. A temple constructed for worship by all without there being any intention of receiving offerings from worshipers to maintain the same is strongly a circumstance that supports the case of the respondents. Therefore, this Court is of the considered opinion that the trust deed under consideration essentially constitutes a private Religious Endowment Trust, hence the impugned judgment/order passed by the court below refusing to grant leave under Section-92 CPC for want of elaborate discussion does not suffer from any illegality in the eyes of law. 21. The appeal is accordingly dismissed.