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2. The District Judge framed the issue in this form : " Whether the temple and the properties in suit are public charitable properties ", and he finds that they are private properties. Having regard to the language of Section 92, however, the question should really be whether in respect of the temple and properties in suit a trust has been created for public purposes of a charitable or religious nature.

3. The temple was built about 1872 by one Kuberdas, who was also called Karunasagar (Ocean of Pity). He was a Dharala by caste who renounced the world and became a sadhu and wandered about expounding a new religion, the principal tenet of which was that God is infinite and formless and that the knowledge of God which is necessary to salvation can only be attained through the medium of a guru or master. This new cult came to be called kaivalya panth (path of salvation), gnyan marga (way of knowledge) and sometimes kayam panth or samaj (path or society of permanence). Kuberdas was revered as a saint and gathered a large following. He received gifts of money and land and with the means so obtained built and maintained a small temple. By a will made in 1878 he appointed his chela Naran-das to succeed him. Narandas built the temple as it now is, a substantial domed building in the ordinary form of Hindu temples. In this he was assisted by the villagers of Sarsa and the neighbourhood. People lent their carts and fetched stone from Champaner and worked personally in the construction of the building. Narandas also borrowed a considerable sum of money for the work. The original temple apparently contained no idols. But Narandas installed in his temple an image of Kuberdas who was now known as Shri Karunasagar and two other images. It is a matter of dispute whether these are the images of the deities Nar Narayan or those of Kuber-dasji's attendant staff-bearers (chhadidars). The trial Judge has found in favour of the latter view and this finding is not very seriously challenged and seems to be correct. There are references in the evidence to an alleged idol of a deity called Lalji having been in the temple at one time and to an idol of the God Hanuman. But no great importance seems to attach to these.

6. Much of the oral evidence is taken up with disputes about doctrine. Plaintiffs and their witnesses assert that the image of Kuberdas is worshipped as that of a God. Defendant and his witnesses say that the kaivalya panth does not accept the doctrine of incarnation. Defendant says " God cannot become incarnate because even without incarnation he is all powerful and does what he likes." But the position he takes up is not very consistent or easy to understand. He says in one place " According to our belief Krishna was an aunsh (part) of God and so was Karunasagar." But elsewhere he says " I do not worship Kuberdas in the same way in which a devotee of Krishna would worship Krishna." He has also admitted in cross-examination that Karunasagar is the ishta dev of the institution, this expression meaning, according to the dictionaries, the deity of one's choice or tutelary deity. But in re-examination he explains this away rather lamely by saying " When I said that Karunasagar Maharaj was our ishta dev I meant that we have full faith in him as our guru. We have more faith in him than in God." All the religious books of the panth, with the exception of one, were written by Kuberdas himself. The language he used is mystical and rather obscure. Several of the witnesses for the plaintiffs frankly admit that they do not understand it and in all probability that is the position of the average member of the panth in these days. Whatever the esoteric doctrines of the faith may be, the evidence suggests that there is very little difference in regard to worship and ceremonial between this and the ordinary Hindu temple.

All the above property is in my possession and enjoyment at present. I may manage the same as I like till I live. And after my death, in order that my property may not be wasted and in order to maintain the prestige of all the devotees by properly conducting the gadi, I entrust my sole authority to my vadil sishya (disciple) Baldevdasji Narandasji and appoint him as an heir to my gadi. After my death, he should take in his possession all the property mentioned above accordingly and should take in charge the worship of God in my mandir and the sudhu sants (followers and devotees) and should properly maintain the prestige. And acting in harmony with all the sadhus and sants etc., he should act in such a manner as to enhance the honour of my mandir and the samprodayan (i.e., doctrine or faith). Through God's grace, a disciple or disciples who may occupy the gadi after him may perform such acts as may be harmful to my doctrine by misbehaviour. In order to avoid the same I appoint eighteen trustees belonging to this village and elsewhere.

18. The authorities to which we have been referred, although not one of the cases is precisely on all fours, seem to me on the whole to support this view. There is a Privy Council case, Pujari Lakshmma Goundan v. Subramania Ayyar (1923) 29 C.W.N. 112 : s.c. [1924] A.I.R.P.C. 44. The facts found by their Lordships as stated in the judgment were as follows (p. 117) :-

Lakshmana Goundan, the grand-father of the first Defendant, lived in a small house which belonged to him in the village of Kalipatta. He was a devout Hindu and originally a poor man. He maintained in his house an idol of the goddess Amman which was the private idol of his family. He was also a devout worshipper at the public temple at Palni, at which there was an idol of the god Subramanyan-swami, and he made yearly pilgrimages to Palni with offerings to that god. It is said, and probably with truth, that he dreamed that he should install at his house at Kalipatta an idol of the god Subramanyaswami and that the god would come to Ms house and enable him to foretell events. He did install that idol at his house, adopted the ritual which was followed at Palni and allowed Brahmins and other Hindus of various castes to worship the. idol as if it was a public idol. He acted as the pujari of the idol, and received as the pujari offerings made to the idol by worshippers and fees which he charged in respect of processions and other religious services. He obtained a great reputation as a holy man and as being enabled by the god to foretell events. The number of Hindu worshippers increased and with the offerings and fees he purchased some jewels for the idol, built for himself another house in the village to which he and his family removed, and he extended the house in which the idol was and added to it covered rooms for the accommodation of the worshippers during the ceremonies of worship. He also constructed a circular road round the place where the idol was for religious processions and he provided the car used in such processions. He also built in the village a rest-house for the use of worshippers of the idol. On certain days in each week the Hindu public was admitted by him free of charge to worship in the greater part of the temple, to one part only on payment of fees, and to the inner shrine apparently not at all. With the income which he derived from offerings and fees at the temple he efficiently maintained the temple as if it were a public temple and discharged all the expenses connected with the temple and the worship of the idol there. That may be assumed from the reputation which the temple acquired amongst Hindus, No accounts have been produced, probably he kept none, but it may be assumed that he applied the balance of the income he so obtained to the support of himself and his family and in acquiring for his own benefit and that of his family some immoveable property which he possessed before he died.