S.K. Ray, J.
1. The plaintiff-appellant has preferred this appeal from the confirming decision of a single Judge of this Court dismissing the suit, under Article 4 of Orissa High Court Order 1948, read with Clause 10 of the Letters Patent.
2. The appellant filed his suit in the court of the Sub-Judge, Puri for a declaration that he is the hereditary trustee of Radhaballav Math with all its endowments located in the town of Puri being the nominated successor of the late Mahant Shri Radhacharan Das who died in 1963.
Undisputedly, Radhaballav Math is an institution of Numbark cult. Its last Mahant was Radhacharan Das who was recognised by all public authorities including defendant No. 1, the Commissioner of Hindu Religious Endowments, Orissa (hereinafter referred to as 'Commissioner). The plaintiff alleges that the late Mahant validly initiated him as his Chela according to customary and usual religious rites prevailing at the Math and the sect to which the institution belonged, and also executed a will dated 26-6-1940 acknowledging to have validly adopted the plaintiff as his Chela and also nominated him as his successor. He however, did not intimate the Commissioner about this nomination before his death on 19-3-1963. The will was un-registered and kept in a sealed cover with the District Sub-Registrar at Puri. After becoming the Chela of late Shri Radhacharan Das the plaintiff resided in the Math and later on was looking after the management of farflung Math properties under the control and supervision of the late Mahant. On the date of death of the late Mahant the appellant was at Sarada Khamar near Konarka for collection of bhag and for making arrangements for next year's cultivation. On the demise of late Mahant Radhacharan Das the Collector of Puri took immediate action under the Intestate Succession Act and took the Math under his control. Later on 21-3-1963 the Commissioner stepped in and took the institution under his direct control. On hearing about the death of the Mahant the appellant came back to Puri and found the Commissioner in possession of the entire Math. In fact, his entry into the Math was prohibited. He informed the Collector as also the Commissioner on 27th of March. 1963, about his right as the successor trustee hut his protestation went unheeded.
The appellant subsequently filed an application before the Commissioner under Section 36 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act') on 3rd of April. 1963. This petition was kept pending with the Commissioner for a long time and ultimately dismissed on 11-9-1064 on the sole ground that the late Mahant had not intimated the Commissioner about having nominated the plaintiff as his successor. Within ninety days of this rejection order the appellant filed the present suit out of which this appeal arises.
3. Defendant No. 1 is the Com-missioner of Endowments and defendant No. 2 is the Executive Officer of Radhaballav Math. Though both these defendants filed separate written statements, yet their defence is practically the same. They deny that the late Mahant of the Math ever initiated the appellant as his Chela according to the religious and customary rites prevalent in the Math, and nominated him as Ms successor. In fact, the plaintiff is a married man and was given in adoption to one Baidhar alias Binakar Misra of village Chandrapur and in acknowledgment thereof a deed of ad-option has been executed and registered in Ms favour about 15 years ago. He has married the daughter of one Gopala Misra and has begotten a son who is reading in Naugaonghat School and that the appellant was serving in the South Eastern Railways as a Khalasi. Alternatively, they plead that even assuming that the appellant was validly initiated and nominated as successor by the late Mahant as his Chela, he having subsequently reverted to worldly life as indicated above has forfeited his claim to the trusteeship nf the Math in question. Besides, two technical pleas for non-suiting the plaintiff also have been put forth. One is that the suit being merely a declaratory one without con sequential relief of recovery of possession is barred under Section 42 of the Specific Relief Act which is equivalent to Section 34 of the new Specific Relief Act. The second is that the suit is barred by limitation having been instituted beyond the prescribed period of limitation of ninety days from 21-3-1963, the date when the Commissioner passed his order taking the institution under his direct control.
4. The trial Court rendered the following findings:--
(a) Ext. 1 the unregistered will is genuine and prima facie lends support to the plaintiff's case.
(b) Late Mahant Radhacharan Das initiated the plaintiff as his Chela and also nominated him as his successor.
(c) Taking of Veka being a ceremony whereby a person renounces the world is a necessary ceremony or rite for initiation of a Chela in the Math in question, because according to the custom prevailing in the Math only a person who has renounced the world on taking Veka can be entitled to hold the office of trusteeship of this institution. The plaintiff-appellant not having been given Veka is not entitled to be a true Chela, even though he had been declared in Ext. 1 to have been formally initiated as one.
(d) The plaintiff-appellant had returned to Purbashram after giving up his chelaship and had been given in adoption to Binakar Das in 1954 and was serving under the Railways as a Khalasi. Thus, even assuming that the plaintiff had been initiated as a true Chela, he having reverted to worldly life, has forfeited his claim to the trusteeship of the institution, according to the custom prevailing in the math.
(e) The suit is barred by time because it had not been instituted within 90 days from 21-3-1963 when the Commissioner took action under Section 39 of the Act in respect of the Math in question, and as such, the court has no jurisdiction to entertain the suit in view of the restriction in Section 73 of the Act.
(f) The suit is barred under Section 42 of the Specific Relief Act.
The first appellate court confirmed all the aforesaid findings of the trial court and held that it had not been proved that the plaintiff had married.
5. The first point to be determined is whether the plaintiff had been validly adopted or initiated as a Chela by the last Mahant of the Radhaballav Math.
The Math in question is a Maurasi Math. According to the custom and usage prevalent in respect of this institution the succession to the office of the Mahant goes to the Chela appointed or nominated by the last Mahant during his life time. Such custom is admitted by the defendants as recorded by the trial court. The plaintiff has to establish that the last Mahant Radhacharan Das initiated him into his sect, made him his Chela and nominated and appointed him as his successor. It is not disputed that in law the right of making an appointment is appurtenant to the office of the Mahant and is a personal right of the Mahant for the time being. Valid chelaship being a sine qua non to any claim to a religious office, the plaintiff has necessarily to establish that the last Mahant made him his Chela validly.
The plaintiff has proved the Will of the last Mahant which is Ext. 1 dated 26-6-1940. Both the courts below have accepted the genuineness of this document. It contains the statements of the last deceased Mahant regarding transactions by which the plaintiff's claimed right was created. According to its recitals, the previous Mahant adopted the plaintiff as his chela by altering his name, performing his Brata Upanayana and Karna Bindhya ceremony and by initiating him into his cult according to Chandradeka ceremony. He also nominated him as his successor. He also specifically provided therein that if his Chela became disqualified by becoming unfit or incapable to act as the Mahant of the institution or voluntarily desired to revert to the secular life, the testator shall have the right to nominate another person to be his Chela and to succeed him to the office of Mahantship. Ext. 1 therefore, is an important and relevant piece of evidence establishing the plaintiff's case with regard to his chelaship and his nomination as successor to the office of the Mahant. The defendants had argued in the trial court, on the footing of the testimony of P. W. 2. an attestor of the Will, that the Will was a registered document while, in fact. Ext. 1 was not that Ext. l is not the Will which was originally executed by the last Mahant. This Will, though not registered, was kept in a sealed cover with the Sub-Registrar, Puri. The trial court, therefore, ascribed P. W. 2's statement to be a confusion on his part that keeping Ext. 1 in a sealed cover with the Sub-Registrar was an act of registration and rejected the defence contention, which has not been repeated here. Evidence cor-roborating recitals in Ext. 1 is forthcom-ing in the testimony of P. Ws. 1. 2. 3. 5 and 6. P. W. 5 is the plaintiff who speaks of his initiation as Chela of the last Mahant. P. W. 6. the natural father of the plaintiff, speaks of plaintiffs initiation into the sect of the previous Mahant and acceptance by the latter as his Chela, That was when the plaintiff was in his sixth year and since then he is residing in the Math and has not come back to his natural family and has been leading an unmarried life meaning a life of celibacy. P. W. 3 is the Mahant of Habili Math. He was present at the ceremony where the previous Mahant accepted the plaintiff as his Chela. He fully supports the plaintiff on this aspect of the case. Likewise P. Ws. 1 and 2, who being the employees working in the Math since the time of the last Mahant arp competent witnesses, have deposed supporting the plaintiff's case regarding his chelaship. The plaintiff must be held to have been lawfully adopted as a Chela by the previous Mahant of the Math in question.
It is next argued by the defendants that as Veka ceremony was not performed the plaintiff did not renounce the world and as such, was ineligible to succeed to the trusteeship. Reliance is placed on the testimony of P. W. 7. Mahant of Oriya Math, for this contention. P. W. 7 has stated that--
'A man does not renounce the world by merely becoming Chela He has to renounce the world on taking Veka alone. A Mahant may take as many Chelas as he likes and they may not take Veka.
The distinction between a Chela and a disciple lies in the former taking Veka and the latter not taking Veka.
XX XX XX..... A Chela, who returns to his original family (Purbashrama is dismissed from Chelaship. ..... '
According fo the plaintiff Veka was given tp him about 18 to 20 years after his initiation as a Chela which brings it to 1957 or 1958. P. W. 3. Mahant of Mabili Math has deposed that the plaintiff was given Veka i.e.. Kaupin. Bahirbas and Baish-nab Sanyasa Mantra about 8 or 10 years back. No suggestion was made either to P. W. 3 Or to plaintiff (P. W. 5 that Veka ceremony had never been performed in fact or that its performance was essential for conferring validity on the initiation of the plaintiff as a Chela and his nomination as the successor of the previous Mahant. P. W. 7 on whose testimony great stress is laid was merely giving his own opinion regarding performance of Veka ceremony. He has not positively stated that this ritual was a requirement according to the custom prevalent in the institution in question, or that it did not take place respecting the plaintiff. Further, this witness belongs to a cult different from that of the plaintiff and is not competent to speak about the customs prevalent in Radhaballav Math. It will be seen that the defendants did not assert in their written statements that the performance of Veka ceremony either at the time when the plaintiff was adopted as Chela or at any later time was essential, either as a custom appertaining to the institution in question or as a requirement of law to enable the plaintiff to be appointed or nominated as the successor of the last Mahant. Accordingly, no issue was struck regarding Veka ceremony. The defendants have produced no evidence to prove that performance of Veka ceremony was an absolute necessity for conferring validity on the plaintiff's chelaship or that Veka ceremony was never performed. There is thus credible evidence on record that the last Mahant gave the plaintiff Veka in 1957 or 1958 before his death. The position, therefore, is that the plaintiff was initiated as a Chela before 1940 and Veka ceremony was performed in 1957 or 1958. Can the plaintiff's status as a true Chela be prejudicially affected by this delayed Veka ceremony The learned counsel for the defendants was also not able to show us any text or law that Veka ceremony and ceremony for adoption of a Chela must be performed one after another in course of the same transaction, in order that the adopted Chela can become eligible to be nominated as a successor of the adopter-Mahant. If Veka ceremony is an essential ritual to permanently effect transference of the plaintiff from worldly life into spiritual life for all time to come and thereby perfect his initial initiation as a Chela and confer on him eligibility to succeed to the trusteeship, it can be performed at any time before the adopter-Mahant died and succession opened. It is rather reasonable and appropriate that Veka ceremony which denotes renunciation of the world should be performed at a time when the boy has attained discretion and maturity of understanding to know what renunciation is and then voluntarily opt to renounce the world. As already found Veka ceremony was in fact performed in 1957 or 1958 and the intervening period between the plaintiff's first initiation as the Chela and his subsequent Veka ceremony must then be considered as a probationary period. Whatever lacuna, if any, was there, on account of omission to perform Veka ceremony, in the plaintiff's right to succeed, was removed by performance of that ceremony in 1957 or 1958. Thus, on a consideration of the evidence on record and in the absence of any law or proof of custom to the contrary, it must be held in this case that the plaintiff was duly and validly initiated as a Chela and nominated as his successor by the previous Mahant notwithstanding that Veka ceremony was performed in 1957 or 1958.
6. The next question for consideration is whether the plaintiff has incurred subsequent disqualification and forfeited his right to succeed to the office of trusteeship by having reverted to worldly life by being given in adoption, marrying and by working as a Khalasi to earn his livelihood. As regards marriage, the learned single Judge has held that the defendants have failed to prove it and we have no reason to differ from that finding. As regards adoption, it is said that the plaintiff was given away in adoption to one Baidhar alias Binakar Das of Chandrapur and in acknowledgment of such adoption, the adopter executed a deed of adoption (Ext. F) in 1954. Further, it is stated that the plaintiff served as a Khalasi under the South Eastern Railways from 1956 till 26-3-1963 and in evidence of this assertion the defence has proved Ext. L series which are paid vouchers of the Railways. By these two transactions it is contended that the plaintiff has returned to his Purbashram and forfeited his right as a duly adopted and nominated Chela. The twin questions of adaption and his service as a Khalasi have to be separately considered.
7. No evidence of giving and taking ceremony has been adduced by the defendants. The only oral evidence on the point of adoption is that of D. W. 3 who has admitted that he has no personal knowledge about this matter. Reliance entirely, therefore, is placed on the deed of adoption, Ext. F. In view of the plaintiff's denial of adoption it was the bounden duty of the defendants to prove that the person referred to in that document as adoptee was no other than the plaintiff and that as a matter, of fact a valid adoption had taken place. The reasonings of the courts below in concluding that Ext. F refers to the plaintiff and to nobody else appear to be untenable. Relying upon the testimony of P. W. 6 who has stated that there is only one Binakar Das in the village, that there is no other person in his village bearing his name Ananda Misra, and that there is no other Misra family in the village, it is held that Ext. F necessarily refers to the plaintiff. It is clear that his evidence relates to the time of his deposition, that is the year 1966 and not to the year of adoption in 1936. Therefore, his testimony cannot constitute as the reliable basis for the aforesaid conclusion of the Courts below. It is worthwhile remembering at this stage that the adopter himself has not been called to the witness-box in support of the recitals in Ext. F. In his absence, the truth of those statements could not be properly tested and therefore, even assuming that Ext. F is an admissible piece of evidence it is a very weak piece of evidence to outweigh the denials of the plaintiff and his natural father so as to discharge the heavy onus which lay on the shoulders of the defendants to prove this adoption. This document further affords some intrinsic evidence improbabilising the case of adoption. This document dated 1-5-1954 refers to an adoption of one Nityananda Das aged 19 years who is described as second son of the three sons of Ananda Misra. It speaks of the adoption when the adoptee was only one year old and necessarily indicates that the adoption took place 18 years prior to the execution of this deed when Binakar Das was only 22 years old. It is unlikely that Binakar Das at the age of 22 should think of adoption. It will further be seen that the alleged adoption took place in the year 1936 when Nityananda was one year old. This gives the year of birth of Nityananda as 1935. As against this it appears from the Will (Ext. 1) that the plaintiff was born in 1932. The inevitable conclusion from this is that the persons referred to in Ext. 1 and in Ext. F are not one and the same. D. W. 1 who has proved this document has no personal knowledge about the truth of the recitals of this document (Ext. F). D. W. 3 similarly has no knowledge about this adoption and his evidence is merely hearsay. It is significant to note that no suggestion about adoption was made either to P. W. 2 who was an employee of the Math even during the lifetime of the previous Mahant or to P, W. 3 or P. W. 4 who were the priests of the Math. The positive evidence of P. W. 6 is that this Binakar Das adopted his elder brother's son 17 or 18 years back. There is nothing on record to demolish this evidence. In our view there is no credible evidence of adoption and the story of the plaintiff's adoption to Binakar Das must be thrown away as unsubstantiated.
8. As regards the plaintiff's appointment as Khalasi in the Loco Department of the South Eastern Railways reliance is placed on Ext. L series which are paid vouchers in the name of one Nityananda Das son of Binakar Das. The defendants contend that these documents relate to the plaintiff. Ext. L series were proved by D. W. 4. According to him these registers are maintained under the provisions of the Railways Act. These documents show that Nityananda Das son of Binakar Das was a Loco Khalasi working under the Railways from 1956 to 1963. This witness has admitted that he has no personal knowledge as to the identity of the said Nityananda Das in Ext. L series, nor was he present when payments were made to him. There is no evidence as to who gave, thumb impressions in those vouchers. In fact, the learned single Judge in dealing with this point seems to have held that the thumb impressions in Ext. L series have not been proved to be that of the plaintiff as appears from the following sentence:--
'..... In the absence of any evidence as to who has given his thumb impression, the officer by whom the. disbursements were made, I would refrain from going into the question of admissibility or otherwise of Ext. L series.'
All the same he has drawn adverse inference from the fact that the plaintiff did not turn up for giving specimen thumb impression for comparison with the thumb impression in Ext. L series despite court's order, and acting thereon has believed that the plaintiff was really in Railway service as alleged by the defendants. Section 73 of the Evidence Act provides that in order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared with the one which is to be proved, and that the court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person and that the provisions of this section apply also to finger impressions. It is clear that before invoking Section 73 there must be evidence before the court that a thumb impression is that of a party in the litigation, and in regard to Ext. L series there is no evidence before the court that these documents relate to the plaintiff and that the thumb impressions appearing thereon belong to the plaintiff. In absence of such evidence, the court was not called upon to act under Section 73 of the Evidence Act. Therefore, adverse inference was not to be drawn in the particular case on account of the plaintiff's failure to turn up pursuant to the order of the court to give his specimen thumb impressions. On the contrary, as appears from the evidence of D. W. 5. for every railway employee there is a service book maintained which contains the photograph of the employee and also his thumb impression. The service book was, therefore, the best piece of evidence on the point and omission on the part of the defendants to call for the same and prove it leads to an adverse inference that if the service book had been called for it would have shown that the plaintiff was not in service of the Railways. In the circumstances, the onus of proof of this fact being on the defendants, it must be held that the defendants have failed to discharge their onus and that the plaintiff was not serving as a Khalasi under the South Eastern Railways.
9. Both the trial court and the learned single Judge have relied on certain circumstances as reinforcing their conclusions that the plaintiff had not been validly adopted as a Chela and that he had returned to his Purbashram whereby his nomination under the Will was invalidated. The first circumstance on which reliance has been placed is that the plaintiff should have been present in the Math when the Mahant died if he was really residing therein. Evidence of the plaintiff and P. Ws. 1 to 3 is that late Mahant had sent the plaintiff and P. W. 1 to Sarada Khamar of the Math on 18-3-1963 for making collection of bhag paddy and to make arrangements for next year's cultivation. P. W. 1 was at the Khamar on 29-3-1963 while the plaintiff had gone to Chandrabhaga five miles away from the Khamar. P. W. 1 came to know of the death of the Mahant on 20-3-1963 and immediately thereafter he sent news to the plaintiff at Chandrabhaga. This evidence accords with the testimony of the plaintiff himself nO ostensible reason has been given for discarding the evidence of P. W. 1. P. W. 2 likewise supports the plaintiff on this aspect of the case, but he has been discarded on the ground that he sent message of the death of the Mahant to his relatives and not to the plaintiff. But there is nothing in the testimony of this witness to indicate that he did not send any message to the plaintiff at Sarada Khamar. His testimony, therefore, was wrongly discarded. The other ground for disbelieving the P. Ws. 1 to 3 is that they did not inform the officer who conducted the inquiry under the Intestate Succession Act that the plaintiff was at Sarada Khamar. There is no basis for such a ground, because there is nothing in the evidence to indicate whether they did or did not inform the inquiring officer about the plaintiff being at Sarada Khamar on the date of death of the late Mahant. Again, the trial court has stated that on the death of Mahant an inventory pf properties of the Math was made which did not disclose wearing apparels of the plaintiff. The learned single Judge has added to this list of circumstances by stating that the Math accounts do not show that expenses were incurred for the education of the plaintiff or for his other incidental expenses of living, clothings etc. The accounts of the Math from 1940 till 1963 have not been produced before the court They were all in the custody of the defendants and no positive evidence has been adduced on their behalf that the accounts did not disclose expenses to have been incurred for the plaintiff's education and maintenance in the Math. P. W. 2's evidence, on the contrary, show that the expenses incurred relating to the Brata and thread ceremonies of the plaintiff were entered in the Rokad and account books by him. He admits that no other expenses relating to the plaintiff were entered by him. But he does not admit that he was writing the account books of all the years since 1940 till the death of the Mahant. Accordingly, there is no evidence to show that the other expenses in relation to the plaintiff were, in fact, not entered in the account books. The learned single Judge has been influenced by the fact that the documents seized do not bear testimony to the plaintiff having been entrusted with the management of the Math property and having sone to Sarada Khamar shortly prior to the death of the Mahant in connection with realisation of bhag paddy and other incidental matters. Unfortunately, there is no evidence as to what documents were seized by the Collector or by the Endowments Commissioner consequent upon death of the last Mahant and there is no positive evidence that anybody perused those documents and found no reference to the plaintiff's participation in the management Of the Math. These aforesaid circumstances do not appear to have been conclusively established and the factual inference drawn by the learned single Judge and the trial court from the supposed existence of the aforesaid circumstances are necessarily erroneous.
We have reversed all the findings of fact recorded by the learned single Judge except on the question of marriage It has been held in 1973 (1) Cut WR 809 = (AIR 1974 Orissa 120) (Jagabandhu Sena-pati v. Bhagu Senapati) on the authority of a Supreme Court decision that in a Letters Patent appeal a Bench has got full powers to examine questions of fact and law arising out of the judgment of a single Judge in a First Appeal.
10. Thus, on the aforesaid analysis of the evidence we come to the conclusion that the previous Mahant had validly adopted the plaintiff as his Chela according to the prevalent usage and custom of the Math and had also nominated him as his successor, and that the Veka ceremony, though not proved to be an essential ritual to be performed either as a custom or as a requirement of law in relation to the particular institution in question, had, in fact, been performed. As the valid nominee of the previous Mahant, the plaintiff is entitled to be declared to be the hereditary trustee of Radhaballav Math, unless he is non-suited on the technical ground of limitation
11. The two other questions which remain for consideration are whether the suit is barred by limitation having been filed beyond the period prescribed therefor under Section 39 of the Act and whether the suit is not maintainable in view of Section 42 of the Specific Relief Act.
12. As regards non-maintainability of the suit under Section 42 of the Specifie Relief Act the point has lost all importance by reason of the amendment of the plaint sought for and allowed in this Court. The amendment made in the prayer portion of the plaint was to the following effect:--
'a decree for recovery of possession of the disputed Math property be granted in favour of the plaintiff against the defendants.'
This amendment was allowed by order dated 25-8-1975 in which we said that we need not enter into the controversy whether the suit would be barred under Section 34 of the Specific Relief Act, 1963 (equal to Section 42 of the old Specific Relief Act) in view of the amendment.
The only other serious question that is now left for consideration is whether the suit is barred by limitation not having been filed within ninety days from 21-3-1963 when the institution was taken under the direct control of the Endowment Commissioner under Chapter VII of the Act. To appreciate the scope of this contention a few important dates need be noted. The plaintiff-appellant claims to have been initiated as Chela by the late Ma-hant Radhacharan Das in 1939 and the latter executed a Will dated 26-8-1940 acknowledging the chelaship of the plaintiff. On 19-3-1963 late Mahant died. The Collector took charge of the Math treating it as intestate property on 20-3-1963. Next day i.e. on 21-3-1963 the Commissioner took over the institution pursuant to his order (Ext Q) dated 21-3-1963. On 23-3-1963 the Math was put in charge of an Executive Officer. On 3-4-1963 the plaintiff-appellant filed a petition under Section 36 of the Act. This petition was rejected on 11-9-1964. The present suit was filed on 7-12-1964 within ninety days thereof. It is said that since the order Ext. Q dated 21-3-1963 was passed under Section 39 of the Act the suit should have been filed within 90 days thereof. The question, therefore, which consequentially falls for consideration is if Ext. Q is an order passed under Section 39 of the Act.
13. Section 39 of the Act which is the relevant section in this connection is extracted hereinbelow:--
'39. Appointment of successors by hereditary trustees:-- When the hereditary trustee of a math nominates his successor he shall give intimation in writing to the Commissioner. Subsequent changes in the nomination may also be intimated within three months of the nomination. For purpose of succession the last nominee so intimated shall be recognised by the Commissioner. If no appointment is made during lifetime of the trustee, the Commissioner shall have full power to appoint an Executive Officer and the trust shall be brought under the direct control of the Commissioner and shall be treated as an institution under Chapter VII. In making this appointment the Commissioner shall have due regard to the custom and usage and tenets of the math. Any person aggrieved by the decision may within ninety days from the date of the decision institute a suit in a competent court of law to establish his right to the office of the hereditary trustee but pending the result of such suit, if any the order of the Commissioner shall be final.'
Two other sections of the Act which have some bearing on the interpretation of Section 39 are Sections 7 and 36, which are extracted hereinbelow:--
'7. Powers and duties of Commissioner:--
(1) Subject to the provisions of this Act the general superintendence of all religious institutions and endowments shall vest in the Commissioner.
(2) The Commissioner may do all things which are reasonable and necessary to ensure that the religious institutions and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist.
Explanation -- The Commissioner shall have power to pass such interim orders as he deems necessary for the proper maintenance of a religious institution or the proper administration of a religious endowment including the power to pass such orders if and when necessary for the proper management of any institution when a dispute concerning the same is pending in a Court.
XX XX XX36. Filling up of vacancies :-- (1) When a vacancy occurs in the office of the trustee of a math or specific endowment attached to a math except as provided in the preceding section and there is a dispute respecting the right of succession to such office, or when such office cannot be filled up immediately or when the trustee is a minor and there is no recognised guardian willing to act as such or when there is a dispute respecting the person who is entitled to act as such guardian,
the Commissioner, after being satisfied that an arrangement for the administration of the math and its endowment or of the specific endowment, as the case may be is necessary shall, make such appointment and arrangements as he thinks fit until the dispute is settled or another trustee succeeds to the office, as the case may be. The Commissioner may also remove such interim trustee for the reasons specified in Section 28.
(2) In making any appointment under Sub-section (1) the Commissioner shall have due regard to the claims of the disciples of the math, if any, or
in the absence of any such disciples of the math claims of one of the allied or as far as possible closely connected maths shall be taken into consideration.
(3) Nothing in this section shall affect the right of any person aggrieved by the order of the Commissioner under Sub-section (1) to establish his right of succession to the office of the trustee in a court of law:
Provided that such court shall have no power to stay the operation of the order of the Commissioner pending disposal of the suit or other proceedings arising in relation thereto.'
It is appropriate to extract (so far as is necessary) the order of the Commissioner dated 21-3-1963 (Ext. Q) whose nature and scope is directly in issue in relation to the question of limitation. It runs as follows:--
'Orissa Hindu Religious Endowments Office, Cuttack.
Shri L. Panda. B. A., B. L., Commissioner of Endowments Orissa, Cuttack.
In the matter of Sri Radhaballav Math. Purl Town. District Puri. Read:--
1. Telegram dated 19-3-1963 from the I. E., Puri, informing the death of Mahanta Sri Radhacharan Das.
2. Inspection note of the Endowment Commissioner dated 20-3-1963.
Order No. 828/1347-P-(M) dated 21/3/ 1963
1. Whereas Mahanta Sri Radha Cha-ran Das expired on 19-3-1963 leaving no successor to the office of the H. T. of Sri Radhaballav Math at Puri the Commissioner of Endowments in exercise of Dowers under Sections 39 and 7 of O. H. R. E. Act. 1951 do hereby appoint Sri B. Sarangl. Sub-Deputy Collector as the Executive Officer of the above Math and he shall administer the institution properly and efficiently until further orders in accordance with the provisions of the O. H. R. E. Act, 1951 and the rules made thereunder.
2. x xx xx3. x xx xx4. x xx xx5. X XX XX6. X XX XX7. X XX XXSd/- L. Panda 21-3-1963Commissioner of Endowments. Orissa, Cuttack.XX XX XX'
Chanter VII of the Act contains a group of sections relating to the management of religious institutions which are under direct control of the Commissioner.
14. The defence contention is that as the late Mahant did not give intimation in writing to the Commissioner of plain-tiff's nomination as his successor there was no appointment made of the successor during the lifetime of the previous Mahant. In result, the Commissioner acquired full power and jurisdiction under Section 39 of the Act to treat the trust as an institution under Chapter VII of the Act and to bring it under his direct control. The order of the Commissioner dated 21-3-1963 (Ext. Q) is, therefore, one passed under Section 39 of the Act. The plaintiff, who is aggrieved by this order, should have filed the present suit within ninety days from the date of the decision, i.e.. from 21-3-1963. As, in fact, the suit was filed on 7-12-1964 which was more than 90 days from the order dated 21-3-1963 is barred by limitation. The contention of the plaintiff, on the other hand, is that the order of the Commissioner purported to have been passed under Section 39 of the Act is without jurisdiction inasmuch as exercise of power under that section was not called for in the facts and circumstances of the case. Even though, the late Mahant failed to give intimation of the nomination of his successor, nevertheless, it is not a case of 'no appointment'. It is only where there is no appointment of a successor by the late Mahant in fact and in reality, that occasion arises for exercise of the power under this section by the Commissioner. It is further contended that Section 39 pf the Act was introduced into the Act in 1951 and was not retrospective in operation. Since the nomination of the plaintiff took place in 1940, this section did not apply to the present case and the late Mahant had no obligation to intimate in writing to the Commissioner about his nomination. As Section 39 of the Act is not attracted the order as per Ext. Q must be an order under Section 7 of the Act and when so viewed, limitation does not run against the plaintiff.
The first question, arising out of these rival contentions, which, if decided in favour of the plaintiff-appellant, would negative the plea of limitation is whether Section 39 of the Act is retrospective or prospective in operation. The section opens in present tense, 'When the; hereditary trustee of a math nominates his successor he shall give intimation in writing'. Ordinarily the word 'nominates' would not comprise the connotation 'has nominated'. It is a fundamental rule of construction that no statute shall be construed to have a retrospective operation unless such a construction appears very clear in the terms of the Act or arises by necessary and distinct implication. An offshoot of this rule is that if the enactment is expressed in the language which is fairly capable of either interpretation, it ought to be construed as prospective only and that there is a presumption against a retrospective operation if, when so operated, it would prejudicially affect the vested rights or the legality of past transactions. Section 39 imposes an obligation to intimate the nomination within three months thereof. The effect of giving it a retrospective operation would be to divest a nominated trustee of his vested right of succession even where Section 39 would be impossible of compliance by reason of three months having elapsed since nomination and before enactment of Section 39 of the Act. Further it would result in altering the pre-existing situation of parties and interfering with the antecedent rights of the trustees in depriving them of their trusteeship and placing the institution under the direct control of the Commissioner. Adoption of a Chela or nomination of a successor being past transactions would be nullified, even though the obligation of intimation provided in Section 39, as indicated above, was impossible of performance. Having regard to these far-reaching consequences of exproprietory nature and of extinguishment of vested rights flowing from retrospective operation of Section 39, and in absence of any clear, strong and imperative words in that section intending that effect, the conclusion is that the legislature never intended it to operate retrospectively.
Two parallel cases were cited concerning statutes in pari materia where language in present tense was construed as having prospective operation only. In the case of Ram Parkash v. Savitri Devi, AIR 1958 Punj 87 (FB). construction of Section 2 (4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 came up for consideration. In that case a Hindu married woman claimed separate residence and maintenance from her husband on the ground that 'he' had married again. His marriage, however, had taken place before this Act came into force. The question was whether the clause 'if he marries again' in Sub-section (4) of Section 2 of that Act is prospective or retrospective. It was held that it was not retrospective. The other case is the case of Moni Devi v Hadibandhu Patra, ILR (1955) Cut 113 = (AIR 1955 Orissa 73) (FB). which related to interpretation of Section 3 (2) of the Hindu Women's Rights to Property Act. 1937. The expression which came up for interpretation was 'if he dies intestate'. The question arose whether a widow whose husband died before the commencement of that Act could claim any interest in the coparcenery property. It was held that women who became widows only after commencement of the Act would take- the benefit of that Act.
In view of our conclusion that Section 39 operates prospectively and is not attracted in the present case, the order of the Commissioner (Ext. Q) cannot be an order under Section 39 of the Act and, accordingly, the suit cannot be held to be barred by limitation.
15. It is next contended by the learned counsel for the appellant that the Commissioner lacked jurisdiction to take the institution under his direct control under Section 39 of the Act as there was factual nomination of the appellant as successor. The first part of this section is a provision for the benefit of the nominee. Once a nomination is intimated the Commissioner has no option but to recognise him as the successor of the last Mehant and he cannot raise initially a dispute respecting the right of succession to such office under Section 36 of the Act. All he may do under Section 39 is to adjudge the genuineness or otherwise of the nomination or initiation and in such a case the aggrieved party may go to suit within the period of limitation provided therein. After nomination is rejected as non est in the eye of law the Commissioner acquires jurisdiction to exercise his power under the second part of Section 39 provided a dispute respecting right of succession is not raised under Section 36 of the Act. He also acquires this jurisdiction in another contingency, namely, where in a proceeding under Section 36 of the Act, it is found that none of the disputants to the right of succession has really any such right. Thus the precondition for exercise of power under second part of Section 39 is when no valid appointment has been made by the last Mahant during his lifetime. That expression 'if no appointment is made during the lifetime of the trustee' is not to be equated to nomination plus intimation as indicated in the first part of Section 39 but must mean a condition where no nomina-tion has been made at all or is deemed not to have been made. A Chela who has been validly nominated is not intended to lose his right to the office or his right to move the Commissioner under Section 36 of the Act and, failing there, to establish it in a civil court by suit merely because the last Mahant failed to intimate such nomination by writing, but that will be the exact result if the word 'appointment' is held to mean nomination followed by intimation in writing. Right to the office of the trustee, is created by nomination and not by intimation and when the intendment of the second part of Sec. 39 of the Act is to empower the Commis-sione,r to bring such institution under his direct control where there are no available claimants to succession in the field, the expression 'appointment' can only mean a valid nomination whether intimated or not.
It was argued by the defendants' counsel that the word 'appointment' in Section 39 means intimation in writing of the nomination of the successor by the hereditary trustee, and reliance was placed on a decision of this Court in the case of Basudev Das v. Commr. of H. R. E. 1970 (1) Cut WR 457. In this case intimation as contemplated in Section 39 of the Act was given on 13-10-1965 and was received on 14-10-1965 but on the latter date the Mahant expired. Therefore, a nomination had been made during the lifetime of the last trustee and it had been communicated. It was held that the Commissioner could make an enquiry as to the genuineness of the nomination and after he-was satisfied about the genuineness the nomination would be final and binding on him. The point that is now being agitated viz., whether the word 'appointment' means nomination plus intimation or not did not arise specifically. It was not strictly necessary in that case to interpret the scope of the expression 'appointment' in Section 39 of the Act. In the context of the facts of that case the expression 'appointment' meant intimation in writing of the nomination. This case, therefore, is distinguishable and is not an authority for the proposition, that the expression 'appointment' always and necessarily means nomination of the successor and its intimation in writing to the Commissioner by the hereditary trustee. Therefore, this interpretation of the expression 'appointment' must be negatived.
The net result of the aforesaid discussion is that Ext. Q dated 21-3-1963 could not be an order under the second part of Section 39 of the Act and if it was it would be void and limitation for the suit will not begin to run from 21-3-1963.
16. Consider ed from another aspect the order Q the Commissioner (Ext. Q) cannot be treated to be a valid order under Section 39 of the Act. This section envisages an inquiry prior to the Com-missioner deciding to treat the institution as one under Chapter VII and take it under his- direct control. This inquiry must be held after notice to all concerned. That is clear from the last part of the section wherein it is provided that any person aggrieved by the decision may within ninety days from the date of the decision institute a suit. The expression 'decision.' means adjudication of the lis, notice to parties concerned, hearing the parties, taking evidence and the like. It never contemplates a suo motu order of the Commissioner without any fact find-ins inquiry at all. The Commissioner in issuing the order (Ext. Q) was himself in doubt whether it would be treated appropriately as one under Section 39 because the order on its face indicates that it was issued under Section 39 and Section 7 of the Act. Thus the order cannot be treated as one under Section 39 so as to commence running of the time from 21-3-1963.
17. The appellant filed an application under Section 36 of the Act and raised a dispute regarding the right of succession to the office of the trustee by claiming it against the purported order of the Commissioner taking it under his direct control under Chapter VII. The precondition of occurrence of a vacancy had patently been existing. This petition having been dismissed by the Commissioner on 11-9-1964, the suit was filed on 7-12-1964. Sub-section (3) of Section 36 gives right of suit to the party who is aggrieved by the decision of the Commissioner under this section. For such a suit there is no period of limitation.
18. In view of our conclusion aforesaid that Section 39 of the Act is not retrospective and that the order dated 21-3-1963 (Ext. Q) was passed by the Endowments Commissioner without jurisdiction, it did not set the law of limitation in motion under Sec. 39 of the Act against the plaintiff. The suit, therefore, cannot be held to be barred by limitation.
19. In result, this appeal is allowed. The decisions of the learned single Judge and of the trial court are set aside end the suit is decreed-with costs throughout.
Appeal is allowed with costs throughout,
G.K. Misra, C.J.