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Apurba Kumar Das Vs. Siba Prasad Barik and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 51 of 1959
Judge
Reported inAIR1963Ori65
ActsLimitation Act, 1908 - Sections 6 and 29(2); Orissa Hindu Religious Endowments Act, 1939 - Sections 64(2)
AppellantApurba Kumar Das
RespondentSiba Prasad Barik and ors.
Appellant AdvocateL.K. Dasgupta, ;G.N. Sengupta and ;B.M. Patnaik, Advs.
Respondent AdvocateR.C. Misra, ;P.C. Chatterji and ;R.C. Patnaik, Advs.
DispositionAppeal dismissed
Excerpt:
..... - a) at the instance of the plaintiff's father ram narayan das which was disposed of by the endowments commissioner oil 7-12-50. there the commissioner held that ram narayan das failed to prove that the endowments were the private properties of his family and declared the institution to be an 'excepted temple' with ramnarayan das and his son (plaintiff) as hereditary trustees of the same. 1) figured as a witness, but he admitted that ram narayan died one or two days before margasira purnima of 1951. the calendar shows that margasir purnima was on 13-12-51 and consequently if this witness's evidence on the point is accepted ram narayan must have died after the expiry of one year from 7-12-1950. his right to challenge the order of the commissioner by a suit under section 64(2) of..........under section 64(2) of the orissa hindu religious endowments act 1939, for a declaration that the suit endowments were private endowments of the plaintiff's family and that the orissa hindu religious endowments act had no application to them. there was a previous proceeding under section 64 (i) of that said act (see ext. a) at the instance of the plaintiff's father ram narayan das which was disposed of by the endowments commissioner oil 7-12-50. there the commissioner held that ram narayan das failed to prove that the endowments were the private properties of his family and declared the institution to be an 'excepted temple' with ramnarayan das and his son (plaintiff) as hereditary trustees of the same. the present suit under appeal was instituted on 2-7-55. with a view to escape.....
Judgment:

Narasimham, C.J.

1. This is an appeal by the plaintiff against the decision of the learned Additional Subordinate Judge of Balasore dismissing his suit under Section 64(2) of the Orissa Hindu Religious Endowments Act 1939, for a declaration that the suit endowments were private endowments of the plaintiff's family and that the Orissa Hindu Religious Endowments Act had no application to them. There was a previous proceeding under Section 64 (i) of that said Act (see Ext. A) at the instance of the plaintiff's father Ram Narayan Das which was disposed of by the Endowments Commissioner OIL 7-12-50. There the Commissioner held that Ram Narayan Das failed to prove that the endowments were the private properties of his family and declared the institution to be an 'Excepted temple' with Ramnarayan Das and his son (plaintiff) as hereditary trustees of the same. The present suit under appeal was instituted on 2-7-55. With a view to escape limitation it was urged that Ramnarayan Das died on 3-12-5 r that the plaintiff was then a minor and that he attained majority only on 20-7-54. Defendant No. 4 however in paragraph 7 of his written statement challenged the date of attainment of majority as stated by the plaintiff and averred that he had become a major long before that date.

2. One of the main issues in the litigation was the issue on the question of limitation, namely issue No. 3. Sub-section (2) of Section 64 of the Orissa Hindu Religious Endowments Act, 1939, prescribed a period of one year for institution of a suit by a person aggrieved by an order of the Endowments Commissioner passed under Sub-section (1) of that Section. In considering this issue of limitation two important questi6ns of fact arise : (1) What was the date of death of Ram Narayan Das? and (2) What was the date on which the plaintiff attained majority? The plaintiff's contention and his father's contention before the Endowments Commissioner was that the suit properties were the joint properties of Ramnarayan and his son (plaintiff) who had purchased the share of Ramnarayan's brother Gopal Narayan by a sale deed (Ext. 9) dated 24-5-46. So far as Ramnarayan's interest in the properties is concerned if the date of his death is shown to be more than a year after the date of passing of the order of the Endowments Commissioner, namely after 7-12-51, any right to bring a suit is completely extinguished by virtue of Section 64 (2) of the Endowments Act. But it was urged that Ram Narayan died on 3-12-51 (within a period of one year from the date of the Commissioners order). But no evidence was led to support this contention. The plaintiff did not appear as a witness and it was alleged that he became a Musalman and went away to Delhi during the pendency of the suit.

His authorised agent (P. W. 1) figured as a witness, but he admitted that Ram Narayan died one or two days before Margasira Purnima of 1951. The calendar shows that Margasir Purnima was on 13-12-51 and consequently if this witness's evidence on the point is accepted Ram Narayan must have died after the expiry of one year from 7-12-1950. His right to challenge the order of the Commissioner by a suit under Section 64(2) of the Endowments Act was thus clearly barred by limitation.

3. Mr. B.M. Patnaik however urged that the lower Court committed an error in not permitting the appellant to prove the Death Register. I might have been inclined to consider this question if an application had been filed before this Court for this purpose under Order 41, Rule 27(1) (a) C. P. C. No such application was filed and it is therefore unnecessary to consider whether the lower Court was justified in refusing to admit this extract of Death Register in evidence. Moreover the other witnesses examined in this case by the plaintiff namely P. W. 1. and his own mother P. W. 6 made no statement to indicate that Ram Narayan died within one year of the passing of the order by the Commissioner. In this state of evidence the lower Court was justified in holding that Ram Narayan's right to sue was barred by limitation.

4. As regards the date on which the plaintiff attained majority, here also there is no evidence on his side though the date as given by the plaintiff in the plaint was expressly denied by the defendants. The plaintiff did not examine himself. Neither his authorised agent nor his mother nor the family washer-man was examined as P. W. 4 gave any evidence about the plaintiff's age. The plaintiff seems to have relied mainly on Ext. I, an extract of the birth register, which shows that a son was born to Ram Narayan Das on 24-7-1936. But no evidence was led to show that the son, referred to in that entry is none else but the plaintiff. There is no evidence as to who gave that information on the basis of which the entry was made. As the necessary connecting link is thus missing that entry by itself will not suffice to prove the date of birth of the plaintiff. On the other hand the defendants have proved an application filed by the plaintiff himself (Ext. E) before the Commissioner on 2-1-54 for return of certain documents filed by his Advocate and that document further shows that the papers were handed over to the plaintiff on the same date. If really he was a minor he could not have filed such an application before the Endowments Commissioner through his lawyer. Hence this document would prima facie show that he was a major on 2-1-54. The only persons who could explain the circumstances under which the application was filed by him was the plaintiff himself but he has discreetly avoided the witness box. In this state of the evidence we cannot hold that the plaintiff has proved that he attained majority only on 20-7-54 so as to escape limitation.

5. Apart from the question the plaintiff cannot take advantage of Section 6 of the Limitation Act because the Orissa Hindu Religious Endowments Act is a special law and there is no provision therein for applying the principles of Section 6 of the Limitation Act in regard to suits brought under Section 64 (2) of the Endowments Act, Section 29(2)(iii) of the Limitation Act expressly bars the application of the provisions of Section 6 of that Act in respect of such special laws. Hence the period of one year prescribed in Section 64 (2) of the Endowments Act must strictly apply even if the person affected by the order is a minor. Thus, in our opinion, in any view of the case it must be held that the suit was barred by limitation. It is therefore unnecessary to consider the other issues in this case.

6. The appeal is dismissed with costs. There will be one set of costs which may be equally apportioned between the Endowments Commissioner on the one hand and the other respondents on the other.

R.K. Das, J.

7. I agree.


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