1. The short question that arises for consideration in this case is whether the Marfatdar of a deity can be said to own the marfatdary property. 3.18 acres of land covered by Khata Nos. 108 and 109 of mouza Puruna Tiairia stand recorded in the name of the original petitioner Puja Ramakrishna Panda. The Orissa Estates Abolition Act came into force on 19-2-1952. By that time, these lands were in possession of temporary lessees of the petitioner who was the intermediary. The petitioner then made an application to the Tahasildar. Tiairia under Section 7 of the Orissa Estates Abolition Act (hereinafter referred as the Act) for recording him as the tenants in respect of these lands, his contention being that the total extent of lands owned by him is only 31-41-1/2 acres. His application was opposed by the temporary lessees and after hearing the parties, the Tahasildar. Tiairia reiected this petition. He then filed an appeal before the Additional District Magistrate, Cuttack who by his order dated 3-5-1969 dismissed the appeal on the ground that the lands held by the petitioner in his own right together with the lands held by him as Marfatdar in the ex-State of Hindol exceeds 33 acres and consequently the petitioner is not entitled to claim the benefit of Section 7 of the Act. Aggrieved by this order, the petitioner filed the present application under Articles 226 and 227 of the Constitution for quashing the orders passed by the Tahasildar, Tiairia and the Additional District Magistrate, Cuttack. The temporary lessees who are impleaded as opp. parties in this case have not put in appearance. During the pendency of this case, the original petitioner Puja Ramakrishna Panda died and his heirs have been substituted in his place.
2. Section 7 of the Act in so far as is relevant reads thus:
'7. (1) On and from the date of vesting:--
(a) x xx xx (b) lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an intermediary who owns either as Intermediary or in any other capacity less than thirty-three acres of land in total extent situated within the State,
(c) x xx xx be deemed to be settled by the State Government with such Intermediary and with all the share-holders owning the estate and such Intermediary with all the shareholders shall be entitled to retain possession thereof and hold them as raiyatsunder the State Government having occupancy rights in respect of such landssubject to the payment of such fair and equitable rent as may be determined bythe Collector in the prescribed manner. x xx xx'
3. There is no dispute that the original petitioner was the marfatdar in respect of certain lands belonging to a deity and that if these lands are taken into account in determining the total extent of lands situated within the State and owned by the petitioner, it would exceed thirty-three acres. It is also not disputed that if the marfatdary property is left out of account, the total extent of lands owned by the petitioner would be less than thirty-three acres. The question for determination therefore is whether a person who is the marfatdar of a deity can be said to own the properties belonging to the deity.
4. The exact legal, position of a Sebait or Marfatdar has now been settled by the pronouncement of the judicial Committee in Vidya Varuthi Thirtha Sawmigal v. Baluswami Awar AIR 1922 PC 123. Their Lordships held that relation of a Sebait in regard to the Debot-tar property is not that of a trustee to trust property in English law. In English law, a legal estate in the trust property vests in the trustee who holds it for the benefits of cestui que trust. In a Hindu religious endowment the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the Sebait or the Mahant is a mere manager. This is what their Lordships stated at page 126:
'.....a 'trust' in the sense in which the expression is used in English law, is unknown in the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system; ..... Under the Hindu Law, the image of a diety of the Hindu pantheon is as has been aptly called a 'juristic entity', vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same 'juristic' capacity, and gifts are made to them eo nomine ..... When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him; nor is he a 'trustee' in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration.'
Extracts of the records of right pertaining to the lands in Hindol are to be found in Annexure C and they show that one of the plots is recorded in the name of Jagannath Mohaprabhu marfat Puja Narasingha Panda and the other in the name of Gopinath Mahaprabhu Mar-fat Narasingha Panda Samanta. It is thus clear that the lands are recorded in the names of the deities who as juristic entities are capable of owning and holding property. The deity being in the position of a minor has necessarily to act through human agency and the latter is called marfatdar. This is the sense in which the expression 'Marfatdar' is used in settlement records. In no sense can the marfatdars be deemed to be owning the properties belonging to the deities. The Courts below were therefore clearly in error in holding that the properties held by the original petitioner as marfatdar properties owned by him. It was therefore, not open to them in computing the total extent of lands owned by the late petitioner to take into account the extent of lands held by him as marfatdar.
5. We would accordingly allow this application and quash the orders passed by the Tahasildar, Tigiria and the Additional District Magistrate, Cuttack in Annexures A and B respectively, and direct the Tahasildar. Tigiria to dispose of the application of the petitioner in the light of the observations made above. There shall be no order as to costs.
6. I agree.