P.C. Misra, J.
1. The appellant is the petitioner in a proceeding under Section 41 of the Orissa Hindu Religious Endowments Act, (hereinafter referred to as 'Act') praying for a declaration that the deity Radhamohan Thakur is the family deity of the petitioner and ultimately if the deity is found to be a public one for declaration that the petitioner along with opposite parties Nos. 1 to 9 are the hereditary trustees of the deity with exclusive right of the management of the deity of the property. The case of the petitioner in his application under Section 41 of the Act is as follows : --
The deity Radha Mohan Thakur Bije Kortala P.S. Jagatsinghpur district Cuttack was installed by one Rasik Charan Choudhury, the ancestor of the petitioner and opposite parties Nos. 1 to 9 during the Moghal Rule in Orissa in the 17th Century. It is stated that the deity was brought from Mathura by one Rasik Charan Choudhury, the forefathers of Kanoongo family (i.e. the petitioner and O.Ps. 1 to 9). It is stated that one Harasingha Charan Deb Goswamy accompanied him from Mathura along with the deity. The petitioner's case is that Rasik Charan installed the deity in his own residential house in village Agar which was subsequently brought to village Koratala. For meeting the expenses the founder Rasik Charan Choudhury endowed some of his own lands and the deity was being worshipped as the family deity of the petitioner from the time of its installation. The petitioner alleges that nobody had ever been offering bhog or paying darsan to the deity as of right. It is further alleged that the deity was originally placed in a thatched house which was converted to a pucca house by the father of the petitioner with own money and the sepapuja and performance of the festivals are being done by the members of the family of the petitioner and not by any contribution from the villagers. It has been claimed that the founder had settled some lands in favour of the Goswami family as well as in favour of the persons rendering service to the deity. It has been asserted that it is the members of the family of the petitioner who have been exercising the right of the management of the affairs of the deity all through from the time of the founder and as such they are hereditary trustees of the institution. According to the petitioner, sebayati right is a property and has been otherwise acquired by the adverse possession by the members of the family of the petitioner. It is stated that cause of action for this proceeding arose on 23-4-74 when the Additional Assistant Commissioner of Endowments appointed some outsiders as non-hereditary trustees under Section 27 of the Act. The petitioner has filed this proceeding for the reliefs mentioned above.
2. The petitioner has given a genealogy showing that Rasik Charan Choudhury, the alleged founder of the deity is the common ancestor of the petitioner-appellant as well as the respondents 1 to 9. The present respondents 9 to 14 contested the aforesaid proceeding by filing a written statement. According to the said opposite parties the deity is a public deity without any hereditary trustees being founded by the villagers since time immemorial. It is alleged that the villagers have been managing the institution through different trust boards appointed under the provisions of Orissa Hindu Religious Endowments Act from time to time since the year 1945. According to them, the Maratha rulers endowed some lands to the deity including its Bijesthali so also by the British rulers and the lands were made rent free. The Mahant of Kotha Bhoga, Puri was the guru of the entire villagers and got himself described as the marfatdar of the deity, in all the revenue records, The villagers allowed the name of the Kanungo family to be recorded as the sebaks of the deity. Who were doing the 'Deula Karan Seba' meaning the work of maintaining the accounts. It is further stated by them that since the non-hereditary trust board is being appointed from time to time from the year 1945 in fact they are managing the affairs of the deity and therefore the claim that the petitioner and others are hereditary trustees of the institution is thoroughly misconceived. The petitioner himself was taken in as one of the members of the non-hereditary trust board and as such he is estopped from claiming the institution to be a private one and from claiming that he is a hereditary trustee of the institution. The learned Additional Assistant Commissioner by his judgment dt. 31-1-75 negatived both the claims of the appellant against which he preferred F.A. No. 5/75 before the Commissioner of Endowments. The Commissioner of Endowments confirmed all the findings of the Additional Assistant Commissioner by its judgment dt. 27-3-78. Hence this appeal.
3. That the appeal under Section 44 of the Act to the High Court is both on facts and on law as has been held in the decision of Sadasib Prakash Brahmchari v. State of Orissa, AIR 1956 SC 432. Following the said decision this Court has held in large number of cases that the provisions of Section 100, C.P.C. would not be applicable to such appeals and therefore the High Court can go into both the facts and law in such appeals.
4. Hindu Religious Institutions can be broadly classified as shown in the table given below : --
Hindu Religious Institution
| | | |
Nominal Absolute With Hereditary WithoutHereditary
Debottar Debottar Tristee Tristees
In the application under Section 41 of the Act the institution has been claimed to be a private one and in the alternative the petitioner as well as opposite parties Nos. 1 to 9 as hereditary trustees. Thus, the alternative prayer would come up for consideration only if the institution is held to be a public one.
5. It has been already stated that the petitioner's case is that his ancestor namely one Rasik Charan Choudhury was the founder of the institution. He also asserts in his application that the said founder had endowed his own land in favour of the deity. Not a scrap of paper has been shown in support of the aforesaid allegation relating to the foundation of the deity or creation of the endowment. The petitioner Basant Kumar Kanungo (appellant in this appeal) examined himself as P.W.1 and has stated in para 22 of his deposition that he could show papers to prove that the properties endowed in favour of the deity by Rasik Charan Choudhury previously belonged to him. But no such paper has been produced or proved in the case. P.W.2 states that Rasik Charan Choudhury brought the deity from Mathura, consecrated the deity and endowed the lands of his own in favour of the said deity. He does not disclose the source of his knowledge. P.W.3 gave the same story in his deposition as P.W.2, without disclosing as to how he came to know of the same. He admits that he was one of the members of the non-hereditary trust board for about 24 years. Similar is the statement of P.W.4 and his evidence is not acceptable for the reason that he has not, like P.Ws.2 and 3, disclosed the source of his knowledge. P.W.5 is the last witness on behalf of the petitioner who is ignorant about the foundation of the deity. He told he has heard that the ancestor of the petitioner had endowed the land to the deity. His evidence is of no assistance for an inference that the ancestor of the petitioner founded the deity. I would deal with the question further with reference to some of the documents in this case that the story of foundation of the deity by one of the ancestor of the petitioner is not correct. For the present it may be stated that the petitioner has signally failed to establish that the deity was founded by his ancestor Rasik Charan Choudhury and that the said alleged founder had endowed property of his own for upkeep of the institution. In the circumstances, the burden of proof which according to the provisions of Section 41 of the Act lies on the petitioner has not been discharged and the conclusion is irresistible that it is a public religious institution as defined in the Act.
6. The next question for consideration is as to whether the appellant along with respondents 1 to 9 are the hereditary trustees of the public religious institution of Radhamohan Thakur. According to the definition given in Section 3(vi) of the Act 'hereditary trustee' means the trustee of a religious institution succession to whose office (1) devolves by hereditary right since the time of the founder or (2) is regulated by custom or (3) is specifically provided for by the founder, so long as such scheme of succession is in force. Thus, in order to declare the appellant as a hereditary trustee as defined in the Act, the appellant must come within any of three categories enumerated in the definition of 'hereditary trustee. The appellant in his application under Section 41 of the Act apart from claiming that his ancestor had founded the deity and that from the time of foundation the members of his family have been managing the affairs of the deity exclusively has averred that he along with O.Ps. 1 to 9 have acquired the right of Hereditary Trusteeship by adverse possession. In that connection it has been stated that sebayati right is a property and it can be acquired by adverse possession. It is, therefore, clear from the averments made in the application under Section 41 of the Act that he does not claim to be a hereditary trustee either by virtue of a custom or in accordance with scheme specifically provided for by the founder in that behalf. If at all the appellant is a hereditary trustee as claimed by him, he must prove that the said office has been devolving on the members of his family by succession since the time of the founder or that he has acquired the said right by adverse possession. Before discussing as to whether the petitioner-appellant satisfied the requirement of the first clause of the definition of the hereditary trustee, I would like to indicate that in view of the definition of the words 'hereditary trusteeship' given in the Act, the same cannot be acquired by adverse possession by any stretch of imagination. Their Lordships of the Supreme Court in a decision reported in AIR 1971 SC 891, Kakinada Annadana Samajam v. Commr. of Hindu Religious and Charitable Endowments, Hyderabad have held that bare right to manage an institution or an endowment cannot be treated as property within the meaning of Article 19(1) and Article 31 of the Constitution of India and consequently the right of hereditary trusteeship is not property within the meaning of Article 19(1)(f) or any other Article of the Constitution. It is not the case of the appellant that the office he or his ancestor had been enjoying, was blended with the right to enjoy the properties of the deity and, therefore, I need not discuss the matter further as to what would be the consequence in such event. I have, therefore, no hesitation to hold that the claim of hereditary trusteeship by adverse possession is thoroughly misconceived.
7. Now coming to the question as to whether the appellant satisfied the requirements of the Ist clause of the definition of 'Hereditary trustee' I find that the evidence adduced in this case does not support the case of the appellant in this behalf. In order to be the hereditary trustee of the institution within the meaning of the definition given in the Act, the appellant must prove that the office of the trusteeship has devolved upon him by the hereditary right since time of the founder. The word 'trustee' as defined in the Act means a person by whatever designation known, in whom the administration of religious institution and endowment is vested. Thus, in order to be declared as a 'hereditary trustee' it must be proved that the right of administration of religious institution and endowment had vested in the ancestors of the petitioner and that the said right devolved by hereditary right since the time of the founder. The earliest document available on record is Ex. M which is a decree passed in O.S. No. 546/1909 in the Court of the Sub Judge, Cuttack. The said suit was between Krushna Chandra Deb Goswami and some others against Shyam Sundar Kanungo and Krupasindhu Kanungo who admittedly according to the genealogy given in the application under Section 41, are the ancestors of the present appellant and respondents Nos. 1 to 9. The said suit was filed for declaration that the plaintiffs are the real marfatdars and sebayats of the deity Sri Radha Mohan Thakur and the defendants who had no right whatsoever should be evicted from the lands of the deity. It was alleged by the plaintiffs of that suit that the defendants were serving under the plaintiffs as employees of the institution and since they have got their names recorded as sebayats, the suit was filed praying for the aforesaid reliefs. The said suit was disposed of on compromise and the compromise petition has been made a part of the decree. The recitals of the compromise petition show that the ancestors of the present appellant were allowed to perform the sebapuja of the deity, out of the income from the properties of the deity hereditarily and they would render accounts thereof to the plaintiffs and/or their successors every year during 'sunia'. It was also a term of the compromise that in the event the defendants or their successors misappropriate the funds of the deity the same shall be realised from the defendants and/or their successors by the plaintiffs. It was also stipulated that in the event any such defaults are committed on four occasions the plaintiffs have got the right to remove the defendants and appoint some competent persons, if available from the family of the defendants or outsiders and make over the charge of sebapuja to such persons. The moveable properties of the temple were given in the charge of the defendants and restrictions were imposed on them that they cannot alienate the properties of the deity. Thus, the said document Ex.M is not consistent with the plea that ancestors of the present appellant were trustees of the temple. Ex.1 series are the record-of-rights of the year 1931. In Ex. I Krushna Chandra Deb Goswami and others have been recorded as marfatdars of the deity Sri Radha Mohan Thakur in respect of Khata No. 3 comprising of Bijesthali and some other plots. In Exs. 1/a, 1/d and 1/c, the deity Radhamohan Jew has been represented by the present of the appellant's family. In the Khewat Krushna Chandra Deb Goswami and others have been recorded as marfatdars of the deity whereas the members of the Kanungo family have been recorded as sebayats. Ex.N is another record-of-rights of the year 1931. The names of the members of Goswami's family and Kanungo's family have been described as marfatdars of the deity. Thus, the record-of-rights read with Ex.N make it clear that the administration of religious institution had never been vested with the ancestors of the appellant exclusively Ex.M. is also against the case of the appellant that it was a private deity founded by one of his ancestors.
8. In view of the aforesaid documents I have no hesitation to hold that the ancestors of the petitioner were not trustees of the religious institution in question and their continuance in the capacity of sebayats in the institution from generation to generation could not clothe them with the right of trusteeship. Assuming for a moment on the basis of some of the record-of-rights discussed above in which the ancestors of the appellant has been described as marfatdars of the deity, that they can be termed as trustees of the institution, there is no evidence on record that they had been holding such office from the time of foundation. Except in some of the record-of-rights of the year 1931, there is no mention in any other documents or in the record-of-rights of the previous settlements that they were marfatdars or the trustees of the deity in question. The theory of lost grant would not be available in such a case. Some decisions of this court have been relied upon by the appellant in which the theory of lost grant has been applied in justifying circumstances namely where the trusteeship was confined to one family and they had been recorded as marfatdars in successive settlements. In this case even if backward presumption by application of the theory of lost grant would be pressed into service on the basis of Exs. 1/a to 1 /c, the said presumption gets destroyed by Ex.M in which the ancestors of the appellant have been described as mere sebaks and the rights and duties assigned to them thereunder are far less than those of a trustee.
9. Some arguments have been advanced by the respondents to the effect that non- hereditary trustee board has been formed since the year 1945 and in the successive boards the appellant was also taken in as a trustee. It is argued that there having been interruption in the management, if any, by the members of the appellant's family by appointment of non-hereditary trustees since the year 1945 their right to the office of hereditary trusteeship has been lost. In reply to the said argument, the learned counsel for the appellant relies upon the often quoted decision of Bantala case reported in (1970) 31 Cut LT 897 : (AIR 1970 Orissa 141), Bhramarbar Santra v. State of Orissa, that there has been no judicial determination as to whether the institution in question had hereditary trustees or not and, therefore, the appointment of non-hereditary trustees was without jurisdiction and cannot take away the right of hereditary trusteeship of the appellant. I need not go into the merits of the aforesaid contentions in view of my finding that the members of the family of the appellant were never hereditary trustees of the institution prior to the appointment of non-hereditary trustees.
10. In the conclusion, I do not find any merit in this appeal and accordingly, the same is dismissed. In the circumstances of this case there would be no order as to costs.