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1990 Supreme(Ori) 163
High Court Of Orissa
A. K. PADHI
SHYAMA CHARAN PRADHAN - Appellant
Versus
NAIKHANI THAKURANI - Respondent
MISC. APPEAL 298 Of 1983
Decided On : 12/17/1990
B.DAS, B.N.TRIPATHY, K.Karjet, NITYANANDA MOHANTY, S.Mishra, U.N.MISHRA
The judgment establishes the importance of proving hereditary right and ancestral management in claiming hereditary trusteeship, and the distinction between hereditary trustees and archaks.
Headnote:
HEREDITARY TRUSTEE - Religious Endowment - Orissa Hindu Religious Endowment Act, 1951, Section 41 - 3(vi), 8(xvi)
Fact of the Case:
Dispute over hereditary trusteeship of a deity between villagers and alleged hereditary trustees. Appellate court found the claimants to be hereditary trustees and archaks, which was challenged in the appeal.
Finding of the Court:
The court found that the claimants failed to prove hereditary trusteeship but established themselves as hereditary archaks and in possession of disputed properties for rendering sebapuja.
Issues: Whether the claimants are hereditary trustees and archaks, and in possession of the properties for sebapuja.
Ratio Decidendi: The court applied the principles of hereditary trusteeship and archakship as defined in the Orissa Hindu Religious Endowment Act, 1951, and considered evidence of ancestral management and sebapuja to determine the claimants' rights.
Final Decision: The court set aside the finding of the appellate court regarding hereditary trusteeship, confirmed the claimants as hereditary archaks, and allowed the appeal in part.
A. K. PADHI, J.
( 1 ) VILLAGERS of Fullabani are the appellants. Respondent No. 1 is the deity Naikhani Thakurani and respondents 2 to 5 claimed to be hereditary trustees of the deity. Respondents 2 to 5 filed an application u/s. 41 of the Orissa Hindu Religious Endowment Act, 1951 (hereinafter referred to as 'the Act') for declaration that they are the hereditary trustees of the deity. The public character of the deity is not disputed. In the claim petition it is averred that the deity was an ancient one and had self-revealed. One Sukadeb Panda, common ancestor of the applicants was appointed as hereditary Marfatdar-cum-Archak of the deity and after him his successors had been hereditary trustees in management of properties of the deity and also are rendering Sevapuja. Neither the villagers nor anybody else were ever in management of the affairs of the deity and thus constitution of a board of nonhereditary trustees was unwarranted.
( 2 ) THE appellants, residents of the village in which the deity has been installed, got themselves impleaded in the proceeding and disputed the assertions made by the applicants. According to them one of the zamindars had endowed certain properties to the deity. The villagers were in management of the institution and its properties. The family of the applicants are only Archaks who were appointed by the villagers and therefore the applicants have no right as hereditary trustees.
( 3 ) THE learned Additional Assistant commissioner of Endowments rejected the application of the claimants u/s. 41 of the Act. The appeal, filed before the appellate authority was also dismissed. Miscellaneous Appeal No. 213 of 1977 was carried to this Court. This Court remanded the matter for fresh disposal in accordance with law. The learned appellate court after remand has given the following findings : (A) Applicants are in possession of the properties and performing Sevapuja as Marfatdar of the deity; (B) The management of the affairs of the deity from 1918, performance of Sevapuja and enjoyment of land have been blended together. As the applicants family from 1918 are managing the affairs of the deity they are hereditary trustees and with the above findings allowed the appeal. These findings of the appellate court are challenged in this Miscellaneous Appeal.
( 4 ) THE learned advocate for the appellants submits that the findings of the appellate court are based on errors of record and without considering the pleadings of the parties. The evidence on record and the pleadings do not satisfy the ingredients as required under the defination of "hereditary trustee". The learned advocate for the respondents, on the other hand, submits that appellate court has correctly arrived at the conclusion that respondents are hereditary trustees and Archaks. Both the sides do not dispute that the temple is a public temple. From rival contentions, the points which arise for consideration are : (A) Whether the respondents-claimants are the hereditary trustees of the deity Naikhani Thakurani; (B) Whether the respondents are the hereditary Archaks; and (C) Whether the respondents are in possession of the properties and it so, whether as hereditary Archaks or as hereditary trustees.
( 5 ) SECTION 3 (vi) of the Act defines hereditary trustee. According to this definition the term "hereditary trustee" means the trustee of a religious institution succession to whose office devolves by hereditary right since the time of the founder or is regulated by custom or is specifically provided for by the founder, so long as such scheme is in force. S. 8 (xvi) defines trustee. This definition of 'trustee' includes any person by whatever designation known in whom the administration of a religious institution is vested. A Sebak or Archak is one who has been entrusted to render religious duties of the deity. Function of a trustee i. e. administration of the institution and that of a Sebak/archak who has been entrusted to render religious duties of
