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1984 Supreme(Ori) 23
High Court Of Orissa
P. C. Misra, J.
LINGARAJ SAMANTARAY - Appellant
Versus
SIDHABALADEVJEW - Respondent
Misc. Appeal 101 Of 1979
Decided On : 01/25/1984
A.S.Naidu, B.DAS, P.K.Ray, S.C.MOHAPATRA, S.MISRA
The principle of 'lost grant' may be applied to presume that the system of hereditary trusteeship has been continuing from the time of the founder of an institution, where it is not possible to have any direct evidence, and or documentary to trace the line of succession to the office of trusteeship from the time of the founder.
Headnote:
HINDU RELIGIOUS ENDOWMENTS ACT - SECTION 41 - HEREDITARY TRUSTEES - SUCCESSION TO THE OFFICE OF TRUSTEESHIP - LOST GRANT - PRESUMPTION.
Fact of the Case:
The petitioners, claiming to be hereditary trustees of the institution of Sri Sidha Baladeb Jew, filed a proceeding under Section 41 of the Orissa Hindu Religious Endowments Act, 1951, for a declaration of their status as such. The Assistant Commissioner of Endowments dismissed the application, and the Commissioner of Endowments upheld the dismissal on appeal. The petitioners challenged the legality of the judgments in this appeal.
Finding of the Court:
The court held that the appeal was not barred by limitation, that the previous proceedings under Section 64 of the old Act and Section 41 of the new Act did not bar the present proceeding, and that the appointment of non-hereditary trustees under Section 27 of the Act was without jurisdiction. On the merits, the court held that the petitioners had proved that they and their ancestors had been functioning as trustees of the institution for more than a century, and that they were therefore entitled to be declared hereditary trustees under the definition in the Act. The court applied the principle of 'lost grant' to presume that the system of hereditary trusteeship had been continuing from the time of the founder of the institution.
Issues: 1. Whether the appeal was barred by limitation? 2. Whether the previous proceedings under Section 64 of the old Act and Section 41 of the new Act barred the present proceeding? 3. Whether the appointment of non-hereditary trustees under Section 27 of the Act was valid? 4. Whether the petitioners had proved that they and their ancestors had been functioning as trustees of the institution for more than a century? 5. Whether the petitioners were entitled to be declared hereditary trustees under the definition in the Act?
Ratio Decidendi: 1. The period of limitation for filing an appeal under Section 44 of the Act is 30 days from the date of receipt of the order, and not from the date of the order. The date of receipt of the order means the date on which the order is communicated in writing to the party aggrieved. 2. The previous proceedings under Section 64 of the old Act and Section 41 of the new Act did not bar the present proceeding, as the issue of hereditary trusteeship was not decided in those proceedings. 3. The appointment of non-hereditary trustees under Section 27 of the Act was without jurisdiction, as there was no prior determination of the nature of the institution and whether there were hereditary trustees in respect thereof. 4. The petitioners had proved that they and their ancestors had been functioning as trustees of the institution for more than a century, by producing evidence of successive record-of-rights showing them as marfatdars of the deity, and by showing that they were in possession of the deity and its properties until they were dispossessed by the Endowment authorities in 1973. 5. The petitioners were entitled to be declared hereditary trustees under the definition in the Act, as they had proved that the succession to the office of trusteeship had devolved by hereditary right since the time of the founder, as evidenced by the long and uninterrupted possession of the office by their family.
Final Decision: The appeal was allowed, and the petitioners were declared to be hereditary trustees of the institution in question.
P. C. MISRA, J.
( 1 ) THIS is an appeal under Section 44 (2) of the Orissa Hindu Religious Endowments Act, 1951. The petitioners in a proceeding under Section 41 of the Act are the appellants. They had instituted the said case for a declaration that they are the hereditary trustees of the institution of Sri Sidha Baladeb Jew, Bije Sodhapur, P. O. Badu in the district of Puri impleaded in the proceeding as the Opposite Party No. 1. Their case is that the institution was established by some unknown founder the origin of which has been lost in antiquity. From the date of foundation, the institution has been all through treated as a public religious institution and is being maintained out of the income of the properties endowed by the founder for its maintenance. It has been alleged by the petitioners that one Narayan Samantra was their original ancestor who was entrusted with the management of all affairs of the said institution. According to the petitioners the said Narayan Samantara and after him his successors right up to the petitioners have been all through rendering sebapuja and managing all the affairs of the institution from generation to generation and there has been no interference in the exercise of their aforesaid rights by anybody whatsoever. They have been recognised and recorded as marfatdars in respect of the deity in all the successive record-of-rights and all other public records. According to them the office of the trusteeship has been inherited from father to son hereditarily and the petitioners are the hereditary trustees as per the definition given in the Act. The petitioners are alleged to have been enjoying lands belonging to the Endowment in lieu of the service they have been rendering to the deity arid they have been in possession of the deity and its endowments in the capacity as marfatdars. In usual course of their management they realise the usufruct from out of the lands of the deity, pay rent and defray all the expenses in rendering seba puja and managing all other affairs exclusively. It is further alleged that members of the Hindu Public except paying Darsan and offering bhog to the deity have never exercised any control so far as the administration of the institution is concerned and they never contribute for carrying on the saba puja and festivals of the deity. The petitioners allege that as there was some disputes with regard to the management of the institution, a proceeding under Section 64 of the old Act was instituted which went up to the Hon'ble High Court. As per the observations of the Hon'ble Court, a proceeding was thereafter filed under Section 41 of the new Act for declaration about their hereditary trusteeship by one Chakradhar Sarnantara which was dismissed for default. In the meanwhile non-hereditary trust board was appointed under Section 27 of the new Act. As a consequence of which the non-hereditary trustees interfered in the smooth management of the institution by the petitioners giving rise to the several disputes and the criminal cases. The petitioners have, therefore, tiled this proceeding for declaration of their status as hereditary trustees.
( 2 ) THE opposite party No. 5, Bhikari Charan Moharaj who is one of the trustees appointed under Section 27 of the Act contested the case by filing written statement. He denied all the allegations by the petitioners made in the application under Section 41 of the Act. According to him the petitioners are made sebaks and are not trustees far less hereditary trustees. Various technical objections were raised by the said opposite parties against the maintainabilily of the application. It was pleaded that in the year 1955 an application under Section 64 of the old Act was filed by Chakradhar Sarnantara claiming the institution and its properties to be their private properties which was dismissed. The matter was carried up to the Hon'ble High Court in appeal and the decision of the trial Court was upheld. The said Chakradhar Samantara,
