In the absence of evidence of succession by hereditary right from the time of the founder, a backward presumption may be invoked to establish hereditary trusteeship if there is evidence of continuous possession of the trusteeship by the Petitioners and their predecessors for a long period of time.

JUDGMENT :

G.K. Misra, J. - Respondents 1 to 6 (here in after referred to as the Petitioners) filed an application u/s 41(c) of the Orissa Hindu Religious Endowments Act, 1951 (Act No. II of 1152), here in after referred to as the Act, asking for a declaration that they are the hereditary trustees of the deity Sri Neelakantheswar Mahadeb installed in village Raigurupur in the district of Puri. They claim to be the descendants of Puri Panda. The properties described in the schedule are recorded in the name of the deity with them as Marfatdars. The temple of the deity was constructed by some Raja. Since the time of the installation of the deity, the family of the Petitioners have been managing the affairs of the temple from generation to generation. No outsiders were ever in charge of the management. Besides being Marfatdars they are also the Sevaks of the deity.

One Chintamani Pati, who has be n appointed as the interim trustee by the Endowment Commissioner, and some members of the public contested the application. They admitted that the Petitioners were in possession of the debuttor properties. But their Case is that they (the Petitioners) were always subject to the general control of the villagers and were not in charge of the management of the institution but were merely sevaks.

The Assistant Endowment Commissioner, who tried the application, held that the Petitioners were not the hereditary trustees. The Endowment Commissioner took a different view and concluded that the Petitioners were the hereditary trustees. Against this order the appeal has been filed.

2. Mr. Misra for the Appellant contends that the Petitioners are no t the hereditary trustees within the meaning of Sections 3(vi) of the Act which runs thus.

"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 of succession is in force.

It is the common case that first clause of this definition has application to the present case. The onus is on the Petitioners to establish that they are the hereditary trustees of the institution. They must, therefore, prove the following ingredients : (i) they are the trustees of a religious institution; (ii) the succession to the office of the trusteeship is governed by hereditary right; and (iii) the line of succession by inheritance has commended from the time of the founder.

That the institution is a public religious institution is not disputed. It was, however, strenuously contended by Mr. R.N. Misra that the Petitioners were mere Sevaks and not Marfatdars and that they were subject to the general control of the villagers. The Endowment Commissioner, after thorough examination of the materials on the record held that the Petitioners were Marfatdars and Sevaks. The evidence was placed before me at length as in a first appeal. The interim trustee and the public failed to cite a single instance when by the administrative control was exercised by them over the Petitioners. The Petitioners are in possession of the deity's properties. They are supplying daily Bhog and performing the Nitis of the deity. The entire responsibility in the matter of management is theirs. On certain occasions they submitted accounts before the Endowment Commissioner as required under the Act.

In the settlement records, the Petitioners and their predecessors have been recorded as Marfatdars of the deity. There is, therefore, no substance in the contention that the Petitioners are mere Sevaks and not Marfatdars. The institution is a very small one. It is well known that generally in such small institutions the marfatdari and sebayati rights are combined.

In one of the settlement records, the name of Ram chandra Panda, who does not belong to the family, is noted in the remarks columns. The entry in the remarks column can at best show that Ramachandra Panda was in possession of a