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1981 Supreme(Ori) 200
IN THE HIGH COURT OF ORISSA
N.K. Das, J.
BALUNKESWAR DEV AND OTHERS - APPELLANT
Versus
KULAMANI PANDA AND OTHERS - RESPONDENT
Miscellaneous Appeal No. 225 of 1977
Decided On : 06-01-1981
S. Misra and B. Das, for the Appellant; R.C. Patnaik, L. Sukla and P.K. Misra, for the Respondent
Hereditary trusteeship of religious institutions can be established by inference of continuity from the time of the founder, based on uninterrupted hereditary management and control of the institution's properties.
Headnote:
ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1951 - SECTION 41, 44(2) - HEREDITARY TRUSTEESHIP - ESTABLISHMENT OF HEREDITARY TRUSTEESHIP BY INFERENCE OF CONTINUITY FROM THE TIME OF THE FOUNDER ON THE THEORY OF LOST GRANT.
Fact of the Case:
Dispute over hereditary trusteeship of two deities and their properties. Appellants claimed that the institutions were public religious endowments without hereditary trustees, while Respondents claimed to be hereditary trustees.
Finding of the Court:
The Commissioner of Orissa Hindu Religious Endowments held that the Respondents were hereditary trustees of the institutions, overturning the Assistant Commissioner's finding that there were no hereditary trustees.
Issues: Whether the Respondents were the hereditary trustees of the institutions or if the institutions had no hereditary trustees.
Ratio Decidendi: 1. In the absence of evidence of the founder or a deed regarding the foundation, the theory of lost grant can be applied to presume that the system in place from time immemorial was established by the founder. 2. Uninterrupted hereditary management of the properties of deities as Marfatdars, without interference from outsiders, raises a presumption of hereditary trusteeship from the time of the founder. 3. Consistent judicial precedent in Orissa supports the inference of continuity of hereditary trusteeship based on long-standing management and control of the institution.
Final Decision: The appeal was dismissed, upholding the Commissioner's decision that the Respondents were the hereditary trustees of the institutions.
JUDGMENT :
N.K. Das, J. - This appeal is u/s 44(2) of the Orissa Hindu Religious Endowments Act of 1951. The Appellants filed a petition u/s 41 of the Orissa Hindu Religious Endowments Act for declaration that the institutions of Sri Balunkeswar Dev and Sri Jagulai Thakurani, Bije Kanhupur under Police Station of Pipili in the district of Puri are public religious endowments without any hereditary trustees. The Respondents challenged contending that the endowment and the properties are Hindu Religious endowments and they are the hereditary trustees.
2. The Assistant Commissioner of Endowments allowed the application of the present Appellants holding that the endowments are public religious institutions and there are no hereditary trustees.
3. The present Respondents appealed against the said decision of the Asst. Commissioner. The Commissioner of Orissa Hindu Religious Endowments set aside the finding of the Asst. Commissioner that there are no hereditary trustees of the Institutions and held that the Respondents are hereditary trustees of the institution.
4. There is no dispute between the parties that the deities and the properties described in the petition are public religious endowments. The only dispute between the parties is whether the present Respondents are the hereditary trustees of these institutions or the institutions have no hereditary trustees. It may be mentioned here that some time before the filing of the application the villagers formed a committee and tried to manage the affairs of the institution. Reliance was placed on Ext. 6 in this respect. Both, the Assistant Commissioner as well as the Commissioner have held that this Ext. 6 is a spurious document and has been created to show that the Appellants were managing the affairs of the institutions and their properties. It has been ultimately held that the Appellants have failed to prove that they have ever taken over management of their own things. No document was produced about this management. No accounts are shown to have been maintained. Therefore, it is rightly held that the Appellants have failed to establish that they were at any time managing the affairs of the deities.
5. In paragraph 4 of the claim petition of the present Appellants filed before the Assistant Commissioner, it is stated that the opposite parties have been recorded as Marfatdars, but they are only Sevaks of the deities. P.Ws. 5, 6 and 7 have categorically stated that the ancestors of these Respondents as well as the Respondents were managing the affairs of the deities. The document Ext. B also shows that the ancestors of the Respondents have been recorded as Marfatdars of the deities and its properties. Neither party has been able to establish as to who was the founder of the deities and the endowments, But documents as well as evidence of the witnesses, which amount to admission from the side of the present Appellants, clearly establish that the Respondents and their ancestors were managing the affairs of the deities.
6. It is contended on behalf of the Appellants that the decision of the learned Commissioner is to be set aside, inasmuch as he has not categorically hold as to who were the ancestors managing the properties and it devolved by succession. In view of the admission of P.Ws. 5, 6 and 7 and the documentary evidence, it is clearly established that the ancestors of the Respondents were the Marfatdars. Therefore, the irresistible conclusion is that the Respondents are not only Savaks but also Marfatdars.
7. In Dhruba Charan Swain and Others Vs. Jagannath Panda and Another, it has been held that when a founder is unknown and the time of the founder is now known and there is no deed regarding the foundation one has to rely upon the theory of lost grant and has to presume that the system, as is obtaining from the time immemorial, was the system, that has been continuing from the time of the founder. Following the aforesaid principles of this Court, it has also been held in Chintamani P
