The provisions of Section 4 of the Hindu Succession Act override customary rights based on the rule of primogeniture in matters of sevapuja and enjoyment of lands of a deity.

JUDGMENT :

B.N. Misra, J. - Plaintiffs are the Appellants against the confirming judgment of the learned Subordinate Judge, Kendrapara. Plaintiff No. 1 is the deity, Sree Kanaka Durga Thakurani and Plaintiff No. 2 claims to be exclusive sevayat of the deity being the eldest male member of the family. Defendants 1 to 91 are Respondents 1 to 21 respectively in this appeal.

2. Plaintiffs' case is that Plaintiff No. 2 is the eldest brother and Defendants 1 and 2 are the younger brother being the sons of the late Harekrnshna Choudhury. The deity Kanaka. Durga Thakurani is the private deity of Plaintiff No. 2 and has been enshrined in the residential house of Plaintiff No. 2 since the time of his ancestors. The property described in the scheduled appended to the plaint was granted to the deity by Raja. Barkat Singh or Utikan around the year 1776. According to the family custom the right to do sevapuja of the deity and enjoy the suit lands is confined only to the eldest male member of the family to the exclusion of the other co-sharers. This family custom based on law of primogeniture has governed the family for years. It is alleged that Defendants 1 and 2 although aware of this exclusive right of Plaintiff No. 2 have been disturbing the latter's possession over the suit lands with the assistance of the remaining Defendants. Accordingly it is prayed that Defendants 1 and 2 should be permanently restrained from dispossessing Plaintiff No. 2 from the suit land and from disturbing him from performing his duties as the sevayat of the deity.

3. Defendant No. 1 alone contested the suit and the other Defendants were set ex-parte. He has admitted that Plaintiff No. 2 and Defendants 1 and 2 are brothers. According to him, all the three brothers are the joint owners and marfatdars of the deity and entitled to joint possession over the suit lands. He has denied that Plaintiff No. 2 has exclusive right of sevayatship or right to exclusive possession of the suit lands.

4. The learned Munsif dismissed the suit on finding that Plaintiff No. 2 had failed to prove his exclusive right to do sevapuja of the deity or the right to exclusive possession over the suit lands. The Plaintiffs filed an appeal against the judgment and decree of the learned Munsif. In appeal the learned Subordinate Judge confirmed the finding of the learned Munsif that Plaintiff No. 2 had failed to prove his exclusive right of sevayatship and the right to exclusive possession over the suit lands, but partly allowed the appeal and modified the judgment and decree of the trial court to the extent that Defendants 1 and 2 were permanently restrained from dispossessing Plaintiff No. 2 from the suit lands in the joint possession of Plaintiff No. 1 and Defendants 1 and 2 and Defendants 1 and 2 were further restrained from creating any disturbance in the sevapuja of the deity by Plaintiff No. 2 along with Defendants 1 and 2 as the joint marfatdars.

5. The only substantial question of law on which this appeal has been admitted is whether Section 4(1) of the Hindu Succession Act, 1955 (hereafter referred to as the 'Act') abrogates the customary right of inheritance of the eldest male member of the family to the sevayatship of the deity or whether the family custom giving the eldest male member of the family the exclusive right of sevayatship should prevail in this case. The hearing of this appeal is confined to this question.

6. On going through the judgment of the learned courts below I find that both the courts have on consideration of the oral and documentary evidence adduced by the parties found that Plaintiff No. 2 had failed to establish that he had exclusive right to sevayatship in respect of the deity or the right to exclusive possession of the suit lands. As regards the question of law referred to above the concurrent finding of both the courts is that the provisions contained in Section 4 of the Act override any customary right based on the rule of primo-geniture providing for the excl