Mahant Govardhan Das Babaji vs Raghunandan Das Babaji and Others

R.N. Misra, J.—Defendant No. 1 has carried this appeal against the judgment and decree of the learned Subordinate Judge of Aska.

Plaintiff filed the suit on 11-3-1966 asking for declaration of his right to manage the Lakshminarayan Math of Sheragada as its Mathadhipati (Mahant) on the basis of the Nyasapatra of 1921 (Ext. 18) and recovery of possession of properties; together with other consequential reliefs. He alleged that the institution was a temple founded by the ancestors of the second Defendant, the Zamindar of Sheragada and the landed properties per schedule-A were dedicated to the deity by the founder for the performance of daily rites of the deity. From the time of foundation, the succeeding Zamindars were managing the affairs of the institution as a private one. One late Bihari Das was appointed as Mahant of the institution to manage its affairs under the Zamindar He accepted Krushna Charan Das as his Chela with the consent and approval of the ancestor of Defendant No. 2, as per the decree of compromise in Title Suit No. 20 of 1883 (Ext. 1). On 8-12-1920, Bihari Das died and the management of the institution with its properties was taken over by the Zamindar. Krushna Charan Das was entrusted with the management under a registered Nyasapatra dated 24-5-1921. Krushna Charan accepted Plaintiff as his chela with the consent and approval of Defendant No. 2. He executed a registered Will dated 15-6-1945 wherein provision was made that Plaintiff would succeed to the management of the institution after him. From 1947, Krushna Charan became unable to manage the Maths which were in his charge and, therefore, entrusted the management of the disputed institution to the Plaintiff. Krushna Charan was staying in the Sheragada Math, but in January, 1958, Defendant No. 1 took him to his Math in Dengadi and got him intoxicated with bhang, opium etcetera and obtained a Will whereunder the Defendant No. 1, and not the Plaintiff, was made the successor. Krushna Charan died on 31-7-1958 and Defendant No. 1 on 2-9-1963 obtained an order from the Endowment Commissioner on the strength of the second Will to be in the management and on 21-11-1965 entered into possession of the institution and its properties for the said purpose. The second Will is not operative in law and is a fraudulent document. The institution is a private one of Defendant No. 2 and the Endowment Commissioner has no authority to exercise any jurisdiction. The Plaintiff as a pauper instituted the suit on the facts alleged above for the reliefs already indicated, impleading Defendant No. 1, the person in management of the institution, the ex-Zamindar and the Commissioner of Endowments as Defendants.

Each of the Defendants has filed a separate written statement. Defendant No. 1 claimed that the institution was more than 100 years'' old and late Bihari Das was the Mahant of the same. After him, Krushna Charan became the Mahant and then came the Defendant. The institution had been treated as an excepted temple by the Hindu Religious Endowment Board of Madras in the year 1933 and control was being exercised by the Board over the institution. The Commissioner of Endowments, Orissa, also exercised similar jurisdiction. Though the institution had been treated as an excepted temple, it has the characteristics of a Math and the Hereditary Trustees are celebates and styled as Mahants with all the privileges attached to the post. The second Defendant filed an application u/s 41 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the ''Act'') to declare the institution to be his family temple and alternately to declare him as the sole Hereditary Trustee thereof. The application was dismissed on 10th July, 1965. The second Defendant has no right title or interest over the institution. The Civil Court has no jurisdiction to adjudicate the Plaintiff''s claim in view of the special provisions contained in the Endowments Act. Plaintiff and Defendant No. 1 were taken as chelas by Krushna Charan Das Babaji, but Plaintiff had not been made a chela with the permission of Defendant No. 2 for his succeeding as Mahant to the disputed institution. While it is true that in 1945, Krushna Charan had executed a Will it had been expressly stipulated that the terms would be operative after Krushna Charan''s death. The will having already been superseded the latest Will has to operate. The maintainability the suit was barred and the suit was also otherwise barred by limitation.

The second Defendant in his written statement alleged that the institution was an excepted temple and trusteeship did not vest in the Mahant save and except with the previous permission and authority of the second Defendant and his line. Bihari Das was never the founder of the temple and the second Defendant and his ancestors had always exercised control and supervision over the institution. The allegation that in 1933, the Madras Hindu Religious Endowments Board had made any order with reference to this institution was disputed. Chelaship of the first Defendant was denied and recognition of Mahantship by Commissioner was alleged to be an invalid act and outside his competence in exercise of the statutory powers. The third Defendant supported the stand of Defendant No. 1.

Several Issues were struck and the trial Court came to find that the institution was a temple ; Section 39 of the Hindu Religious Endowments Act had no application and the matter comes squarely within the purview of Section 30 of the Act; the suit was maintainable and it accepted the Plaintiff''s claim and gave relief of declaration as also recovery of possession. Against this decree, the Defendant No. 1 has carried this appeal.

Mr. R.C. Misra for the Appellant contends that (i) the Civil Court has no jurisdiction to entertain the suit in view of the provisions contained in Sections 41 and 73(1) of the Act; and (ii) the suit was barred by limitation. Before examining the contentions advanced in appeal, we may indicate certain admitted facts:

The institution was founded by the ancestors of the second Defendant. What was claimed as a Math is in fact a temple as found by the trial Court. The Madras Endowments Board had held the institution to be an excepted temple vide its order dated 5.6-1934 (Ext. M).

In paragraphs 1, 9 and 10 of the plaint, Plaintiff categorically asserted that the institution was a private temple of Defendant No. 2''s family. In paragraph 2 it was further pleaded that Sri Nrusingha Deb, a predecessor of the second Defendant, appointed Bihari Das of Sri Radha Krishna Math located at Dengadi as Manager of the disputed institution and on such appointment, Bihari left the management of Dengadi Math to his chela Krushna Charan and came over to Sheragada to look after the disputed institution. Bihari died In 1920 and on his death, the disputed temple with all its properties was taken over by the predecessor of Defendant No. 2 to his own control. Krushna Charan Das approached the predecessor of Defendant No. 2 for being appointed as Manager of the disputed "institution and in accordance with the nyasapatra of 1921, the ancestor of the second Defendant appointed Krusnna Charan for the management of the temple. According to the Plaintiff''s case, as revealed in paragraph-4 of the plaint Ramanuja Das, chela of Krushna Charan in Dengadi Math died in 1928 and thereupon Krushna Charan appointed Govardhan Das as chela of Dengadi Math and Plaintiff as chela of the disputed institution. For doing so, he had obtained the consent of the second Defendant''s predecessor-in-interest. On account of old age and illness, Krushna Charan became incompetent to manage the affairs of the disputed institution and Plaintiff therefore, stepped in to look after the management. On 15-6.1945. Krushna Charan executed a registered will in favour of the Plaintiff. In 1947. Krushna Charan retired leaving the management of the two institutions to the respective ekelas and the disputed institution and the Math at Dengadi became separate from that time. Plaintiff alleged that in 1958, Defendant No. 1 cook Krushna Charan to the Dengadi Math and there obtained a will while Krushna Charan was intoxicated with bhang and opium. In paragraphs 8 to 12, Plaintiff alleged that the institution being private, neither the Endowment Board of Madras nor the Endowment Commissioner of Orissa had any jurisdiction to interfere with the management. Plaintiff''s real relief in the suit is for a declaration that the institution is a private one and Plaintiff is entitled to be in management of the institution in terms of the nyaspatra of 1921 executed by Plaintiff''s Guru in favour of Defendant No. 2''s father. It is true that the reliefs claimed in the suit do not categorically specify that Plaintiff wants such a declaration, but the dexterity in drafting of plaint would not change the nature of the suit. On an analytical reading of the plaint, there can be no doubt that Plaintiff wanted a declaration that the institution was a private one; the Endowment Commissioner had no jurisdiction to exercise control over the management of the institution; the order of the Endowment Commissioner dated 2-9-1963 appointing Defendant No. 1 as the trustee of the Institution is illegal; dispossession of the Plaintiff on 21-11-1965 pursuant to the aforesaid order of appointment from possession and management of the institution is unauthorised and Plaintiff is entitled to be restored to possession and be in management of the institution in terms of the nyasapatra. Relief in the suit is not available as long as it is not determined that the institution is a private one and thus outside the purview of the Orissa Hindu Religious Endowments Act.

Section 41 of the Act provides:

Assistant Commissioner to decide certain disputes and matters:

(1) In case of a dispute the Assistant Commissioner shall have power to enquire into and decide the following disputes and matters:

(a) whether an institution is a public religious institution ;

(b) whether an institution is a temple or a math;

(c) whether a trustee holds or held office as a hereditary trustee;

(d) whether any property or money is of a religious endowment or specific endowment;

(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution and what the established usage of a religious institution is in regard to any other matter;

(f) whether any institution or endowment is wholly or partly of a religious or secular character, and whether any property or money has been given wholly or partly for religious or secular uses; and

(g) where property or money has been given for the support of an institutions or the performance of a charity, which is partly of religious and partly of a secular character or when any property or money given is appropriated partly to religious and partly to secular uses, as to what portion thereof shall be allocated to religious uses ;

Provided that the burden of proof in all disputes or matters covered by Clauses (a) and (d) shall lie on the person claiming the institution to be private or the property or money to be other than that of a religious endowment or specific endowment as the case may be.

Section 44 of the Act provides for an appeal to the Commissioner of Endowments and a second appeal to the High Court. Section 73(1) of the Act provides:

No suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with the provisions of this Act.

Provision having been specifically made for determination of disputes as to character of the institution in Section 41 of the Act, there is an express bar to maintainability of a suit in Civil Court and under the provisions of Section 9 of the Code of Civil Procedure, jurisdiction of the Civil Court must be taken as ousted. The ratio of the Full Bench decision in the case of Prasanna Kumar Praharaj and Another Vs. Sri Jagannath Jew and Others, , supports this conclusion. The real relief asked for in the suit was thus not available from the Civil Court and the dispute should have been brought in the appropriate forum u/s 41 of the Act. Since, in our opinion, the jurisdiction of the Civil Court is barred to, entertain the dispute for the relief indicated, it is not necessary to examine the other questions.

We would accordingly hold that the suit was not maintainable and, therefore, the decree given by the learned Trial Judge cannot be maintained. The appeal is allowed, the judgment and the decree of the Court below are set aside and Plaintiff''s suit is dismissed on the finding that the same was not maintainable in the Civil Court. There would be no order for costs throughout.

K.B. Panda, J.

I agree.

Appeal allowed.