Purna Ch. Acharya vs Sri Kakhareswar Baidyanath and Others

B.K. Ray, J.—The unsuccessful Appellant in both the Courts below has preferred the present appeal u/s 44(2) of Orissa Hindu Religious and Endowments Act (hereinafter called the Act). The Appellant and Respondents Nos. 1 and 2 being villagers of village-Karkacha filed an application u/s 41 of the Act before the Additional Assistant Endowment Commissioner of Orissa Hindu Religious Endowments for a declaration that the institutions Kakhareswar Baidyanath Dadhibaman Jew of the aforesaid village are public religious institutions without any hereditary trustees. Their case was that the aforesaid two deities were founded by Ex. Rulers of Mayurbhanj state who also endowed certain properties for their Sevapuja and maintenance. The institutions were dedicated for the benefit of the general Hindu public. Since the foundation of the institution, the villagers of the said village have been managing the affairs of the deities through village committees formed from time to time. Respondent Nos. 6 to 11 being members of Sardar family of the village were recorded as marfatdars of the deities for facilitating payments of rent, and fighting out litigations in respect of the deities "properties". They had no right, title or interest whatsoever in the institutions or their properties. In spite of this when the Respondent Nos. 6 to 11 claimed hereditary trusteeship in respect of the institutions, the Appellant was obliged to file the application for the aforesaid relief.

The case of Respondent Nos. 6 to 11 as made out in their objection to the petition u/s 41 of the Act was that one Govind Chowdhury. their common ancestor, founded the institutions and endowed properties in favour of the deities. At the inception though the institutions were private ones of the family of Govinda Chowdhury in course of time, the deities became public and the villagers of the village-Karkacha came to exercise that right of worship and Darsan of the deities. In spite of the fact that the institutions became public ones in course of time, Govind Chowdhury and after him his successors in interest including Respondent Nos. 6 to 11 were managing institutions and their properties hereditarily and so were recorded as marfatdars. The management of the institution was all along in the family of Respondent Nos. 6 to 11 from its inception till the date of initiation of the proceeding u/s 41 of the Act.

The case thus instituted by the Appellant was disposed of by the Additional Assistant Commissioner of Endowments, Orissa who after hearing the parties, dismissed the same by his order dated, 11-2-1975 in C. A. No. 11.3 of 1974 add declared that the Respondent Nos. 6 to 11 were hereditary trustees of the institutions which were public ones. Being aggrieved by the decision of the Additional Assistant Commissioner the Appellant carried an appeal to the Commissioner (Vide F.A. No. 4 of 1975). The Commissioner having upheld the decision of the Additional Assistant Commissioner thereby dismissing the Appellant�s appeal before him, the Appellant has come to this Court with the present appeal.

Both the Courts below have concurrently found that Respondent Nos. 6 to 11 have failed to prove that their ancestor Govind Chowdhury founded the institutions. Inspite of this finding, it has been found by both the Courts that Respondent Nos. 6 to 11 and before them their ancestors were managing institutions all along without the assistance horn any villager. Upon this finding, the Courts below have arrived at the conclusion that Respondent Nos. 6 to 11 are hereditary trustees of the institutions.

Mr. R. Mohanty, learned Counsel for the Appellant, on the basis of the record-of-rights produced by the party in the case argues that score of the ancestors of Respondent Nos. 6 to 11 have been recorded as marfatdars in the record-of-rights along with the Ruler of Mayurbhanj who has been recorded as Sebayat. The ancestors of Respondent Nos. 6 to 11 have been recorded as marfatdars because they were merely the agents of the Ruler and not because they were managing the institutions as trustees. In short, his argument is that the institutions being public ones and having been founded by the Ruler of Mayurbhanj for the benefit of Hindu public, the Ruler and thereafter his successors have been recorded as Sebayats of the institutions in record-of-rights and as it was not possible for the Rules to manage the institutions personally they had engaged the ancestors of Defendant Nos. 6 to 11 to manage the institutions on their behalf and so the ancestors of 6 to 11 were recorded as marfatdars. It is not disputed before me that no direct evidence has been produced in the case to come to a conclusion as to who founded the institutions. Merely because the Ruler stands recorded as Sebayat in the record-of-rights it can not be said that institutions were founded by him or by any of his ancestors. Such inference from the settlement record is not possible. The institutions being admittedly public ones, the sovereign authority of -the State which means the Ruling authority is to exercise over all control over them. The record-of-rights showing that the Ruler is the Sebayat only means that the Ruling authority was exercising over all control over the institutions. It, therefore, cannot be said on the basis of the record-of-rights to produced in the case that the Ruler of Mayurbhanj founded the institutions and since then Sebayati right in respect of the same has remained in the Ruler�s family. The settled principle is that where the founder from the time of foundation is unknown and there is no deed regarding the foundation but it is proved that a particular family Since generation has been hereditarily in control and management of religious institution with out interruption by any outsider, it will be reasonable to draw an inference of continuity from the time of the founder. This view of mine gets support from the decision reported in Raja Bahadur A.N.M.H. Mohapatra v. Bidyadhar Naik AIR 1971 Cutt. 578, which has also been followed in a subsequent decision of this Court Bhagirathi v. Deity Sukarmala Thakurani 43 (1977) C.L.T. 408. The contention of Mr. Mohanty therefore, being that the ancestors of Respondent No. 6 to 11 got themselves recorded as marfatdars, being agents of the Ruler can not be accepted. The very fact that the ancestors of . Respondent Nos. 6 to 11 were recorded as marfatdars in respect of the institutions establishes beyond doubt that they were in management. Nothing has been produced before me to show if any member of the village public was exercising any right of management in respect of the affairs of the institutions either alongwith the ancestors of Respondent No. 6 to 11 who have been recorded as marfatdars or without them. The settlement records of the year, 1913 and 1935 bear testimony to the fact that one Madan Chowdhury, one of the ancestors of Respondent Nos. 6 to 11 stood recorded as marfatdars and was managing the institutions. Thereafter there is no document in evidence to show that successors in interest of Madan Chowdhury came to manage the institutions. By applying the principle of backward and forward presumption, particularly in the absence of anything to show that the members of the village public were ever managing the institutions it can be safely concluded that the management of the institutions has remained in the family of the ancestors of Respondent Nos. 6 to 11 and the right of management has devolved upon the members of that family by inheritance. According to the findings of the Courts below; there are ample evidence that the management of the institutions was in the hands of Respondent Nos. 6 to 11 and the public authorities were recognising them as persons in management.

Under section-3(vi) of the Act, "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.

In the present case, there is no direct evidence as to when the institutions were founded and by whom. In such a case, if it is established that succession to the office of trusteeship has remained in a family since time immemorial, it has to be taken as a case where succession to the office of trusteeship has devolved by hereditary right since the time of the founder. That being the position of law and in the� present case it having been found on evidence that members of the village public were never in management of institutions in any capacity and further it having been found that at least since the year, 1913 up to the date of institution of the proceeding u/s 41 of the Act, the management of the institution has remained in the family of Respondent Nos. 6 to 11 the only conclusion which can be arrived at is that Respondent Nos. 6 to 11 have established their case of hereditary trusteeship. This conclusion is further fortified by the fact that there is no evidence that at any time the Ruler of Mayurbhanj was exercising the right of management in respect of the institutions in question. Reliance is placed by Mr. Mohanty on the evidence of Respondent No. 11 in which he has admitted that he was appointed by the S.D.O. Udala after the expiry of his father Damodar Chowdhury. As has been stated earlier, the ruling authority of Mayurbhanj being the soverign authority before merger was recorded as Sebayat in respect of the institutions indicating that the ruling authority was exercising over all control over the same. After the merger, the State of Orissa has stepped into the shoes of the ruling authority. Therefore, merely because Respondent No. 11 after the death of his father got himself recorded as marfatdar with the permission of S.D.O. Udala it can not be said that the S.D.O. appointed Respondent No. 11 as marfatdar. Just as in the pre-merger days, a trustee was succeeding to his office until the knowledge of the ruling authority which was exercising over all control over the institution, the permission sought by Respondent No. 11 must be viewed as a recognition by the succeeding trustee of the over all control of the State. Therefore, it is not proper to say on the basis of the admission by Respondent No. 11 that he has no right to the office of trusteeship, he having been appointed by the S.D.O. Udala. Both the Courts below have elaborately discussed the evidence while coming to the conclusion that the management of the institutions has all along remained in the family of Respondent Nos. 6 to 11 since a very long time at least since 1913. After hearing, the learned Counsel for both the parties at length. I have no hesitation in my mind about the correctness of conclusions arrived at by, the Courts below. Once these conclusions are upheld, the position that emerges is that trusteeship has remained in the family of Respondent Nos. 6 to 11 since a long time past, there being no evidence of anybody else exercising the right of trusteeship at any time in respect of the institutions in question. That being the position, the Courts below must be held to have rightly found that Respondent Nos. 6 to 11 are hereditary trustees.

In the result, therefore, I do not find any merit in this appeal which is accordingly dismissed. In the circumstances, there would be no order for the costs of this Court.

Appeal dismissed.