JUDGMENT : Mohapatra, J. - This first appeal has been filed by the Plaintiffs against the judgment and decree passed by the learned Subordinate Judge of Puri arising out of a suit u/s 64(2) of the Old Act of Orissa Hindu Religious Endowments Act, 1939. Plaintiff No. 1 is the deity and Plaintiff No. 2 is the marfatdar representing the deity Sri Laxminarayan Deb. The institution was established on the basis of a deed of endowment (ext. 1) dated 18th December 1936 executed by one Dhandbanti, the widow of Haribansa Ram. Dhandbanti, the founder of the institution, died in the year 1942. Plaintiff No. 2 claims the institution to be a private one, or, in the alternative, prays for a declaration that the institution may be declared as an 'excepted temple' as defined in the Old Act. The contest was by Defendant No. 1, who is the Endowment Commissioner and Defendant No. 2, as representative of the public. The main point of controversy was whether it was a public institution, as alleged by the Defendants, or that it was a private one. 2. The court below has found, mainly on the basis of the deed of endowment that it was a public institution and further that present Plaintiff No. 2 cannot be taken to be a hereditary trustee. 3. Mr. Mohanti, appearing on behalf of the Appellants, accepts the finding of the trial court that the institution is a public one but never the less he strongly contends that Plaintiff No. 2 is the hereditary trustee and is entitled to a declaration of that nature. 4. The point of controversy can be decided on the construction of the deed of endowment (Ext. 1) executed y Dhandbanti, the founder of the institution, on 18th December 1936. The document is a long one, but nevertheless it was placed in extenso before us. The learned advocates appearing for both sides offered their running comments and argued in support of their contentions drawing our attention to several passages in the body of the document. On a careful and plain reading of the document, as a whole, we are convinced that present Plaintiff No. 2 is a hereditary trustee. 5. Dhandbanti, the founder, founded the institution out of highest reverence for the wishes of her late husband who was a great devotee of Lord Sri Laxmi Narayan Deb. She constituted herself as the first sebait-marfatdar. On a careful and plain reading of the document, as a whole, we are convinced that present Plaintiff No. 2 is a hereditary trustee. 5. Dhandbanti, the founder, founded the institution out of highest reverence for the wishes of her late husband who was a great devotee of Lord Sri Laxmi Narayan Deb. She constituted herself as the first sebait-marfatdar. Indeed she bad the full power and functions of Tatwabadharak or the sebait marfatdar. The functions recited in the deed are to utilise the usufructs of the properties described in such. Kha and Gha for meeting the expense of the daily and occasional ceremonies and sebapujas of the deity, for meeting the expenses in to be celebrations of the festivities of the deity and for entertaining the guests that might be coming to the temple. It is to be mentioned also that the recitals are clear to define that the marfatdar will be in charge of the management of all the properties endowed to the diety. She further goes on to enunicate in the deed that after her death Jagannath Ram, Plaintiff No. 2, will be the marfatdar exactly in the same position as she was during her lifetime and also would discharge the same function and duties including the management of all the properties endowed in favour of the deity. These provisions in the deed, as she says, are exactly-in accordance with the sincerest and genuine wishes of her husband. A clear line of succession also is embodied in the deed wherein it is provided that she would be first marfatdar and would be in charge of the properties of the institution during her life time, and after her death, as I have indicated above, Jagannath Ram would be the marfatdar exactly as she was functioning during her fife time after the death of Jagannath the eldest male member of the family, who is fit to be the marfatdar, of the deity, will succeed. Female members are excluded in the line of succession. 6. But the controversy really arises on account of the constitution of the Niyamaka Samitee. According to the present Respondents, the present Plaintiff No. 2 cannot be taken to be tile sole trustee in charge of the management of the institution Niyamaka Samitee literally means a regulating and controlling committee. Female members are excluded in the line of succession. 6. But the controversy really arises on account of the constitution of the Niyamaka Samitee. According to the present Respondents, the present Plaintiff No. 2 cannot be taken to be tile sole trustee in charge of the management of the institution Niyamaka Samitee literally means a regulating and controlling committee. Nevertheless the deed also recites the functions of this committee which incline us to came to the finding that the functions of this committee are merely supervisory advisory. The recitals clearly go to show that this committee would supervise the duties of the marfatdar, chack the accounts periodically and offer advice and suggestions regarding the means and method for bringing about improvements of the institution. There are provisions also that if at any time any marfatdar becomes a non Hindu, or a man of bad character or is found guilty of misappropriation, the committee will have the power of dismissing that marfatdar. It is further provided that in the matter of misappropriation and maladministration the committee will warn the then marfatdar thrice and if still the default continues the committee will be empowered to dismiss the marfatdar. There is a further distinct provision in the deed itself that if there is any occasion for a difference of opinion between the marfatdar and the committee in the matter of management of the affairs of the deity the opinion of the marfatdar will prevail. 7. Mr. Mohapatra, appearing on behalf of the Respondents, particularly draws our attention to one provision in the deed that in the case of successor of Jagannath Ram, he will be styled as the marfatdar only after a Saree is tied around his head by the members of the committee. Mr. Mohapatra contends that the committee therefore will be in charge of appointing the successor of Jagannath Ram and not that automatically the successor will come as being the eldest male member in the line of succession. Side by side subsequent to that there is a distinct provision also that if the members of the Committee do not discharge the duties imposed upon them, they stand the risk of being dismissed also. Side by side subsequent to that there is a distinct provision also that if the members of the Committee do not discharge the duties imposed upon them, they stand the risk of being dismissed also. In our view, this function allotted to the committee is in no way inconsistent with the position that Jagannath will enjoy the rights as a hereditary trustee as contemplated under the Act-he being in sole charge of the real management t of the institution whereas the committee will have only the advisory and supervisory functions allotted to them provided for in the deed itself. Mr. Mohapatra further emphasizes that in the last page of the deed also in the opening lines the members of the committee have been described as trustees. As I have indicated above, in several places in the deed, the executant has characterised the committee as NiyamakSamitlee meaning a regulating or accomplying committee. That apart the functions are well defined and in interpreting the functions as defined in the deed itself we come to the conclusion that the committee is merely a supervisory one whose functions are not derogatory to the conception of Jagannath being the sole trustee and marfatdar and not the members of the committee appearing in the last page. Mr. Mohapatra further contends that the power of appointment and power of dismissal are not consistent with the position that Jagannath is the sole trustee as defined in the Act. The power of appointment of a mind out side the family and power of dismissal as provided for in the deed are very remote contingencies that if the existing marfatdar becomes a non-Hindu leads an immoral life making himself unfit for being a marfatdar or is guilty of administration and misappropriation then only he is liable to be dismissed, and if no one member of the family of the founder is found fit or is declared to be unfit to account of those reasons, then the committee is given the power to appoint an outsider and during the intervening period they will take charge of the Management. This provision in the deed is not inconsistent with the position that Jagannath has been made the sole trustee or marfatdar according to the terms of the deed of endowment. 8. This provision in the deed is not inconsistent with the position that Jagannath has been made the sole trustee or marfatdar according to the terms of the deed of endowment. 8. Before closing the discussion We will refer to the word "hereditary trustee" as defined in the New Act of 1951-in Section 2 (vi): "Hereditary trustee" means the trustee of a religious institution succession to whose office devolves by hereditary rights since the time of the founder is regulated by custom or is specifically provided for by the founder, so long as such scheme to succession is in force. To my mind it appears clear that Jagannath can take advantage of the first and third clauses, that is to say, he can claim to be a hereditary trustee of the religious institution succession to whose office devolves by hereditary rights since the time of the founder who died in 1942 and the institution was founded in 1936. It is clear from the terms of the deed that since the time the institution was founded, the founder was the first marfatdar and on her death Jagannath has been made the next succeeding marfatdar. The terms also clearly indicate that neither she nor her husband had any action in accepting Jagannath as the heir of tile founder and as such Jagannath has become the next marfatdar. He can claim to be a hereditary trustee within the meaning of the section also relying upon the third clause, because, it is so specifically provided hi the deed itself and the scheme of succession as embodied in the deed is undoubtedly still in force at the time when the controversy arises. 9. In conclusion, therefore, Plaintiff No. 2 is entitled to be declared as the hereditary trustee within the meaning of the Orissa, Hindu-Religious Endowments Act, 1951. The appeal succeeds and is allowed and the judgment and decree passed by the court below are set aside. Plaintiff No. 2, is entitled to the costs to be realised from Defendant No. 2, and the costs will be born by the institution. Final Result : Allowed