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2007 DIGILAW 826 (ORI)

Rukmini Mishra v. Sri Radha Krushna Mahaprabhu

2007-10-29

A.S.NAIDU

body2007
JUDGMENT A.S. NAIDU, J. : The judgment dated 6.5.2000 passed by the Commissioner Endowments, Orissa, Bhubaneswar in F.A. No.16 of 1998 confirming the judgment dated 26.9.1998 passed by the Addl.Assistant Commissioner of Endowments, Sambalpur in O.A. Case No.6 of 1997 declaring Sri Sri Radha Krushna Mohaprabhu Bije at Haldipali, P.O. : Satalma in the district of Bargarh to be a Hindu public religious endowment and that the petitioner Nos.2 to 4 are not the hereditary trustees, is assailed in this appeal filed under Section 44(2) of the Hindu Religious Endowment Act, 1951. 2. The appellant was opposite party No.7 in the O.A. Case before the Addl. Asst. Commissioner of Endowments. On the basis of a petition filed by Respondent Nos. 2 to 4 under Section 41(a)(c) and (d) of the Orissa Hindu Religious Endowments Act, 1951 (here-in-after called “the Act”) praying for a declaration that the deity Sri Sri Radha Krushna Mahaprabhu Bije,Haldipali is a public religious institution; that the said respondents were its hereditary trustees; and that the landed properties of the deity were religious endowments, the said O.A. Case was regis¬tered. According to the said respondents their ancestors along with one Brundaban Dharua, the then Gountia of village Haldipali had founded the deity Sri Sri Radha Krushna Mahaprabhu Bije and had donated Ac. 17.00 of land for the maintenance and seva puja of the said deity. It is further averred that since the date of foundation the forefathers of the said respondents remained in peaceful possession of the properties and managed the institution by way of succession from generation to generation without any hindrance from any quarter. The lands stood recorded in favour of the ancestors of Respondent Nos.2 to 4 in the R.O.R. of Hamid Settlement, thereafter in the Major Settlement and even in course of Consolidation Operation. It was alleged that though the gener¬al Hindu public had a right and privilege of paying “Darshan” to the deity they had no right in the management of the temple or its properties. 3. The present appellant who was opposite partly No.7 in her written statement took the plea that one Bhagaban Pujari was the common ancestor of Respondent Nos.2 to 4 and opposite party No.7. Her grandfather Bhagaban Pujari was worshiping the deity in his residence and utilizing the usufructs from the lands for the seva puja. 3. The present appellant who was opposite partly No.7 in her written statement took the plea that one Bhagaban Pujari was the common ancestor of Respondent Nos.2 to 4 and opposite party No.7. Her grandfather Bhagaban Pujari was worshiping the deity in his residence and utilizing the usufructs from the lands for the seva puja. The deity was a private deity and its properties were not public religious endowment. It was also alleged that in accordance with the custom the legal heirs including the husband of a female heir was entitled to do the seva puja and look after the management of the deity along with other male legal heirs. In short, according to the said opposite party No.7, she along with Respondent Nos.2 to 4 was a hereditary trustee and prayed for such a declaration. 4. The plea of the Respondent Nos.2 to 4 was resisted by the Inspector of Endowments, opposite party No.8 and some members of Hindu public by filing separate written statements. The claim that, the forefathers of Respondent Nos. 2 to 4 and the appellant had founded the deity Sri Sri Radha Krushna Mohaprabhu Bije was denied. According to the opposite parties the Gountia of the village Haldipali had founded the deity and had handed over its management to a trust constituted by general Hindu public of the village. The ancestors of Respondent Nos.2 to 4 and the appellant possessed the lands of the deity in lieu of rendering seva puja of deity, till the lands were attached in a proceeding initiated under Section 145 of Criminal Procedure Code in the year 1993. Further as the said respondents created hindrance in smooth seva puja of the deity. In the year 1980 a non-hereditary Trust Board was constituted under the provisions of the O.H.R.E. Act. The said non-Hereditary Trust Board managed the deity being consti¬tuted from time to time. It was further averred that initially the deity was installed in a “kutcha Kharpali House”, but then the villagers in a meeting held in the year 1970 decided to shift the deity to the house of Pujak till construction of a temple. Accordingly the villagers started collecting funds, and building materials, and foundation stone of the temple was laid in the year 1977. Accordingly the villagers started collecting funds, and building materials, and foundation stone of the temple was laid in the year 1977. Respondent No.10 representing the Hindu Public in his written statement specifically averred that Respondent Nos.2 to 4 had absolutely no role to play in the affairs of the management of the deity except doing seva puja. It was averred that the villagers of Haldipali and the members of non-Hereditary Trust Board are looking after the management and daily ‘seva puja’ of the deity and that the villagers were contributing ungrudgingly to the temple funds for construction of a pucca temple. Thus according to the Hindu public, the Respondent Nos.2 to 4 were trying to grab the deity’s properties and it was a fit case where the petition filed under Section 41 of the Act ought to be dis¬missed in limine. Opposite party Nos.1 to 6 and 9 in the Court below were set ex parte. 5. After discussing the evidence, both oral and documen¬tary, in extenso the Addl.Asst. Commissioner of Endowments came to a categorical conclusion that Respondent Nos. 2 to 4 had totally failed to establish that they were the hereditary trus¬tees and dismissed the petition. Being aggrieved the present appellant who was opposite party No.7 before the Court below filed F.A. No.16 of 1998 before the Commissioner of Endowments. the Commissioner by a well-discussed judgment came to the conclu¬sion that the Respondent Nos. 2 to 4 had totally failed to estab¬lish that they were the hereditary trustees. After pursuing the management file and on being satisfied that the conclusions arrived at by the Addl.Asst. Commissioner of Endowments could not be said to be perverse or without basis, confirmed the same and dismissed the appeal. 6. The judgment passed by the Commissioner of Endowments is not assailed by Respondent Nos.2 to 4 who were petitioners in the proceeding initiated under Section 41 of the Act, but then opposite party No.7-appellant a lady, claiming to be the grand¬daughter and a legal heir assails the judgment mainly on the ground that both the authorities below have not properly appreci¬ated the evidence and the conclusions arrived at are erroneous. According to the appellant from the very inception the deity Sri Sri Radha Krushna Mohaprabhu Bije was installed in the house of their ancestors and they were managing the properties as heredi¬tary trustees. According to the appellant from the very inception the deity Sri Sri Radha Krushna Mohaprabhu Bije was installed in the house of their ancestors and they were managing the properties as heredi¬tary trustees. It was further submitted that other Hindu Public except having a privilege to pay “Darshan” had no right of man¬agement. In short, according to the appellant the institution of Sri Sri Radha Krushna Maha Prabhu Bije should be declared as a public religious endowment and the appellant and her co-legal heirs should be declared as hereditary trustees. All the submission made before this Court were strongly resisted by learned counsel appearing for the respondents and Commissioner of Endowments. 7. Heard learned counsel for the parties at length. Pur¬sued the materials available on record. Section 3(vi) of O.H.R.E. Act defines hereditary trustees as follows :- “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.” The definition thus provides three distinct ways by which a claim of a hereditary trusteeship can be made or approved i.e. (i) when succession to such office devolves by hereditary right since the time of the founder; (ii) when succession to such office is regulated by custom or; (iii) when it is specifically provided by the founder, ac¬cording to the scheme of succession,so long as such scheme is in force. 8. In view of the aforesaid clear position by mere fact that a person or a family remained in charge of the institution or acted as trustee for a very long period would not be suffi¬cient for declaration that he/it is hereditary trustee. A person cannot succeed in his claim to be a hereditary trustee unless he proves beyond all reasonable doubts that from the time of the founder of the institution his family has been holding the office of the trustee as of right; provided further that such a scheme of succession has been laid by the founder and is in force all along. It is needless to say that if there is interruption in the trusteeship or management of the institution, there can be no question regarding acquisition of hereditary trusteeship. Often confusion arises with regard to the founder of a religious insti¬tution. It is needless to say that if there is interruption in the trusteeship or management of the institution, there can be no question regarding acquisition of hereditary trusteeship. Often confusion arises with regard to the founder of a religious insti¬tution. Every donor at the time of foundation of the institution does not become a founder of the trust. The Supreme Court in the case of Thenappa Chettiar v. Karuppan Chettiar reported in AIR 1968 SC 915 held : “It is not necessary that every donor contributing at the time of foundation of a trust becomes a founder of the trust. In a particular case all the contributors of a trust fund may become the founders of the trust itself, but the question when a con¬tributor would become in law a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the parties.” 9. It is not always possibly to trace out the time of foundation of ancient institution strictly according to the defi¬nition of “hereditary trustee” given in the 1951 Act. So when the founder and the time of foundation is unknown and there is no deed or document throwing light in that regard, one has to rely on the theory of lost grant and has to presume that the system as is prevailing from the time immemorial was the system that has been continuing from the item of the founder. In the case at hand Respondent Nos. 2 to 4 claimed to be the hereditary trustees and thus the burden was heavy upon them to establish the said fact. To discharge such burden only one wit¬ness being P.W.1 had being been examined before the original authority who was none else than Respondent No.3. Though he was one of the petitioners, as would be evident from his evidence, he could not disclose the name of his successor who founded the deity Sri Sri Radha Krushna Mahaprabhu Bije at Haldipali. To add to it, in his cross-examination he had admitted that one Brunda¬ban Dharua was the founder. Thus it cannot be said that the ances¬tors of the appellant or Respondent Nos. 2 to 4 were the founder of the deity. To add to it, in his cross-examination he had admitted that one Brunda¬ban Dharua was the founder. Thus it cannot be said that the ances¬tors of the appellant or Respondent Nos. 2 to 4 were the founder of the deity. The evidence further reveals that the deity was initially installed in a Kutcha house and thereafter shifted to the residential house of P.W.1 temporarily till a temple was con¬structed. P.W.2 who was a villager, admitted that he was member of the non-Hereditary Trust Board in the year 1984. Even P.W.2 has clandestinely admitted that Respondent Nos.2 to 4 and appel¬lant had never managed the institution. That apart Respondent Nos.2 to 4 who had initiated the proceeding under Section 41 of the Act as petitioners claiming for a declaration as Hereditary Trustees, remained satisfied by the judgment of the Addl.Asst. Commissioner of Endowments and did not file any appeal. 10. In view of the aforesaid facts and after going through the evidence and perusing the judgment passed by the authorities below, this Court is satisfied that both the said authorities have dealt with the facts and law in proper perspective and the conclusions arrived at by them are in conformity with the evi¬dence, both oral and documentary. The same are neither absurd nor do they suffers from any error apparent on the face of the record calling for interference. The Misc.Appeal is accordingly dismissed. Parties to bear their own cost. Appeal dismissed.