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2016 DIGILAW 736 (ORI)

Jagannath Das v. Pradyumna Kumar Das

2016-09-01

K.R.MOHAPATRA, S.PANDA

body2016
JUDGMENT : K.R. Mohapatra, J. Order dated 30.09.2010 passed by learned Commissioner of Endowments, Orissa, Bhubaneswar in O.A. No.74 of 2004 filed under Section 30(1) of the Orissa Hindu Religious Endowments Act, 1951 (for short, ‘OHRE Act’) is under challenge in these writ petitions. 2. The factual backdrop of this case is not much disputed. The genealogy of the family of Hadibandhu is as follows:- Hadibandhu Das Sadhubar Das Raghubar Das Bhagaban Das Harekrushna Das = Suraji Paramananda Das Ramachandra (adopted son) Danardana = Nukhuri Ramachandra (adopted to Paramananda) Marua Dei = Dinabandhu (H) Choudhury = Godabari = Shantilata Akshya Prasanna Sradhamani Sashimani Phulamani Ahalya Amulya Narmada = Suryamani Mina Kalyani Snehalata Pradyumna (Petitioner) Prafulla Jagannath Santosh Bhargabi Balaram Parsuram Basudev Chitralekha One Hadibandhu Das was a great saint and the founder of Chhitiabata. He was given Samadhi within the premises of Chhatiabata, which is known as ‘Samadhi Gosain’. On his death, his son, namely, Sadhubara and after him Raghubara was managing the institution. Raghubara had no male issue. He adopted Bhagaban Das who was blessed with two sons, namely, Harekrushna and Paramananda. Paramananda had no son. So, he adopted Rama Chandra, who is one of the sons of Harekrushna. Like Hadibandhu, Sadhubara and Raghubara were also given Samadhi in the said premises. Harekrushna had a large number of disciples who used to offer Pranami. With that Pranami of the disciples, pucca construction over the Samadhi of Hadibandhu, Sadhubara and Raghubara was made. When some disputes arose with regard to the nature of the religious institution, an application under Section 41(a) of the OHRE Act in OA No.54 of 1966 was filed by said Harekrushna Das and Rama Chandra Das before the Additional Assistant Commissioner of Endowments for declaration that the institution, Samadhi Gossain Chhatiabata was their private institution. Learned Additional Assistant Commissioner of Endowments by his order dated 27.05.1971 allowed the application and declared the Samadhi Gossain Chhatiabata (for short ‘the case institution’) as private religious institution. The said order was confirmed by learned Commissioner of Endowments in F.A. No.20 of 1971 by his judgment dated 21.12.1976. During pendency of the appeal, Harekrushna Das died on 26.08.1973 leaving behind Suraji (his widow), Nukhuri (widow of his son, namely, Danardana) and Marua Dei (daughter). They were substituted and brought on record at the instance of the appellants therein. The said order was confirmed by learned Commissioner of Endowments in F.A. No.20 of 1971 by his judgment dated 21.12.1976. During pendency of the appeal, Harekrushna Das died on 26.08.1973 leaving behind Suraji (his widow), Nukhuri (widow of his son, namely, Danardana) and Marua Dei (daughter). They were substituted and brought on record at the instance of the appellants therein. The said judgment of the Commissioner of Endowments was challenged before this Court in MA No.64 of 1977. This Court by judgment dated 28.11.1979 allowed the said appeal and reversed the order passed by the authorities under the OHRE Act holding the institution to be a temple (Public Religious Institution) with the family members of founder as hereditary trustees. In the concluding paragraph of the said judgment, this Court held as follows:- “26. It was admitted by both the parties before the Commissioner of Endowments that the institution first came into existence during the life time of Hadibandhu Das. It was also admitted by them that the members of the petitioner’s family have been managing the affairs of the institution since the time of the founder. The materials on record lend ample support to the view that he and management of the institution have all along been with the petitioner’s family since the time of the founder. There is no evidence to show that the members of public took part in the management of the institution at any time. I would, therefore, hold that the institution of the Chhita Bata is a temple as defined in the Act with respondents 1 to 4 the hereditary trustees thereof.” [See 50(1980) CLT 151] (emphasis supplied) Marua Dei, the daughter of Harekrushna challenging the decision of this Court filed S.L.P. before the Hon’ble Supreme Court, which was subsequently numbered as Civil Appeal No.1990 of 1980. Be it stated here that before filing of the Civil Appeal, Suraji Devi (widow of Harekrushna) died on 28.11.1979. Hence, her name was deleted as all of her legal heirs were on record. Likewise, during pendency of the Civil Appeal, Rama Chandra died on 09.12.1988 and Nukhuri Dei (widow of Danardana) died on 30.05.1998. As Nukhri died issueless, her name was deleted. However, the legal heirs of Rama Chandra were substituted. Hence, her name was deleted as all of her legal heirs were on record. Likewise, during pendency of the Civil Appeal, Rama Chandra died on 09.12.1988 and Nukhuri Dei (widow of Danardana) died on 30.05.1998. As Nukhri died issueless, her name was deleted. However, the legal heirs of Rama Chandra were substituted. Pradyumna, one of the sons of Rama Chandra, continued to pursue the litigation before the Hon’ble Supreme Court taking the power of attorney from other legal heirs of late Rama Chandra Das. Subsequently, the Civil Appeal No.1990 of 1980 was disposed of on 30.11.1998 and the judgment of this Court in MA No.64 of 1977 was confirmed. Marua Dei died on 01.03.2001. Thus, the Deputy Commissioner of Endowments, Odisha, Bhubaneswar allowed Pradyumna to function as person-in-management of Chhatia Bata until clear proof of succession. 3. At this juncture, Pradyumna filed O.A. No.74 of 2004 on 30.06.2004 under Section 30(1) of the OHRE Act before the Commissioner of Endowments with the following prayer:- “PRAYER The petitioner, therefore, prays that this Hon’ble Court may be graciously pleased to recognize and declare the petitioner and opposite party nos.2 to 22 as hereditary trustees with the petitioner as hereditary managing trustee in the next line of succession to the office of the hereditary trustee in order to manage, protect and safeguard the institution first above written. And for this act of kindness, the petitioner shall, as in duty bound, ever pray.” Learned Commissioner of Endowments by his order dated 30.09.2010 allowed the said application in part holding that the petitioner, namely, Pradyumna and opposite party Nos. 2 to 22 therein being the next in the line of succession to the office of the last declared hereditary Trustee of the case institution, Sri Samadhi Gossain Chhatiabata, Chhatia, as hereditary Trustees of the said institution. However, he refused the prayer of Pradyumna to recognize him as hereditary managing Trustee of the case institution. Assailing the same, two writ petitions have been filed, i.e., W.P.(C) No.18299 of 2010 by Sri Jagannath Das declaring and recognizing the present petitioner and opposite parties 1 to 20 as hereditary Trustees of the case institution and W.P.(C) No.1644 of 2011 by Sri Pradyumna Das assailing the order refusing to recognize him as Hereditary Managing Trustee of the case institution. For convenience, both the writ petitions are taken up for disposal one after another. W.P.(C) No. 18299 of 2010 4. For convenience, both the writ petitions are taken up for disposal one after another. W.P.(C) No. 18299 of 2010 4. Mr. S.S. Rao, learned counsel for the petitioner-Sri Jagannath Das reiterating the contentions made in the case submitted that initially the brothers of Pradyumna supported the case and admitted the claim made by Pradyumna in the application made under Section 30(1) of the OHRE Act. Even the Hindu public, who was opposite party No.23 therein, admitted the claim of Pradyumna. Subsequently, after the closure of evidence, they could detect foul play of Pradyumna and filed an application to reopen the trial and sought for an opportunity to contest the case. The prayer was allowed. Accordingly, all of them were permitted to contest the case by filing their respective written statements and leading evidence. A petition under Order 7 Rule 11, CPC was also filed alleging that there was no cause of action to file such a petition under Section 30(1) of the OHRE Act as there was no permanent vacancy in the office of the hereditary Trustee. Said application was rejected by the Commissioner of Endowments vide order dated 16.12.2006. Assailing the same, Jagannath [petitioner in W.P.(C) No.18299 of 2010] filed W.P.(C) No.809 of 2007. This Court disposed of the said writ petition by order dated 18.05.2007 holding as under:- “Regard being had to the aforesaid facts and submission, we dispose of this writ petition with a direction to the Commissioner of Endowments to hear and dispose of O.A. No.74 of 2004 as expeditiously as possible and, preferably within a period of six months from the date of receipt of a copy of this order. He may do well to provide opportunity of hearing on all issues raised and while doing so, he will not be influenced by the impugned order or anything stated in this order The writ petition is accordingly disposed of.” Thus, this Court permitted the parties to raise all issues, both legal and factual, before the Commissioner in the O.A. It is the contention of Mr. Rao that as per the custom, only male members of the family were in management of the case institution. The Commissioner failed to exercise the jurisdiction vested in him by not taking into consideration the pleading and evidence available on record with regard to the custom to exclude the female members to succeed as hereditary Trustees. Rao that as per the custom, only male members of the family were in management of the case institution. The Commissioner failed to exercise the jurisdiction vested in him by not taking into consideration the pleading and evidence available on record with regard to the custom to exclude the female members to succeed as hereditary Trustees. The Commissioner failed to appreciate that public have no locus standi to have their say in the matter of inheritance or succession to the office of hereditary trustee. However, he supported the finding of learned Commissioner to the effect that in an application under section 30(1) of the OHRE Act, the Commissioner had no jurisdiction to entertain the prayer for declaration of hereditary managing trustee. Hence, he prayed that the application under Section 30(1) of the OHRE Act needs fresh consideration and the impugned order is liable to be set aside. 5. Mr. R.K. Mohanty, learned Senior Advocate appearing for the opposite party No.1-Pradyumna [petitioner in W.P.(C) No.1644 of 2011] submitted that admittedly this Court in M.A. No.16 of 1977 (operative portion of which quoted hereinabove) held and declared the case institution as a temple under the provisions of the OHRE Act being managed by the family members of the founder, namely, Suraji, Nukhri, Marua and Rama Chandra as hereditary trustees. After their death, there occurred a permanent vacancy in the office of the hereditary trustee. Thus, learned Deputy Commissioner of Endowments vide order dated 20.10.2001 directed Pradyumna to continue as person-in-management of the case institution till clear proof of succession and declaration as per Section 30 of the OHRE Act. Thus, the application under Section 30(1) of the OHRE Act is maintainable. He also challenged the locus standi of Jagannath to assail the impugned order on the ground that Jagannath being one of the successors in interest of deceased Rama Chandra is estopped from assailing the issue of permanent vacancy. The submission of petitioner to the effect that female heirs are excluded by the custom to succeed to the office of hereditary trustee is not only fallacious but also not available to be considered by this Court. The submission of petitioner to the effect that female heirs are excluded by the custom to succeed to the office of hereditary trustee is not only fallacious but also not available to be considered by this Court. Thus, he contended that this Court in exercise of jurisdiction under Article 227 of the Constitution should not delve into the question with regard to declaration and recognization of petitioner and opposite parties 1 to 20 as hereditary trustees by the Commissioner of Endowments, as they are next in the line of succession. He further submitted that the Assistant Commissioner of Endowments in a proceeding under Section 41 of the OHRE Act (OA No.54 of 1966) held the case institution to be private and the said order was confirmed by learned Commissioner in F.A. No.20 of 1971, which was challenged before this Court in M.A. No.16 of 1977. This Court allowed the appeal holding the case institution to be a temple within the meaning of the OHRE Act having the family members of the founder, namely, Suraji, Nukhuri, Marua and Rama Chandra as hereditary trustees. The judgment of this Court was challenged before the Hon’ble Supreme Court and the order of this Court was confirmed. Thus, Jagannath who is the successor of Rama Chandra is bound by the acts of said hereditary trustee, namely, late Rama Chandra, who had never challenged recognition of Suraji, Nukhuri and Marua including himself as hereditary trustees of this case institution. Jagannath, therefore, estopped to challenge the right of female heirs of the founder to continue as hereditary trustees. Further, Section 29 of the OHRE Act postulates the disqualification for appointment of a hereditary trustee. In absence of any provision for exclusion of female heir from being appointed as hereditary trustee, such a plea is not available to be considered. The ingredients of custom propounded by Jagannath are not established in this case. The custom as propounded by law has to be from time immemorial. In the case at hand, Suraji, Nukhuri, Marua and Rama Chandra continued as hereditary trustees till 2001. Thus, no custom could have conferred a right on Jagannath, and at the same time 11 imposed a disqualification on female members of the family, to be the hereditary trustees. He also relied upon a decision of this Court in the case of T.Kalyani Subudhi and others Vs. Thus, no custom could have conferred a right on Jagannath, and at the same time 11 imposed a disqualification on female members of the family, to be the hereditary trustees. He also relied upon a decision of this Court in the case of T.Kalyani Subudhi and others Vs. Commissioner of Endowments, Orissa, BBSR and others, reported in 2008 (I) CLR 555 and certain case laws in support of his case. He further submitted that the impugned order is neither perverse nor suffers from any material irregularity. Hence, the same needs no interference by this Court. 6. Mr. B. Routray, learned Senior Advocate appearing for opposite parties 19 and 21 submitted that power under Section 30(1) of the OHRE Act can only be invoked when permanent vacancy occurs in the office of hereditary trustee of a religious institution and next in the line of succession is entitled to succeed to the said office. In the case at hand, there occurs no permanent vacancy in the office of hereditary trustee of the case institution. Further, the dispute with regard to hereditary trustee of a religious institution can only be adjudicated by the Assistant Commissioner of Endowments in exercise of powers under Section 41(c) of the OHRE Act. As such, the petition under Section 30(1) of the OHRE Act is not maintainable. The mode of succession to the office of hereditary trustee has been described under Section 3(vi) of the OHRE Act. It provides three modes of succession to the office of the hereditary trustee and custom is one of those modes. Relying upon the decision in the case of Braja Kishore Jagdev Vs. Lingaraj Samantaray and others, reported in 2000 (6) SCC 540 , it is submitted that in order to lay a claim to the office of hereditary trustee it has to be 12 established that the members of the family have been in-charge of the management of affairs of the deity as trustee and succession of the office devolves upon them by hereditary right since time of the founder. In the case at hand, there is evidence on record to show that female members of the family were not in management of the case institution. As such, they are not entitled to succeed to the office of hereditary trustee of the case institution. In the case at hand, there is evidence on record to show that female members of the family were not in management of the case institution. As such, they are not entitled to succeed to the office of hereditary trustee of the case institution. Though the female members have been substituted as legal heirs after death of the hereditary trustee, they cannot lay their independent claim to the office of the hereditary trustee. They have a limited right only to represent the estate or claim of the deceased. Relying upon the decision of this Court in the case of Shri Hari Charan Das Babaji Vs. Adhikari Baishnab Charan Das and others, reported in 51 (1981) CLT 12, Mr.Rourtary further submitted that the dispute at hand does not come within the scope and ambit of Section 30(1) of the OHRE Act, which contemplates only recognization of admitted heirs as hereditary trustees. When there is dispute with regard to the nature of incumbency to office of the trustee of a given religious institution (whether hereditary or not), it would certainly come within the scope of Section 41(c), but a dispute between the rival claimants to succeed to the office of hereditary trustee is beyond the scope of Section 41(c) of the OHRE Act. Neither the Commissioner nor the Assistant Commissioner has jurisdiction to decide as to whether a particular person is entitled to succeed to the hereditary trusteeship. It is only the Civil Court which can make a declaration to that effect. Mr.Routray replying to the 13 observations made by this Court in MA No.16 of 1977 submitted that the proceeding before the Assistant Commissioner was regarding the nature of the institution, i.e., public or private. This Court reversing the orders passed by the Assistant Commissioner as well as the Commissioner of Endowments, held that the case institution is a temple having the family members of Hadibandhu as hereditary trustees. There was neither any issue framed nor any adjudication made with regard to the trusteeship of the case institution. Thus, the observation made in paragraph-26 of M.A. No.16 of 1977 quoted hereinabove, is obiter dicta. He also relied upon the decision of the Hon’ble Supreme Court in the case of M/s Divya Exports Vs. M/s Shalimar Video Company & Ords., reported in AIR 2011 SC 3063 in support of his case. Thus, the observation made in paragraph-26 of M.A. No.16 of 1977 quoted hereinabove, is obiter dicta. He also relied upon the decision of the Hon’ble Supreme Court in the case of M/s Divya Exports Vs. M/s Shalimar Video Company & Ords., reported in AIR 2011 SC 3063 in support of his case. Thus, he submitted that the impugned order is not sustainable and the same is liable to be set aside. 7. Mr. Choudhury and Mr. Roy, learned Senior Advocate supplemented the submissions of Mr. Routray and Mr. S.S. Rao, learned counsel appearing for opposite parties 4 to 7 by making submissions with regard to mismanagement of the case institution and conduct of Pradyumna-opposite party No.1. They submitted that the institution was running smoothly and it is Pradyumna who created disturbances in the smooth management of the case institution and filed a petition under Section 30(1) of the OHRE Act, which invited several disputes and litigations in subsequent days. Learned counsel therefore submitted that the impugned order is not sustainable both in law and facts and prayed for setting aside of the same. 8. In order to test the sustainability of the impugned order under Annexure-1, it requires close scrutiny of Section 30 of the OHRE Act at the threshold, which reads as follows:- “Section 30 - Filling up of vacancies in the office of hereditary trustee— (1) When a permanent vacancy occurs in the office of the hereditary trustee of such religious institution the next in the line of succession shall be entitled to succeed to the office. (2) When a temporary vacancy occurs in such an office by reason of the suspension of the hereditary trustee under Sub-section (1) of Section 28 or by reason of his ceasing to hold office under the provisions of Section 29, the next in the line of succession shall be appointed to discharge the functions of the trustee until his disability ceases. (3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office, or when such vacancy cannot be filled up immediately or when a hereditary trustee is minor and has no legally constituted guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as such guardian, the appoint a fit person to discharge the functions of the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term as the Commissioner may direct. The Commissioner shall have power to remove such interim trustee for the reasons specified in Section 28. Explanation-In making any appointment under this sub-section the Commissioner, shall have due regard to the claims of members of the family, if any, entitled to the succession. (4) Nothing in this section shall affect the right of any person aggrieved by an order of the Commissioner under Sub-section (3) to establish the right to hold office of the hereditary trustee in a Court of law: Provided that such Court shall have no power to stay the operation of the Commissioner, pending the disposal of the suit or other proceedings arising in relation thereto.” The provisions of sub-sections (2), (3) and (4) of Section 30 of the OHRE Act have little relevance to the case at hand. However, Section 30(1) of the said Act is the relevant provision for determination of real controversy between the parties. No doubt, the case institution is being managed by the hereditary trustees. Thus, it has to be seen as to whether there occurred any permanent vacancy in the office of hereditary trustee so as to invoke the provision of Section 30(1) of the OHRE Act. The next question crops up for consideration is, whether the female members of the family are entitled to succeed to the office of hereditary trustee. 9. It is the admitted case of the parties that Hadibandhu is the founder of the case institution, after him Sudhakar and thereafter Raghubara and Bhagaban succeeded to the office of hereditary trustee in hierarchy. Bhagaban had two sons, namely, Harekrushna and Paramananda. Paramananda had no son for which he adopted 2nd son of Harekrushna, namely, Rama Chandra. 9. It is the admitted case of the parties that Hadibandhu is the founder of the case institution, after him Sudhakar and thereafter Raghubara and Bhagaban succeeded to the office of hereditary trustee in hierarchy. Bhagaban had two sons, namely, Harekrushna and Paramananda. Paramananda had no son for which he adopted 2nd son of Harekrushna, namely, Rama Chandra. Since some dispute arose regarding the nature of the case institution, O.A. No.54/1966 was filed under Section 41(c) of the OHRE Act to declare the case institution as a private one. Learned Additional Assistant Commissioner of Endowments, Cuttack on consideration of the case declared the case institution as private. The said order was confirmed by Commissioner of Endowments by F.A.20 of 1971 by his judgment dated 21.12.1976. During pendency of the appeal before the Commissioner of Endowments, Harekrushna died on 26.08.1973 leaving behind Suraji, his widow, Nukhuri, the widow of Danardana (who pre-deceased Harekrushna) and Marua Dei, his daughter. The order of the Commissioner of Endowments was challenged before this Hon’ble Court in M.A. No.64 of 1977. This Court by judgment dated 28.11.1979 reversed the orders passed by the Assistant Commissioner as well as the Commissioner and held that the case institution is a temple as defined in OHRE Act having Suraji, Nukhuri, Marua Dei and Rama Chandra as hereditary trustees (respondents 1 to 4 in the said appeal). Thereafter, the matter was carried to Hon’ble Supreme Court in Civil Appeal No.1990/1980 by Marua Dei, the daughter of Harekrushna. Before filing of the appeal before the Hon’ble Supreme Court, Suraji died on 28.11.1979 leaving behind legal heirs, who were already on record. Nukhuri died on 30.05.1998 issueless. Hence, the name of Suraji and Nukhuri were deleted from the cause title. Rama Chandra died on 09.12.1988 leaving behind his legal heirs and they were substituted. Again after disposal of the Civil Appeal before the Hon’ble Supreme Court, Marua Dei died on 01.03.2001. Thus, there arose a permanent vacancy in the office of hereditary trustee after the death of the last declared hereditary trustee. In the interregnum, Deputy Commissioner of Endowments, Odisha allowed Pradyumna (one of the sons of Rama Chandra) to continue as person-in-management of the case institution until clear proof of succession by his order communicated vide Memo No.1395/249-C (M) dated 20.10.2001. He also issued direction to Pradyumna to get a declaration to that effect under Section 30 of the OHRE Act. In the interregnum, Deputy Commissioner of Endowments, Odisha allowed Pradyumna (one of the sons of Rama Chandra) to continue as person-in-management of the case institution until clear proof of succession by his order communicated vide Memo No.1395/249-C (M) dated 20.10.2001. He also issued direction to Pradyumna to get a declaration to that effect under Section 30 of the OHRE Act. Thus, from the said order of Deputy Commissioner of Endowments, Odisha, Bhubaneswar, it is clear that there was permanent vacancy in the office of the hereditary trustee of the case institution and thus the petition under Section 30(1) of the OHRE Act is maintainable. 10. The next question crops up for consideration is with regard to succession of female members of the family to the office of the hereditary trustee. Section 29 of the OHRE Act deals with disqualification for appointment as trustee which reads as follows:- “Section 29 - (1) A person shall be disqualified for appointment as a trustee, if he- (a) is a minor; (b) has been convicted by a Criminal Court of any offence involving moral turpitude; (c) is of unsound mind and is so declared by a competent Court; (d) is an undischarged insolvent; (e) has directly or indirectly any interest in a lease or any other transaction relating to the property of the institution; (f) is a paid employee of the institution or has any share or interest in a contract for the supply of goods to, or the execution of any works or the performance of any service undertaken by the institution; (g) has been found to be guilty of misconduct; or (h) does not profess the religion or does not belong to the religious persuasion or denomination to which the institution belongs. (2) A trustee shall be disqualified to continue and shall cease to hold office as such if he incurs any of the disqualifications specified in Clauses (b) to (h) of Sub-section (1).” Apparently, Section 29 does not attach any disqualification to the female members of the family to succeed to the office of hereditary trustee. Thus, it has to be seen as to whether the female members of the family can otherwise be prevented from succeeding to the office of the hereditary trustee. Thus, it has to be seen as to whether the female members of the family can otherwise be prevented from succeeding to the office of the hereditary trustee. For that, the definition of hereditary trustee as provided under Section 3(vi) of the OHRE Act is relevant; the same reads as follows:- “3 – Definitions-In this Act unless there is anything repugnant in the subject or context xxxxxx (vi) "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 of hereditary trustee provides that succession to the office of hereditary trustee of a religious institution can be made either.— (a) by hereditary right since the time of the founder; (b) regulated by custom; (c) specifically provided for by the founder so long such Scheme of succession is in force. Admittedly, there is no Scheme provided for by the founder for succession to the office of hereditary trustee. It is the admitted case of the parties that the succession to the office is by hereditary right since the time of the founder. Thus, it has to be seen as to whether there is any custom preventing the female members of the family to be hereditary trustee of the institution. Drawing attention of the Court to paragraph-17 of the petition under Section 30(1) (in OA 19 No.74 of 2004) (Annexure-2), the petitioner (Jagannath) categorically submitted that the male heirs of the family, namely, the sons of Rama Chandra Das are managing the case institution. Further, Smt. Amulya Kumari Ojha (opposite party No.8 herein), who is the daughter of late Rama Chandra Das, at paragraph-5 of her evidence stated that the female members have neither participated in the management nor even interfered in the management of the case institution. Shantilata Das (opposite party No.18 herein), the widow of late Rama Chandra Das in her evidence at paragraph-4, stated that as per the tradition of the family, the male members of the founder’s family are to manage the case institution. She further stated that their family history disclosed that whenever a male heir is not blessed with a male child he used to adopt. She further stated that their family history disclosed that whenever a male heir is not blessed with a male child he used to adopt. Thus, female heirs from the time of the founder are not in management of the case institution. Such is the custom and tradition of the case institution. Thus, the female heirs cannot succeed to the office of the hereditary trustee. 11. In order to establish the customary right and to prove the custom to be valid and enforceable in law, the following essential conditions must be satisfied as held in the decision of this Court in the case of Patarla Basava Raju Desibehera Vs. V. Durga Prasad Rao and others, reported in 64 (1987) CLT 367. (i) It must be immemorial in origin; (ii) It must be certain; (iii) It must be reasonable and not opposed to public policy; and (iv) It must have been followed continuously, and uniformly by those who are governed by it. Mr. Mohanty, learned Senior Advocate, relying upon the case law (supra), submitted that the plea of custom has not been proved by the petitioner. According to him, a custom to be valid and enforceable in law must satisfy all the essential ingredients spelt out in Patarla Basava Raju Desibehera (supra]. It is his submission that this Court in M.A. No.16 of 1977 at paragraph 26 (quoted above), came to a categoric conclusion that the materials on record lend ample support to the view that the management of the case institution have all along with the petitioner’s family since the time of the founder. There is no evidence to show that the members of the public took part in the management of the institution at any time. Thus, it was held therein that the case institution is a temple as defined under the Act, wherein respondent Nos.1 to 4 in the said Misc. Appeal, namely, Suraji Devi @ Danu Bou, Nukhuri, Marua Dei and Rama Chandra were the hereditary trustees. He therefore, submitted that the deposition of Shantilata and Amulaya is of no consequence as it has been categorically held that the family of the founder has been in management of the case institution. The judgment of this Court passed in M.A. No.16 of 1977 was assailed before the Hon’ble Supreme Court in Civil Appeal No.1990 of 1980 by Marua. He therefore, submitted that the deposition of Shantilata and Amulaya is of no consequence as it has been categorically held that the family of the founder has been in management of the case institution. The judgment of this Court passed in M.A. No.16 of 1977 was assailed before the Hon’ble Supreme Court in Civil Appeal No.1990 of 1980 by Marua. During pendency of the Civil Appeal, Suraji, Rama Chandra and Nukhuri died and were substituted by their legal heirs. The substitution of the legal heirs was not objected to at any point of time. Rama Chandra never challenged the judgment passed by this Court in M.A.No.16 of 1977. Neither he nor his legal heirs had ever challenged the locus standi of Morua in assailing the said judgment in M.A. No.16 of 1977 before the Hon’ble Supreme Court. Further, Section 29 of the OHRE Act does not enjoin any disqualification to the female members of the family members of the hereditary trustee to succeed to the said office. Drawing attention to the prayer made under Section 30(1) of the OHRE Act, Mr.Mohanty submitted that the prayer made therein was to declare the opposite party Nos. 2 to 22 (petitioner and opposite party Nos. 1 to 20 herein), which include the female members of the family to be hereditary trustee of the case institution. Thus, it was rightly allowed by the Commissioner of Endowments. The scope of Section 30(1) is limited to the extent of filling up of permanent vacancy in the office of hereditary trustee of a religious institution and to pass necessary orders in respect thereof. He therefore supported the finding of learned Commissioner declaring opposite party Nos.2 to 22 (petitioner and opposite party Nos. 1 to 20 herein) as the hereditary trustee. On perusal of the materials on record and on scrutiny of the evidence laid by the parties, it is clear that the family of the petitioner is in management of the case institution. There was no difficulty in such management of the case institution till the death of Rama Chandra. After his death, there was a vacancy in the office of the hereditary trustee. However, Deputy Commissioner of Endowments appointed Pradyumna as the person-in-management by his order, which was communicated on 20.10.2001 (supra), till clear proof of succession and directed to get a declaration under Section 30 of the OHRE Act. In the interregnum, dispute cropped up. After his death, there was a vacancy in the office of the hereditary trustee. However, Deputy Commissioner of Endowments appointed Pradyumna as the person-in-management by his order, which was communicated on 20.10.2001 (supra), till clear proof of succession and directed to get a declaration under Section 30 of the OHRE Act. In the interregnum, dispute cropped up. It is claimed by the petitioner that as per the custom of the family only the male members are in management of the case institution. The deposition of widow of Rama Chandra, namely, Shantilata and Amulya, the daughter of Rama Chandra also goes to show that only the male members of the family were in management of the case institution. It is a trite law as held in the case of State of Bihar and others v. Subodh Gopal Bose and another, reported in AIR 1968 SC 281 , wherein at paragraph 12, the Hon’ble Supreme Court held as under:- “…a custom is wisdom by virtue of which the class of persons belonging to a defined section in a locality are entitled to exercise specific right against certain other persons or property in the same locality to be a valid custom, the same must be ancient, certain and reasonable and being in derogation of the general rules of law.” Thus, the custom overrides the general law. Further, as relied upon by Mr.Mohanty, this Court in the decision of Patarla Basava Raju Desibehera (supra) laid down principles to prove the custom. It has been established beyond any doubt that the management of the case institution is with the family of the founder since its inception. However, materials available on record are not sufficient to prove that the management of the case institution is only 23 with the male members of the family. On the other hand, the finding of this Court in MA No.16 of 1977 to the effect that management of the institution have all along with the petitioner’s family since time of the founder is not disturbed by the Hon’ble Supreme Court in Civil Appeal No.1990 of 1980. The deposition of Shantilata and Amulya is not sacrosanct to come to a conclusion that only the male members of the family of the founder were in management of the case institution. The deposition of Shantilata and Amulya is not sacrosanct to come to a conclusion that only the male members of the family of the founder were in management of the case institution. Further, the Court has to be very careful while dealing with the issue of custom, as it precludes certain class of persons, who are otherwise legally entitled to exercise specific right. Apart from being ancient, the custom must be certain, reasonable and being in derogation of the general rule of law. The evidence and materials available on record are not sufficient to hold that only the male members of the family, by custom, have been managing the case institution. Thus, the plea of the petitioner to the effect that the case institution is only managed by the male members of the family to the exclusion of the female heirs cannot be accepted. It also does not appear to be reasonable. Further, the finding in MA No.16 of 1977 breaks the continuity and uniformity to the so-called custom, if any, existing. In that view of the matter, it is not safe to accept the plea of custom advanced by the petitioner. The right of hereditary trustee is a bare right of administration as held by the Hon’ble Supreme Court in the case of Kakinada Annadana Samajam etc. Vs. Commissioner of Hindu Religious & Charitable Endowments, Hyderabad & others, reported in AIR 1971 SC 891 . 12. Mr. B. Routrary, learned Senior Advocate submitted that the observation made by this Court in MA No.16 of 1977 to the effect that respondents 1 to 4 are the hereditary trustees of the case institution is an obiter. Controversy was with regard to the nature of the case institution as to whether the same is a private or public religious. Holding the case institution to be a temple within the meaning of OHRE Act, this Court proceeded further to declare the respondents 1 to 4 therein as hereditary trustees of the case institution, which was neither the issue nor the case of parties thereto. 13. Holding the case institution to be a temple within the meaning of OHRE Act, this Court proceeded further to declare the respondents 1 to 4 therein as hereditary trustees of the case institution, which was neither the issue nor the case of parties thereto. 13. Mr.Amiya Kumar Mishra, learned counsel appearing for opposite party No.2 submitted that the Assistant Commissioner of Endowments while adjudicating the matter under Section 41 of the OHRE Act with regard to nature of the institution has to delve into the question of management of such institution in order to establish that he assumes such jurisdiction under section 41(c) of the Act. Unless the issue with regard to the management of the religious institutions is adjudicated the nature of the institution cannot be ascertained. Thus, determination of the question with regard to management of the institution is incidental to the issue of nature of the institution. As such, it cannot be held that finding to the effect that respondent No.1 to 4 (in MA No.16 of 1977) as hereditary trustee of the case institution to be obiter dicta. Moreover, the said finding has already been confirmed by Hon’ble Supreme Court. The issue before the Assistant Commissioner of Endowments in O.A. No.54 of 1966 (under Section 41 of the OHRE Act) was with regard to the nature of the institution, but neither the Assistant Commissioner nor the Commissioner of Endowments (in FA No.20 of 1971) came to a definite conclusion with regard to management and rituals of the institution, which are essential to be looked into while delving into the question of nature of such institution. It appears from the judgment in MA No.16 of 1977 that the appellants therein had pleaded with regard to management of the institution and led evidence to that effect. This Court discussing the materials on record, came to a conclusion that public were offering Puja and attending functions of the case institution. At the same time, this Court held that the management of the institution have all along been petitioner’s family since the time of its founder. On the basis of such finding this Court held the case institution to be public in nature. At the same time, this Court held that the management of the institution have all along been petitioner’s family since the time of its founder. On the basis of such finding this Court held the case institution to be public in nature. The findings on the incidental issues (questions) required to be decided to answer the principal issue involved in the lis, cannot be said to be an obitor dicta Thus, the finding arrived at by this Court with regard to hereditary trustee therein cannot be held to be an obiter dicta. W.P.(C) No.1644 of 2011 14. Mr.Mohanty, learned Senior Advocate for the petitioner namely, Pradyumna, contended that the Deputy Commissioner of Endowments in the administrative side while considering the question of management of the case institution passed an order vide Memo No.1395/249-C (M) dated 20.10.2001 allowing Pradyumna, the petitioner to continue in the management of the case institution till clear proof of succession. Since then, Pradyumna has been in the management of the case institution. The said administrative order merged in the final order passed by the Commissioner of Endowments under Section 30(1) of the OHRE Act. Thus, Pradyumna is the hereditary managing trustee of the case institution. Learned Commissioner of Endowments, while considering the prayer for recognizing Pradyumna as hereditary managing trustee of the case institution, miserably failed to take into consideration this material fact. Thus, the impugned order to that effect is liable to be quashed and the petitioner (Pradyumna) is entitled to be declared as hereditary managing trustee of the case institution. 15. The said contention of Mr. Mohanty, learned Senior Advocate was vehemently objected and refuted by learned counsel for the opposite parties. They contended that Section 30(1) of the OHRE Act provides for filling up permanent vacancy in the office of hereditary trustee of the temple. Recognization/declaration of hereditary managing trustee of the case institution is beyond the scope of Section 30(1) of the OHRE Act. Thus, the learned Commissioner of Endowments rightly refused to grant such prayer to the petitioner. 16. On a plain reading of the provision of Section 30(1) of the OHRE Act, it appears that the provision only provides for filling up of the permanent vacancy in the office of hereditary trustee of a temple. Normally, the persons amongst the hereditary trustees who are in management of the temple are recognized as managing trustees. 16. On a plain reading of the provision of Section 30(1) of the OHRE Act, it appears that the provision only provides for filling up of the permanent vacancy in the office of hereditary trustee of a temple. Normally, the persons amongst the hereditary trustees who are in management of the temple are recognized as managing trustees. Such order is being passed by the authority under the OHRE Act in the administrative side taking into consideration the facts and circumstances of each case. The scope of Section 30(1) of the OHRE Act does not provide a scope to adjudicate upon the same. Thus, we find no infirmity in the order of the Commissioner of Endowments refusing to recognize the petitioner as hereditary managing trustee of the case institution and the same needs no interference. 17. As discussed, Section 30(1) of the OHRE Act has no scope to declare or recognize someone as the hereditary managing trustee. It only recognizes the successors next in line to the office of hereditary trustee of a religious institution. 18 In that view of the mater, we do not find any infirmity in the impugned order, which warrants interference. Accordingly, the writ petitions are dismissed being devoid of any merit. But in the circumstances, there shall be no order as to costs. S. Panda, J. I agree.