SRI. BRUNDABAN CHANDRA JEW THAKUR REPRESENTED BY ITS MARFATDAR SHRI KHAGESWAR KAR Vs. THE STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) AN order of the Consolidation Officer rejecting the objection filed by the Petitioner not to record the name of opposite party No. 5 along with him as the Shebait Marfatdar of the deity Sri Brundaban Chandra Jew Thakur and the order having been also confirmed in appeal and revision, the Petitioner has come before this Court seeking reversal of the orders.

(2.) THE facts leading to the case lie in a short compass. The Petitioner is the son of one Srinivas Kar who was admittedly the Shebait of the deity. Srinivas Kar died much prior to 1956 leaving behind the Petitioner and opposite party No. 5, the widow of his pre -deceased son. It is the case of the Petitioner that opposite party No. 5 is living with another Makar Kar who is not a member of the family though she claimed to have married Makar Kar subsequently. On 9 -10 -1963 a registered deed of partition was executed between the Petitioner and opposite party No. Sin respect of the properties in which the properties of the deity were hot included. But the opposite party No. 5 executed a deed of relinquishment on the same day in respect of the Shebaiti Marfatdari right in respect of the deity in favour of the Petitioner. The properties of the deity in favour of the Petitioner. The properties of the deity rested in the State under the provisions of the Orissa Estates Abolition Act by virtue of a blanket notification made in 1974 and there after the Petitioner filed application on behalf of the deity under Sections 6 and 7 of the Orissa Estates Abolition Act claiming himself to be the Marfatdar. There is no dispute that the land has been settled with the deity with the Petitioner as its Marfatdar. Thereafter the consolidation operations commenced in the area but therein at the land register stage, the names of both the Petitioners and opposite party No. 5 were recorded in respect of the lands of the deity as joint Marfatdars. The Petitioner objected to such record but the Consolidation Officer rejected the objection being of the view that the deed of relinquishment executed on 9 -10 -1963 was a compulsorily registrable document as it amounted to transfer of the property and being not so done the document was not available to be taken into consideration. Coming to such conclusion he held Opposite party No. 5 to be a co -sharer in the property and as entitled to be recorded along with the Petitioner as the Marfatdar. The Petitioner's appeal and revision having failed, he has been compelled to come before this Court.

(3.) ADMITTEDLY the patties no longer constitute a joint family there having been a partition among them on 9 -10 -1963. Hence, their joint family status was severed from that date. The deed of relinquishment, even if was compulsorily registrable and in the absence of registration would not effect any transfer of right, title and interest, yet was admissible for collateral purposes to show the nature of the transaction, the conduct of the parties in relation to the Shebaitship as also the nature of the right exercised by the parties thereto. The impugned orders would show that the opposite party No. 5, through the deed, did not want to exercise the right of Shebaitship which fact assumes greater importance in view of the partition. According to herself, the opposite party No. 5 has married elsewhere and has left the family. It is the Petitioner's positive case that opposite party No. 5 had never exercised any right of Shebaitship. No counter has been filed by the opposite party No. 5 in this case to contest the claim. There can thus be no hesitation to hold that the Petitioner has been unequivocally exercising the right of Shebaitship to exclusively since 1963. The settlement made under Sections 6 and 7 of the O.E.A. Act in favour of the deity shows the Petitioner as the Marfatdar. It is well settled in law that a settlement under Sections 6 and 7 of the Act constitutes a new tide obliterating all previous claims prior to it. If Shebaitship is taken as a right requiring the deed of relinquishment to be registered, the settlement under Sections 6 and 7 would be exclusively in favour of the deity with the Petitioner as its Marfatdar and hence the settlement would not enure to the benefit of opposite party No. 5 in view of the deed of relinquishment which exhibits, her conduct, i.e. she never claimed any share therein. We hold as such because though ordinarily a settlement under Sections 6 and 7 of the O.E.A. Act in favour of one co -sharer ensures to the benefit of all other co -sharers, yet where there is material to show that the other co -sharers had never exercised their right and had relinquished such right in favour of one co -sharer, the settlement is taken to be made in favour of that co -sharer only who made the application. That being so, even if the Consolidation authorities came to the conclusion that the Shebaitship is itself a right to property and the deed of relinquishment required registration, yet settlement having been made under the O.E.A. Act in favour of the Petitioner, opposite party No. 5 could riot be recorded along with him.