HINDU PUBLIC Vs. RABADI GOPAL REDDY

JUDGEMENT

(1.) This appeal Under Section 44(2) of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act') is directed against the appellate order of the Deputy Commissioner of Endowments, Orissa, declaring respondents 1 to 5 in this appeal to be the Hereditary Trustees of the institution. The said respondents 1 to 5 filed an application invoking the jurisdiction of the Commissioner Under Section 41 of the Act for a declaration that the institution of Mahammayee Thakurani at Kabisuryanagar is a public religious institution and the properties endowed are public religious endowments and they are the Hereditary Trustees thereof. It was alleged in the petition that the Deity was founded by their ancestors some two hundred years back and since the date of foundation it was the forefathers of respondents 1 to 5 herein who were in peaceful possession of the properties and management fay way of succession from generation to generation and the members of the general public had no right whatsoever in the management of the institution and, therefore, the necessary declaration be made. The present appellants representing the Hindu public filed their objection before the original authority inter alia on the ground that it is the grandfather of one Malley Das Behera who had collected funds from the general public and was the founder of the institution He had appointed one Rabadi Ammana, an old lady as Archak and had given 41 Bharans of land in lieu of her service as Archak The said lady Archak was issueless and, therefore, she took one Gumba Reddy in adoption and settled the land of 41 Bharans on condition that Currba would worship the Deity. After said Gumba, his son R. Kalia Reddy succeeded to the property and worshipped the Deity and after Kalia Reddy, his son Guruba Reddy stepped into the shoes of R. Kalia Reddy. After Guruba, his grandson R. Gopala Reddy continued as Archak. It was, therefore, urged that the relief claimed in the application Under Section 41 of the Act could not be granted.

(2.) THREE issues were framed on these pleadings and the learned Additional Commissioner came to hold that the Deity Mahammayee Thakurani was founded by the ancestors of opposite party No. 2 before him as collector of funds from the public in general and it was being managed by a village committee with a member of opposite party No. 2's family as managing trustee. Therefore, the petitioners before him could not claim trusteeship hereditarily over the Deity. He also found that the Deity was a public religious endowment and it was the Arcrnkship that devolved . amongst the Archaks' family to perform the Seva Puja and in fact, the ' Archakship was suspended for misconduct on the part of petitioner No. 1 and, therefore, the petitioners (respondents 1 to 5 herein) were not entitled to the relief claimed Thus essentially it was held that the institution was a public. Hindu religious institution without any right of hereditary trustee - ship in favour of anybody and, therefore, the application Under Section 41 of the Act was dismissed.

(3.) MR . Mohapatra, the learned counsel For the appellants, relying upon the definition of 'Hereditary Trustee' in Section 3(vi) of the Act contends that a Court can declare a person to be a Hereditary Trustee only when it tomes to the conclusion that the succession to the office of the religious institution 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. Since admittedly, no custom has been proved nor is there any specific provision made by the founder in the present case, the applicants could be declared as Hereditary Trustees only if on the materials on record it is established that the succession is devolved by hereditary right since the time of the founder. In the absence of such finding, the conclusion of the appellate authority is contrary to the provisions contained in Section 3(vi) of the Act and, therefore the impugned order cannot be sustained. He also contended that since there has been a disruption in the management as would be apparent from Ext. A, even if it is held that there was any hereditary tight but such right cannot be declared because of the disruption contained in Ext A. lastly he contends that the right of an Archak and the right of a Hereditary Trustee are different. Though, in the case of a smaller institution both the rights could be combined, but in the present case there has been no such combination of rights and, therefore, the Deputy Commissioner committed an error in declaring hereditary trusteeship merely because respondents 1 to 5 were enjoying some properties as Archaks for performing Seva Puja of the Deity. Mr. Panigrahi, the learned counsel appearing for the respondents, on the other hand, contends that where the origin of an institution is not available being of a very ancient time, the fact that a particular family continues to be in management of the institution raises a presumption that the succession to the office of trusteeship devolved hereditarily and this principle would apply to the present case. Me further urges that on the materials the Deputy Commissioner having found that both Archakship and trusteeship have been combined, the said conclusion re unassailable. The rival contentions require a careful examination of the law on the subject as welt as the materials on record.