PRASANNA KUMAR PRAHARAJ Vs. JAGANNATH JEW

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment in a Second Appeal disposed of by Barman, J., as he then was. When this appeal came before a Division Bench for hearing, the correctness of an earlier Division Bench judgment of this Court in ILR (1963) Cut 817 : (AIR 1965 Orissa 76) (Nabaghana Samal v. Bhagawata Gossain,) was doubted and the vires of Section 73 (2) of the Orissa Hindu Religious Endowments Act (2 of 1952) (hereinafter referred to as the Act) was questioned.

(2.) THE Division Bench thereupon referred the appeal to be heard by a Full Bench under Rule 2, Chapter V. Part II of the Rules of the Court. It also formulated four points to be determined by the Full Bench. THE points referred are the following :( 1) Whether the expression trustee appointed under the Act in sub-section (2) of Section 73 of the Orissa Hindu Religious Endowments Act, 1951 includes all kinds of trustees, hereditary and non-hereditary, or whether it is confined to non-hereditary trustees; (2) If sub-section (2) of Section 73 of the Act is confined only to non-hereditary trustee appointed under the Act, as has been found in ILR (1963) Cut 817 : (AIR 1965 Orissa 76), is it hit by Article 14 of the Constitution? (3) Whether the expression to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary would include only rights arising out of property or would extend to enforcing suits in respect of the property itself : and (4) Whether suits to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary are excluded from the scope of sub-section (1) of Section 73 of the Act. We propose to deal first with the points and then with the appeal with reference to its facts.

(3.) AS we have held that sub-section (2) of Section 73 of the Act is ultra vires the Constitution, there is no need to answer the third question which is confined to that sub-section. The learned counsel for all the parties before us are of the same view. We accordingly do not record any answer on that point. There remains the fourth point for answer. We have already said that sub-section (2) was intended to work as a proviso to sub-section (1). Otherwise stated, in the three instances specifically referred to in sub-section (2) of that section, when tile suit was brought by a trustee appointed under the Act, special provision was made in sub-section (2) to exempt those matters from the bar of sub-section (1). It has been held by their Lordships of the Supreme Court in AIR 1967 SC 781 (Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi), with reference to the Madras Act.