APURBA KUMAR DAS Vs. SIBA PRASAD BARIK

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the decision of the learned Additional subordinate Judge of Balasore dismissing his suit under Section 64 (2) of the orissa Hindu Religious Endowments Act 1939, for a declaration that the suit endowments were private endowments of the plaintiff's family and that the Orissa hindu Religious Endowments Act had no application to them. There was a previous proceeding under Section 64 (i) of that said Act (see Ext. A) at the instance of the plaintiff's father Ram Narayan Das which was disposed of by the Endowments commissioner OIL 7-12-50. There the Commissioner held that Ram Narayan Das failed to prove that the endowments were the private properties of his family and declared the institution to be an "excepted temple" with Ramnarayan Das and his son (plaintiff) as hereditary trustees of the same. The present suit under appeal was instituted on 2-7-55. With a view to escape limitation it was urged that ramnarayan Das died on 3-12-5 r that the plaintiff was then a minor and that he attained majority only on 20-7-54. Defendant No. 4 however in paragraph 7 of his written statement challenged the date of attainment of majority as stated by the plaintiff and averred that he had become a major long before that date.

(2.) ONE of the main issues in the litigation was the issue on the question of limitation, namely issue No. 3. Sub-section (2) of Section 64 of the Orissa Hindu religious Endowments Act, 1939, prescribed a period of one year for institution of a suit by a person aggrieved by an order of the Endowments Commissioner passed under Sub-section (1) of that Section. In considering this issue of limitation two important questi6ns of fact arise : (1) What was the date of death of Ram Narayan das? and (2) What was the date on which the plaintiff attained majority? The plaintiff's contention and his father's contention before the Endowments commissioner was that the suit properties were the joint properties of ramnarayan and his son (plaintiff) who had purchased the share of Ramnarayan's brother Gopal Narayan by a sale deed (Ext. 9) dated 24-5-46. So far as ramnarayan's interest in the properties is concerned if the date of his death is shown to be more than a year after the date of passing of the order of the endowments Commissioner, namely after 7-12-51, any right to bring a suit is completely extinguished by virtue of Section 64 (2) of the Endowments Act. But it was urged that Ram Narayan died on 3-12-51 (within a period of one year from the date of the Commissioners order ). But no evidence was led to support this contention. The plaintiff did not appear as a witness and it was alleged that he became a Musalman and went away to Delhi during the pendency of the suit. His authorised agent (P. W. 1) figured as a witness, but he admitted that Ram narayan died one or two days before Margasira Purnima of 1951. The calendar shows that Margasir Purnima was on 13-12-51 and consequently if this witness's evidence on the point is accepted Ram Narayan must have died after the expiry of one year from 7-12-1950. His right to challenge the order of the Commissioner by a suit under Section 64 (2) of the Endowments Act was thus clearly barred by limitation.

(3.) MR. B. M. Patnaik however urged that the lower Court committed an error in not permitting the appellant to prove the Death Register. I might have been inclined to consider this question if an application had been filed before this Court for this purpose under Order 41, Rule 27 (1) (a) C. P. C. No such application was filed and it is therefore unnecessary to consider whether the lower Court was justified in refusing to admit this extract of Death Register in evidence. Moreover the other witnesses examined in this case by the plaintiff namely P. W. 1. and his own mother P. W. 6 made no statement to indicate that Ram Narayan died within one year of the passing of the order by the Commissioner. In this state of evidence the lower Court was justified in holding that Ram Narayan's right to sue was barred by limitation.