KRUSHNA CHANDRA Vs. COMMR OF ENDOWMENTS

JUDGEMENT

(1.) The plaintiff-appellant has preferred this appeal from the confirming decision of a single Judge of this Court dismissing the suit, under Article 4 of Orissa High Court Order 1948, read with Clause 10 of the Letters Patent.

(2.) The appellant filed his suit in the court of the Sub-Judge, Puri for a declaration that he is the hereditary trustee of Radhaballav Math with all its endowments located in the town of Puri being the nominated successor of the late Mahant Shri Radhacharan Das who died in 1963. Undisputedly, Radhaballav Math is an institution of Numbark cult. Its last Mahant was Radhacharan Das who was recognised by all public authorities including defendant No. 1, the Commissioner of Hindu Religious Endowments, Orissa (hereinafter referred to as 'Commissioner). The plaintiff alleges that the late Mahant validly initiated him as his Chela according to customary and usual religious rites prevailing at the Math and the sect to which the institution belonged, and also executed a will dated 26-6-1940 acknowledging to have validly adopted the plaintiff as his Chela and also nominated him as his successor. He however, did not intimate the Commissioner about this nomination before his death on 19-3-1963. The will was un-registered and kept in a sealed cover with the District Sub-Registrar at Puri. After becoming the Chela of late Shri Radhacharan Das the plaintiff resided in the Math and later on was looking after the management of farflung Math properties under the control and supervision of the late Mahant. On the date of death of the late Mahant the appellant was at Sarada Khamar near Konarka for collection of bhag and for making arrangements for next year's cultivation. On the demise of late Mahant Radhacharan Das the Collector of Puri took immediate action under the Intestate Succession Act and took the Math under his control. Later on 21-31963 the Commissioner stepped in and took the institution under his direct control. On hearing about the death of the Mahant the appellant came back to Puri and found the Commissioner in possession of the entire Math. In fact, his entry into the Math was prohibited. He informed the Collector as also the Commissioner on 27th of March. 1963, about his right as the successor trustee hut his protestation went unheeded. The appellant subsequently filed an application before the Commissioner under Section 36 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act') on 3rd of April. 1963. This petition was kept pending with the Commissioner for a long time and ultimately dismissed on 11-9-1064 on the sole ground that the late Mahant had not intimated the Commissioner about having nominated the plaintiff as his successor. Within ninety days of this rejection order the appellant filed the present suit out of which this appeal arises.

(3.) Defendant No. 1 is the Com-missioner of Endowments and defendant No. 2 is the Executive Officer of Radhaballav Math. Though both these defendants filed separate written statements, yet their defence is practically the same. They deny that the late Mahant of the Math ever initiated the appellant as his Chela according to the religious and customary rites prevalent in the Math, and nominated him as Ms successor. In fact, the plaintiff is a married man and was given in adoption to one Baidhar alias Binakar Misra of village Chandrapur and in acknowledgment thereof a deed of ad-option has been executed and registered in Ms favour about 15 years ago. He has married the daughter of one Gopala Misra and has begotten a son who is reading in Naugaonghat School and that the appellant was serving in the South Eastern Railways as a Khalasi. Alternatively, they plead that even assuming that the appellant was validly initiated and nominated as successor by the late Mahant as his Chela, he having subsequently reverted to worldly life as indicated above has forfeited his claim to the trusteeship nf the Math in question. Besides, two technical pleas for non- suiting the plaintiff also have been put forth. One is that the suit being merely a declaratory one without con sequential relief of recovery of possession is barred under Section 42 of the Specific Relief Act which is equivalent to Section 34 of the new Specific Relief Act. The second is that the suit is barred by limitation having been instituted beyond the prescribed period of limitation of ninety days from 21-3-1963, the date when the Commissioner passed his order taking the institution under his direct control.