GOBARDHAN DAS BABAJI Vs. RAGHUNANDAN DAS BABAJI

JUDGEMENT

(1.) RAGHUNANDANDAS Babaji (Opposite Party-1) filed an application under Order 33, rule 1, Civil Procedure Code, on 11-8-1968 against Gobardhan Das Babaji (Petitioner), Udaya Pratap Singh Deo, ex-Zamindar of Seragad (Opposite Party-2)and the Collector of Ganjam (Opposite Party-3), The suit was valued at Rs. 16,576, the court-fees payable being Rs. 1,586. 75 paise. Opposite Party-1 asserted that he had movable properties worth Rs. 47. 00 only and no other properties. The essential facts mentioned in the pauper application regarding the nature of the rights of Opposite Party-1 may be stated ia brief. The suit institution is Narayan muth situated at Seragad. The presiding deity of the Muth is Luxminarayan mahapravu. The Muth is the private endowment of the ex-Zamindars of Seragad who were successively exercising their rights in the management of the Muth. The public and the Cominissioner of Endowments have no rights therein. Late zamindar Sri Lakshmi Nrusingh Deo appointed Sri Mahant Bihari Das, the Mahant of Dengadi, to manage the Math. Bihari Das died on 8-12-1920. After his death, his Chela Krushna Charan Das was appointed as the manager of the suit institution. Krushna Charan Das with the permission of the Zamindar took opposite Party-1 as his Chela to manage the properties. Opposite Party-1 was managing the suit institution on the strength of a will executed on 15-6-1945 by krushna Charan Das, who died on 31-7-1958 Without the knowledge of Opposite party-1, late Krushna Charan Das executed another will in 1958 in favour of the petitioner Under the later will the petitioner was appointed the Mahant of the institutions including the suit institution. It was asserted in para 7 of the petition that the will in favour of the petitioner was the outcome of undue influence and fraud when Krushna Charan Das was not in his senses on account of administration of intoxicants like opium and ganja. On the strength of the will the petitioner filed an application before the Endowment commissioner to recognise him as the Mahant of all the institutions including the suit institution. The Commissioner ot Endowments by his order dated 2-9-1963 accepted the will of the year 1958 and appointed the petitioner as the hereditary trustee of all the institutions and the possession of the institutions and the properties was delivered to the petitioner on 21-11 1965. It was further asserted in the petition that no person other than the zamindars had the right to nominate trustee for the suit institution and, as such, the order of the Commissioner is illegal, null and void and is not binding on either Opposite Party-1 or the zamindar. The suit was filed for a declaration that the Muth is a private institution of the zamindar of Seragad and the plaintiff was the duly appointed Mahant and for recovery of movable and immovable properties belonging to the suit institution from the petitioner. The causes of action were alleged to have arisen on 2-9-1963 when the Endowment Commissioner passed the order recognizing the petitioner as the hereditary trustee, and on 21-11-1965 when delivery of possession was given.

(2.) ON 25-4-1968 the Court issued notice to the petitioner and Opposite Parties 2 and 3. A counter was filed on behalf of the Collector asserting that Opposite Party1 had sufficient means to pay the court-fees. Opposite Party-2 did not file any counter. The petitioner filed a counter asserting that Opposite Party-1 had sufficient means to pay the court-fees and that the suit was barred by limitation under Section 39 of the Orissa Hindu Religious Endowment Act (hereinafter referred to as 'the Act' ). Absence of jurisdiction of the Civil Court under Section 41 of the Act was, however, not pleaded.

(3.) THE learned Subordinate Judge, Aska, accepted the case of Opposite Party-1 that he had no means to pay the requisite court-fees. Regarding the objection that the suit was barred by limitation under Section 39 of the Act he observed: