BASUDEV MOHARAN Vs. OGADHU PONDA

JUDGEMENT

(1.) This reference arises in Second Appeal NO. 60 of 1945. One Baaudev Moharan, Secretary of Hathotto Co-oparative Society, (defendant-appellant) preferred this appeal against the confirming judgment of the Additional Subordinate Judge of Berhampur upholding the decree of the Munsif in a suit for declaration of title and either confirmation or recovery of possession of the disputed Inam lands. The same lands had been the subject of attachment and sale at the instance of the appellant-Society in execution of a decree against a member of the Society, a brother of Ogadhu Pooda, the trustee of Sri Jaganuath Mohaparabhu of Hathotto village. The decree was passed against the former, qua, an individual as distinguished from a trustee. Admittedly, the endowment was not bound by the debts, far lees, by the decree, the execution, the attachment, the sale and the proceeding for delivery of possession that followed. The contention, inter alia, that the plaintiff was not entitled to sue, was reiterated in the second appeal which wag heard by a Division Bench constituted by Das and Narasimham J. The question, that waa very seriously pressed before them, was that non-compliance with the requirements of 3. 64, Orissa Hindu Religious Endowments Act (Orissa Act IV [4] of 1939) interposed an effectual bar to the institution of the suit. In the course of the arguments at the Bar, a decision of the Patna High Court, reported in Upendra Prasad v. Akhandaleswar, A. I. R. (36) 1918 Fat. 133 : (13 Cut. L. T. 54), Was Cited. My learned brothers felt dubious as to the correctness of that decision. The decision had been recorded by me sitting singly in the Cuttack Circuit of the Patna High Court. Hence this reference. Their Lordships have framed the following questions in their referring judgment. The questions referred to the Special Bench to which I concurred are:

(2.) Whether Clause (a) of Sub-section (1) of Section 54 applies to a suit for possession against a person claiming dehors the trust and in the position of a trespasser.

(3.) Whether consent obtained subsequent to the institution of the suit is sufficient compliance with the provisions of Section 54. 2. The answers to the questions, as formulated, necessarily depend the construction of Section 64, Orissa Hindu Religious Endowment Act (hereinafter referred to as 'the Act') so far as it bears on its applicability to the present suit. Though the words of the section are the best guide in the matter of construction, the Court should not be oblivious of the history of the Legislation. Page 2 of 14 Basudev Moharan vs. Ogadhu Ponda (18.10.1949 - ORIHC) Although the Court may not be at Liberty to construe an Act of Parliament by the motive which influenced Legislature, yet when the history of law and legislation tells the Court what the object of the Legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to finding what it means and not with a view to extending it to something that was not intended. Section 64 of the Act is a word for word reproduction of Section 73, Madras Hindu Religious Endowments Act (Act I [1] of 1926) (hereinafter referred to as the 'Madras Act') as amended as it then stood except, if any, in some very minor details. It would not be far from correct to adopt the view taken by the Madras High Court, of the meaning of the corresponding section in its application to suits of the nature contemplated therein. Section 73 of the Madras Act historically descends from Section 92, Civil P.C. (hereinafter referred to as the Code) which it replaces, so far as it goes. On account of inartistic drafting, the section has presented some difficulty of construction as will appear from the Madras decisions that shall be reviewed presently in this judgment. For facility of reference, Section 92 of the Code is reproduced here :