Jagdev Vs. Lingraj Samantaray & Ors  INSC 391 (28 July 2000)
Babu, J. & Shivaraj V. Patil, J.
BABU, J. :
respondents made a claim in respect of an institution Sri SidhaBaladev Jew, Bie-Sodharpur,
P.O. Baku in the district of Puri; that the said institution had been
established by some unknown founder the origin of which had been lost in
antiquity and the institution has all along been treated as a public religious
institution; that the respondents ancestors were entrusted with the management
of all the affairs of the said institution including seva-puja of the deity and
possessing all the lands of the deity and such right of maintaining the
institution was inherited by their heirs; that they have been rendering seva-puja
to the deity as marfatdars without any intervention at any time whatsoever and
therefore are in possession of all the properties of the deity, paying rents to
the authorities in respect of the landed properties and from out of the
usufruct received from the landed properties by their ancestors; that no
property has been separately set apart and given to the marfatdars to be
enjoyed by them in lieu of their service; that such right of inheriting the
office of marfatdarship has been in practice since the time of the founder and
is regulated by custom; that they have been functioning as marfatdars since the
time of the founder till todayand they have also been recognized as Hereditary
Trustees by the Revenue and other authorities from time to time.
year 1955, the respondents claimed by filing an application under Section 64 of
the Orissa Hindu Religious Endowments Act, 1939, that the institution of the
endowments thereof to be their private property made by the respondents and
contested by the appellant and others and the same was dismissed.
the matter went to the High Court in appeal and ultimately the decision of the
lower Court was upheld and the appeal was disallowed. Another application under
Section 42 of the Orissa Hindu Religious Endowments Act, 1951 [hereinafter
referred to as the Act] was filed in the year 1959-60 which was also dismissed
but for default. Thereafter a non-hereditary trust board was appointed under
Section 68 of the Act and under whose control sevas are performed to the said
deity. Another application was filed to adjudicate their claims as hereditary
trustees under the Act on the basis of the pleadings set out earlier in this
order. The appellant pleaded that by custom or otherwise the respondents were
not ever treated as hereditary trustees of the institution.
issues were raised by the Assistant Commissioner as to (i) whether the petition
was maintainable; (ii) whether the appellant is barred by the principle of res judicata;
(iii) whether respondents are hereditary trustees. With regard to issue Nos.1
and 2, he found in favour of the respondents. Thus the only issue remaining to
be considered is whether the respondents are the Hereditary Trustees of Sri Sidhabaladev
Jew of Village Sodharpur, P.O. Baku, District Puri. The Assistant Commissioner
noticed that heavy burden lies upon respondents to establish that they are
Hereditary Trustees of the institution of the deity since the time of the
foundation of deity or is regulated by custom or specially provided by founder
so long as such scheme is in force. He, in detail, considered the said aspect
of the matter and came to the conclusion that respondents could only be marfatdars,
that is, only servants of the institution, who are liable for dismissal in the
event of non-performance of seva/puja of the deity and not Hereditary Trustees.
He also noticed that even the respondents case is that the institution of the
deity and entrusting the management thereof had been lost in antiquity.
Therefore some good material should have been produced by the respondents to
establish their claim. On discussion of the other material on record the
Assistant Commissioner rejected the claim made by the respondents. The matter
was carried in appeal to the High Court and the High Court allowed the same.
The basis upon which the High Court proceeded to hold the respondents as
Hereditary Trustees is that there was material to show that the respondents are
marfatdars and if they are marfatdars, they should be taken to be trustees. It
was also held that since the origin of the temple was lost in antiquity, on
principle of lost grant, the respondents should be deemed to be hereditary
definition of Hereditary Trustee is set out in the Act.
the said provision Hereditary Trustee means the Trustee of the religious
institution succession to whose office devolves by hereditary right since the
time of the founder or is regulated by custom or is specifically provided for
by the founder so long as such scheme of succession is in force. In order to
lay a claim that they are Hereditary Trustees it has to be established that the
members of the family have been in charge of the management of the affairs of
the deity as trustees and succession to their office devolve on them by
hereditary right since the time of the founder and the scheme was in force
until filing of the application under Section 41 of the Act. Assuming that
every single member of the family of the respondents were acting as marfatdars
of the deity for some time may not by itself be sufficient to establish their
case that they are Hereditary Trustees as provided in Section 3(6) of the Act.
The other criteria like succession to office of the trustee devolving by
hereditary right since the time of the founder or being regulated by custom and
such scheme is in force till the time of application under Section 41 of the
Act has to be established by adducing cogent evidence.
test the material placed before the court in the light of what we have stated.
The argument that was advanced in the present case is that being marfatdars the
respondents are trustees. However, the High Court proceeds to analyse the
matter on the basis that there is no impediment to the person who was in charge
of rendering religious duty of the deity to be a trustee of the institution in
as much as the definition of a trustee includes any person in whom the
administration of the religious institution is assigned. This approach of the
High Court results in examining the matter from a wrong end. What is to be seen
is whether respondents, though hereditary trustees, were engaged as marfardars
and not the other way. Merely because a person is in charge of the
administration of the deity though as a trustee will not make him a hereditary
trustee unless the conditions thereto are fulfilled to which we have adverted
to earlier. In the present case, the claim of the respondents is not that they
are trustees but that they are hereditary trustees under the relevant
provision. Therefore the view of the High Court in this respect is not well
founded particularly when the view set up by the authorities below could not be
termed as unreasonable or improper.
other basis upon which the High Court passed its judgment is that the
requirements of law that they are Hereditary trustees since the time of founder
occurring in the definition of Hereditary Trustee is lost in antiquity and
therefore it is not possible to have any direct evidence to establish the line
of succession but could be derived in the doctrine of lost grant.
open to court to infer grant from immemorial use when such user is open, as of
right and without interruption but grant will not be inferred if the user can
be explained otherwise. The fiction of a lost grant is a mere presumption from
long possession and exercise of user by easement with acquiescence of the
owner, that there must have been originally a grant to the claimant, which had
been lost. There can be no such presumption of a lost grant in favour of a
person who constitute trustees in succession. We do not think that, with the
material on record, any such interference is possible.
contention had been advanced before the courts that the deity is a private
trust and not covered by the enactment;
failed in that regard now they want to hang on to the fact that they are
hereditary trustees. In establishing the same they have miserably failed by not
producing evidence of any kind. In the circumstances we have no hesitation in
setting aside the order made by the High Court and restore that of the
Assistant Commissioner to which we have adverted to earlier. The appeal is
allowed accordingly. However, there shall be no order as to costs.