Judgment:
B.P. Das, J.
1. The plaintiff is in appeal against the judgment and decree passed by the subordinate Judge, Berhampur, dismissing T. S. No. 20 of 1973.
During the pendency of this appeal, appellant-Madhusudan Panda having died, his legal heirs have been substituted in his place as appellant Nos. 1 (a) to (e).
2. The plaintiff brought the aforesaid suit praying for a decree (i) declaring that the suit property was not the public trust but the personal property of Mahant Maitheli Priya Das Goswami and that even otherwise, the transfer of the said property in favour of the plaintiff was for legal necessity and as such binding on defendant Nos. 5 and 6, and defendant No. 1 could not take action under Sections 19 and 25 of the Orissa Hindu Religious Endowments Act, 1951; (ii) granting permanent injunction restraining the defendants from interfering with the possession of the plaintiff; (iii) granting injunction restraining defendant No. 3; and to grant cost of the suit. During the pendency of the suit, defendant No. 5-Mahant Maitheli Priya Das Goswami having died was represented by his Chela Narayan Das-defendant No. 5 (a).
3. The case of the plaintiff, in brief, is as follows :
In the year 1967, defendant No. 5- Mahant Maitheli Priya Das Goswami, who was the Mahant of Haradakhandi Math, Berhampur, borrowed a sum of Rs. 7,500/- from the plaintiff in order to meet the expenses on litigation which was then pending for deciding defendant No. 5's succession as the Mahant of Haradakhandi Math as well as to clear certain other debts. To recover the aforesaid loan amount, the plaintiff had filled M.S. No. 14/63 against defendant No. 5-Mahant, who in order to discharge his liabilities and also the liabilities of the Math, conveyed his personal property described in Schedule 'A' to the plaint, by executing a registered deed of sale on 23.7.1967 in favour of the plaintiff on receipt of an amount of Rs. 15,000/-towards the consideration from him. The aforesaid money suit ended in a compromise and since the time of purchase, the plaintiff was in possession of the suit property in his own right. Prior to the aforesaid compromise, defendant No. 5-Mahant in his personal capacity had instituted T.S.No. 212 of 1962 in the Court of the Munsif, Berhampur, for ejectment of defendant No. 7 from the suit land. This suit also ended in a compromise under which defendant No. 7 admitted the right, title and interest of defendant No. 5 over the suit land. After the plaintiff purchased the suit property, defendant No. 7 attorned him as the successor landlord. The plaintiff filed O.L.R. Case No. 1108/67 against defendant No. 7 for determination of resumable and non-resumable lands which was decided by the Revenue Officer. In spite of such State of affairs, according to the plaintiff,-the Commissioner of Hindu Religious Endowments, defendant No. 1, without any enquiry whatsoever whether the suit property belonged to defendant No. 6. Math, passed an order under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter called the O.H.R.E. Act.) directing the Collector, Ganjam-defendant No. 4 to deliver possession of the suit property to the Math. Thereafter, the plaintiff filed a writ petition being O.J.C. No. 710/71 in this Court with a prayer to quash the proceeding initiated by the Commissioner of Endowments but later on withdrew the same as he was advised to file a regular suit. The plaintiff accordingly filed the present suit with the reliefs stated in the foregoing paragraph.
4. Defendant Nos. 1 and 2, i.e., the Commissioner of Endowments and the Secretary to the Commissioner, jointly filed a written statement, and so also defendant Nos. 3 and 4, i.e., the Tahasildar, Chhatrapur, and the Collector, Ganjam, respectively. Defendant No. 5(a) and defendant No. 8 filed separate written statements. Defendant No. 7 died before filing the written statement.
On the death of Mahant Maitheli Priya Das Goswami, defendant. No. 5, one Narayan Das, the Chela of the aforesaid Mahant, was allowed to represent the deceased Mahant as defendant No. 5 (a).
Defendant Nos. 1 to 4 adopted common plea in their written statements. While denying the plaint allegations on material points they pleaded that the suit land was the property of defendant No. 6, i.e, Sri Sri Laxminrushimha Swami, Bije at Haradakhandi Math of Berhampur, and not the personal property of either the Mahant Maitheli Priya Das Goswami or his predecessor Mahants. The usufructs of the suit property were used towards the offerings before the deity of the Math, and the sale of the suit property by Mahant-defendant No. 5 in favour of the plaintiff was a collusive transaction and not binding on the deity defendant No. 6. According to their pleadings, the Mahants of the Math had never kept any distinct identity of so-called personal properties and all these properties were acquired from out of the income of the Math. Even if some properties were ostensibly purchased in the name of the Mahant, those properties could not be said to be the personal properties of the Mahants. The aforesaid defendants further pleaded that the litigations referred to in the plaint were all collusion of the plaintiff and defendant Nos. 5, 7 and 8, and the decisions thereof could not bind defendant.
No. 6. The suit property being the property of defendant No. 6- Math were liable to be delivered to defendant No. 6 under Section 25 of the O.H.R.E. Act. Their further plea was that the suit was not maintainable and the plaintiff was not entitled to any relief.
Defendant No. 8 in his written statement while denying the plaintiff's case supported the case of defendant No. 6-Math. He pleaded that the suit property was not the personal property of either Mahant Maitheli Priya Das Goswami, defendant No. 5, or his predecessor Mahants and that without permission of the Commissioner of Endowments, the suit property could not have been sold and the suit property being trust property of defendant No. 6-Math, the action of defendant No. 1-Commissioner of Endowments was justified and as per law. He, however, claimed that out of the suit property, the lands covered by survey plot Nos. 243, 244 and 245 under Patta No. 237 did not belong either to defendant No. 5-Mahant or defendant No. 6-Math, but the same was recorded in the Revenue records for which the said lands had been excluded from O.L.R. Case No. 1108/67 over which defendant No. 7 and his sons alongwith defendant No. 8 had occupancy right.
Defendant No. 5(a) in his written statement admitted the case of the plaintiff and claimed that the suit property was the personal property of his Guru Maitheli Priya Das Goswami as well as of the previous Mahants. He further averred that for valid and legal necessities, the suit property was transferred in favour of the plaintiff.
5. The trial Court on the pleadings of the parties framed as many as five issues. The plaintiff in support of his case examined two witnesses and relied upon seven documents. None was examined on behalf of the defendants but three documents were exhibited on their behalf.
6. The learned Subordinate Judge. Berhampur, on an analysis of the oral and documentary evidence on record has come to hold that the suit property is not the personal property of either defendant No. 5. Mahant or the previous Mahants, but the same is the property of defendant No. 6-Math; sale of the suit property to meet the litigation expenses does not appear to be convincing and the loans, if any, incurred by the Mahant were not the liability of the deity-defendant No. 6 and that the Endowment Commissioner defendant No. 1 was justified in taking action under Section 25 of the O.H R.E. Act. On the above findings,the trial Court has dismissed the suit holding that the plaintiff is not entitled to any relief as prayed for in the suit.
7. Shri Ashok Mukherji, learned Senior Counsel for the appellants contended that no enquiry was made before passing the order under Section 25 of the O.H.R.E. Act. In this regards he submitted that as per the statutory provisions, i.e. Sub-section (2) of Section. 25 of the O.H. R.E. Act the Collector in exercising his powers under Sub-section (i), is to be guided by'the Rules framed under the O.H.R.E. Act. Rule 13 of the Orissa Hindu Religious Endowments Rules, 1959 prescribes the procedure for holding enquiries under Section 25 of the O.H.R.E. Act. The said Rule 13 provides that the Commissioner shall, in any proceeding taken up by or instituted before him under Section 25, hold a summary enquiry in accordance with the procedure laid down in Rule 43, Shri Mukherji submitted that there was no enquiry conducted in terms of Rule 13 and Rule 43 of the Rules and no notice was issued in that respect.
The second limb of contention of Shri Mukherji is that Section 13-A (d) of Chapter II-A, which was introduced to the Orisa Estates Abolition Act, 1951 (in short 'the O.E.A. Act') by Orissa Act 5 of the 1963 and was repealed by Orissa Act 33 of 1970 dated 21.12.1970, defined trustee in relation to a trust estate to mean :
'a person in whom, either alone or in association with other persons, such estate is vested or any person who for the time being,either alone or in association with some other person or persons, administers such estate and includes.
(i) in the case of a Math, the head of the Math;
(ii) in the case of a Wakf, a Mutawalli of such Wakf;
(iii) in the case of a Society registered under the Societies Registration Act, 1860, its governing body; and
(iv) in the case of any other trust the person legally competent to act in respect of thereof;'
Clause (e) of Section 13-A of Chapter-II-A defined 'trust estate' to mean -
'an estate the whole of the net income whereof under any trust or other legal obligation has been dedicated exclusively to charitable or religious purposes of a public nature without any reservation of pecuniary benefit to any individual.'Explanation .... .... ....
Section 13-B dealt with the effect of vesting notification which reads as follows :
'13-B. Effect of vesting notification - Notwithstanding anything to the contrary in any of the provisions contained in any other chapter, a vesting notification shall have effect subject to the provisions of this Chapter.'
A trustee in respect of a trust estate had to make an application within three months from the date of the notification issued under Section 3-A, as provided in Section 13-D of the O.E.A.' Act. Sub-section (2) of the said Section 13-D provided that if the Collector of the district on his own information or on receipt of any information from the Endowment Commissioner or from any source whatsoever was of the view that there were circumstances to indicate that any estate was a trust estate, he might make a reference within the aforesaid period to the Tribunal for determination whether the estate was a trust estate or not. According to the learned counsel for the appellant, neither the Collector nor the trustee had at any point of time taken recourse to the aforesaid provisions of the O.E.A. Act after the notification of vesting of intermidiary interest was made under Section 3-A of the O.E.A. Act. That apart, it was also submitted that the Math property was the subject-matter of dispute in an O.L.R. proceeding and if it was a trust property, the deity being classified as 'privileged class', the disputed property could not have been included in the said proceeding.
A conjoint reading of all these aspects, according to the appellants, clearly points to one direction that the suit property was the personal property of the Mahant, who had transferred his right, title and interest over the said property in favour of the present plaintiff-appellant and by no stretch of imagination could it be held to be the property of the Math of which the Mahant was the hereditary trustee.
8. At the outset it is pertinent for this Court to have a look at Ext. 5, which is the document under which the disputed property had been transferred to the plaintiff, who is the predecessor of the present appellants. From the recitals of Ext. 5 it appears that at the beginning the vendors were described as (1) Shri Shri Shri Laxminrushimha Swami, Bije Haradakhandi Math on their behalf hereditary trustee and Mahant Shri Maitheli Priya Das Goswami and (2) Mahant Shri Maitheli Priya Das Goswami. The recitals further go to disclose that the property belonged to late1 Ramadhina Das Goswami. Thereafter it was dealt with by Ramanarayan Das and defendant No. 5-Mahant claimed title over the suit property being the successor to the Mahantaship, on the death of Ramanarayan, Das. Though at some places the said property has been described as the self-acquired property of Ramadhina Das Goswami. nowhere in the evidence, it is clarified by the plaintiff as to how the Mahant Ramadhina Das Goswami did acquire the property in his individual capacity. There is also nothing to show that steps had been taken by the trustee or the Collector in terms of Section 13-D of the O.E.A. Act. At the same time there is no evidence to prove that the Mahant had purchased the said property out of his Own income. In a situation when the plaintiff failed to discharge his burden to prove that the Mahant was the absolute owner of the property and not the Math, it will not be proper on the part of this Court to draw an inference from the act or omission on the part of the Collector and the Endowment authorities in order to confer the title of the property on the Mahant in his individual capacity. Added to this, also there is nothing on record to indicate that the suit property had ever vested with the State though subjected to vesting if the property did not belong to the trust.
During the course of cross-examination the plaintiff as P.W. 1 in paragraph 34 of his evidence has stated as follows :
'There was a proceeding under Section. 25 of the OHRE Act before the Commissioner for the present suit lands. I cannot say if Mahant was noticed but I was noticed. Though I sent a telegram, exparte orders were passed. I did not file any petition before the Commissioner to set aside the ex parte order but filed a writ petition in the Hon'ble Court I withdraw the writ filed by me with permission to file a suit'.
Thus, the allegation of the plaintiff that no procedure had been followed does not hold good in view of the admission on the part of the plaintiff that he was noticed but for the reasons stated therein could not participate in the proceeding. He has also stated in paragraph 53 of his deposition that -
'Agricultural Income Tax returns were submitted for the Math including the suit lands.'
In his cross-examination in paragraph 26, he has stated that he had no personal knowledge about the source of income from which the Mahant paid consideration in acquisition of properties except from the documents. It may be noted here that the plaintiff for sometime was appointed as Curator to manage the properties of the Math and he was a practising advocate.
9. Defendant Nos. 1 and 2, i.e the Commissioner and the Secretary to the Commissioner respectively, have categorically in their written statement stated that after due enquiry the Commissioner gave a finding that the suit properties were the trust properties belonging to the institutions and the Mahants had no right to alienate the said properties without prior permission. There is also nothing in the evidence on record to indicate that the successive Mahants ever had personal income of their own out of which they could acquire the properties including the disputed properties in their personal capacity. That too, if properties were ostensibly purchased by the Mahants cannot be said to have been acquired in their personal capacity. In the case of Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256, the Apex Court held that :
' The gift being to the Math, though ostensibly in the name of the Mahant, the Mahant held the properties as a trustee for the indeterminate class of beneficiaries, viz., sishyas, anusishyas and visitors. This stamps the Math with the public character'.
So, it is clear that in the present case even if the onus was on the plaintiff to prove that the property in dispute does not belong to Math or Trust, but to Mahant personally, the plaintiff has not discharged the same.
10. Even though in the plaint a pleading was there that the original Mahant, as borne out from history, came to Ganjam during the time of East India Company and established a Math at Ganjam, thereafter shifted himself to Haradakhandi, and ultimately purchased the property of ex zamindar of Mohiri, there is noting in the evidence to show that the property was purchased by the Mahants in their Individual capacity.In the absence of any evidence as to the personal income of the Mahants and acquisition of properties by them from out of such personal income and in their personal capacity it cannot be held that the property did not belong to the Trust, but belonged to the Mahants.
11. During the course of cross-examination, the plaintiff as P.W.1 in paragraph 24 has stated that-'...The income of all the properties including those which I claim were maintained under one account only.' Further in paragraph 37, the plaintiff has stated that ' The income of all the properties were kept at one place under, different collection accounts'. The plaintiff was collecting paddy and cash towards Rajbhag from the tenants as a Curator Manager. All these go to show that there is no distinct identification of the properties belonging to the Math and the properties belonging to the Mahants. I, however, do not want to go into all these aspects because prima facie nothing has come before this Court by evidence on record that the properties at any point of time were purchased by the concerned Mahant out of his own income for the purpose of his own use. Ext. 5, which is the certified copy of the registered sale deed executed by D-5- the Mahant in favour of the plaintiff, only speaks of the nature of acquisition of the property as self-acquired property of Ramadhin Das Goswami and nowhere in the evidence it is stated when the property was acquired by said Ramadhin Das Goswami, what was the consideration money and the source of consideration money. In view of the aforesaid position, it is clear that even if the property was purchased ostensibly in the name of Mahant and the same was gifted to the Math or the Temple in the name of Mahant, it cannot be said to be the personal property of the Mahant unless the same was identified to be the separate and distinct all along. From the evidence on record it is crystal clear that the property was not the self-acquired property of the Mahant but belongs to the Trust, i.e. the Math, and admittedly the said property had been transferred by the Mahant under Ext. 5 in favour of the plaintiff, i.e., the predecessor of the present appellants.
12. Section 19 of the O.H.R.E. Act dealing with alienation to immovable trust property prohibits alienation of immovable trust property without the sanction of the Commissioner of Endowments as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned. Admittedly no permission/sanction had been obtained from the Commissioner before execution of the sale deed Ext. 5 and that too the alienation had been made in order to spend money on litigation for succeeding to the Gadi of the Math which has been rightly disbelieved by the trial Court saying that the loans were not legally binding on the deity- defendant No. 6. So far as Section 25 of the O.H.R.E. Act dealing with recovery of immovable trust property unlawfully alienated is concerned, the evidence of the plaintiff indicates that he had received notice in the Section 25 proceeding before the Commissioner of Endowments but he preferred not to participate in the said proceeding for which it cannot be said that the Commissioner acted illegally. Rather from the averments made in the written statement filed by the Commissioner, which go unchallenged, it appears that the order under Section 25 of the O.H.R.E. Act was passed after following the due procedures of law.
13. In view of the aforesaid findings there is nothing to interfere with the impugned judgment and decree passed by the Subordinate Judge,Berhampur in Title Suit No. 20 of 1973. The First Appeal is accordingly dismissed having no merit. Respondent Nos. 3 and 4 are at liberty to proceed in accordance with law under the provisions of Section 25 of the O.H.R.E. Act. There shall be no order as to costs.