Radhaballav Math Endowment Vs. Fakir Pradhan - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - judge rejected the plea of payment but dismissed the suit on the finding that the plaintiff failed to prove that the loan had been advanced from the funds of the math and not from the personal funds of the mahanta.orderg.k. misra, j. 1. on 3-6-60, defendant borrowed a sum of rs. 300/- from the late mahanta radha chandra das of radha ballav muth, puri on the basis of a pronote ext. 1. the mahanta died on 10-3-63. from 21-3-63, the math is being managed by the endowment department through an executive officer, appointed by the commissioner of endowments under section 52 of the orissa hindu religious endowments act. the then executive officer, sri baidyanath sarangi took charge of all the properties of the math including the papers relating to money lending business. the suit was for recovery of rs. 272/- inclusive of interest. the defendant admitted the execution of the promissory note and advance of the loan, but contested the suit on the pleas that the loan had been advanced from the personal funds of the mahanta and not from the funds of the math and that he paid ks. 320/- to the mahanta in falgoon, 1963 and that krishna ch. das who was the heir of the late mahanta is entitled to file the suit and that the suit at the instance of the math was not maintainable.the learned s.c.c. judge rejected the plea of payment but dismissed the suit on the finding that the plaintiff failed to prove that the loan had been advanced from the funds of the math and not from the personal funds of the mahanta. the civil revision has been filed by the plaintiff assailing the correctness of the aforesaid finding.2. in susil chandra sen v. gobind chandra das, air 1934 pat 431, their lordshipsheld that a mahanta being not only a sanyasibut also a celibate has no family of his own. ashe is free from worldly attachment, the presumption must be that what he holds or acquires isheld and acquired on behalf of the math towhich his life is entirely devoted. in the hindulaw of religious charitable trust by mukherjee the aforesaid proposition is commented uponas not quite correct. the relevant passage maybe extracted:--''the mere fact that a mohant is an ascetic does not raise any presumption that a property in his possession is not his personal property; strictly speaking, there is no presumption either one way or the other and in each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to the possession of which he is entitled in the right in which he sues.'this view represents the correct law. the learned s.c.c. judge had the correct legal approach and his judgment does not suffer from any of the infirmities regarding exercise of jurisdiction under section 115 of the code of civil procedure.3. dhaneswar mohanty, p.w. 1 is the gimastha of the plaintiff-math for the last 45 years. in examination-in-chief he stated that mahanta radha charan das had no personal property besides the muth properties. in cross-examination he however admitted that he cannot) say if radha charan das had any personal property and that if radha charan das told him that he advanced the loan from the personal funds. in cross-examination he admitted that he cannot say the particulars of those loans and he had not seen any record of personal lands of radha charan das. the mahant was residing in the math premises. the inventory of the various properties made after his death by the executive officer does not establish whether the promissory note belongs to the math or to the mahanta personally. mere custody of the document is innocuous in the facts and circumstances of this case. there is thus lack of satisfactory evidence on the plaintiff's side to establish that the loan under the promissory note was advanced out of the math's funds.there is no evidence on record as to whether personal heir of the mahanta has claimed this amount from the defendant. that again is not of such consequence, as in action on the part of the true owner would not establish the claim of the plaintiff. the position thus is that the plaintiff fails to establish that the loan was advanced from the funds of the math. the learned s.c.c. judge was alive to all the aforesaid facts. this finding cannot be assailed in civil revision.4. in keshardeo chamria v. radha kissea chamria, air 1953 s.c. 23, their lordships observed that the words 'illegally' and 'material irregularity' do not cover either errors of fact or law. they do not refer to the decision arrived at, but to the matter in which it is reached. the errors as contemplated relate to material defects of procedure and not to errors of either law or fact. the formalities which the law prescribes have been complied with.5. the learned s.c.c judge correctly kept the onus of proof in view and discussed the entire evidence on record. his view on the question of fact may be right or wrong, but was not arrived at by committing errors relating to material defects of procedure. his decision can-not therefore be interfered with in revision.6. in the result, the civil revision fails and is dismissed, but in the circumstances, the parties to bear their own costs throughout.

Judgment:
ORDER

G.K. Misra, J.

1. On 3-6-60, defendant borrowed a sum of Rs. 300/- from the late Mahanta Radha Chandra Das of Radha Ballav Muth, Puri on the basis of a pronote Ext. 1. The Mahanta died on 10-3-63. From 21-3-63, the Math is being managed by the Endowment Department through an Executive Officer, appointed by the Commissioner of Endowments under Section 52 of the Orissa Hindu Religious Endowments Act. The then Executive Officer, Sri Baidyanath Sarangi took charge of all the properties of the Math including the papers relating to money lending business. The suit was for recovery of Rs. 272/- inclusive of interest. The defendant admitted the execution of the promissory note and advance of the loan, but contested the suit on the pleas that the loan had been advanced from the personal funds of the Mahanta and not from the funds of the Math and that he paid Ks. 320/- to the Mahanta in Falgoon, 1963 and that Krishna Ch. Das who was the heir of the late Mahanta is entitled to file the suit and that the suit at the instance of The Math was not maintainable.

The learned S.C.C. Judge rejected the plea of payment but dismissed the suit on the finding that the plaintiff failed to prove that the loan had been advanced from the funds of the Math and not from the personal funds of the Mahanta. The Civil Revision has been filed by the plaintiff assailing the correctness of the aforesaid finding.

2. In Susil Chandra Sen v. Gobind Chandra Das, AIR 1934 Pat 431, their Lordshipsheld that a Mahanta being not only a Sanyasibut also a celibate has no family of his own. Ashe is free from worldly attachment, the presumption must be that what he holds or acquires isheld and acquired on behalf of the Math towhich his life is entirely devoted. In the HinduLaw of Religious Charitable Trust by Mukherjee the aforesaid proposition is commented uponas not quite correct. The relevant passage maybe extracted:--

''The mere fact that a Mohant is an ascetic does not raise any presumption that a property in his possession is not his personal property; Strictly speaking, there is no presumption either one way or the other and in each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to the possession of which he is entitled in the right in which he sues.'

This view represents the correct law. The learned S.C.C. Judge had the correct legal approach and his judgment does not suffer from any of the infirmities regarding exercise of jurisdiction under Section 115 of the Code of Civil Procedure.

3. Dhaneswar Mohanty, P.W. 1 is the Gimastha of the plaintiff-Math for the last 45 years. In examination-in-chief he stated that Mahanta Radha Charan Das had no personal property besides the Muth properties. In cross-examination he however admitted that he cannot) say if Radha Charan Das had any personal property and that if Radha Charan Das told him that he advanced the loan from the personal funds. In cross-examination he admitted that he cannot say the particulars of those loans and he had not seen any record of personal lands of Radha Charan Das. The Mahant was residing in the Math premises. The inventory of the various properties made after his death by the Executive Officer does not establish whether the promissory note belongs to the Math or to the Mahanta personally. Mere custody of the document is innocuous in the facts and circumstances of this case. There is thus lack of satisfactory evidence on the plaintiff's side to establish that the loan under the promissory note was advanced out of the Math's funds.

There is no evidence on record as to whether personal heir of the Mahanta has claimed this amount from the defendant. That again is not of such consequence, as in action on the part of the true owner would not establish the claim of the plaintiff. The position thus is that the plaintiff fails to establish that the loan was advanced from the funds of the Math. The learned S.C.C. Judge was alive to all the aforesaid facts. This finding cannot be assailed in Civil Revision.

4. In Keshardeo Chamria v. Radha Kissea Chamria, AIR 1953 S.C. 23, their Lordships observed that the words 'illegally' and 'material irregularity' do not cover either errors of fact or law. They do not refer to the decision arrived at, but to the matter in which it is reached. The errors as contemplated relate to material defects of procedure and not to errors of either law or fact. The formalities which the law prescribes have been complied with.

5. The learned S.C.C Judge correctly kept the onus of proof in view and discussed the entire evidence on record. His view on the question of fact may be right or wrong, but was not arrived at by committing errors relating to material defects of procedure. His decision can-not therefore be interfered with in revision.

6. In the result, the Civil Revision fails and is dismissed, but in the circumstances, the parties to bear their own costs throughout.