Priyanath Das vs Smt. Kiranabala Das And Others
2021 Latest Caselaw 11324 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                          A.H.O. No.62 of 1993



            Priyanath Das                             ....            Appellant
                                                  Mr. Gurudatta Kar, Advocate
                                                  Mr. A.K. Mohanty, Advocate

                                           -versus-

            Smt. Kiranabala Das and Others         ....         Respondents
                                          Mr. S.P. Mishra, Senior Advocate
                                               Mr. A.N. Routray, Advocate


                       CORAM:
                       THE CHIEF JUSTICE
                       JUSTICE A.K. MOHAPATRA


                                        ORDER

Order No.                              05.11.2021
            Dr. S. Muralidhar, CJ.

I.A. Nos.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of 2021

30. 1. All these applications are allowed as prayed for. The legal heirs (LRs) of the deceased (Respondents) as prayed for in the applications are brought on record.

2. The I.As are disposed of.

AHO No.62 of 1993

3. The present appeal is directed against the judgment dated 9th February, 1993 passed by the learned Single Judge in First Appeal No.96 of 1978. By the impugned judgment, the learned

Single Judge dismissed the appeal and thereby affirmed the preliminary decree dated 22nd December, 1997 passed by the learned Additional Sub-ordinate Judge, Balasore in O.A. No.20/20 of 1977-74. The preliminary decree was for partition of a joint family property.

4. The background facts are that Shri Gopal Jew Thakur is the family deity of Durllava Das, a common ancestor of the Plaintiffs in the suit i.e. the Respondents herein as well as the Defendants i.e. the Appellants. The said Durllava had two sons Padmalochan and Srimanta. With the line of Padmalochan becoming extinct, Srimanta succeeded to the entire property. Srimanta had five sons, two of whom were dead even before the suit was filed and they did not have any heir. The joint family properties, therefore, fell to the surviving three brothers. Defendant Nos.1 to 2 were the sons of one brother and Defendant No.3 was the widow of another. The Plaintiffs belonged to the branch of the 3rd brother.

5. The case of the Plaintiffs was that they were entitled to 1/3rd share of the total properties mentioned to the Schedule to the plaint. The claim of the Plaintiffs was that the family got separated 30 years prior to filing of the suit. This was disputed by Defendant No.1 in the written statement. Apart from challenging the genealogy it was asserted that the family was still joint.

6. The case of the Defendants was that the property in Lot Nos.3, 4 6 to 9, 13 to 15, 17 to 19 and 21 belongs to the family deity Shri Gopal Jew Thakur and that income from such property is utilized for the Puja and festivals of the deity. It was accordingly contended that these properties were not liable for partition. It was contended that Bholanath, one of the two brothers who died issueless, was fond of Defendant Nos. 1 and 2 and had executed a Will in their favour on 10th April, 1954. It was further contended that possession of the lands had been delivered to them in order to equalize the shares of the Defendant Nos.1 and 2 as well as Narayan, husband of Plaintiff No.1. It was accordingly contended by the Defendants that the land under the Will was not liable for partition and in the event there was partition then Defendants No.1 and 2 were entitled to two-thirds share in the family property.

7. The case of Defendant No.3 was that the entire property of the family had not been brought into the common hutch-pot and therefore, there was no scope for partial partition. Her case was that the husband of Plaintiff No.1 and Defendants No.1 and 2 were in separate possession of their respective shares and had sold some of the properties. She claimed that the land under Plot No.6 in Schedule 'Kha' measuring 74 decimals was her "Streedhan" property. She claimed 1/3rd share in the rest of the suit property as well as for allotment of properties mentioned in Schedule 'Cha' of the written statement to the Plaintiff and the Defendant Nos.1 and 2, which had been transferred by their

predecessor-in-interest. Defendant Nos.6 to 10 were subsequent purchasers who defended their purchases. Defendant No.2 did not file any written statement in the trial Court and remained ex parte.

8. After considering the evidence of two witnesses examined on behalf of the Plaintiff and five on behalf of the Defendants and after examining the documents marked as Ext. A series, Ext. B series and Ext-A-1 to E-1, the trial Court held that the lands recorded in the names of the Deity were "nominal" i.e. they in fact belonged to the family and were liable for partition. It was further held that the Will in favour of the Defendant Nos.1 and 2 cannot be acted upon. Accordingly, a preliminary decree for partition was passed as prayed for. This was challenged in the aforementioned First Appeal No.96 of 1978 before the learned Single Judge by Defendant Nos.1 and 2.

9. It was contended by the Defendants i.e. the Appellants before the learned Single Judge of this Court that they were not asserting their right over the properties on the basis of the Will. It was also admitted that the properties other than those of the Deity Shri Gopal Jew Thakur were liable to be partitioned in accordance with the preliminary decree. The case of the Appellants/Defendant Nos.1 and 2 as that the property standing in the name of the Deity are real Debottar and therefore, not liable for partition.

10. The learned Trial Court observed that when the record of rights (RoR) stood in the name of the Deity, the normal presumption in the absence of evidence to the contrary would be that the endowment is real since there was a presumption of correctness as to the RoR documents. The learned Single Judge in the impugned judgment dismissing the First Appeal No.96 of 1978 noted that the property could be recorded in the name of a Deity when it is a real Debottar. In the case of a nominal Debottar, it is a family to which the property belongs which is the real owner and not the Deity. In the event of a nominal Debottar, the members of the family had the full freedom to deal with the property as according to their choice. However, when there was a real Debottar the Endowment was to be dealt with in accordance with the intention of the founder of the Deity and not otherwise.

11. The learned Single Judge examined the RoR and found that the description of shares in the property standing the name of the Deity were "inconsistent the character of there being real Debottar". Consequently, the learned Single Judge was of the prima facie view that the property was not real Debottar. It was held that the properties endowed were nominal Debottar in character.

12. The learned Single Judge was unable to accept the plea of the Appellants that purchase of lands in the name of the Deity was intended by the Purchasers to be endowed for the purpose

of Seva Puja. He also negated the plea of the Appellants that the said evidence would outweigh other records for coming to the conclusion that the properties were nominal Debottar. The learned Single Judge held that since there was no clear evidence of the intention of the purchasers, who are the founders of the endowment. About the arrangements made by the parties for the expenditure for the Seva Puja for the Deity, it was observed by the learned Single Judge that since there was no clear evidence for the nature of Seva Puja and other religious performances, an enquiry would be made by the trial Court in the final decree proceedings in that regard, so that arrangements could be made for the parties to bear the expenditure according to their respective shares.

13. The learned Single Judge has further observed as under:

"...If the trial Court would find it necessary, it would first make the properties standing in the name of the deity charged with such seva puja and other religious performances in accordance with law. This option is given to the trial Court in the final decree proceeding and I express no final view in the matter."

14. After discussing ROR, the learned Single Judge held as under:

"Therefore, prima facie I am satisfied that the properties are not real Debottar. Added to this prima facie view taken by me, I find that the parties were dealing with the properties by transferring the same. Even one branch has taken away half share which is not the subject- matter

of the suit itself now. Thus, as the evidence stands, the conclusion would be that the properties endowed are nominal Debottar in character.

15. The appeal was accordingly dismissed.

16. On 22nd April, 1999 this Court passed an order restraining any of the parties from alienating any portion of the suit properties without leave of this Court. That interim order has continued since.

17. Many of the parties expired during pendency of the appeal and have been substituted by their respective legal representatives (LRs). Interestingly at one stage of the proceedings on 8th April, 2009 this Court passed a detailed order calling for a report from the Commissioner of Endowments (CoE) after inquiring under what circumstances the Deity had been deprived of its rights and a decree had been obtained without impleading the Deity as a party. Persons claiming to be in possession of the suit properties were restrained by this Court from alienating the same since it originally belonged to the Deity.

18. In response to the above order, the CoE wrote to the Registry of this Court asking for copies of the documents. The copies of the relevant documents including the orders of this Court and

pleadings were sent to the CoE, Bhubaneswar under cover of letter dated 16th April, 2009.

19. On 29th July 2009 the CoE wrote to the Registrar (Judicial) of this Court stating that it was necessary for him to peruse the sale deed to ascertain whether the transfers were effected after obtaining due permission under Section 19 of the OHRE Act. It was pointed out how neither the Plaintiffs nor the Defendants actually cooperated with the CoE to complete the enquiry as ordered by the Court.

20. This was followed by the CoE again writing to the Registrar (Judicial) of this Court on 31st August, 2009 confirming the existence of the Deity. One month's further time was sought by the CoE for completing the enquiry. On 6th October, 2009 again further time of one month was sought by the CoE.

21. The report of the CoE was finally submitted on 11th December, 2009. The CoE found that the properties in Khata No. 69/17 Mouza- Haripur stands recorded in the name of the Deity Shree Gopal Jew Thakur Bije. Likewise, Khata No. 927 of Mouza- Mandar Sahi stood recorded in the name of the Deity. Further, property in Khata No. 66 in Mouza- Banabasan also stood recorded in the name of the Deity. The conclusion in the enquiry report reads as under:

"From the Records such as R.O.R., it is found that the case land in Khata No.577, 182, 148 and Khata No.927 stands recorded in the name of the deity, but there is no material to show that Khata

No.927, 169/17, 911, 168 and 66 is connected with the case land. Similarly, there is no material to show that the nature of the institution has been decided U/s 41 of the O.H.R.E. Act. All the religious institutions are deemed to be public unless and until the nature of the institution and endowments attached thereto is declared as private. Therefore, any alienation in contravention of the provisions of Sec-19 of the Act is void ab initio. Law is well settled that the land belonging to the deity/religious institution cannot be transferred in any manner in contravention of the provisions of Sec-19 of the O.H.R.E. Act. The reason is that the deity is a perpetual minor and disabled person and property belonging to such minor and disabled person incapable to cultivate the holding, requires protection. The deity cannot be divested of any title or right of immovable property in violation of the statutory provisions. If any person claims to have acquired any right in the property belonging to the deity, the transaction is required to be ignored being illegal and the deity becomes entitled to recover the possession. In the present proceeding, the deity has not been impleaded as part nor any notice has been issued under Section 69 of the O.H.R.E. Act to the Commissioner of Endowments, Orissa, Bhubaneswar. It may be stated that whatever sale transactions has taken place in respect of portion of the suit property it is without permission U/s 19 of the O.H.R.E. Act. Since the property as indicated above stands recorded in the name of the deity, notice U/s 69 of the O.H.R.E. Act is mandatory and when the parties have filed the case even for partition, such notice is required to be served and non-service of notice on the Commissioner without any declaration U/s 41 of O.H.R.E. Act amounts to suppression of fact.

From the enquiry, it is found that the parties by suppressing material facts tried to grab deity's property."

22. It appears that the case was not listed for a long time. After the report dated 11th December, 2009 was submitted to this Court by the CoE, this appeal was listed for hearing on 4th December, 2014 when the Registry was asked to furnish counsel for the State with the aforementioned letters of the CoE, but not the report of the CoE itself. Even at the subsequent hearings on 12th and 24th April, 2021 the fact of receipt of the report dated 11th December, 2009 of the CoE was not brought to the notice of the Court. Consequently, none of the parties were furnished with a copy of the said report.

23. The learned Single Judge upheld the preliminary decree without having the benefit of the above report of the CoE. If he did have the report of the CoE, the conclusion undoubtedly would be different. Having examined the memorandum of appeal and heard learned counsel for the Appellants and the Respondents, the Court is inclined to set aside both the preliminary decree and the impugned order of the learned Single Judge and remand the matter to the trial Court to enable the Plaintiffs and the Defendants to respond the report of the CoE and for a fresh decision of the trial Court at the stage of preliminary decree.

24. The above findings of the learned Single Judge were only prima facie in nature. Since the final decree proceedings were

pending, the learned Single Judge did not express any final view in the matter conscious that further grounds would be urged at the time of final decree. However, now that the CoE's report is available, the impugned preliminary decree of the trial Court would have to be re-visited in light of the findings therein.

25. Accordingly this Court set aside both the preliminary decree and the impugned order of the learned Single Judge and remands the matter to the trial Court to decide the suit afresh at the stage of a preliminary decree. A direction is issued by this Court to the Registry to send to the trial Court a copy of the report dated 11th December, 2009 of the CoE forthwith.

26. The suit will now be listed before the trial Court concerned on 1st December, 2021 for directions. The trial Court will provide the Plaintiffs with a copy of the aforementioned report of the CoE for them to contest it in accordance with law. It is further directed that the trial Court will proceed further in the matter only after impleading the CoE, and after ensuring the substitution of all parties by their respective LRs.

27. The appeal is disposed of in the above terms.

(Dr. S. Muralidhar) Chief Justice

(A.K. Mohapatra) Judge S.K. Jena/P.A.