Mahanta Shree Jagdish Dash Ji And vs Laxmidhar Mahapatra And Another
2023 Latest Caselaw 4426 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP No. 1049 OF 2022
                 Mahanta Shree Jagdish Dash Ji and   ....      Petitioners
                 another
                                         Mr. Nirod Kumar Sahu, Advocate
                                          -versus-
                 Laxmidhar Mahapatra and another       .... Opp. Parties
                                          Mr. S.P. Mishra, Senior Advocate
                               being assisted by Mr. G.N. Parida, Advocate

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                      ORDER

Order No.                            26.04.2023
   9.       1.      This matter is taken up through hybrid mode.

2. Order dated 4th August, 2022 (Annexure-10) passed by learned District Judge, Puri in C.S. No.2/34 of 2008/2003 is under challenge in this CMP whereby an application filed by Petitioner No.1 under Order XXII Rule 3 C.P.C. for his substitution in place of Mahanta Sri Gopi Das Ji Maharaj (deceased Plaintiff No.1) has been rejected.

2. Mr. Sahu, learned counsel for the Petitioners submits that Laxmidhar Mahapatra-Defendant No.1 filed a proceeding to probate a will executed by Mahanta Natabar Das in his favour. The said probate proceeding was allowed. One Mahanta Sri Dhruba Charan Das filed a petition under Sections 263 and 283 of the Indian Succession Act, 1925 (for brevity 'Succession Act') to revoke the probate granted in favour of the Defendant No.1- Opposite Party No.1. The said proceeding has been converted to the present suit. During pendency of the suit, said Mahanta Sri

// 2 //

Dhruba Charan Das died and Mahanta Sri Gopi Das Ji Maharaj filed an application to be substituted in his place. An objection was filed by the Defendant No.1-Opposite Party No.1 stating that Mahanta Sri Gopi Das Ji Maharaj could not be substituted in place of Sri Dhruba Charan Das. On consideration, learned District Judge, Puri observing that similar such application being allowed in another proceeding and the same has not been challenged, allowed the application substituting Mahanta Sri Gopi Das Ji Maharaj in place of Sri Dhruba Charan Das. During pendency of the suit, said Mahanta Sri Gopi Das Ji Maharaj died on 12th September, 2020. Accordingly, Petitioner No.1 filed an application under Order XXII Rule 3 C.P.C. on 2nd December, 2020 to be substituted in his place. The said application was rejected on the ground that in a proceeding is filed under Section 41 of the Odisha Hindu Religious Endowments Act, 1951 (for brevity 'Endowments Act') in OA No.5 of 2002, the Assistant Commissioner of Endowments, Bhubaneswar while declaring Kabir Choura Math, Swargadwar (Balisahi), Puri to be a public religious institution, observed that there is no evidence adduced by the Opposite Parties that Mahanta Sitaram Das, Mahanta Baidhar Das and Mahanta Natabar Das were appointed by a Registered Trust of Dama Kheda. Accordingly, the issue has been answered as follows:

"Thus, from my above discussion I hold the succession to the mahantship of the case institution regulated by custom or usage of the case institution i.e., devolves from guru to chella by way of nomination through guru and not under the authority of any institution at Dama Khada or any Regd. Trust namely Sri Sadguru Kabir Saheb Dharmadas Bansabali Pandit Sabha."

// 3 //

3. It is his submission that both Mahanta Dhruba Charan Das and Mahanta Sri Gopi Das Ji Maharaj were nominated by said Dama Kheda and substitution of Mahanta Sri Gopi Das Ji Maharaj has been allowed on the death of Mahanta Sri Dhruba Charan Das. It is further submitted that the legal representative only represents the estate of the deceased and by substitution; no indefeasible right is created in favour of the legal representative in respect of the estate or interest of the deceased. In support of his case, Mr. Sahu, learned counsel for the Petitioner relied upon the decision in the case of Varadarajan -v- Kanakavalli and others, reported in (2020) 11 SCC 598, wherein at Paragraph-12, it has been held as under:

"12. In another judgment in Jaladi Suguna v. Satya Sai Central Trust [Jaladi Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521] , this Court held that the determination as to who is the legal representative under Order 22 Rule 5 of the Code is for the limited purpose of representation of the estate of the deceased and for adjudication of that case. This Court held as under: (SCC p. 526, para 15) "15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is

// 4 //

brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased."

(emphasis supplied)

4. He, therefore, submits that there is no legal impediment in substituting the Petitioner No.1 in place of Mahanta Sri Gopi Das Ji Maharaj. He further submits that by not allowing the application for substitution, the Plaintiffs are non-suited. When there is a dispute with regard the legal heirship of the deceased, the Court should make an enquiry under Order XXII Rule 5 C.P.C. to find out as to who is the legal heir and make an order to that effect. In the instant case, no such endeavour has admittedly been made by the Court. Only relying upon the decision of the Asst. Commissioner in a proceeding under Section 41 of the Endowments Act, the impugned order has been passed. As such, the impugned order under Annexure-10 is not sustainable in the eye of law and is liable to be set aside. Petitioner No.1 should be substituted in place of deceased Plaintiff No.1, namely, Mahanta Sri Gopi Das Ji Maharaj.

5. Mr. Mishra, learned Senior Advocate appearing on behalf of the Opposite Parties vehemently objects to the same and contends that substitution of Mahanta Sri Gopi Das Ji Maharaj was made vide order dated 10th March, 2009 when the order under

// 5 //

Section 41 of the Endowments Act was not passed. The Petitioner No.1 unsuccessfully challenged the said order before the Deputy Commissioner in Appeal No.13 of 2010 and before this Court in M.S.A. No.4 of 2015. Hence, the illustration of substitution of Mahanta Sri Gopi Das Ji Maharaj in place of deceased Mahanta Dhruba Charan Das has no relevance in the instant case in view of change in circumstance, as aforesaid. He further submits that it has been categorically held in the proceeding under Section 41 of the Endowments Act that Dama Kheda has no authority to nominate a Chela of a Mahanta of the case institution, namely, Kabir Choura Math, Swargadwara (Balisahi), Puri. He, therefore, submits that the impugned order under Annexure-10 warrants no interference and the CMP is liable to be dismissed.

6. Considering the rival contentions of the parties and after going though the record, it reveals that a Will was executed by Mahanta Sri Natabar Das in favour of the Opposite Party No.1- Defendant No.1. Accordingly, after death of Mahanta Sri Natabar Das, the Defendant No.1 filed a petition in Misc Case No.14/5 of 2000/97 to probate the Will, which was allowed by learned District Judge, Puri. Hence, the instant suit has been filed for the following relief:

"11. Therefore the plaintiffs pray that:

a) The court be pleased to exercise its discretion and inherent powers U/s. 263 and 283 of Indian Succession Act read with Section 47 and 151 C.P.C. and revoke or annual the WILL granted or probated and letters of Administration issued in probate Misc Case No.14/5 of 2000/97 in favour of defendant No.1(one) and for which

// 6 //

act of kindness, the petitioner shall as in duty bound ever pray."

7. It also appears that originally, Plaintiff No.2 was not a party to the suit and it was impleaded as Plaintiff No.2 on the strength of a petition filed under Order 1 Rule 10(2) C.P.C.. The suit was originally filed by Mahanta Sri Dhruba Charan Das. On his death, learned District Judge, Puri vide his order dated 10th March, 2009 allowed Mahanta Sri Gopi Das Ji Maharaj to be substituted in his place. On perusal of the order dated 10th March, 2009, it appears that in another proceeding said Mahanta Sri Gopi Das Ji Maharaj was substituted in place of deceased Mahanta Sri Dhruba Charan Das. Thus, on that basis the application for substitution in the present suit was allowed. But, subsequently, in a proceeding under Section 41 of the Endowments Act in OA No.5 of 2002 filed by Defendant No.1-Opposite Party No.1, it has been held that Kabir Choura Math, Swargdwar (Balisahi), Puri is a public religious institution. In the said proceeding issue No.4 was as follows:

"4. Whether the mahantship of the case institution devolves from guru to chella through nomination and confined only to non-brahmins?"

8. While answering to the said issue, the Asst. Commissioner of Endowments, Bhubaneswar observed that "there is no evidence adduced by the Opposite Parties that Mahanta Sitaram Das, Mahanta Baidhar Das and Mahanta Natabar Das were appointed by Registered Trust of Dama Khada...." Accordingly, the aforesaid findings has been recorded to the effect that succession of Mahantship of the case institution is regulated by customs or usage of the case institution, i.e., devolution from

// 7 //

Guru to Chela by way of nomination by Guru and not under the authority of any institution as Dama Kheda or any Registered Trust, namely, Sri Sadguru Kabir Saheb Dharmadas Bansabali Pandit Sabha. Said Mahanta Sri Gopi Das Ji Maharaj also unsuccessfully challenged the order in Appeal No.13 of 2010 before the Deputy Commissioner of Endowment and also before this Court in M.S.A. No.4 of 2015. As such, it has been well established that neither Dama Kheda nor the Plaintiff No.2- Sabha has any authority to nominate any Chela, much less the Petitioner No.1. Petitioner No.1 in this case claims to be substituted in place of Mahanta Sri Gopi Das Ji Maharaj on the basis of a nomination made by Dama Kheda, Raipur, Chhatisgarh. Thus, Petitioner No.1 does not have any locus standi to make any claim to be substituted in place of Plaintiff No.1 through nomination under Annexures-6 and 7.

9. Further this Court finds that in absence of Plaintiff No.1 the suit can proceed, as Plaintiff No.2 is pursuing the suit. Thus, the contention of Mr. Sahu, learned counsel for the Petitioners to the effect that Plaintiffs will be non-suited is not correct.

10. It is submitted by Mr. Sahu, learned counsel for the Petitioners that when a dispute arose with regard to legal heirship of a deceased, the Court should make an enquiry under Order XXII Rule 5 C.P.C.. Such a situation does not arise in the case, as Petitioner No.1 claims to be substituted in place of deceased Plaintiff No.1, namely, Mahanta Sri Gopi Das Ji Maharaj on the basis of a nomination made by Dama Kheda of Raipur, Chhattisgarh. Such nomination has been held to be without any

// 8 //

authority by the Asst. Commissioner of Endowment, which has been ultimately confirmed by this Court. Thus, the claim of the Petitioner No.1 to be substituted on the base of such nomination does not stand and there is no necessity to make any enquiry under Order XXII Rule 5 CPC.

11. In view of the discussions made above, this Court finds that learned District Judge, Puri has committed no error in rejecting the petition under Order XXII Rule 3 C.P.C. As such, the CMP being devoid of any merit stands dismissed.

12. As the proceeding under Section 263 read with Section 283 of the Succession Act is pending since, 2003, learned District Judge, Puri should make an endeavour for early disposal of the same in accordance with law.

Urgent certified copy of this order be granted on proper application.

                                         (K.R. Mohapatra)
ms                                             Judge