Holding

A claim of hereditary trusteeship under the Act requires cogent evidence of continuous family management as trustees, hereditary succession since the founder, and an operative succession scheme; mere status as marfatdars or a presumption of lost grant does not satisfy this requirement.

Summary

The respondents claimed to be hereditary trustees of the Sri Sidha Baladev temple, asserting that they had acted as marfatdars since the founder's time and were recognized as such by revenue authorities. They sought a scheme under Section 42 of the Orissa Hindu Religious Endowments Act, 1951, which was dismissed, and later applied to have their hereditary trustee status adjudicated. The Assistant Commissioner rejected the claim, but the Orissa High Court reversed, holding that being marfatdars and the doctrine of a "lost grant" made them hereditary trustees. On appeal, the Supreme Court held that to be declared hereditary trustees, claimants must produce cogent evidence that their family has historically managed the deity as trustees, that succession is by hereditary right since the founder, and that such a scheme was in force at the time of filing. The Court ruled that mere possession as marfatdars or a presumption of lost grant is insufficient and set aside the High Court judgment. Consequently, the appeal was allowed and the Assistant Commissioner’s order restored.

Issues considered

Whether the respondents qualify as hereditary trustees under Section 3(6) of the Orissa Hindu Religious Endowments Act, 1951.
Whether the doctrine of "lost grant" can be invoked to deem marfatdars as hereditary trustees.
Whether the respondents discharged the evidential burden required to establish hereditary succession.

Legislation cited

Orissa Hindu Religious Endowments Act, 1951s. 3(6), s. 42

Subjects

hereditary trusteemarfatdarpublic religious institutionlost grant doctrineOrissa Hindu Religious Endowments Actburden of proofreligious endowments

Judgment

BRAJA KISHORE JAGDEV A
v.
LINGRAJ SAMANTARAY AND ORS.

JULY 28, 2000

[S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ.] B

Hindu Law:

Orissa Hindu Religious Endowments Act, 1951 : Sections 3(6) and 42.

Public Religious Institution-Hereditary Trustees of-Conditions to be C
Jul.filled-Certain persons claimed to be hereditary trustees of public religious
institution on the basis that they were functioning as marfatdars-However, no
evidence was adduced to this effect-But High Court held that there was
sufficient material to show that they were marfatdars and that on the principle
of 'lost grant' they should be deemed hereditary trustees-Correctness of- D
Held: In order to become hereditary trustees the claimants have to establish
•~ by cogent evidence that (i) members of their family have been in charge of the
management of the affairs of the deity as trustees; (ii) succession to their office
devolved on them by hereditary right since the time of the founder; and (iii) the
succession scheme was in force at the time offiling of application under S.42-
Merely because a person is in charge of the administration of the institution E
even as a trustee will not make him a hereditary trustee-Hence, High Court
erred in holding the said persons as hereditary trustees.

Grant-Lost Grant-Presumption of-Public Religious Institution-He-
reditary Trustees of-'-Marfatdars-Claim of-Held: Lost grant may be inferred
F
when use is open, as of right and without interruption but not when user can
be explained otherwise-There can be no presumption of the fiction of a lost
grant in favour of persons who constitute trustees in succession-There is no
material on record to draw an inference that the marfatdars are hereditary
trustees.
G
Words and Phrases :

"Hereditary Trustees" and "otherwise"-Meaning of-In the context of
S.3(6) of the Orissa Hindu Religious Endowments Act, 1951.

"Marfatdars"-Meaning of. H
5
6 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A Doctrines :

Doctrine of Lost Grant-Presumption of

The respondent claimed that they have been functioning as marfatdars
of a public religious institution since the time of its founder. The respond-
B ents also claimed that they were recognized as hereditary trustees of the
said institution by the Revenue and other authorities from time to time.

The respondents filed an application under Section 42 of the Orissa
Hindu Religious Endowments Act, 1951 seeking to have a scheme framed
for the administration of the institution. However, the application was
c dismissed in default.

Thereafter, the respondents filed an application to adjudicate their
claims as hereditary trustees under the Act. The appellant contended that
by custom or otherwise the respondents were never treated as hereditary
D trustees of the institution. The Assistant Commissioner rejected the claim.
However, the High Court allowed the appeal on the grounds that there was
material to show that the respondents wert' marfatdars and if they were
marfatdars, they should be taken to be trustees; and that on the principle
of 'lost grant', the respondents should be deemed to be hereditary trustees.
Hence this appeal.
E
Allowing the appeal, this Court

HELD : 1. In order to lay a claim that the respondents are Heredi-
tary Trustees under the Orissa Hindu Religious Endowments Act, 1951 it
F has to be established that the members of their 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 42 of the Act. Assuming that every single l!lember of the family of
the respondents were acting as marfatdars of the deity for some time may
G 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 42 of the Act has to be
H established by adducing cogent evidence. [9-F-G]
B. K. JAGDEV v. LINGRAJ SAMANTARAY [RAJENDRA BABU, J.] 7

2. The High Court proceeded to analyse the matter on the basis that A
there was no impediment to the person who was in charge of rendering
religious duty of the deity to be a trustee of the institution inasmuch as the
definition of a trustee includes any person in wbom the administration of
the religious institution is assigned. This approach of the High Court
results in examining the matter from the wrong end. What is to be seen is
B
.. whether respondents, though hereditary trustees, were engaged as
"marfatdars" 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. 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, c
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. [10-A-C)

3. It is open to the Court to infer grant from immemorial use when
D
such user is open, as of right and without interruption but grant will not be
inferred if the W.er 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 persons who constitute trustees E
in succession. [10-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2378 of 1984.

From the Judgment and Order dated 25.1.84 of the Orissa High Court
in M.A. No. 101 of 1979. F
Prashant Bhushan, Sanjeev K. Kapoor and Narendra K. Verma for the
Appellant.

Janaranjan Das, K.K. Mahalik and D.P. Mohanty for the Respondents.
G
The Judgment of the Court was delivered by
'•
RAJENDRA BABU, J. The respondents made a claim in respect of an
institution Sri SidhaBaladev fow, Bie-Sodharpur, P.O. Baku in the district of
Puri; that the said institution had been established by some unknown founder
H
8 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 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 interven-
B
tion 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 landOd 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
c 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 today and they have al~o been
recognized as Hereditary Trustees by the Revenue and other authorities from
time to time.
D
In the year 1955, the respondents claimed by filing an application under
Section 64 of.the Orissa Hindu Religious Endowments Act, 1939, that the
instirutiqn of the endowments thereof to be their private property made by the
I
respondents and contested by the appellant and others and the same was
dismissed. Thereafter the matter went to ,he High Court in appeal and ulti-
E mately the decision of the lower Court was upheld and the appeal was disal-
lowed. Another application under Section 42 of the Orissa Hindu Religious
J3ndowments 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
F 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.

G Three 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. I and 2, he found in favour of the respondents. Thus the
only issue remaining to he considered is whether the respondents are the
Hereditary Trustees of Sri Sidha Baladev Jew of Village Sodharpur, P.O. Baku,
B. K. JAGDEV v. LINGRAJ SAMANTARAY [RAJENDRA BABU, J.] 9
District Puri. The Assistant Commissioner noticed that heavy burden lies upon A
. 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,
B
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 respond-
ents' 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 c
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
D
temple was lost in antiquity, on principle of 'lost grant', the respondents should
be deemed to be Hereditary Trustees.

The definition of "Hereditary Trustee" is set out in the Act. Under 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 E
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
F
the time of the founder and the scheme was in force until filing of the appli-
cation under Section 41 of the Act. Assuming that every single member of the
family of the respondents were acting a~ 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 succes-
sion to office of the trustee devolving by hereditary right since the time of the G
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.

Let us 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 H
10 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A 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 rehderirig religious duty of the deity to be a trustee of the
institution in as much as the definition of a trustee includes any person i.n 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
B
seen is whether respondents, though hereditary trustees, were engaged as
"marfatdars" 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
c 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 particular! y when the view set up by the authorities below could
not be termed as unreasonable or improper.

The other basis upon which the High Court passed its judgment is that
D 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'. It is open to
Court to infer grant from immemorial use when such user is open, as of right
E 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
F
material on record, any such interference is possible. Firstly, contention had
been advanced before the courts that the deity is a private trust and not covered
by the enactment; having 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
G 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.

v.s.s. Appeal allowed.