BRAJA KISHORE JAGDEV versus LINGRAJ SAMANTARAY AND ORS.

Citation: [2000] SUPP. 2 S.C.R. 5 · Decided: 28-07-2000 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 of filing of application under S.42-
Merely because a person is in charge of the administration of the institution 
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 
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. 
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. 
5 
E 
F 
G 
H 
6 
SUPREME COURT REPORTS 
[2000] SUPP. 2 S.C.R. 
A 
Doctrines : 
B 
c 
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-
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 
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. 
E 
F 
G 
H 
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. 
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 
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 
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 
established by adducing cogent evidence. [9-F-G] 
.. 
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'• 
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

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