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CIVIL APPELLATE JURISDICTION:- Civil Appeal No. 205 of 1964. Appeal by special leave from the judgment and decree dated November 30, 1961 of the Orissa High Court in First Appeal No. 63 of 1957.

A. K. Sen and P. K. Chatterjee, for the appellant. Niren de, Addl. Solicitor-General, Dipak Datta Chaudhuri and R. N. Sachthey, for respondent No. 2.

The Judgment of the Court was delivered by Raghubar Dayal, J. This appeal, by special leave, is against the judgment and decree of the Orissa High Court, confirming the judgment and decree of the Additional Subordinate Judge, Puri. dismissing the suit instituted by Mahant Gadadhar Ramanuj Das, represented after his death by Mahant Srinivas Ramanuj Das, for the setting aside of the decision of the Commissioner of Endowments dated July 20, 1946, under s. 64(1) of the Orissa Hindu Religious Endowments Act, 1939 (Act 4 of 1939), hereinafter called the Act, and for a declaration that the Act did not apply to the properties described in Schedules Ka, Kha and Ga of the plaint. The allegations in the plaint are as, follows. The premises on which the residential quarters of the plaintiff existed was said to be popularly known as (i) Srinivas Kote; (ii) Rajagopal Math; and (iii) Emar Math, according to. the names of the different ancestors of the plaintiff, Srinivasachari, Rajagopalachari and Embarachari. It was alleged that these premises, though known as Emar Math, was not a 'math' as defined in the Act. The public had no free access to its premises and had no right of entry or worship of the deity installed therein. Embarachari and his ancestors were alleged to be grahasts. His successors to the Emar Math were celibate. Srinivasachari was the grand-father of Embarachari. It is alleged that he acquired a portion of the present site of the plaintiff's residential quarters and built his residence there and installed therein his family deity Sri Raghunathji for his own spiritual benefit and the spiritual benefit of his family members and that Embarachari acquired a large Plot of land adjacent to Srinivas Math as an absolute gift and constructed buildings thereon. The buildings therefore became popularly known as Emar Math, although Embarachari was a married man and was living there with his wife and children with the private deity Sri Raghunathji.

"Your Chelas, Sishyas and Anusisllyas shall all enjoy this property for ever in perpetuity until the sun and moon last."

This stipulation shows that it was not a gift personally to Emar, that the gift was for the benefit of chelas, sishyas and anusisllyas and that it was in favour of persons indeterminate in number. The fact that the chelas are distinguished from sishyas and anusisllyas shows that the chela is the nominee of the Guru for the purpose of succession and that though the chela would succeed to the Gaddi, he would hold the properties not for personal enjoyment but for the benefit of sishyas and their sishyas-indicating that the property was trust property. Further, the land donated by this document admittedly is a portion of the site on which the Math stands. The gift of such land could be for no other object but for the purpose of the construction of the Math and therefore a gift to the Math, though it would normally be in the name of the Mahant, the head of the Math.

We therefore hold that the Emar Math is a math as defined in the Act and that it is a public math.

The history of the Emar Math, according to the passage in the Puri Gazetteer, fits in with our finding. The High Court has relied on what has been stated in the Puri Gazetteer of O'Malley of 1908, at pp. 112-113. The relevant portion of the passage relied on is the following:-

"No account of Jagannath worship would be complete without some account of the maths in Puri. Maths are monastic houses originally founded with the object of feeding travellers, beggars, and ascetics, of giving religious in- struction to chelas or disciples, and generally of encouraging a religious life. The heads of these religious houses who are called Mahants or Mathadharis are elected from among the chelas, and are assisted in the management of their properties by Adhikaris who may be described as their business managers. They are generally celibates but in certain maths married men may hold the office. Mahants are the gurus or spiritual guides of many people who present the maths with presents of money and endowments in land. Thus, the Sriramdas or Dakshinaparswa Math received rich endowments from the Mahrattas its abbot having been the guru of the Mahratta Governor; While the Mahant of Emar Math in the eighteenth century who had the reputation of being a very holy ascetic, similarly got large offerings from his followers. Both Saiva and Vaishnava Maths exist in Puri. The lands of the latter are known as Amruta Manchi (literally nectar food), because they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims, beggars and ascetics; they are distinct from the Amruta Manchi lands of the temple itself which are under the superintendence of the Raja. In 1848 Babu Brij Kishore Ghose roughly estimated the annual income of 28 maths from land alone at Rs. 1,45,400 and this income must have increased largely during the last sixty years.

Apart from (these general considerations, the documentary evidence on record does not support the case of the plaintiff with respect to the properties in schedule Ka-1 and Ka-2. It may also be mentioned at this stage that there is no document on record with respect to the properties in schedules Kha and Ga. We have already referred to document Exhibit 110, the gift deed with respect to the land which forms part of the site of the Math. Exhibit 112 refers to certain land given to the Adhikari of Emar 'Math for building a temple for the God. The document states that the drain for the gruel from the temple of Lord Jagannath used to pass over this land and that this drain had to be shifted. It is difficult to believe that the land which was being used in connection with a public temple would have been given for the purpose of personal enjoyment by the Mahant or for the purpose of constructing a private temple. The land mentioned in Exhibit 115 and Exhibit 1.16 were acquired by the Mahant on payment of certain amounts. He was further required to pay certain amount towards the 'Kotha Bhoga' of Lord Jagannath. Exhibit 117 relates to a land purchased by the Mahant. He was required to pay certain amount towards Chamar Seba of Lord Jagannath. Exhibit 118 mentions that certain land which the Mahant had purchased was being assigned to his Math in order that he might enjoy it for all times to come. This clearly brings out that the land purchased by the Mahant from some person was made over to the Math. He was exempted from payment of all sorts of extra taxes or other similar duties. Exemption from revenue and taxes appears to have been granted because it was understood that the lands were of the ownership of the Math and not the personal properties of the Mahant. Even this property which has been clearly assigned to the Math, according to this document is mentioned in Schedule Ka-1, indicating thereby that no particular care had been taken in preparing the schedule which just included the properties which had been acquired by sale deeds.