HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR +C.R.P.No. 5767 of 2007 % 15-09-2011 Between: Sripathi Panditaradyula Agasthyalingam ..Petitioner and The Assistant Commissioner, Endowments Department, Government of A.P., Guntur. Guntur District, …Respondents ! Counsel for the Petitioner: Sri Sai Gangadhar Chamarthy, Advocate ^ Counsel for the Respondents: G.P. for Arbitration for R-1 Sri V.T.M. Prasad for R-2 < Gist: >Head Note ? Citations: 1) AIR 1916 PC 110 2) AIR 1922 PC 20 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Thursday, September 15, 2011. Present: The Hon’ble Sri Justice Vilas V. Afzulpurkar C.R.P. No. 5767 of 2007 Between: Sripathi Panditaradyula Agasthyalingam ..Petitioner and The Assistant Commissioner, Endowments Department, Government of A.P., Guntur. Guntur District, …Respondents The Hon’ble Sri Justice Vilas V. Afzulpurkar C.R.P. No. 5767 of 2007 O r d e r : The petitioner’s primary grievance, according to him, is that he desires to be recognized from the family of the Founder Trustees of “Sri Agastheswara Swamy Temple”, Emani village, Duggirala Mandal, Guntur District. It is submitted that on account of the disqualification attributed to him by the authorities under A.P. Charitable and Hindu Religious Institutions and Endowments Act 30 of 1987 (for short ‘the Act’), he was earlier suspended from the position of Hereditary Trustee and ultimately was removed by order of the Assistant Commissioner of Endowments dated:26.9.1986. The petitioner has questioned the said order before the Regional Joint Commissioner in A.S.No. 6 of 1986 which was dismissed and as against the same he filed a revision before the Government. The said revision was disposed of by the Government directing the petitioner to seek declaration to the effect that he is a member of the Founders’ family. Consequent upon the said direction, the petitioner approached the Assistant Commissioner of Endowments for the relief of declaration, which was rejected by order dated: 29.4.1997; and the appeal filed by the petitioner against the said order in O.A.No. 1 of 1998 before the Deputy Commissioner of Endowments was dismissed on 9.4.1998. Thereafter, against the order in O.A.No. 1 of 1998, the petitioner preferred a revision before the Regional Joint Commissioner in R.P.No. 12 of 1998, which was also dismissed. The petitioner thereafter again approached the Government by further revision. The said revision was disposed of by the Government in Memo. No.75922/Endts.IV(1)/200-4 dated:7.2.2003 directing the petitioner to approach the Deputy Commissioner under section 87 of the Act. It is not in dispute that the question which required determination – whether the petitioner belongs or is a member of the family of founders is specifically within the jurisdiction of the Deputy Commissioner under section 87 (1) (h) of the Act. Consequently, the petitioner filed O.A.No. 12 of 2003 before the Deputy Commissioner of Endowments, which was dismissed on 18-02-2006. The appeal filed against the said order in A.S.No. 137 of 2006 before the learned V Additional District Judge (FTC), Guntur was also dismissed on 19-09-2007. Questioning the said orders of the V Additional District Judge, Guntur in A.S.No. 137 of 2006 this revision petition is filed under section 91 (ii) of the Act. 2. Heard the learned counsel for the petitioner, Sri T.S. Anand, the learned Government Pleader for Arbitration and Sri V.T.M. Prasad, learned standing counsel appearing for the second respondent. 3. Undisputed facts which appear from the record are that the forefather of the petitioner – Sri Sripathi Panditharadyula Veeresha Lingam executed a registered document on 22-09-1908, which is marked as Ex P-1, where under he endowed the income over an extent of Ac.8.76 of land comprised in the following survey numbers. S.No. Survey No. Extent Acs. Cents. Out of extent 1 289/1 3.60 4.60 2 306 0.16 -- 3 570/1 5.00 -- Total 8.76 -- Thus the income derived out of the land comprised in the said survey numbers was treated as specific endowment in favour of the deity. As per the aforesaid document also, an extent of Ac.1.00 out of Sy.No.289/1, remained with donor and that was the subject matter of a Will by petitioner’s father executed in 1974, bequeathing the same in favour of the mother of the petitioner. The said Will is marked as Ex P-2. The petitioner filed genealogy of their family to show that he is from that family. 4. The controversy, however, arose when the petitioner’s mother sold Ac.1.00 land in Sy.No. 289/1 which was bequeathed in her favour under Ex P-2 and which was attested by the petitioner, as a witness. Alleging that the petitioner and his mother have sold away Ac.1.00 endowed land, proceedings were initiated for removal of the petitioner from the office of the Hereditary Trusteeship by initially suspending him on 30.4.1985 and ultimately removing on 26.9.1986. Since then the petitioner has been approaching one or the other authority, pursuing the litigation, as aforementioned and finally has reached this court by the present revision petition. 5. The learned counsel for the petitioner contended that keeping in view the registered document, Ex P-1, it is seen that forefather of the petitioner was the owner of Ac.9.76 cents under various survey numbers referred to above and after creating an endowment over the income derived out of an extent of Ac.8.76 cents, the remaining Ac.1.00 out of Ac.4.76 in survey No.289/1 was left with the family of the petitioner which was neither endowed nor was burdened with any condition. The learned counsel, therefore, states that sale of the aforementioned Ac.1.00 of land, which is out side the endowed extent of Ac.8.76, does not amount to any act leading to disqualification of the petitioner from holding the office of hereditary trusteeship. 6. The learned counsel for the petitioner also pointed out that the authorities of the Endowment Department, by wrongly relying upon the resurvey and resettlement record, based on erroneous calculations under various survey numbers are claiming as if the petitioner and his mother are responsible for the sale of Ac.1.00 of land out of the specific endowment. 7. The learned counsel has taken me through the orders of the both the authorities below, as well as the evidence of the Executive Officer of the 2nd respondent temple examined as RW-1 by the Deputy Commissioner of Endowments in O.A.No. 12 of 2003. Learned counsel also submits that attributing knowledge to the petitioner, though, admittedly, he had only signed the document, as a witness to the sale deed executed by his mother, is also erroneous. 8. Per contra, the learned counsel appearing for the second respondent temple contends that the extent of Sy.No.289/1 is shown as Ac.5.66 cents as per the resettlement record. Based on such resettlement record, the learned counsel justifies that the extent of land sold by the mother of the petitioner is part of the specific endowment and the petitioner being a party to the sale, as an attester, has incurred disqualification – thereby justifying the order of removal of the petitioner from the office of the hereditary trusteeship. 9. I find from the record, that the Deputy Commissioner, even in his order impugned, reiterated that the specific endowment is only with respect to Ac.8.76 cents in survey No.289. It is specifically accepted in the impugned order that specific endowment is only to the extent of Ac.3.60 cents out of Ac.4.60 cents in Sy.No.289/1 and the resettlement and resurvey records said to have been relied upon were not produced by the second respondent. 10. I have carefully analyzed the evidence of RW-1, the Executive Officer and do not find any record with regard to the resurvey or resettlement and the record, if any, produced by the Executive Officer nor even otherwise it was not made part of the record before the Deputy Commissioner. Whether the resurvey was conducted in accordance with Law and whether the survey was conducted in the presence of the petitioner are the matters which have not received the attention of the Deputy Commissioner, since the original record, itself, is not produced before the Deputy Commissioner. I also find another error committed by the Deputy Commissioner viz., attributing knowledge of the sale to the petitioner, though he is only described as a witness to the sale deed executed by petitioner’s mother in the sale deed relating to Ac.1.00 of land. 11. Therefore, the question is whether a witness to a sale deed can be said to have the knowledge of the contents and bound by it. The petitioner herein is disqualified from being a founder trustee on the ground that for the said sale made by the petitioner’s mother, he was a witness and attester. As early as in 1916 in Banga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhuri[1] it was held as follows, “Their Lordships think it right to add, in conclusion, that they do not agree with the decision of the High Court as to the effect of the attestation of two of the deeds by the appellant. They think it may be safely accepted that he did, in fact, attest them. But attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed nor affect him with notice of its provisions. It could, at the best, be used for the purpose of cross-examination, in order to extract from the witness evidence to show that he was, in fact, aware of the character of the transaction effected by the document to which his attestation was affixed.” 12. This legal position was reiterated by the Privy Council in Pandurang Krishnaji v. M. Tukaram[2]. The relevant portion is asunder: “Before their Lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is, of course, possible as was pointed out by their Lordships in the case of Banga Chandra Dhur Biswas v. Jagat Kishore Acharya Chowdhuri (1 supra) that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document but no such knowledge ought to be inferred from the mere fact of the attestation.” 13. Even other wise, it was necessary for the Deputy Commissioner to first find out that the sale was with respect to the land which forms part of specific endowment, even to disqualify the mother of the petitioner, who sold the said land or if the sale relates to a land which is out side the land specific endowment. There cannot obviously be any dispute with regard to the title over any land outside specific endowment by respondent-authorities. Thus without recording any finding on this issue, merely on the basis of a statement relating to resurvey and resettlement, the entire issue appears to have been adjudicated by the Deputy Commissioner. Unfortunately the appellate authority has not considered any of these aspects and through a cryptic order confirmed the order of the Deputy Commissioner without adjudicating upon factual or legal aspects. Therefore, I am constrained to set aside both the orders impugned herein. 14. Since the issue relates to adjudication of factual aspects, this court under revisional jurisdiction cannot record any finding thereon and in the circumstances, the proper course would be to remit - O.A.No. 12 of 2003 to the primary authority for fresh adjudication. I would have, in fact, remanded the O.A., to the Deputy Commissioner of Endowments, but for the amendment to Act 30 of 1987, where under section 87, for the words “Deputy Commissioner” the words “Endowment Tribunal” are substituted by Act 30 of 2007 which came into force from 3.1.2008. Since the Endowment Tribunal is presided over by an officer of the rank of the District Judge, no prejudice would be caused to the petitioner if O.A.No. 12 of 2003 is remitted to the Endowment Tribunal for fresh adjudication in the light of the observations made hereinabove. 15. In the result, the civil revision petition is allowed. The order dated: 19.09.2007 passed by the learned V Additional District Judge (FTC) Guntur, in A.S.No. 137 of 2006, confirming the order passed by the learned Deputy Commissioner of Endowments, Guntur in O.A.No. 12 of 2002 dated:18.02.2006 are set aside. The matter is remitted to the Endowment Tribunal, Hyderabad for fresh disposal according to law. No costs. 16. Both the parties are at liberty to file additional pleadings and adduce oral and documentary evidence in support of their case, if they are so advised and the Tribunal is directed to consider the matter afresh on the basis of the material already available on record, apart from the record and evidence, if any, adduced. Since the matter is of the year 1986, it is appropriate for the Tribunal shall decide the matter expeditiously, preferably within three months from the date of receipt of a copy of this order. ____________________________ VILAS V. AFZULPURKAR, J. September 15, 2011. *BVS L.R. COPIES TO BE MARKED [1] AIR 1916 PC 110 [2] AIR 1922 PC 20