Civil Appeal No 1802 of 1971
Appeal by Special Leave from the Judgment and Order dated 2 11 1971 of the Allahabad High Court in SA No 768 of 1964
Y section Chitale Lalji Sahai Srivastava B P Singh and Mukul Mudgal for the Appellant
R K Garg section P Singh and Sudama Ojha for Respondent No 1
section T Desai and Uma Datta for Respondent No 3 section C Patil for Respondent No 2 M Veerappa for Respondent No 4
The Judgment of the Court was delivered by SEN J
This is an appeal by special leave from a judgment and decree of the Allahabad High Court dated November 2 1971 in a suit for declaration of title to and possession of house No C 2733 situate in Mohalla Jagatganj Varanasi for arrears of rent and mesne profits in respect thereof
The principal point in controversy between the parties in this appeal is whether the plaintiff Mathura Ahir being a Sudra could not be ordained to a religious Order and become a Sanyasi or Yati and therefore installed as a Mahant of the Garwaghat Math according to the tenets of the Sant Mat  Sampradaya
A subsidiary question arises as to whether in the absence of proof of the performance of Atma Sradh and the recitation of Pravesh Mantra neither the plaintiff nor his two predecessors Swami Sarupanand and Swami Atmavivekanand could be regarded as Hindu sanyasis
It also raises a further question namely whether the first respondent Harsewanand the original plaintiff having died during the pendency of the appeal the appeal abates in its entirety
The facts of the case are set forth with utmost particularity in the judgment of the High Court
It will therefore not be inconvenient to deal with them as briefly as possible
The history of the Garwhaghat Math is as follows In 1925 Swami Sarupanand Paramhans disciple of Swami Advaitanand a Hindu ascetic belonging to the Sant Mat  sect came from the North Western Provinces and took his abode at Garwaghat Mouza Ramna Malhija in the vicinity of Varanasi City
He was a religious preceptor of great learning and from his hermitage preached the tenets and precepts of the Sant Mat  and soon had a large following
He was treated with great veneration and some of his devotees by a registered gift deed dated March 666 18 1935 endowed the land and building which he named as Bangla Kuti 
Subsequently the said Bangla Kuti and other lands and buildings appurtenant and adjacent thereto came to be known as the Garwaghat Math of which Swami Sarupanand was initially the mahant
He paid a visit to village Khuruhja for a couple of days and Baikunth Singh father of defendant No 5 Sri Krishna Singh the appellant was greatly influenced by his preachings and left for Varanasi for good
In due course Baikunth Singh was initiated as chela by Swami Sarupanand who named him as Atmavivekanand
Swami Atmavivekanand Paramhans was the chief disciple of Swami Sarupanand and was given full rights of initiation and Bhesh by his Guru
Swami Sarupanand took his samadhi at Meerut in 1936 and after his death according to his wishes his Bhesh and Sampradya gave Swami Atmavivekanand Chadar Mahanti of Garwaghat Math and made him the mahant
Swami Atmavivekanand also had a large following and his Sant Mat  fraternity which comprised of thousands of Grihastha and Virakta disciples made large offerings and gifted extensive properties to him as their religious or spiritual leader
In 1937 Swami Atmavivekanand initiated the plaintiff Mathura Ahir as his chela and named him as Harsewanand according to the custom and usage of the Sant Mat  sect
During his lifetime he purchased the two properties viz house No C 2733 situate in Mohalla Jagatganj and house No C 483 situate in Mohalla Sarai Gobardhan in the city of Varanasi by registered sale deeds dated December 3 and December 22 1942 from out of the income of the math ie the offerings Bhent made by the devotees and formed the properties of the math
Swami Atmavivekanand died at Varanasi on August 23 1949
A Bhandara was held on October 3 1949 and according to the wishes of Swami Atmavivekanand the mahantas and sanyasis of the Bhesh and Sampardaya gave the Chadar Mahanti to the plaintiff and installed him as the mahant of the math in place of Swami Atmavivekanand on October 4 1949 in accordance with the custom and usage of the Sampradaya
The mahants and sanyasis of the Sant Mat  Bhesh who had assembled for the Bhandara also executed a document to that effect acknowledging him to be the mahant
The plaintiff having been installed as the mahant the entire property of the Garwaghat Math along with the two houses in the city of Varanasi devolved upon him as successor to Swami Atmavivekanand
On August 21 1951 the plaintiff respondent No 1 Harsewanand brought the suit out of which this appeal arises in the court of the City Munsif Varanasi for ejectment of respondents Nos 2 to 5 from 667 house No C 2733 situate in Mohalla Jagatganj Varanasi
It was pleaded that respondent No 2 Avadesh Narain defendant No 1 had taken the house on rent from Swami Atmavivekanand the late mahant
It was alleged that he had unlawfully sub let the premises to the respondents Nos 3 to 5 who were defendants Nos 2 to 4
The suit was contested by these respondents who denied the tenancy and inter alia pleaded that they were in occupation of the house as chelas of Swami Atmavivekanand in their own right by virtue of the licence granted to them by him
They denied the plaintiff s title as well as right to sue alleging that he was neither a chela of Swami Atmavivekanand nor his successor
It was also alleged that the house in suit was the personal property of Swami Atmavivekanand and therefore on his death his natural son and disciple Sri Krishna Singh the appellant became the owner thereof
The suit which was originally framed by the plaintiff respondent No 1 Harsewanand as a suit between a landlord and tenant had therefore to be converted into a suit for possession based on title by impleading the appellant Sri Krishna Singh as defendant No 5
It is not necessary to mention in detail the other averments in the plaint nor is it necessary to mention the various pleas raised in the written statement filed by the defendants
It will be sufficient however to mention that the appellant Sri Krishna Singh in his written statement denied the existence of the math as pleaded by the plaintiff and asserted that the house in it in any case was not math property
He further pleaded that the plaintiff Mathura Ahir being a Sudra was legally incompetent to become a sanyasi and that the plaintiff was not the mahant of the Garwaghat Math
He further claimed that after the death of Swami Atmavivekanand he became the owner of the house in suit by inheritance as also of the properties alleged by the plaintiff to belong to Garwaghat Math
All these properties according to the appellant were secular and personal properties of his father Baikunth Singh who was also known as Swami Atmavivekanand
In the trial the issues as finally framed by the learned Munsif were seventeen in number
Of these the following are relevant 1 Whether the plaintiff is the owner of the premises in suit 8 Whether the plaintiff was nominated as a mahant and given Chadar in accordance with the custom Is there any custom as alleged by the plaintiff 12 Was Swami Atmavivekanand a sanyasi and had he ceased to be a Grihasti 13 Is the plaintiff a Sudra and not entitled to become sanyasi according to Hindu law 14 Is the 668 plaintiff chela of Swami Atmavivekanand and entitled to succeed to properties left by him in preference to his son Sri Krishna 15 Is the house in suit a Math property It appears that the case came up for hearing before the learned Munsif on October 5 1953 when the plaintiff s counsel accompanied by his parocar made oral pleadings under O 10 r 1 of the Code of Civil Procedure to the effect The Sant Mat  Sampradaya is one of the Dasnami sanyasis founded by the great Sankaracharya and is governed by Naranjini Math Akhara
 The learned Munsif found each and every of these issues in favour of the plaintiff and accordingly decreed the suit
x x x x x x x x x On appeal the III Addl
Civil Judge Varanasi by his judgment dated January 14 1964 reversed some of the aforesaid findings while maintaining the rest
From the judgment of the Addl
Civil Judge the appellant alone preferred an appeal to the High Court which by its judgment dated November 2 1971 on a careful marshalling of the entire evidence in the light of well settled principles agreeing with the learned Munsif set aside the findings of the learned Civil Judge and decreed the plaintiff s suit in its entirety
A learned Single Judge Kirty J in the course of his judgment observed that the evidence on record sufficiently established that there had come into existence a math at Garwaghat of which Swami Atmavivekanand was the mahant
He referred to the overwhelming evidence led by the plaintiff showing that the building known as Shanti Kuti  and certain other buildings constituted an endowment to the math itself which was a monastic institution presided over by the mahant
He further held that the house in dispute was not the personal property of Swami Atmavivekanand but formed an accretion to the math as it had been acquired by him from out of the offerings Bhent made by the disciples to him as their religious or spiritual leader for the purposes of the spiritual order of the fraternity and therefore the natural heirs of Swami Atmavivekanand could have no claim to the property which must descend to the plaintiff as a successor to him
x x x x x x x x On the question whether the plaintiff and his two predecessors Swami Atmavivekanand and Swami Sarupanand were not legally com 669 petent to hold office of the mahant of the math in question the learned Single Judge observed The finding of the court below on this point is in appellant s favour the reason given therefor being that the plaintiff failed to prove that he or his predecessors had performed Atma Sradh and uttered Pravesh Mantra as mandatorily prescribed by Hindu law
The factual part of the finding viz the performance of the Sradh and the utterance of the Mantra is binding in second appeal but the conclusion drawn therefrom is one of law
 After referring to the authorities on the subject he observes A reading of the judgments in the above noted cases will show that the various observations therein in regard to performance of Atma Sradh and other rites Prajapathiyesthi Viraja Homam etc and the utterance of Pravesh Mantra etc were made with reference to particular sects or categories of sanyasis claiming to belong to a particular religious order or class of such order or with reference to Sanatan ie orthodox Hindu Dharma
It is true that on cursory reading it would appear as if the observations formulate indispensable legal requirements of the Hindu law universally applicable to every Hindu ordained sanyasi but upon a careful analysis I have found that that is not so
The law as stated therein is generally or usually but not invariably applicable
 In conclusion he observes In the absence of any proof that the followers of Sant Math or the tenets of that Math required of its Mahant that he must necessarily belong to the twice born class of Hindus and be a Sanyasi in accordance with all the rites and ceremonies mentioned in the aforesaid cases I am not prepared to hold that Swami Sarupanand and Swami Atmavivekanand were legally incompetent to be Mahants of the Math or that the plaintiff is a person disqualified from assuming and holding that office He accordingly held that the plaintiff and his predecessors Swami Sarupanand and Swami Atmavivekanand were not legally incompetent to be the mahants of the math
They did not inflict themselves on the religious fraternity of Sant Mat Sampradaya nor had they been foisted into the office of mahant against the will or in spite of the disapproval of the religious fraternity
In any event even if the 670 plaintiff was disqualified being a Sudra he was entitled to sue as the de facto mahant
During the pendency of the appeal the respondent plaintiff Mahant Harsewanand having died respondent No 1 Mahant Harshankranand was brought on record as an heir and legal representative
It would be convenient at the outset to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution
In our opinion the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties
In applying the personal laws of the parties he could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu law ie Smritis and commentaries referred to as interpreted in the judgments of various High Courts except where such law is altered by any usage or custom or is modified or abrogated by statute
On the main in agreement with the High Court we are inclined to take the view that though according to the orthodox Smriti writers a Sudra cannot legitimately enter into a religious Order and although the strict view does not sanction or tolerate ascetic life of the Sudras it cannot be denied that the existing practice all over India is quite contrary to such orthodox view
In cases therefore where the usage is established according to which a Sudra can enter into a religious order in the same way as in the case of the twice born classes such usage should be given effect to
The first question therefore to consider here is Whether there was a math in existence at Garwaghat and if so whether the house in suit was an accretion to the math Math means a place for the residence of ascetics and their pupils and the like
Since the time of Sankaracharya who established Hindu maths these maths developed into institutions devoted to the teaching of different systems of Hindu religious philosophy presided over by ascetics who were held in great reverence as religious preceptors and princes and noblemen endowed these institutions with large grants of property
Dr Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts 4th ed
 p 321 succinctly states  Math  in ordinary language signifies an abode or residence of ascetics
In legal parlance it connotes a monastic institution presided over by a superior and established for the use and benefit of ascetics 671 belonging to a particular order who generally are disciples or co disciples of the superior
 x x x x x The property belonging to a math is in fact attached to the office of the mahant and passed by inheritance to no one who does not fill the office
The head of a math as such is not a trustee in the sense in which that term is generally understood but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers subject only to the burden of maintaining the institution
He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects
The words the burden of maintaining the institution  must be understood to include the maintenance of the math the support of its head and his disciples and the performance of religious and other charities in connection with it in accordance with usage
See Semmantha Pandara vs Sellappa Chetty Mad
175 Giyana Sambandha Pandara Sannadhi vs Kandasami Tambiran Mad 375 Vidya Purna Tirtha Swami vs Vidyanidhi Tirtha Swamy Mad 435 Ram Prakash Das vs Anand Das 1916 43 IA 73 PC Vidya Varuthi Thirtha vs Babuswamy Iyer 1920 21 48 IA 302 Kailasam Pillai vs Nataji Thambiran Mad 265
From the principles it will be sufficiently clear that a math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity and of the manager of the secular properties of the institution of the math
In the instant case the evidence on record sufficiently establishes that a math came to be established at Garwaghat and the building known as Bangla Kuti  and certain other buildings including the house in suit constituted the endowment of the math itself
From a review of the general mass of evidence the High Court agreeing with the learned Munsif held that the followers of the Sant Mat  fraternity are members of a religious order
The long line of witnesses who were all disciples of Swami Sarupanand andor Swami Atmavivekanand have clearly established that it is a religious institution of monastic nature
It is established for the service of the Sant Mat  cult the instruction in its tenets and observance of its rites
The Swamiji who is the Guru is the Mahant the spiritual and religious leader of the fraternity
According to the custom and usage of the Sant Mat  Sampradaya as pleaded by the plaintiff the initiation of a chela by the Guru results in complete renunciation of the world and he ceases to have all con 672 nection with his previous Ashramas before becoming a sanyasi
For becoming a sanyasi it is not necessary that he should be of a particular Varnashram previously ie even a Sudra can become a sanyasi
The succession to the office of the Mahant is by nomination ie from Guru to chela the Guru initiates the chela after performing the necessary ceremonies
The person initiated as a chela adopts the life of a sanyasi and is pledged to lead a life of celibacy and religious mendicancy
The sitting mahant hands over the management of the math to one of his virtuous chelas fittest to succeed whom he nominates and whom he wishes to install as mahant after him in his place
He makes clear this desire to the members of his Sampradaya and also authorises the nominated chela to give Bhesh Dikshawa
After the death of the mahant the Bhesh and Sampradaya give Chadar Mahanti of the math to the said disciple at the time of the Bhandara
The Courts below have concurrently found that the custom or usage so pleaded has been established
They further found that the plaintiff Mathura Ahir was initiated as a chela by Swami Atmavivekanand and nominated to be his successor
They have also found that at the Bhandara held after Swami Atmavivekanand s death the plaintiff was installed as the Mahant of Garwaghat Math by the Mahants and Sanyasis belonging to the Sant Mat  Sampradaya according to the wishes of Swami Atmavivekanand Paramhans
From the evidence on record there can be no doubt that the math at Garwaghat belongs to the Sant Mat  Sampradaya which is a religious Order
No doubt the plaintiff Harsewanand PW 15 asserts Followers of any religion can become a sanyasi in our cult
The practice of becoming sanyasi has been prevalent since Satyuga
Man s life is divided into three Ashramas
Again said there are four Ashramas viz Brahmacharya Grihastha Vanaprastha and Sanyas
Varnas are three Dashnami Sanyasis came into existence after Shankaracharya
They are Puri Giri Bharti Vana Tirtha Aranya Parvat Sagar and Saraswati
I am failing to recollect the name of one of them
The Sanyasis of Sant Mat are not Dashnami Sanyasis
Swarupanandji my Guru or I are not Dashnamis but all these cults are related with Sant Math
I know Niranjani and Nirvani Akharas
They belong to Dashnami Sanyasis and Sant Mat Sanyasis
We have connections with Nirvani and Niranjani Maths
Some customs of the Maths of those Akharas are observed by us also Emphasis supplied 673 This is however contrary to what he had stated in his oral pleadings under O10 r 1 of the Code of Civil Procedure
The fact that the Sant Mat  Sampradaya is one of the Dashnami sects cannot be doubted
There is unimpeachable testimony of Swami Viveksukhanand who along with Swami Atmavivekanand and others was initiated as a chela by Swami Sarupanand on the same day at the same time
During his cross examination this witness states Sri Swarupanandji was Sadhu of Sant Sanyas Sampradai
Sant Sanyas Sampradai has been obtaining from ancient time
This Sampradai is of those ten Sampradai which were founded by Swami Shankracharji
This Sampradai out of the Das nam is Purinama
There is no branch in Purinama Sampradai Niranjani and Nirvani Akharas are the Akharas of Giri Sampradai
If a Sanyasi of Giri Puri Bharti or of any Das Nam Sampradai abandons sanyas and re enters into the Grahast Ashram he is called a Gosain
The rules for making disciples in Giri and Puri Sampradai for making chief disciples and appointing successor are also one and the same
The rules rituals and the ceremonies which are performed at the time of installation to gaddi in both these Sampradai are also one and the same
There is no difference in Giri and Puri Sampradai
The rules practices rituals and customs followed at the time of installation to gaddi in all the ten sampradaiyas founded by Swami Shankracharyaji are one and the same  Emphasis supplied Though the math at Garwaghat established by Swami Sarupanand was of recent origin the High Court observes that the religious order denominated as Sant Mat  has had large following in Punjab and some other parts of India since more than a century
In a sense therefore Swami Sarupanand himself did not for the first time evolve any new religious order
As regards the origin of the Math it observed I have therefore no hesitation in holding in agreement with the finding of the trial court that there had come into existence a Math at Garwaghat Varanasi of which Swami Sarupanand was the Mahant
Here I may also mention that from the evidence on record it appears that Sant Mat  is not of very recent origin
Although the evidence is somewhat scanty on the point yet it sufficiently indicates that this Math 674 has had numerous followers in Punjab and some other parts of India since more than a century
In a sense therefore Swami Sarupanand himself did not for the first time evolve any new religious order
Here it may also be mentioned that defendants other than the appellant did not seriously dispute the plaintiff s allegation in regard to the Math in question and the allegation that Swami Sarupanand and thereafter Swami Atmavivekanand were its Mahants
 Referring to the nature of the property it said Swami Atmavivekanand before becoming a follower of the Sant Mat was a Grihasth with a family
From the evidence on the record it transpires that he became a devotee and a disciple of Swami Sarupanand and severed all connections with his family
In course of time he was held in high esteem by the followers of the Sant Mat at Varanasi and other places and large offerings were made to him by the devotees
Swami Sarupanand had nominated him to be his successor and after his death Swami Atmavivekanand did assume the office of Mahant of the math
There is no evidence from which it can be reasonably inferred that he treated or set apart the offerings either in their entirety or some portion thereof as belonging to him personally
On the contrary the evidence on record and the circumstances show that there was a complete blending of such offerings with the funds of the math and used for its purposes
There is also no reliable evidence to establish that the offerings which were made to him were made not for the purposes of the spiritual order or the fraternity but for his personal aggrandizement
Indeed when a person renounces his family connections and takes to ascetism it would be difficult to hold that he would thereafter start amassing wealth and property for his personal benefit or for the benefit of his family with which he had severed his connection
Unless specifically proved to the contrary under such circumstances it must be held that the offerings made to such a person were not offerings made to him personally for his personal benefit but had been made for the benefit of the math or the religious institution itself
In such a case to my mind the natural heirs of the person concerned could have no claim to the property which the person came by in his capacity as the religious or spiritual leader
The house in suit must be held to be an accretion to the Math
 675 All this is borne out by the testimony of plaintiff s witnesses
The institution was really built up by Swami Atmavivekanand who was held in great veneration by the followers of the sect
He preached the tenets of Sant Mat  and had a large following
His Sant Mat  fraternity comprised of thousands of Grihastha and Virakta disciples who made large offerings
All the witnesses speak of such offerings in cash or kind or in the shape of immovable property which were endowed to the math
There are a number of documents showing the endowment by the disciples of their properties to the math wherein they have described themselves as disciples of Swami Atmavivekanand  and he is described therein as Mahant of the Garwaghat Math 
Even Avadesh Narain a Judicial Magistrate DW 1 who practised as a lawyer at Varanasi before he was appointed as a Judicial Officer admits that Swami Atmavivekanand had a large number of disciples in Uttar Pradesh and Bihar and that the property of Bangla Kuti  might be worth lakhs of rupees
The two houses at Varanasi including the suit house were purchased by Swami Atmavivekanand from out of the offerings Bhent made by his disciples
We have therefore no hesitation in upholding the finding of the High Court as regards the existence of a math at Garwaghat and the suit property being the math property
We may now deal with the main questions on which the decision of the appeal must turn
It has been argued that according to the Smritis a Sudra cannot be a sanyasi and therefore the plaintiff could not enter the Order of a yati or sanyasi
It has further been argued that there is no evidence on record in proof of the fact that the plaintiff and his two predecessors Swami Sarupanand and Swami Atmavivekanand had performed Atma Sradh or recited Pravesh Mantra and therefore they cannot be regarded as Hindu sanyasis
It therefore becomes necessary to trace the origin of Hindu sanyasis belonging to the Dasnami sects founded by the great Sankaracharya of which the Sant Mat  Sampradaya appears to be a religious denomination ie a sub sect
The first question is whether a Brahman alone can become a sanyasi among Dasnamis The second question is what are the essential ceremonies prerequisite for the initiation of a Dasnami sanyasi The third question is what is the mode of succession to the office a mahant of a math or Asthal belonging to any of the Dasnami sects It will be convenient to take up the last point first
The law is well settled that succession to mahantship of a math or religious institution is regulated by custom or usage of the particular institution except where a rule of succession is laid down by the founder himself who created the endowment vide Genda Puri vs Chatar Puri 1886 IA 100  105 Sital Das vs Sant Ram AIR 676  Mahalingam Thambiren vs La Sri Kasivasi  x x x x x x x x x x One who enters into a religious order severs his connection with the members of his natural family
He is accordingly excluded from inheritance
Entrance to a religious order is tantamount to civil death so as to cause a complete severance of his connection with his relations as well as with his property
Neither he nor his natural relatives can succeed to each other s properties
Any property which may be subsequently acquired by persons adopting religious orders passes to their religious relations
The persons who are excluded on this ground come under three heads the Vanaprastha or hermit the Sanyasi or Yati or ascetic and the Brahmachari or perpetual religious student
In order to bring a person under these heads it is necessary to show an absolute abandonment by him of all secular property and a complete and final withdrawal from earthly affairs
The mere fact that a persons calls himself a Byragi or religious mendicant or indeed that he is such does not of itself disentitle him to succeed to property
Nor does any Sudra come under this disqualification unless by usage
This civil death does not prevent the person who enters into an order from acquiring and holding private property which will devolve not of course upon his natural relations but according to special rules of inheritance
But it would be otherwise if there is no civil death in the eye of the law but only the holding by a man of certain religious opinions or professions1
Special rules are propounded for succession to the property of a hermit of an ascetic and of a processed student
Yajnavalkya states a special rule of succession in regard to the wealth of ascetics and the like The heirs who take the wealth of a Vanaprastha a hermit of a Yati an ascetic and a Brahmacharin a student are in their order the preceptor the virtuous pupil and one who is supposed brother and belonging to the same order
The Mitakshara explains thus2 A spiritual brother belonging to the same hermitage dharmabhratrekatirthi takes the goods of the hermit vanaprastha
A virtuous pupil sacchishya takes the property of a yati as ascetic
The preceptor acharya is heir to the Brahmachari professed student
But on failure of these any one belonging to the same order or hermitage takes the property even though sons and other natural heirs exist
 The property that is referred to is explained in Mitakshara and in the Viramitrodaya as consisting of clothes books and other requisite 677 articles
Practically however such cases seldom arise
When a hermit or ascetic holds any appreciable extent of property he generally holds it as the head of some math or as the manager of some religious or charitable endowment and succession to such property is regulated by the special custom of the foundation
Succession to the office of the Mahant or Mathadhipathi or Pandara Sannadhi is to be regulated by the custom of the particular institution
Even where the Mahant has the power to appoint his successor it is the custom in the various Maths that such appointments should be confirmed or recognised by the members of the religious fraternity to which the deceased belonged
According to the text of Yajnavalkya referred to above the property of a life long student goes to his preceptor that of a hermit or Vanaprastha goes to his religious brother and that of a sanyasi or Yati goes to his virtuous disciple
The principle so far as it affects maths is shortly this viz a virtuous pupil takes the property 
The particular mode in which the virtuous pupil that is not merely a chela or a shishya fittest to succeed is ascertained or selected is a matter either of express direction on the part of the founder or of custom in the case of each foundation
There are instances of maths in which the mahantship descends from Guru to chela ie the existing mahant alone appoints his successor but the general rule is that the maths of the same sect in a district or maths having a common origin are associated together the mahants of these acknowledging one of their member as a head who is for some reason pre eminent and on the occasion of the death of one the others assemble to elect a successor out of the chelas or disciples of the deceased if possible or if there be none of them qualified then from the chelas of another mahant1 According to the Dharmasastras in the strict legal sense a Sudra cannot become a sanyasi or ascetic
Mahamopadhya Dr P V Kane in History of Dharmasastra  Vol 2 Pt 1 p 163 observes As the sudra could not be initiated into Vedic study the only asrama out of the four that he was entitled to was that of the householder
In the Anusasanaparva 165 10 we read I am a sudra and so I have no right to resort to the four asramas 
In the Santiparva 63 12 14 it is said in the case of a sudra who performs service of the higher classes who has done his duty who has raised offspring who has only a short span of life left or is reduced to the 10th stage ie is above 90 years of age the fruits of all 678 asramas are laid down as obtained by him except of the fourth 
Medhatithi on Manu VI
97 explains these words as meaning that the sudra by serving brahmanas and procreating offspring as a householder acquires the merit of all asramas except moksa which is the reward of the proper observance of the duties of the fourth asrama Although the orthodox view does not sanction or tolerate ascetic life of the Sudras the existing practice all over India is quite contrary to such orthodox views
In Mukherjea s Hindu Law of Religious and Charitable Trusts 4th ed p 328 it is said  the practice of establishing Maths which began with Brahmin ascetics gradually spread to the Sudras and in course of time it was adopted by dissenting religious sects like the Jains Kabir Panthis Nanak Panthis Jangamus and others though they do not believe in the authority of the Vedas or in the tenets of orthodox Hindu religion
 At page 338 it is observed   according to orthodox Smriti writers a Sudra cannot legitimately enter into a religious order
Consequently the texts of Hindu Law relating to exclusion from inheritance applicable to a yati or a sannyasi do not in terms apply to Sudra ascetics
On this view it has been held in a series of cases that a Sudra ascetic is not incapable of inheriting the property of his natural relations under the ordinary law of inheritance
Although orthodox view does not sanction or tolerate ascetic life of the Sudras it cannot be denied that the existing practice all over India is quite contrary to such orthodox views
In cases therefore where the usage is established according to which the property of a Sudra ascetic devolves in the same way as the property of the ascetics of the twice born classes such usages should be given effect to Emphasis supplied In the words of the Privy Council in Collector of Madura vs Moottoo Ramalinga1 under the Hindu system of law clear proof of usage will outweigh the written text of the law 
Golapchandra Sarkar Sastri in his Hindu Law 8th ed at pp
65356 in a passage based on translation of slokas from Maha Nirvana Tantra observes that in Kali Yug with numerous sects having their 679 peculiar rites for being ordained to a religious order there are five castes varnas ie a fifth caste comprising of all other beings
He further observes that sanyasam according to Vedic rites does not exit and that all the five castes can become Avadhutha Sanyasis  in the advanced state of the Kali age the Brahmanas and the other four castes are all entitled to these two orders of life
The Brahman the Kshatriya the Vaisya the Sudra and the general body of human beings these five are entitled to be initiated as Sannyasis or ascetics according to Tantric system
 The orthodox rule laid down in the Mitakshara that only the Brahman can enter the fourth Asram of life and are eligible to become sanyasis has therefore been commented upon by Golapchandra Sarkar Sastri at p 662 It has been held that a Sudra cannot become a sannyasi or ascetic
This is undoubtedly the doctrine propounded in the Smritis
But the learned Judges have not taken into consideration the modern usages introduced by the Vaishnava and Tantrika and other systems according to which a Sudra and even a non Hindu such as Mohamedan may become a Hindu sannyasi
There are many religious sects of ascetics among whom caste distinction is unknown who accordingly initiate and admit Sudras into their brotherhood if otherwise qualified
In esoteric Hinduism also caste is individualistic not hereditary it being determined by qualification and not by birth
The highest virtue taught by the Hindu religion is that a man should regard other persons and beings as his own self reproduced in them as the same Supreme Soul pervades them all Emphasis supplied Here the question arises as to what classes of Hindus should be denominated as Sudras
It is undoubted that there were originally four classes 1 the Brahmanas 2 the Kshatriyas 3 the Vaishyas and 4 the Sudras
The first three were the regenerate or twice born classes the latter the servile class
The three regenerate classes exist it is true but it often becomes difficult to distinguish a Sudra from one of the regenerate classes
It is pointed out by Golapchandra Sarkar Sastri at p 113 The Smritis which have thrust into prominence this system divide men into two large classes namely the Sudras 680 and the Twice born
The study of the sacred literature forms the principle of this distinction
They ordain that by birth all men are alike to Sudras and the second birth depends on the study of the sacred literature
Thus Sankha one of the compilers of the Dharma Shastras declares Brahmanas by birth are however regarded by the wise to be equal to Sudras until they are born in the Veda ie learn the sacred literature but after that ie this second birth they are deemed twice born
Passages to the same effect are found in most of the codes according to which the recognition of the title of the Twice born to superiority over the Sudras depends upon acquisition of the knowledge of the Vedas
 The learned author then goes on to say at p 184 According to the Smritis every man is by birth a sudra it is by learning the sacred literature that a man becomes twice born
The privilege of studying the sacred literature is no doubt denied to the sudras as well as to the females of the so called twice born classes
But the status of being twice born depends on the acquisition of knowledge of the sacred literature
Manu ordains that a twice born man shall abide with the preceptor and study the Vedas for thirty six years or half or a quarter of that period or until knowledge of the same is acquired
 The consequence of omitting to do the same according to Manu is that a twice born man who without studying the Vedas applies diligent attention to anything else soon falls even when living together with his descendants to the condition of a Sudra
The learned author has observed that the majority of the so called twice born classes have accordingly become long since reduced to the position of Sudras by reason of neglecting the study of the Vedas from generation to generation
The learned Single Judge accordingly observes It will thus be seen that originally every person was deemed to be born a Sudra and that it was by virtue of intensive study of Vedas that a person attained the status of a twice born person
With the passage of time running into thousands of years it is evident that the original hall marks for classification of Sudras and twice born people gradually disappeared and degenerated into the rigid caste system based on birth
 681 As Dr Mukherjea observes the disciples of Sankara were all Brahmans and originally according to the rule laid down in Sanyas Grahan Paddhati the authorship of which is imputed to Sankara himself only the twice born people can become sanyasis of the Dasnami orders
As the four stages of life have in the Vedas been prescribed only for the twice born no Sudra can strictly speaking become an ascetic and that is the view entertained by the Smriti writers1
According to the Mitakshara only the Brahmans can enter the fourth Asram of life and are eligible to become sanyasis and this view is supported by certain passages from Manu where Pravrajya  ie exit from the house has been spoken of or prescribed for the Brahmans alone and a text of the Sruiti which says the Brahmans should become ascetics
According to Nirnaya Sindhu which has been quoted in West and Buhler s Digest of Hindu Law2 a Kshatriya and a Vaishya can also enter into an order of sanyasis
Upon a view of all these authorities it was held by the Madras High Court in Dharampuram vs Virapandiyan3 and the Calcutta High Court in Harish Chandra vs Atir Mahamed4 that a Sudra can not become a sanyasi under Hindu Law and consequently the devolution of property of a Sudra who purported to renounce the world and become an ascetic would be governed by the ordinary law of inheritance
Asceticism in India perhaps more than in any other country has been under the definite and strong sanction of religion
In the doctrine of the four asramas asceticism was made an integral part of the orthodox Hindu life and it became the duty of every Hindu as advanced age overtook him homeless and a wanderer to chasten himself with austerities
Formally this was to be done for the sake of detaching himself from earthly ties and of realizing union with Brahman
And a religious motive was thus supplied for that which in itself was a welcome release from responsibility care and the minute requirements of an elaborate social code
In due course with the advancement of knowledge the shackles of the caste system were broken through and the privileges and powers of the ascetic life were extended to Sudras
682 Hindu asceticism represented further a revolt from or at least a protest against the tyranny of caste
In its origin probably remote from Brahmanism and conveying the ordinary idea that bodily pain was profitable for the advancement and purification of the spirit the ascetic life became in association with Hinduism and under the prescriptive sanction of Hindu law itself a refuge from the burden of caste rules and ostracisms1 In Encyclopaedia of Religion and Ethics Ed
by James Hastings Vol
II p 91 it is observed 
In the first instance apparently the right and privilege of asceticism according to Hindu custom or law belonged to Brahmans alone it was then extended to all the twice born and finally all restrictions were removed and admission into the ranks of the ascetics was accorded to men of every position and degree
 This is based on the following passage from the Ramayana Uttara Kanda 749ff quoted in J Muir s Original Sanskrit Text i119f Formerly in the krta age Brahmans alone practised tapas none who was not a Brahman did so in that enlightened age then came the treta age in which the Ksatriyas were born distinguished still by their former tapas  
Those Brahmanas and Ksatriyas who lived in the treta practised tapas and the rest of mankind obedience 
In the dvapara age tapas entered into the Vaisyas
Thus in the course of three ages it entered into three castes and in the three ages righteousness dharma was established in three castes
But the Sudra does not attain to righteousness through the three ages such observance will belong to the future race of Sudras in the kali age but is unrighteous in the extreme if practised by that caste in the dvapara Manu i 86 It is therefore evident that with reluctance the right to ascetic life was extended to Sudras and in due recognition of their status they were treated as Hindu sanyasis
At the present time there is no distinction or barrier any one may become an ascetic and the vows are not necessarily lifelong
Some sects however still restrict membership to Brahmanas or at least to men of the three higher castes
The principle laid down by the Madras High Court in Dharmapuram vs Virapandiyan supra and the Calcutta High Court in 683 Harish Chandra vs Atir Mahamed supra regulating the mode of devolution of property of a Sudras who becomes an ascetic is however not applicable to after acquired property of a Hindu sanyasi
As has been said above when a layman becomes an ascetic his connection with his natural family and existing property rights are extinguished
If he acquires any property subsequent to his becoming an ascetic such property passes on his death not to his natural but to his spiritual heirs
It would be convenient next to deal with the question firstly as to whether in the Sant Mat  Sampradaya which being a sect of the Dasnamis a Sudra cannot enter the order of a yati or a sanyasi and secondly whether performance of Atma Sradh and the recitation of Pravesh Mantra are ceremonies essential for the initiation of a chela in the Sant Mat  fraternity
That depends on whether the matter falls to be governed by the Smritis or is regulated by the custom or usage of the Sant Mat  Sampradaya which was one of the Dasnami sects
About the eighth century AD Sankaracharya the greatest Hindu scholar and philosopher of modern India defeated the Buddhists in argument and re established Hinduism as the dominant religion of India
Sankara was an ascetic and founded schools of ascetics
Hindu scholars and philosophers like Mandana Misra attempted to prove against him that such ascetism was against the law of the Hindus
But all opposition was overborne by the commanding influence of Sankara who established four maths or seats of religion at four ends of India the Sringeri Math on the Sringeri Hills in the south the Sharda Math at Dwarka in the west the Jyotir Math at Badrikashram in the north and the Govardhan Math at Puri in the east and Mandana himself became a Sanyasi disciple under the name of Sureswara
The monks ordained by Sankara and his disciples were called Sanyasis
Each of the maths has a sanyasi at its head two bears the title of Sankaracharya in general
Sankara is said to have four principal disciples who were all Brahmans from whom the ten divisions of the Order hence named the ten named  or Dasnami Dandis  originated
These are Tirtha shrine  Ashrama order  Vana wood  Aranya forest  desert  Saraswati and Bharti the goddesses of learning and speech  Puri city  Giri and Parvata a hill  and Sagra the ocean 
The orthodox Hindu recognises no other sanyasis1 Kabir and Nanka also established monasteries on the lines of Sankara
Chaitanya the pure the subtle mystic of Naidia the greatest exponent and exam 684 ple of Bhakti originally belonged to one of Sankara s orders namely Bharati though he violently repudiated Sankara s pantheism and his followers founded the class of ascetics known as Byragis who too have their establishments
But it is the schools of Sanyasis founded by Sankara that are now predominant and are the wealthiest and it is of them that we should speak first
Sankara founded his monastic system on the lines of the Buddhistic Sangharamas which were found existing at the time
The rules of the Hindu and the Buddhistic institutions so far as the internal management was concerned were very similar
The Sangharama had a superior under whose management the establishment was and so had all the Maths of Sankara the superiors of which were called Mahants and Acharyas etc
The superior of a Math had the control of all the property for he was the Guru whose power no one could question and the nomination of his successor ordinarily lay with him
As a rule the best and most erudite among the disciples upon whom the choice of the congregation would naturally fall was nominated and there was rarely any contention
In course of time however as the wealth of the Maths increased and worldliness and all the vices of an idle luxurious life took the place of stern austerity and scholarship above that of all Buddhists and other schismatics by which Sankara intended the Sanyasis specially the superiors should be distinguished worldly ideas became the ruling ideas of the establishments
In imitation of the Maths of Sankara the followers of Ramanuja also founded Maths reaching the Vishishtadwaita system in various parts of India
The followers of Madhvacharya the chief exponent of the Dwaita system also founded Maths the chief among whom are the well known eight Maths at Udipi
Similarly there are Maths of the followers of Ramanund and Nimbacharya among the orthodox and of Nanak and Kabir among schismatics
There are also many Maths founded by lesser teachers
All the strictly orthodox Maths are Maths of the three regenerate classes
But the followers of Chaitanya in Bengal and of a teacher named Shankara in Assam have Maths or Akharas in which Sudras are admitted
It is however only in Madras that the Shaivas have Sudra Maths
The Tantras allow Sudras to become Sanyasis and probably these are based on the Tantras
The Sudra Maths of Dharmapuram and Tiruvaduthorai are the chief among the Sudra Maths of the Saiva Siddhantam School Sammantha Pandara vs Sellappa Chetti1 G section Pandara Sannadhi vs Kandaswami Tam 685 biran1 Vidyapurna Tirthaswami vs Vidhyanidhi Tirthaswami2 and Kailasam Pillai vs Nataraja Thambiran2
The most respectable members of this Order of Hindu ascetics known as Saiva Gosains are the spiritual descendants of Sankaracharya the very incarnation of the strictest Brahmanism
Saiva Gosains fell into two classes monks known as Mathadhari as contrasted with Gharbari or laymen
The true Dandi should in accordance with the precepts of Manu Laws VI
41ff live alone near to but not within a city
Of Saiva mendicants and ascetic orders Dandis or staff bearers occupy a place of pre eminence
They worship Lord Siva in his form of Bhairava the Terrible  and profess to adore Nirguna and Niranjana the deity devoid of attribute or passion
A sub section of this Order are the Dandi Dasnamis or Dandi of ten names so called from their assuming one of the names of Sankara s four disciples and six of their pupils
4  5 It is customary to consider the two religious orders of Dandis and Dasnamis as forming but one division
The classification is not in every instance correct but the practices of the two are in many instances blended and both denominations are accurately applicable to the same individual6
The Dandis properly so called are the legitimate representatives of the fourth Asrama or mendicant life into which the Hindu according to the instructions of his inspired legislators is to enter after passing through the previous stages of student householder and hermit
Adopting as a general guide the rules laid down in the original works the Dandi is distinguished 5  6 by carrying a small Dand or wand with several processes or projections from it and a piece of cloth dyed with red ochre in which the Brahmanical cord is supposed to be enshrined attached to it
They develop within themselves a complete detachment from the things of enjoyment either of this world or the next
Many Brahmans even Pandits or learned 686 Brahmans come to them for instruction which they impart freely without the smallest recompense
All classes of the community pay them the great honour even worship them1
The Dandis keep themselves very distinct from the rest of the community
They are Brahmans and receive disciples only from the Brahmans
They lead a very austere life
They do not touch fire or metal or vessels made of any sort of metal
It is equally impossible also for them to handle money
They shave their hair and beard
They wear one long unsewn reddish cloth thrown about the person
Although they are on principle penniless yet they do not beg
Their dependence on the kindness and care of others is thus of the most absolute character
Yet they are not reduced to distress or even to want they are fed by the Brahmans and the Gosains another class of devotees
They sleep on the ground and once or twice in the day go round to collect food and alms for which they must not ask but contentedly receive what is given
According to the stated rule they must not approach a house to beg until the regular meal time is passed what remains over is the portion of the mendicant
A Dandi should live alone and near to but not within a city but this rule is rarely observed and in general the Dandis are found in cities collected like other mendicants in maths
The Dandi has no particular time or mode of worship but spends his time in meditation or in practices corresponding to those of Yoga and in the study of the Vedanta works especially according to the precepts of the great Sankaracharya
As the preceptor was an incarnation of Lord Siva the Dandis reverence that deity and his incarnations in preference to the other members of the Triad whence they are included amongst his votarics
Prof Wilson in his Hindu Religions  observes Any Hindu of the first three classes may become Sannyasi or Dandi or in these degenerate days a Hindu of any caste may adopt the life and emblems of this order Emphasis supplied The Dasnami Dandis who are regarded as the descendents of the original members of the fraternity are said to refer their origin to Sankaracharya
There are but three and part of a fourth ascetic class or those called Tiratha or Indra Asrama Saraswati and Bharati who are still 687 regarded as really Sankara s Dandis
The rest ie the remaining six and a half of the Dasnamis are considered as having fallen from the purity of practice necessary to the Dandis are still in general religious characters and are usually denominated Atits
These are the Atits or A Dandis viz the Vanas Aranyas Puris Giris Parvatas Sagaras and half the Bharatis reputed to have fallen to some extent from orthodoxy but are still looked upon as religious avtars
The main distinction between the Dandis and the Atits is that the latter does not carry the staff ie a trishul
They differ from the former also in their use of clothing money and ornaments their methods of preparing food and their admission of members from any order of Hindus
Some of them lead an ascetic life while others mix freely in the world carry on trade and acquire property
Most of them are celibate but some of them marry and are often known as samyogi or gharbari Atits
They are often collected in maths or monasteries
They wear ochre coloured garments and carry a rosary of rudraksa seeds sacred to Lord Siva
Their religious theories when they have any are based on the advaita Vedants of their founder Sankaracharya1
There is also a sub division of the Puri division of the Dasnarni sect
They have tenets much in common based on the central idea that the Supreme Deity is incomprehensible or as they say unseeable 
They denounce idolatory
This more or less conforms to the tenets of the Sant Mat  sect
It is proved by the evidence on record that followers of this sect treat the Guru as the incarnation of God
They have no faith in inanimate idols installed in temples nor do they worship them in their cult
There are no caste restrictions and anyone can be admitted into the Sant Mat fraternity
That takes us to the next question as to whether in the absence of proof of the performance of Atma Sradh and recitation of Pravesh Mantra neither the plaintiff nor his two predecessors Swami Sarupanand and Swami Atmavivekanand could be regarded as a Hindu sanyasi
In order to prove that a person has adopted the life of a sanyasi it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life
It must also be proved in case of orthodox sanyasis that necessary ceremonies have been performed such as Pindadana or Birajahoma or Projapathiyesthi without which II the renunciation will not be complete
688 Among Dasnamis a ceremony called the Bijja Homa ie the Biraja Homa has been considered essential
The recitation of the Presha Mantram or the renunciation formula is of course indispensable and has been considered essential by the different High Courts
According to Manu giving up of all wordly property is essential
In Sherring s Hindu Tribes and Castes  pp
256 67 the ceremonies prescribed for the initiation of a Dasnami sanyasi are stated thus  The ceremony observed at the creation of a Gosain is as follows The candidate is generally a boy but may be an adult
At the Shiva ratri festival in honour of Shiva water brought from a tank in which an image of the god has been deposited is applied to the head of the novitiate which is thereupon shaved
The guru or spiritual guide whispers to the disciple a mantra or sacred text
In honour of the event all the Gosains in the neighborhood assemble together and give their new member their blessing and a sweetmeat called laddu made very large is distributed amongst them
The novitiate is now regarded as a Gosain but he does not become a perfect one until the Vijaya Hom has been performed at which a Gosain famous for religion and learning gives him the original mantra of Shiva
The ceremony generally occupies three days in Banaras
On the first day the Gosain is again shaved leaving a tuft on the top of the head call d in Hindi Chundi but in Sanskrit Shikha
For that day he is considered to be a Brahman and is obliged to beg at a few houses
On the second day he is held to be a Bramhachari and wears coloured garments and also the janeo or sacred cord
On the third day the janeo is taken from him and the Chundi is cut off
The Mantra of Shiva is made known to him and also the Rudri Gayatri not the usual one daily pronounced by Brahmans
He is now a full Gosain or Wan parast is removed from other persons and abandons the secular world
Henceforth he is bound to observe all the tenets of the Gosains
 In Gossain Ramdhan Puri  Ors vs Gossain Dalmir Puri1 Mookerjee and Carnduff JJ observed at p 203 Every aspirant for entrance into the order of sanyasis has to pass through a period of probation
Upon his first arrival at the monastery his habits and character are closely 689 watched for some days and enquiries are made into his A caste for the sanyasis admit into their order ordinarily members of the twice born classes and very rarely take members of the fourth class
If the novice is approved his head is shaved his name is changed and upon the performance of this preliminary ceremony he is regarded as a probationer for entrance into the order
The final ceremony however which is called the Biraja Homa ceremony is not performed for many months and sometimes for many years
During this period of apprenticeship it is open to the chela to return to his natural family but after the performance of the final ceremony his connection with the world is deemed to have been finally severed In support of these observations the learned Judges relied on the note of Warden on the customs of Gossains printed as an appendix to steels Law and Custom of Hindu castes 
As regards Swami Sarupanand the learned Munsif rightly observes that it would be unjust to place an unreasonable burden on the plaintiff for leading direct evidence of his initiation as Swami Sarupanand came to Varanasi from distant land and long ago
The truth has to be discerned out of circumstantial evidence and other materiaI on record  That evidence clearly shows that Swami Sarupanand was acknowledged by his numerous followers to be the head of the Sant Mat  fraternity
That Swami Sarupanand paid the debt of nature in 1936 at Meerut and that his Smadhi is situate there is not disputed
The oral evidence lead by the plaintiff in proof of the fact that after the death of Swami his Bhandara took place at Meerut as well as at Gar vaghat is irrebuttable
It is common knowledge that sanyasis are not cremated but are buried or their bodies consigned to some river and that after their demise a Bhandara takes place
Defendants Nos 1 to 4 admitted in their written statement that Swami Sarupanand was a Paramhans  and that a Bhandara had taken place after his death
The prefixes Swami  and Paramhans  are used for sanyasis and not for men of the world
In the case of Swami Atmavivekanand there is overwhelming evidence in proof of the fact that the requisite ceremonies of Birajahoma or Prajapathiyesthi were performed
Swami Vivekasukhanand who was initiated as a chela along with Swami Atmavivekanand and others speaks of the performance of BriJahoma and Prajapathiyesthi at the time of their taking sanyas and states I attend satsang
I know Swami Sarupa Nandji
He was a Sanyasi
I am in Sanyas Ashram
I became Sanyasi 690 about 28 29 years ago
Four other persons had also taken Sanyas on one and the same day
I had taken Sanyas
Their names are Swami Atma Vivekanandji Swami Aju niya Nandaji Swami Abheda Nandji and Swami Purna Shabda Nandji
Swami Atma Viveka Nandji had also taken Sanyas on that very day
Praja Prashit and Virja Hom Ceremonies were performed at the time of my taking sanyas
Our heads were shaven from before that
our Gurudeo had taken the choote
The sacred threads were burnt in the fire
Our white clothes were removed and in its place we were directed to put on the clothes of the ochre colour
Guru Maharaj had whispered the Guru Mantra into our ears
Hom Samigri were sent from the Mandleshwar of Benaras and Birja Hom was got per formed with it
We were at that time relieved off from all the bondages of Grahast Ashram
These very cere monies were performed at the time when Swami Atma Viveka Nandji took the Sanyas Emphasis supplied It is necessary to mention that though this witness was examined at length there is no question put as to the performance of Atma Sradh
This is somewhat significant because this question was put to only one of the plaintiff s witnesses Mahesh Dutt Shukla PW 13 and he replied that according to the tenets of the Sant Mat  it is not necessary to perform Atma Sradh for becoming a sanyasi
The evidence of the plaintiff s witnesses show that the Biraja Homa ceremony is of great importance and if the Biraja Homa was performed by Swami Atmavivekanand at the time of his initiation it is not at all probable that Swami Sarupanand and Swami Atmavivekanand who were men of great ability and circumspection should have performed Biraja Homa ceremony and omitted the essential details especially the performance of the Sradh of one s self that is Atma Sradh by Swami Atmavivekanand
If the Prajapathiyesthi or Biraja Homa ceremonies were performed then it must necessarily give rise to the irresistible inference that Swami Atmavivekanand must have performed his Atma Sradh before he was initiated as a chela
We are clearly of the opinion that the appellant Sri Krishna Singh impleaded as defendant No 5 was precluded from contending that his father Baikunth Singh who on his initiation by Swami Sarupanand was baptised as Swami Atmavivekanand was not a Hindu sanyasi
On May 29 1949 he along with his brother brought a suit for partition being suit No 389 of 1949 in the Court of Judicial officer 691 Chandauli against the other members of their family
It was alleged in the plaint That the father of the plaintiffs has been a plan of religious bent of mind
For that reason he having left the property of his share in the spurdgi and possession of his sons plaintiffs Nos 2 and 3 more than twenty years ago left residing here and went away
Thereafter he became a sanyasi
 Since then plaintiffs Nos 1 2 and 3 have been in possession and occupation of the same as of right and also by way of inheritance That on account of the renunciation made by the father of the plaintiffs the plaintiffs have become the principal tenant according to law and they have been in possession and occupation of their share up to this day Emphasis supplied In the aforesaid suit the appellant Sri Krishna Singh appeared as D PW 1 and in his deposition Ext
101 he stated on oath 
The land in dispute is under my tenancy
The name of my father stands entered in our share
My father died two months ago
After his becoming a Sadhu he adopted the name of Atmavivekanand
He has taken sanyas
He used to live at Gadwadhar Bangla Kuti Emphasis supplied In para 6 of his written statement the appellant while denying that Swami Sarupanand founded any math at Garwaghat averred Sri Swami Swarupa Nandji was the Guru of Sri Baikunth Singh alias Sri Swami Atma Viveka Nandji hence having regard to his old age and also with a view of honouring him his name has been entered in gift deed dated 8 3 1935
In fact on the basis of the aforesaid deed of gift Sri Baikunth Singh alias Sri Swami Atma Viveka Nandji acquired the property and has been in exclusive possession thereof
 In para 7 he states Sri Baikunth Singh alias Sri Swami Atma Viveka Nandji was a Grahast
He was Chhattri Hindu by caste
He never took Sanyas nor did he denounce the world
The real fact is that when Sri Swarupa Nandji who was the resident of Punjab arrived at the house of Sri Baikunth Singh aforesaid situate in Mauza Khuruhja Pargana Majhuwar 692 District Banaras Sri Baikunth Singh was impressed by him and under his influence became religious minded
He called himself as Swami Atma Viveka Nandji
He believed only in the worship and Bhakte of his Guru
He considered his Guru as God
He used to impart this very teaching to his disciples and devotees
He never renounced the Grahast Ashram
No body ever gave him Chadar Mahanthi
He never became the Mahanth of any Math
Sri Sarupa Nandji was also not the Dasnami
He never took Sanyas
 That appears to be a case set up to defeat the plaintiff s claim
When he was confronted with his admission in the plaint filed in the suit for partition he disavowed knowledge of the fact of his father Baikunth Singh having become a sanyasi
This was nothing but a time serving statement
In Chandra Kunwar vs Chaudhri Narpat Singh1 the Judicial Committee of the Privy Council observed The proof of this admission shifts the burden because as against the party making it as Baron Parke says in Slatterie vs Pooley What a party himself admits to be true may reasonably be presumed to be so No doubt in case such as this where the defendant is not party to the deeds and there is therefore no estoppel the party making the admission may give evidence to rebut this presumption but unless and until that is satisfactorily done the fact admitted must be taken to be established It follows that admission of the fact that his father Baikunth Singh had become a sanyasi shifted the burden on the appellant to disprove that he was Hindu sanyasi
There is direct oral evidence of the plaintiff Harsewanand and of his witnesses PWs 2 to 5 7 to 10 14 and particularly that of Swami Viveksukhanand taken on commission about the plaintiff s initiation into the ascetic order
All these witnesses have amply proved that the particular ceremonies including Prajapathiyesthi and Biraja Homa required in the Sant Mat  fraternity were performed when the plain tiff was made a sanyasi
It is amply proved by PWs 1 to 10 and 13 to 15 that Swami Atmavivekanand had not only initiated him as his chela but also nominated him to be the mahant and that after his death and in accordance with his wishes he was given Chader Mahanti on the occasion of the Bhandara of Swami Atmavivekanand
693 The document Ext
100 prepared by the Sant Mat  fraternity on this A occasion and the photograph Ext
121 taken lends assurance to the testimony of these witnesses that the plaintiff Harsewanand was installed as the mahant of the math in accordance with the express desire of Swami Atmavivekanand
The learned Civil Judge in his judgment observes The fact of Harsewanand being a sanyasi remains undoubted 
His finding that he was not a Hindu sanyasi was based upon the view that under Hindu law mere renunciation  of the world is not sufficient
Hence he holds that a Sudra who renounced the world and became sanyasi cannot be said to be a Hindu sanyasi as according to the Hindu Sastras no Sudra can become a sanyasi
The underlying fallacy lies in his over looking that the question had to be determined not according to the orthodox view but according to the usage or custom of the particular sect or fraternity
It is needless to stress that a religious denomination or institution enjoys complete autonomy in the matter of laying down the rites and ceremonies which are essential
We must accordingly hold that the plaintiff was the validly initiated 1 chela of Swami Atmavivekanand and upon his demise was duly installed as the mahant of Garwaghat Math according to the tenets of his Sant Mat  Sampradaya
There remains the question whether due to the death of the 15 plaintiff Harsewanand during the pendency of the appeal the suit brought by him abates in its entirety
It is argued that the original plaintiff Mathura Ahir having filed the suit primarily to establish his personal right to the office of mahant which entitled him to possession of the property in suit the suit abated on his death
The cause of action on which the suit was instituted it is urged was personal to the plaintiff and in order to establish that he had been duly and properly initiated as a sanyasi and installed as a mahant he had to plead and establish all the necessary facts regarding his capacity to become a sanyasi his nomination by his Guru
and his ultimate election or nomination by the Sant Mat  Sampradaya
The submission is that these were facts special to the original plaintiff and he having died respondent No 1 Harshankaranand cannot claim any relie unless and until he also establishes all these facts in regard to his claim to mahantship
The original cause of action it is said has vanished with the death of the plaintiff and the respondent No 1 Harshankaranand had necessarily II to plead and establish a new set of facts
In substance he could not prosecute the cause of action as originally framed and he could 694 not succeed without materially altering the pleadings and substituting another cause of action which could very well form the subject matter of a separate suit
It is argued that the nomination of a person as a mahant invests him with a status  and therefore capacity to succeed to the office of mahant is an incident of that status
It is said that the claim to mahantship is therefore a personal right which does not survive the plaintiff any suit claiming such a status must abate on the death of the plaintiff
Alternatively the submission is that if the Court came to the conclusion that the plaintiff had sued in his capacity as a de facto mahant it is obvious that the cause of action would be personal to him and would certainly not survive the plaintiff
In that event the  J suit must of necessity abate as a right claimed on the basis of de facto ownership cannot survive the plaintiff
x x x x x The question whether a suit abates in its entirety or not upon the death of the plaintiff must necessarily depend on the nature of the suit
This is not a class of case to which the maxim actio personalis moritur cum persona applies
The suit that the plaintiff Harsewanand brought was for possession of the suit house which belonged to Garwaghat Math in his capacity as the mahant
On denial of his title he pleaded that he was initiated as a chela by his Guru Swami Atmavivekanand the then mahant in 1937 and nominated to be his successor and accordingly upon his demise on August 23 1949 had been duly installed as Mahant of the Math by the Sant Mat  Sampradaya ie by the Mahants and Sanyasis of the Bhesh and given Chader Mahanti according to the tenets of fraternity
It was alleged that according to the tenets of this particular sect anyone including a Sudra could be a sanyasi and further that succession to the office of mahant was from guru to chela according to the custom or usage prevailing in the sect
One of the issues on which the parties went on trial was whether there was in existence a math at Garwaghat and if so whether the house in suit was an accretion thereto
The High Court agreeing with the learned Munsif has upheld the plaintiff s claim
It was held that the house in suit was acquired by Swami Atmavivekanand from out of the offerings Bhent made by his disciples and therefore was not his secular property but was an accretion to the Garwaghat Math
It has further been held that the plaintiff Harsewanand was the validly initiated chela of Swami Atmavivekanand and was duly installed as mahant of the math after his death by the Sant Mat  fraternity according to his wishes
The defendants have been held to be rank trespassers
The decree under 695 appeal crystallizes the rights of the parties
The cause of action did A not die with the plaintiff
In the circumstances the respondent No 1 Harshankaranand who now claims to be the mahant has the right to contest the appeal as representing the math being the de facto mahant for preservation of its properties
x x x x x x According to the Hindu jurisprudence a religious institution such as a math is treated as a juristic entity with a legal personality capable of holding and acquiring property
It therefore follows that the suit instituted by the mahant for the time being on its behalf is properly constituted and cannot abate under the provisions of order 22 of the Code of Civil Procedure on the death of the mahant pending the decision of the suit or appeal as the real party to the suit is the institution
The ownership is in the institution or the idol
From its very nature a math or an idol can act and assert its rights only through human agency known as a mahant shebait or dharmakarta or sometimes known as trustee
Jenkins CJ in Babajirao vs Laxmandas1 defines the true notion of a math  in the following terms A math like an idol is in Hindu Law a judicial person capable of acquiring holding and vindicating legal rights though of necessity it can only act in relation to those rights through the medium of some human agency
 It follows that merely because the mahant for the time being dies and is succeeded by another mahant the suit does not abate
The correctness of the decision in Ramswarup Das vs Rameshwal Das2 is thus open to question
It does not stand to reason that when a suit is brought for possession by a mahant of an asthal or Math
Or by a shebait of a debottar property and the defendant is adjudged to be a trespasser such a suit should abate with the death of the mahant or shebait
This would imply that after a long drawn litigation as he re the new mahant or shebait has to be relegated to a separate suit
The definition of legal representative as contained in s211 of the Code reads 11 
legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued
 696 The general rule is that all rights of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his legal representative
In Muhammad Hussain vs Khushalo1 Edge CJ while delivering the judgment of the Full Bench observed I have always understood the law to be that in those cases
in which an action would abate upon the death of the plaintiff before judgment the action would not abate if final judgment had been obtained before the death of the plaintiff in which case the benefit of the judgment would go to his legal representative
 That in our opinion lays down the correct test
In the instant case the appellant himself has of course without prejudice to his right to challenge the right of the original plaintiff Harsewanand to bring the suit substituted the respondent No 1 Harshankaranand as his heir and legal representative while disputing his claim that he had been appointed as the mahant as he felt that the appeal could not proceed without substitution of his name
In his reply the respondent No 1 Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the mahant of Garwaghat Math by the Sant Mat  fraternity
He further asserts that he was in possession and enjoyment of the math and its properties
The fact that he is in management and control of the math properties is not in dispute
The issue as to whether he was so installed or not or whether he has any right to the office of a mahant cannot evidently be decided in the appeal but nevertheless he has a right to be substituted in place of the deceased Mahant Harsewanand as he is a legal representative within the meaning of section 211 as he indubitably is intermeddling with the estate
He has therefore the right to come in and prosecute the appeal on behalf of the math
In the result the appeal must fail and is dismissed with costs


Summary:
Respondent Mathura Ahir alias Swami Harswanand the Mahant of Garwaghat Math filed a suit for declaration of title to and possession of house No C2733 situate in Mohalla Jagatgunj Varanasi for arrears of rent and mesne profits in respect thereof
The said property was purchased by his Guru Atma Vivekanand Paramahans ne Baikunth Singh from out of the income of the Math ie the offerings Bhent made by the devotees
The appellant who was impleaded as defendant 5 to avoid further litigation claimed that this property acquired by his late father Baikunth Singh alias Swami Atma Vivekanand after he became a Guru and out of Math funds devolved upon him the natural son and disciple
Since the claim went in favour of the respondent Mahant the appellant came in appeal by special leave to this Court
The original plaintiff died during the pendency of the appeal
The contentions of the appellant were i the plaintiff Mathura Ahir being a Sudra could not be ordained to a religious order and become a Sanyast or yati and therefore installed a mahant of the Garwaghat Math according to the tenets of the Sant Math Sampradaya ii In the absence of proof of the performance of Atma Sradh and the recitation of Pravesh Mantram neither the plaintiff nor his two predecessors Swami Sarupanand and Swami Atma Vivekanand could be regarded as Hindu Sanyasi and iii the first respondent Harsawanand the original plaintiff having died during the pendency of the appeal the appeal abated in its entirety
Dismissing the appeal the Court  HELD 1
A math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity and of the manager of the secular properties of the institution of the Math
671 D E The property belonging to a Math is in fact attached to the office of the mahant and passed by inheritance to no one who does not fill the office
The 661 Head of a Math as such is not a trustee in the sense in which that term is generally understood but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers subject only to the burden of maintaining the institution
671 A B In the instant case the evidence on record sufficiently establishes that a Math came to be established at Garwaghat and the building known as Bangla Kuti and certain other buildings including the house in suit constituted the endowment of the math itself
671 E F Sammantha Pandara vs Sellappa Chetti Mad 175 Gyanasambhandan Pandara Sannadhi vs Kandaswami Tambiram Mad 375 Vidya Purna Thirthaswami vs Vidyanidhi Thirtha Swami Mad
435 Ram Prakash Das vs Anand Das 1915 16 43 IA 73 PC Vidya Vanthi Thirtha vs Baluswami Iyer 1920 21 48 IA 302 referred to
The math at Garwaghat belongs to the Sant Mat  Sampradaya which is a religious order and the suit property is Math property
Though the Math at Garwaghat established by Swami Sarupanand was of recent origin the religious order denominated as Sant Math  has had large following in Punjab and some other parts of India since more than a century
In a sense therefore Swami Sarupanand himself did not for the first time evolve any new religious order
672 E 673 F G The institution was really built up by Swami Atma Vivekanand who was held in great veneration by the followers of the sect
He preached the tenets of Sant Mat  and had a large following
His Sant Mat  fraternity comprised of thousands of Girhastha and Virakta disciples who made large Offerings
Such offerings in cash or kind or in the shape of immovable property which were endowed to the Math
Swami Atma Vivekanand was the Mahant of the Garwaghat Math
The two houses at Varanasi including the suit house were purchased by Swami Atma Vivekanand from out of the offering Bhent made by his disciples
675A D 3
Succession to Mahantship of a Math or religious institution is regulated by custom or usage of the particular institution except where a rule of succession is laid down by the founder himself who created the endowment
675 G H Genda Puri vs Chatar Puri 1886 13 IA100  105 Sital Das vs Sant Ram AIR 1954 SC 606 Mahalinga Thambiran vs La Sri Kasivasi   followed
The succession to the office of the Mahant according to Sant Sampradaya is by nomination ie from Guru to Chela the Guru initiates the chela after performing the necessary ceremonies
The person initiated as a Chela adopts the life of a sanyasi and is pledged to lead a life of celibacy and religious mendicancy
The sitting Mahant hands over the management of the Math to one of his virtuous Chelas fittest to succeed when he nominates and when he wishes to install as Mahant after him in his place
He makes clear this desire to the members of his Sampradaya and also authorises the nominated chela to give Bhesh Dikshwa
After the death of the Mahant the Bhesh and Sampradaya give Chadar Mahanti of the math to the said disciple at the time of the Bhandara
672 A C 662 5
Asceticism in India has been under the definite and strong sanction of religion
In the doctrine of the four asramas asceticism was made an integral part of the orthodox Hindu life and it became the duty of every Hindu as advanced age overtook him homeless and a wanderer to chasten himself from earthly ties and of realizing union with Brahman
And a religious motive was thus supplied for that which in itself was a welcome release from responsibility care and the minute requirements of an elaborate social code
In due course with the advancement of knowledge the shackles of the caste system were broken through and the privileges and powers of the ascetic life were extended to Sudras and in due recognition of their status they were treated as Hindu Sanyasis
At the present time there is no distinction or barrier any one may become an ascetic and the vows are not necessarily life long
Some sects however still restrict membership to Brahmans or at least to men of the three higher castes
681 E H 682 G H 6
One who enters into a religious order severs his connection with the members of his natural family
He is accordingly excluded from inheritance
Entrance to a religious order is tantamount to civil death so as to cause a complete severance of his connection with his relations as well as with his property
Neither he nor his natural relatives can succeed to each other s properties
676 A B Any property which may be subsequently acquired by persons adopting religious orders passes to their religious relations
The persons who are excluded on this ground came under three heads the Vanaprastha or hermit the Sanyasi or Yati or ascetic and the Brahmachari or perpetual religious student
In order to bring a person under these heads it is necessary to show an absolute abandonment by him of all secular property and a complete and final withdrawal from earthly affairs
The mere fact that a person calls himself a Byragi or religious mendicant or indeed that he is such does not of itself disentitle him to succeed to property
Nor does any Sudra come under this disqualification unless by usage
This civil death does not prevent the person who enters into an order from acquiring and holding private property which will devolve not of course upon his natural relations but according to special rules of inheritance
But it would be otherwise if there is no civil death in the eye of the law but only the holding by a man of certain religious opinions or professions
The after acquired property passes on his death not to his natural but to his spiritual heirs
676 A E 683 A B Dharmapuram vs Vivapandiyan Mad 202 Harish Chandra vs Alia Mahamed Cal 545 explained
The Sant Mat  sampradaya is a religious denomination ie a sub sect of one of the Dasnami sects founded by the Great Sankracharya
Sankara was an ascetic and founded schools of ascetics
Sankara established four Maths or seats of religion at four ends of India the Sringeri Math on the Sringeri Hills in the South the Sharda Math at Dwarka in the West the Jyotir Math at Badrikashram in the North and the Govardhan Math at Puri in the east
The monks ordained by Sankara and his disciples were called Sanyasis
Each Math has a sanyasi at its head who bears the title of Sankaracharya in general
Sankara is said to have four disciples who were all brahmans from whom the 663 ten divisions of the order hence named as the ten named or dasnami Dandis  originated
They are Thirtha shrine Ashrama order Vana wood Aranya Forest or desert Saraswati and Bharati the goddesses of learning and speech Puri City Giri and Parvata a hill and Sagara the ocean
683 C G Dandis or staff bearers occupy a place of pre eminence
They worship Lord Siva in his form Bhairava the Terrible  and profess to adhere Nirguna and Niranjana the deity devoid of attribute or passion
A sub section of this order are the Dandi Dasnamis or Dandi of ten names so called from their assuming one of the names of Sankara s four disciples and six of their pupils
658 B C The Dandis keep themselves very distinct from the rest of the community
They are Brahmans and receive disciples only from the Brahmans
They lead a very austere life
They do not touch fire or metal or vessels made of any sort of metal
It is equally impossible also for them to handle money
They shave their hair and beard
They wear one long unsewn reddish cloth thrown about the person
686 A B There are but three and part of a further ascetic class or those called Tirtha Asrama Saraswati and Bharati who are still really regarded as Sankara s disciples
The rest ie the remaining six and a half of the Dasnamis who are considered as having fallen from the purity of practice necessary to the Dandis are still in general religious characters usually denominated and are Atits
These are the Atits or A Dandis viz the Vanas Aranytas Puris Giris Parvata Sagaras and half the Bharatia reputed to have fallen to some extent from orthodoxy but are still looked upon as religious avatars
Unlike the Dandis the Atits do not carry the shaft ie a Trishul
They differ from the former also in their use of clothing money and ornaments their methods of preparing food and their admission of members from any order of Hindus
Some of them lead an ascetic life while others mix freely in the world carry on trade and acquire property
Most of them are celibate but some of them marry and are often known as Samyogi or Gharbari Atits
They are collected in Maths and monastries
They wear ochre coloured garments and carry a rosary of rudraksha seeds sacred to Lord Siva
Their religious theories when they have any are based on the advaita Vedanta of their founder Sankaracharya
686 H 687 A D There is also a sub division of the Puri division of the Dasanami Sect
They have tenets much in common based on the central idea that the Supreme diety is incomprehensible or unseeable 
They denounce idolatory
This more or less conforms to the tenets of the Sant Mat  Sect
678 D E The followers of the Sant Mat  treat the Guru as the incarnation of God
They have no faith in inanimate idols installed in temples nor do they worship them in their cult
There are no caste restrictions and any one can be admitted into the Sant Mat fraternity
According to the custom and usage of the Sant Mat Sampradaya the initiation of a chela by the Guru results in complete renunciation of the world and he ceases to have all connection with his previous Ashramas before becoming a Sanyasi
For becoming a sanyasi it is not necessary that he should be of a particular Varnashram previously ie even a Sudra can become a Sanyasi
671 G H 672 E 8
Though according to the orthodox Smriti writers a Sudra cannot legitimately enter into a religious order and although the strict view does not 664 sanction or tolerate ascetic life of the Sudras the existing practice all over India is quite contrary to such orthodox view
In cases therefore where a Sudra can enter into a religious order in the same way as in the case of the twice born classes such usage should be given effect to
670E F 9
In order to prove that a person has adopted the life of a Sanyasi it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life
It must also be proved in case of orthodox sanyasis that necessary ceremonies have been performed such as Pindadana or Birajahoma or Prajapathiyesthi without which the renunciation will not be complete
687 G H Amongst Dasnamis a ceremony called the Bijla Homa ie the Biraja Homa has been considered essential
The recitation of the Pravesha Mantram or the renunciation formula is of course indispensable
688 A In the instant case a there is overwhelming evidence in proof of the fact that the requisite ceremonies of Biraj homa or Prajapathiyesthi were performed in case of Swami Sarupanand and Swami Atma Vivekanand
If the Prajapathiyesthi or Biraj Homa ceremonies were performed then it must necessarily give rise to the irresistable inference that Swami Atma Vivekanand must have performed his Atma Sradh before he was initiated as a chela b The appellant was precluded from contending that his father Baikunth Singh was not a Hindu Sanyasi in view of his express admission in the plaint filed in an earlier suit
The burden of proof shifted upon him to disprove it c Swami Harsewanand Mathura Ahir was the validly initiated chela of Swami Atma Vivekanand and upon his demise was duly installed as the Mahant of Garwaghat Math  according to the tenets of Sant Mat  Sampradaya
689 G H 693 C D 10
The question whether a suit abates in its entirety or not upon the death of the plaintiff must necessarily depend upon the nature of the suit
This is not a class of case to which the maxim actio personalis moritur cum persona applies
694 C D 11
According to Hindu jurisprudence a religious institution such as a math is created as a jurisdic entity with a legal personality capable of holding and acquiring property
It therefore follows that the suit instituted by the mahant for the time being on its behalf is properly constituted and cannot abate under the provisions of Order 22 of the Code of Civil Procedure on the death of the mahant pending the decision of the suit or appeal as the real party to the institution is the institution
The ownership is in the institution or the idol
From its very nature a math or an idol can act and assert its rights only through human agency known as a mahant or shebait or dharmakarta or sometimes known as trustee
It follows that merely because the mahant for the time being dies and is succeeded by another mahant the suit does not abate
695 B C E Ram Swarup Das vs Rameshwar Das vs ILR 29 Pat
989 over ruled
The general rule is that all rights of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his legal representative within the meaning of section 211 of CPC 699 AF Muhamed Hussain vs Khushalo ILR 9 All 131 approved