Appeal No 171 of 1967
Appeal from the judgment and decree dated April 12 1966 of the Patna High Court in Appeal from Original Decree No445 of 1963
1006 D V Patel and U P Singh for the appellant
C B Agarwala Umesh Chandra singha  R Goburdhun and D Gob urdhun for respondent No 1
The Judgment of the Court was delivered by Mitter J
This is an appeal from a judgment of the Patna High Court reversing the decree in favour of the plaintiff appellant declared to be the duly installed Mahant of Turki Math and of all its subsidiary maths and as such entitled to possession of the properties covered by the decree
The undisputed facts are as follows
In the village of Turki in North Bihar there is a Math or as that of the Kabirpanthi Bhagatatha Vairagi sect established over a century back
There are asthals subordinate to the principal one at Turki located in different districts of Bihar
Devolution of the Mahantship has always been from a Guru to his Chela
Defendant No 2 executed a deed dated December 17 1951 nominating the first defendant as Ms successor to the Mahantship and a second deed on September 15 1952 surrendering his right to the Mahantship in favour of the first defendant with immediate effect
The suit of the appellant was launched in 1959 for a declaration that he himself was the duly installed Mahant of saddar asthal Turki in the circumstances mentioned in the plaint that the second defendant had ceased to be the Mahant by his voluntary of retirement and the first defendant being a junior Chela could have no right or Claim to the Mahants
As a corollary to the above declaration he also asked for a decree for recovery of possession of all the properties of the asthal including those which had been purported to be transferred by the first two defendants
The appellant made a two fold claim in his plaint
It was his case that under the tenets and the customs of the asthal and Bhagataha sect of Kabirpanthies the devolution of the office of Mahantship is always from a Guru to the senior celebate Chela either on the death of
the Mahant for the time being or by the said Mahant nominating
his successor by deed and himself retiring from the Mahantship In either case after the death or retirement of the Mahant for the time being the senior chela succeeds to the Mahantship and is  duly installed on the Gaddi after the perfomance of Bhandara in an assemblage of Mahants and sadhus of the sect and respectable persons of the locality at which The Chaddar of Mahanthi is bestowed on the new Mahant by the Mahant of Acharya Math Dhanauti in the District of Saran
The deeds of 1951
and 1952 being in violation of the ancient custom of the asthal the first defendant was never of the as or became the Mahant of Turki nor was any Chaddar ceremony 1007 performed at any requisite ceremony in recognition of such succession The appellant had filed a suit in the court of the Subordinate Judge at Muzaffarpur in the year 1953 for declaration of his riots and for setting aside the deeds of 1951 and 1952
After the suit was pending for some time a compromise was arrived at whereby it was agreed that the appellant should assume the office of Mahantship and take possession of all the properties of the Math
The appellant put his signature on a sheet of blank paper for recording the terms of settlement
He had actually assumed the office of the Mahant of Turki in April 1954 and an elaborate ceremony was performed on the 16th February 1956
whereat he was installed
as the Mahant of Turki and given the Chaddar of Mahanti by the Acharya of Dhanauti before a big gathering
A document known as the Surat Hall was prepared regarding the plaintiff s installation
This bore the signature of innumerable persons
This was followed by his taking charge of all the properties of the saddar and subordinate asthals
The first two defendants thereafter dispossessed him and being unsuccessful in proceedings under the Code of Criminal Procedure for securing possession of the math and its properties he was compelled to file the suit
Respondents 1 And 2 filed a joint written statement
They pleaded that the custom and usages of the Turki Math relating to devolution of Mahantship was for the Mahant for the time being nominating a fit and proper person as his successor from amongst his Chelas irrespective of his seniority and the person so nominated invariably became the Mahant on the demise or retirement of the incumbent Mahant
A ceremony of installation of the new Mahant on the Gaddi and the bestowing of a Chaddar on him were not essential for establishing his title to this office in place of the retiring or the deceasing Mahant
The defendants denied the factum of the installation of the appellant relied on in the plaint
According to them the appellant had at all times knowledge of the nomination of the first defendant by the deed of December 17 1951 and his appointment with immediate effect by the deed of September 15 1952
It was on realisation of the weakness of his case that he had approached the defendants for a compromise agreeing to given up his claim in the suit of 1953
He had appended his signature to the petition of compromise in that suit being fully conversant with the terms thereof
The two main issues framed by the trial court and relevant for the disposal of this appeal bear on the custom governing the succession to the Mahantship of the Turki Math and the right of the incumbent mahant to nominate a junior Chela in preference to a senior Chela
Issues were also framed by the trial court as to whether an installation ceremony was an essential pre requisite 1008 to a Mahant s lawfully functioning as such and whether the plaintiff had factually been installed as a Mahant of the Turki Math
The findings of the trial court were as follows  1From 1899 onwards only senior Chelas had succeeded their Gurus
2According to the custom of the Muth the Mahant had the right to nominate his successor and the choice rested upon the senior Chela unless he suffered from any disqualification or was found to be unfit for the office
The right of nomination was not absolute but was subject to the approval of others
3An installation ceremony was not essential to complete the title of the Mahant
Such a ceremony had been performed in the ease of the plaintiff in 1956 and he became the Mahant of Turki although not in possession of the properties thereof at the time of the suit
The High Court rejected the custom as to succession set up by the plaintiff
It found 1Since the time of the founder Chaturbhuj Gosala six Mahants had occupied the office of whom three were described as junior Chelas by some of the witnesses on the defendant s side
The evidence did not establish that there was an invariable custom of the senior Chela being nominated by the outgoing Mahant
2The Mahant in office had an undoubted right to nominate his successor and ordinarily the right of appointment was exercised in favour of the senior Chela but the choice was exercised in favour of a celebrate chela taking into account his all round ability and character
The second defendant had as a matter of fact nominated one Ganesh Bhagat as his successor even before the deed of nomination of 1951 in favour of the first defendant
This nomination of Ganesh Bhagat was cancelled as he was found to be unfit
Compared to the plaintiff the first defendant was decidedly superior in learning ability and conduct  as the main function of the Mahant was to propagate the Kabirpanthi cult and the maintenance of a peaceful and harmonious atmosphere in the mutt where people were expected to congregate for religious discussion and discourses and other benevolent functions the choiceof the first defendant by the second defendant in preference to the plaintiff was not undeserved and must be taken as final
The High Court did not examine the question as to whether an installation ceremony was necessary to perfect the title of Mahantship in view of the concession by counsel for the plaintiff Differing from the finding of the trial court the High Court held that no ceremony of installation of the plaintiff had been performed in 1956 as alleged in the plaint
1009 4The deeds of nomination and surrender in 1951 and 1952 by the first defendant were valid and binding
The general law as to succession to Mahantship is now well settled by innumerable decisions of the Judicial Committee of the Privy Council and some decisions of this Court
It will be enough to quote some passages from Mukharji s book on the Hindu Law of Religious and Charitable Trusts
The learned author states third edition p 257 Once a Mutt is established succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution
 The primary purpose of a Mutt is to encourage and foster spiritual learning by maintenance of a competent line of teachers who impart religious instructions to the disciples and followers of the Mutt and try to strengthen the doctrines of the particular school or order of which they profess to be adherents
 At page 269  In a Mutt it is the custom or practice of a particular institution which determines as to how a successor is to be appointed
 Three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant p 269 The first is that if the grantor has laid down any particular rule of succession that is to be given effect to
Secondly in the absence of any grant the usage of the particular institution is to be followed and in the third place the party who lays claim to the office of a Mohunt on the strength of any such usage must establish it affirmatively by proper legal evidence
The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he be a disciple of the last Mohunt unless he succeeds in proving particular usage under which succession takes place in the particular institution
 At p 270  Generally speaking the Mutts are divided into three classes according to the different ways in which the heads or superiors are appointed
These three descriptions of Mutts are Mourasi Panchayati and Hakimi
In the first the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt 1010 who moreover usually nominates him as his successor in the second the office is elective the presiding Mohunt being selected by an assembly of Mohunts
In the third the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple In a Mourasi Mutt the chela or disciple of the last Mohunt succeeds to the office when there are more chelas than one the eldest generally succeeds but a junior chela may succeed if he is found more capable and if he is selected by the last Mohunt is his successor In various institutions the custom is that in order to entitle a chela to succeed be must be appointed or nominated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document
In other cases again the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the life time of the last Mohunt or when the funeral ceremonies of the latter are performed At p 273
When the Mohunt has the right to appoint his successor he may exercise the right by an act inter vivos or by will At p 274  In a Mourashi Mutt it is possible for the Mohunt to make over the endowment during his life time to his chela whom he appoints as a successor At p 275 In many cases when a successor is appointed by Mohunt he is installed in office with certain ceremoniesThis cannot be deemed to be essential
 Admittedly Turki was a Mourasi Mutt The evidence as to custom adduced in the case Is both documentary and oral
The oral evidence which will be noted hereafter is discrepant and mostly of persons who were not disinterested
The documentary evidence undoubtedly furnishes more reliable testimony being ante item motam and brought into existance at a time when the plaintiff was not on the scene and when no dispute as to succession to ship was raging
1011 The earliest document exhibited in this case is that of 1899 executed by Mahant Lal Bahadur Bhagat in favour of Ram Bhagat describing him as the senior chela able clever literate and by all means tit for the Mahantship
Mahant Ram Bhagat in his turn nominated Mahadeo Bhagat as his successor by a deed of November 1910
Like the document of 1899 this deed also describes the nominee as able clever and fit to discharge the duties of the Mahant Mahadeo Bhaaat however is not described as the senior Chela but only as a disciple of the executant
By a deed of August 1937 Mahant Mahadeo Bhagat nominated Narsingh Bhagat defendant No 2 as his successor describing the latter as his only disciple worthy clever and fit in all respects for the Gaddi
By a document of June 1947 Narsingh Bhagat nominated one Ganesh Bhagat as his successor to the Gaddi
This nomination was cancelled by Narsingh Bhagat on the ground of unfitness of the nominee for the office but mention is made in this docu ment of 1947 of the practice and custom relating to the succession to the office of the Mahant
This document goes against the contention of the plaintiff that by custom the senior Chela was eligible to the office in preference to all others
It recites  It has been the practice in the Asthal from the time of my predecessors that the Gadinashin leads a life of Brahmacharya and he does not marry
One Mahanth Gadinashin appoints and nominates his able Brahmachari disciple as Gadinashin and future successor during his lifetime
After the death of his Guru the rightful disciple becomes heir and Gadinashin of the Asthal of the Sadar Nath at Turki
I the executant thought it proper to make over the management of the property under a will according to previous custom and appoint Ganesh Bhagat as my successor
 This was followed by a description of the nominee as literate able and efficient
The document of December 1951 by Narsingh Bhagat in favour of Girija Nandan Bhagat
the first defendant
describes the nominee as fit and qualified in all respects to be the Mahant and recites the custom as in the case of Ganesh Bhagat
The trial Judge s view that the nominations if 1899 1910 and 1937 being invariably in favour of the senior disciple went a long way to establish the custom relied on by the plaintiff was not accepted by the High Court
Apparently the trial Judge was of the view that Mahadeo Bliagat who became the Mahant in 1910 was the only disciple of Ram Bhagat and it was therefore not felt necessary to mention him is the senior chela Quite a number of defendants  witnesses made statements to the effect that Ran 
Bhagat had a number of Chelas
The trial Judge obviously over locked the statement of the plaintiff in his cross examination that 1012 Ram Gossai had 5 or 6 Chelas and he himself had seen all of them
A fairly large number of witnesses stated that the qualifications for a person s nomination to the Mahantship did not depend only on seniority but on ability to manage celibacy adherence to religious principles and a habit of serving sadhus fakirs and visitors besides a good moral character
Some even suggested that it was the ablest Chela who was made the Mahant
Making due allowance for the witnesses who came to support the case of the party examining them the oral testimony unquestionably leads us to hold that in the matter of nomination of a successor to the Mahantship seniority was not the decisive factor but that ability and efficiency in management coupled with a good moral character and adherence to the religious rites practised at the mutt and a spirit of service to sadhus etc
all entered into consideration in the selection of a successor by a Mahant
This conclusion is fortified by the documents exhibited
As already noted they do not support the plaintiff s version that invariably the senior Chela was selected
In our view the document executed by Narsingh Bhagat in favour of Ganesh Bhagat sets out the custom as to succession fairly accurately
The argument advanced on behalf of the appellant that the plaintiff was installed as the Mahant of Turki in 1956 before a wide gathering of sadhus and respectable persons at which the Chaddar ceremony was performed does not merit any elaborate or serious consideration
As noted already the trial court did not take the view that the performance of the Chaddar ceremony was an essential pre requisite to a person becoming a Mahant and before the High Court counsel for the plaintiff expressly gave up that point
Although the trial court found in favour of the plaintiff that such a ceremony had actually been performed the High Court came to a different conclusion
One of the reasons which prompted the High Court to take this view was that the document evidencing the installation ceremony styled the Surat Hall had not been produced in any court of law before the institution of the suit of 1959 although litigation in respect of the properties of the mutt and the plaintiff s right to possession were being canvassed before courts of law
The High Court also relied on the fact that a res pectable and reliable witness like the Mahant of the Acharya Mutt denied having signed this document exhibit 1 and no attempt was made on behalf of the plaintiff to controvert the said denial by examination of a hand writing expert
Reliance was also placed by the High Court on the fact that the plaintiff who filed a petition under sections 107 and 145 Cr PC against the first defendant and 12 others on 8th December 1956 described himself as the Mahant of Chanwa Math and made no reference in the petition itself to the installation ceremony at Turki
The High Court also did not believe the plaintiff s version that he had signed a blank 1013 sheet of paper to be used as a compromise petition in the earlier suit filed by him and nothing has been shown to us as to why we should take a different view
In the result we hold that the plaintiff was unable to discharge the onus which lay on him to substantiate the custom as to succession pleaded in his plaint
He also failed to establish that he had in fact been installed as the Mahant of the said Math
The appeal fails and is dismissed with costs
VPS Appeal dismissed


Summary:
Three aspects have to be borne in mind in connection with the question of succession to the office of a mohunt  i if the rounder or endower has laid down any particular rule of succession that is to be given effect to ii in the absence of the above the usage of the particular institution is to be followed and iii the party who lays claim to the office on the strength of any such usage must establish it affirmatively
The fact that the defendant is a trespasser would not entitle the plaintiff to succeed un less he succeeds in proving the particular usage under which he claims
1 009 E G In a Mourasi mutt the office of the mohunt is hereditary and devolves upon a disciple of the existing mohunt who usually nominates him as the successor
Though generally the senior disciple succeeds a junior disciple may succeed if he is found more capable and if he is selected by the last mohunt as his successor
The appointment or nomination is done by the reigning mohunt during his life time or shortly before his death and it is possible for the mohunt to make over the endowment during his lifer time to the successor
1010 B D F In the present case the mutt was a Mouriasi mutt and the second respondent was its mohunt
He nominated the first respondent as his successor by a deed
and by a second deed surrendered to him his right to the office of mohunt
The appellant claimed the office as the senior disciple on the contention that the devolution to the office was to the senior disciple according to the tenets and customs of the sect which established the mutt
The trial court decreed the suit but the High Court set aside the decree Dismissing the appeal to this Court HELD  The appellant had not discharged the onus which lay on him to substantiate the custom pleaded by him
The documentary evidence which was ante litern motam did not support the appellant s case that invariably only the senior disciple was selected
On the contrary the entire evidence in the case led to the conclusion that in the matter of nomination of a successor to the office of mohunt seniority was not the decisive factor but that ability and efficiency in management coupled with a good moral character adherence to the religious rites practised at the
mutt and a spirit of service to the sadhus etc
entered into consideration in the selection of a successor
1012 A D