http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: GURCHARAN PRASAD & ORS.

       Vs.

RESPONDENT: P.KRISHNANAND GIRI & ANR. ETC.

DATE OF JUDGMENT: 13/12/1967

BENCH: MITTER, G.K. BENCH: MITTER, G.K. BACHAWAT, R.S.

CITATION:  1968 AIR 1032            1968 SCR  (2) 600  CITATOR INFO :  R          1981 SC1878  (26)

ACT: Hindu  Law---Endowment-Mahants  of math carrying  on  money- lending  business,  acquiring and disposing  of  properties- Properties how far personal-Religious head wheather can  own personal property.

HEADNOTE: The  successive  Mahants  of  Uttar  Giri  Math  in  Benaras acquired  properties and made dispositions of properties  to their  disciples who succeeded them.  The incumbent  of  the office of Mahant in 1904 entered into a marriage against the custom of the brotherhood.  One of his collaterals thereupon filed a suit in which he claimed to be put in possession  of the  properties  of the Math, also challenging some  of  the dispositions of property made by the Mahant.  The defendants contended that all the properties in question did not belong to  the  Math and that the properties transferred  were  the personal  properties  of the Mahant.  The trial  Court  held that the transferred properties were the personal properties of the Mahant and his predecessors and that only 12 items of property were endowed properties.  In appeal the High  Court held that all the items of property were personal  property. In further appeal this Court held that the building in which the  brotherhood resided was certainly Math property; as  to other properties the case was remanded to the High Court for determining  whether,  they  were  personal  properties   or endowment  properties.  The High Court, noting this  Court’s view that at least some properties must belong to the  Math, observed : "In view of this finding of the Supreme Court the fact  that  the evidence on the record  does  not  expressly indicate which property belonged to the, Math and which  did not.  should  lead to the conclusion that all  the  property belongs  to  the  Math.   Property  acquired  by  a   Mahant personally  but blended with the Math property  will  itself become Math property." On this view the High Court dismissed the appeal.  The defendants came to this Court. HELD : The High Court fell into an error in holding that the observations of this Court in the earlier appeal led to  the conclusion  that  all  the property  belonged  to  the  Math because  the evidence on record did not  expressly  indicate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

which  property belonged to the Math and which did not.   If such  had been the intention of the learned  Judges  bearing the appeal they would have clearly said so. [607 G-H] On  the facts of the case it was not possible to  hold  that the   Mahants  blended  their  self-acquired  and   personal property with Math property so as to make the whole  partake of  the  character  of the latter class  of  property.   The Mahants had systematically pursued a money-lending business, had  transferred properties to others in recognition of  the claims of 601 the  disciples or voluntarily for lawful  consideration  and were  describing  themselves  in  the  Tamliknamas  as   the absolute owners of the property. [607 H; 609 GH] On an examination of the evidence only 15 items of  property including main building in which the Math was situated  were Math property.  About the rest of the, property it could not be said that it was not the personal property of the Mahant. The  transfers  of  such property by the  latter  could  not therefore be challenged. [608 OC; 609 H] The fact that the successive Mahants had renounced the world and  became sanyasis and had almost uniformly nominated  the person who was to succeed them from out of the: disciples or disciples of disciples does not lead to the conclusion  that the properties must he treated as Math properties. [608 C] Parama Nand v. Nihal Chand, 65 I.A. 252 and Raghbir Lala  v. Mohanmad Said, A.I.R. 1943 P.C. 7, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 212 to  216 of 1965. Appeals by certificates/special leave from the judgment  and decree  dated September 3, 1965 of the Allahabad High  Court in First Appeals Nos. 523 of 1933, and 557 of 1930. R.   K.  Garg,  D. P. Singh, Anil Kumar  Gupta,  Shiv  Pujan Singh and K. M. K. Nair, for the appellants (In C.A. No. 212 of 1965). Yogeshwar Prasad, E. C. Agrawala and P. C. Agrawala, for the appellants (In C.As. Nos. 213 and 214 of 1965). G.   N.  Kunzru,  B.P.  Singh  and  R.  B.  Datar,  for  the appellant (In C. A. No. 215 of 1965), for the respondent (In C.As. Nos. 212, 213 and 214 of 1965 and for the  respondents (In C.A. No. 216 of 1965). C.   B.  Agarwala,  V. K. Sanghi and K. P.  Gupta,  for  the appellant (In C. A. No. 216 of 1965). The Judgment of the Court was delivered by Mitter,  J. Bounded by the river Ganges on the cast, in  the locality named Tripura Bhairvi of the temple studded city of Benaras there stands a math popularly known as Uttam  Giri’s Math,  the origin of which is lost in antiquity.   For  well over a century this Math has been a sanctuary of a spiritual brotherhood of Nihang Dasnami Sanyasis.  Claim is laid  that they belong to one of the ten orders of Sanyasis founded  by the chelas of the 602 four  disciples  of the famous  philosopher,  Sankaracharya. Starting  probably without any nucleus of endowed  immovable property,  the  heads of the Math appear to  have  prospered enormously  in  matters material and  temporal.   Successive heads  of the Math or Mahants as they were  commonly  known, seem to have been more keen about the acquisition of  wealth and preservation of properties than about the furtherance of the  spiritual  benefit of the brotherhood.   Gifts  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

shape  of endowments seldom came their way but  the  Mahants who  uniformly pursued a money lending business also  styled as  a  banking business in some of the  documents,  went  on amassing  wealth  and property treating themselves  as  full owners   thereof  and  directing  their  successors   almost invariably  nominated by their wills, to treat the  property in  the  same way as they themselves were doing  but  paying scant regard to the cause of the brotherhood or the  pursuit of  any charitable purposes.  One Mayanand Giri  became  the Mahant in 1904 and it is his acts and conduct which  sparked off  this litigation nearly forty years ago.  The  immediate cause  of the legal proceedings was his marriage  which  led the  plaintiff, Purushottamanand Giri, to file the  suit  in the  court  of the Subordinate Judge of Benaras  claiming  a declaration  that  by  his marriage, the  defendant  No.  1, Mayanand Giri, had lost his right to continue as Mahant  and that  the  plaintiff  as  his  nearest  collateral   should, according  to the custom of Nihang Dasnami Sanyasis, be  put in  occupation  and possession of the  Math  the  properties appertaining  thereto.   The  plaintiff  also  challenged  a number  of  alienations impleading no less than  forty  five persons  as defendants and claiming that the transfers  made by  defendant  No.  1 were invalid and not  binding  on  the Mahant  of  the Math.  The suit was contested  not  only  by Mayanand Giri but also by a number of the transferees.   The defences raised were many and various.  The first  defendant pleaded  inter alia that the plaintiff was not  his  nearest collateral, that there did not exist a Math with the customs and usages alleged in the plaint and that all the properties scheduled  in the plaint were not the subject matter of  any endowment. The case of the transferees was that most of the  properties were acquired by successive Mahants starting from  Chaitanya Giri  by the practice of a money lending business.   It  was said that a banking firm styled as Uttam Giri Shivdutt  Giri was 603 started by his successors and it was this business which was pursued  by  the  Mahants  that  gave  rise  to  the  wealth accumulated  in  the Math.  The common defence  of  all  the transferee  defendants  who  contested  the  suit  was  that Mayanand  Giri  was the absolute .owner  of  the  properties alienated   and   that  they  themselves  were   bona   fide transferees  for  valuable  consideration and  as  such  the transactions  entered into with them by Mayanand Giri  could not  be  challenged.  The suit was dismissed  as  against  a large number of defendants who were found to be dead at  the time  of its institution or because they were  not  properly brought on the record in place of the original defendants. The Subordinate Judge after a protracted hearing came to the conclusion that the ancient documents on the record, coupled with  the  other evidence, established the existence  of  an ancient  Math, that the Mahants from the time of Gangot  Gir had  been  carrying  on a money lending  business,  that  an ancestor  of Gangot Gir by name Gomtigir had  established  a Math on a humble scale, that Prem Giri, a grand disciple  of Gangot Gir, established another Math of his own, that  Uttam Gir  who  succeeded Prem Gir had certainly created  one  and that  the predecessors of the defendant, Mayanand Giri  like himself  had two kinds of properties, namely, Math  property and  personal property.  According to the Subordinate  Judge the  nucleus from which the Math in suit originated was  the personal  property of Prem Gir.  On the evidence he held  12 items of property mentioned in the will of Shivdutt Gir  who succeeded  Prem  Gir and two other items of property  to  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

endowed  properties.   The transfers  effected  by  Mayanand were,  according to the Subordinate Judge, beyond  challenge because they related only to his personal properties. Two  appeals were filed against the judgment and  decree  of the Subordinate Judge, one by the plaintiff and the other by Mayanand.  The Allahabad High Court on appeal dismissed  the suit  on the view that there was no Math at all, that  there was  only a banking business and that the property was  non- religious  personal  property acquired by Mayanand  and  his predecessors  by  following a banking business.   A  further appeal from the Allahabad High Court was disposed of by this Court  by a judgment dated December 20, 1954.  After  noting in brief the 604 conclusions  of the Subordinate Judge and of  the  Allahabad High  Court, it was observed by this Court that  "the  short and only question therefore before us is, whether or not the existence  of  the  math  which is  the  foundation  of  the plaintiff’s  case  has been satisfactorily made  out."  This Court  then  proceeded  to  examine  the  principal  ancient documents and observed:               "All the above documents, broadly  considered,               indicate definitely-               ,(1)  the existence of a spiritual brotherhood               affiliated to each other by ties of initiation               and succession,               (2)   the  existence  of a mutt which  is  the               residence of the brotherhood as well as of the               gaddinashin  thereof  and  which  in  specific               terms has been successively provided as  being               inalienable,               (3)   the  existence of certain properties  at               least  from the date of death of  Sheodat  Gir               which  were made specifically  inalienable  in               the  hands of his successors,  presumably  for               the use of the spiritual brotherhood, and               (4)   the  existence of a number of  items  of               property  which  in terms were  dedicated  for               spiritual  uses like Dharmashalas, feeding  of               ascetcis, etc. and were designated as waqf." This Court then considered the evidence of prior conduct  of Mayanand Giri himself and certain admissions made by him and held  "that  the  case of the first  defendant  denying  the existence of a mutt or of any properties as belonging to  it is totally false." According to this Court               "it is quite clear that what is now designated               as  the  mutt No. 42/90-D must  have  been  in               existence  at least from the time of Prem  Gir               i.e. for over a century and that this item  of               property  in the hands of successors  of  Prem               Gir  was  subject  to  the  condition  of  in-               alienability, expressly provided in  Premgir’s               Tamliknama,  and impliedly so provided in  the               will of Sheodat Gir."                                    605               Further               "notwithstanding  that  there is  no  specific               deed   of   endowment,  the  fact   that   the               particular building has been continuously used               as  the residence of the brotherhood, and  the               seat of the head thereof in succession and the               fact that it has been specifically provided as               being   inalienable   constitute    sufficient               evidence  of dedication of this building as  a               mutt."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

Examining  the evidence further, both oral and  documentary, this  Court  was  not  inclined  to  concur  with  the  view expressed  by  the  High Court that  the  evidence  did  not "disclose   the  existence  at  any  time  of  a   religious institution  or  a monastery with any attempt  at  religious study  or  religious  teaching but that  it  disclosed  only banking or money lending business which passed on from  each of  its proprietors to his chosen successor."  Great  stress was  laid on the documents of 1828 and 1839-to be  noted  in detail  hereafter-which  did not, according to  this  Court, indicate that the ownership given thereby to the  successors was  to  be  for  their  personal  uses  and  that  all  the transactions disclosed by these and other documents  noticed by  the High Court were inter se between the members of  the brotherhood and not with outsiders.  It was observed that               "The document of 1887 appears to us to  clinch               the  position by specifically  providing  that               the properties left by Sheodat Gir were not to               be  alienable in the hands of the  successors.               The  inalienability  impressed upon  by  these               properties  by the then head of the  spiritual               brotherhood  can reasonably be presumed to  be               only    for   the   purpose    of    spiritual               brotherhood." According  to  this  Court these  circumstances  should  "be normally treated as indicative of the religious character of the property for the use of the brotherhood." The  conclusion of this Court (as appearing at page  607  of the paper book) was in these terms:-               "We   are,  therefore,  satisfied   that   the               existence of a mutt as an institution has been               clearly made out on the evidence in this  case               and that the building No. 42/ 90-D belongs  to               and constitutes the mutt and that the               606               contrary   view   is  untenable.    The   only               substantial  question in the case  is  whether               and  to  what extent the  properties  in  suit               belong  to this mutt as an  institution.   The               learned  trial Judge dealt with this               question and held only a few out of the  large               number  of  items  mentioned  in  the   plaint               schedule  as  belonging  to  the  mutt.    The               learned Judges of the High Court did not  feel               called upon to give any finding as to this  in               the  view that they had taken.  These  appeals               will, therefore, have --to go back to the High               Court   for  further  consideration  of   this               question  and  of  other  questions  left  un-               decided."               Finally it was observed (at p. 610):               "that  our judgment concludes the question  as               to whether house No. 42/90-D is or is not mutt               property.  The only substantial questions that               remain are as to which of the other properties               in the plaint schedule belong to the mutt  and               whether  such  alienations as relate  to  mutt               properties are valid and binding on the mutt." This  Court  further upheld the finding of  the  Subordinate Judge  in favour of a custom among the Dasnami  Sanyasis  of the  neighbourhood that by reason of his  marriage  Mayanand had  become  a  "Patit"  and had  forfeited  the  office  of Mahantship and the same community had elected the  plaintiff as the Mahant of the Math at Tripura Bhairavi. On  remand,  the High Court examined the  ancient  documents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

once  more and after referring to the observations  of  this Court quoted above, stated that it had been definitely found by  this  Court  that some of the properties  in  suit  must belong to the Math and went on to add:               "In view of this finding of the Supreme  Court               the fact that the evidence on the record  does               not expressly indicate which property belonged               to the Math and which did not, should lead  to               the  conclusion that all the property  belongs               to  the Math.  Property acquired by  a  Mahant               personally but blended with the Math  property               will itself become Math property.  He is  com-               petent  to  endow his property.   Blending  it               with Math                                    607               property  is an indication that he endowed  it               to  the  Math  or  intended  it  to  be   Math               property."               According to the High Court:               "It   was,   therefore,  necessary   for   the               defendants  to  establish that such  and  such               property was acquired .not as a Mahant but  as               an individual and was also kept separate  from               the   Math  property  which  the  Mahant   was               managing." The High Court then went on to consider the alienations made by  the Mahants who had preceded Mayanand Giri from time  to time and was of the view:               "during  this long period the brotherhood  did               purchase properties but hardly transferred any               property  and that this may be either  as  the               properties  were not considered  personal  and               alienable or as the mahants had no occasion to               transfer  property,  their  income  being   in               excess of expenditure." The  High Court examined the transactions of  Mayanand  Giri challenged  by the plaintiff and was not satisfied that  any enquiry had been made by the alienees about the necessity or the purpose of the math justifying the alienations.  In  the result,  the  High  Court  allowed  the  appeal  with  costs throughout  against Mayanand Giri and a number of  alienees, some of whom only have come up in appeal. [His  Lordship  then examined the  documentary  evidence  in order to ascertain the character of the property in dispute, and held:] In  our view, the High Court fell into an error  in  holding that  the observations of this Court led to  the  conclusion that  all  the  property belonged to the  math  because  the evidence  on  the record did not  expressly  indicate  which property  belonged  to the math and which did not.   On  the facts  of  this  case it is not possible to  hold  that  the mahants  blended their self acquired and  personal  property with  math property so as to make the whole partake  of  the character  of  the latter class of property.   A  Mahant  is undoubtedly competent to endow the property acquired by  him but merely because in the Tamilknamas he makes no dis- 608 tinction  between  property acquired by him  personally  and property  which undoubtedly formed the subject matter  of  a prior  endowment, the personally acquired properties  cannot be  said  to be math property when the  evidence  on  record establishes that all the mahants were holding themselves out as  absolute  owners of the property and  were  transferring various  items  of  property from time  To  time  albeit  to persons of the same brotherhood.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

On the evidence on record, we are not in a position to  hold that  any  of the properties other than the 15  items  above mentioned   were  math  properties.   The  fact   that   the predecessors-in-’  interest of Mayanand Giri  had  renounced the  world  and  became sanyasis and  had  almost  uniformly nominated the person who was to succeed them from out of the disciples  or disciples of disciples, does not lead  to  the conclusion  that  the  properties must be  treated  as  math properties.   In Parama Nand v. Nihal Chand(1) the  question before  the  Judicial  Committee of the  Privy  Council  was whether an Udasi could acquire private property with his own money  or  by  his exertions and if he did  so,  whether  it passed  on  his death to his spiritual  heir  including  his Chela or could be inherited by his natural relatives.  There one   Narain  Das  had  filed  a  suit  for   obtaining   an authoritative  pronouncement  on the  character  of  certain property held by him, the case of the defendants being  that Narain Das was no more than the trustee of an endowment  and could  be called upon to furnish details of the  nature  and purpose of the trust.  The High Court at Lahore had held  in favour of the trust, the principal ground of their  judgment being that the properties had descended from Guru to  Chela. This  was not accepted by the Judicial Committee and it  was observed that:               "this  circumstance (the descent from Guru  to               Chela)  does  not  necessarily  lead  to   the               conclusion that a property, when acquired by a               Mahant,   loses  its  secular  character   and               partakes of a religious character." In Raghbir Lala v. Mohammad Said(2) the plaintiffs’ case was that the land in suit claimed by the defendants directly  or in- (1) 65 I.A. 252. (2) A.I.R. 1943 P.C.7. 609 directly under transfers made in 1915 and 1916 by one  Jain- andar  Kirat  were debutter.  It was  established  that  one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose.  It transpired that  he had solicited subscriptions for the erection  of  a temple  which was not built and that except for  the  actual site of the foundations of the temple, he had used the  rest of his land for his own purposes.  According to the Judicial Committee :               "He  appears to have made money by  practising               astrology  and medicine and by lending  money-               occupations  which  he  added  to  that  of  a               religious   teacher..........  His  life   and               conduct  may not have been in accord with  his               religious  professions as a Jain ascetic,  but               in fact he held and managed the property which               he  had bought and indeed litigated about  it,               as if it were his own without any interference               or assistance by the Jain community." The  Judicial  Committee  held on  this  evidence  that  the plaintiffs could not succeed on the ground of dedication  by Manindar.  The Board further observed:               "No   doubt  if  a  question  arises   whether               particular   property  acquired  by  a   given               individual  was acquired on his own behalf  or               on behalf of some other person or  institution               with  whom or with which he was connected  the               circumstance that the individual so  acquiring               property was a professed ascetic may have some

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

             importance.   But  it is out  of  question  to               suppose  that  a man’s religious  opinions  or               professions  can make him incapable in law  of               holding property." In our view, the observations made on the prior occasion  by this Court were only an indication that the circumstance  of succession of properties from one Mahant to another, had  an important  bearing  on  the  final  conclusion  as  to   the character of the properties without being a decisive  factor in  respect thereof. in this case, we find that the  Mahants had  systematically pursued a money-lending  business,  that there  was  little  nucleus of any  endowed  property,  that during the course of a century and a half L2 Sup-68-8 610 the  proved endowments were hardly of any  importance,  that the  Mahants  were  transferring  properties  to  others  in recognition  of the claims of the disciples  or  voluntarily for  lawful consideration and were describing themselves  in the  Tamliknamas as the absolute owners of the property,  we cannot  but  hold that the properties in their  charge  were their personal properties unless it be established that  any particular.  item of property was the subject matter  of  an endowment or a gift for a particular charitable purpose.  We have  already held that only 15 items of property  including premises No. 42/90-D were math properties.  On the evidence, we  are  not  in  a  position  to  declare  that  the  other properties  were  not personal properties in  the  hands  of Mayanand  Giri.  It follows that the transfers  of  Mayanand Giri  of this class of properties must be upheld so  far  as they are subject matter of the appeals before us. G.C.                                                 Appeals allowed. 611