24 November 1964
Supreme Court


Case number: Appeal (civil) 813 of 1962






DATE OF JUDGMENT: 24/11/1964


CITATION:  1965 AIR 1506            1965 SCR  (2) 233

ACT: Hindu  Religious  Institution--Dera  of  Sanyasi  Sadhus  in Punjab--Succession as Mahant--Whether general law or  custom in  existence to entitle Chela or Gurbhai to succed  without appointment or election by fraternity.

HEADNOTE: Upon  the  death  of the last Mahant of a  Dera  of  Sanyasi Sadhus  in Punjab, the respondent, claiming to be the  Chela of  the deceased and therefore having a preferential  title, entered  into  possession of certain properties  basing  his title  thereto on an appointment made to the office  by  the Bhekh  and  the people of the village.  The  appellant  also claimed the same properties as the successor of the deceased Mahant and brought a suit for a decree for possession of the properties  belonging to the Dera, he claimed title  on  the basis that as Gurbhal of the last Mahant, he was entitled to the  Gadi  and  that he, and not the  respondent,  had  been appointed to it by the people of the village and the  Bhekh; he  further claimed in the alternative, that even if it  was found that he was not so appointed, according to the  custom regarding succession of the Dera and Rewaj-i-am of Deras, he was  in  any event entitled to become Mahant as he  was  the Gurbhai of the deceased Mahant. The trial court found that the respondent was not the  Chela of  the deceased Mahant and that there was no evidence  that be was appointed Mahant, on the other hand the appellant was also  held  not to have been  appointed.   However,  without recording  a finding on the custom set up by the  appellant, the  trial court held that under the law in Punjab,  in  the absence of a Chela, a Gurbhai was entitled to succeed to the Gadi  apart from any question of appointment by  the  Bhekh, and on this reasoning, decreed the appellant’s suit. The  respondent’s  first appeal to the  Additional  Sessions Judge  was  allowed  but a Single Bench of  the  High  Court reversed  that  decision.  Thereafter, in  the  respondent’s Letters Patent Appeal, although the Division Bench concurred with  the single Bench on the other issues, the  appeal  was allowed  on the ground that the custom set up in the  plaint that  a Gurbhai could succeed without an appointment of  the Bhekh had not been made out.



HELD  : (i) There is no general law applicable to  religious institutions  in  the Punjab and each  institution  must  be deemed  to  be  regulated by its own  custom  and  practice. Therefore, the appellant could not succeed as Mahant without reference  to an appointment by the Bhekh or the  fraternity unless  he  could establish a custom which entitled  him  to succeed by virtue of being a Gurbhai. [238 D-E; 239 C] Rattigans’  Digest of Customary law: Jiwan Das v. Hira  Das, A.I.R. 1937 Lah. 311 and Sital Das v. Sant Ram, A.I.R.  1954 S.C. 606, referred to. On  the  basis of the evidence before the  trial  court  the appellant had not established the custom put forward by him. [240 G] Sup./65-16 234 (ii)The  appellant’s suit being one of ejectment he  had  to succeed  or  fail on the title that he  established;  if  he could  not  succeed on the strength of his title,  his  suit must  fail notwithstanding that the defendant in  possession had no title to the property. [236 HI Mukherjea’s Hindu Law of Religious and Charitable Trust, 2nd Edition,p.     317, referred.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 813 of 1962. Appeal from the judgment and decree dated July 13, 1960,  of the Punjab High Court in L.P. Appeal No. 58 of 1958. N.C.  Chatterjee, V. S. Sawhney, S. S. Khanduja  and  Ganpat Rai, for the appellant. Naunit Lal, for the respondent no. 1(a). The Judgment of the Court was delivered by Ayyangar,  J.  The tenability of the  appellant’s  claim  to possession  of certain properties belonging to the  Dera  of Sanyasi Sadhus in Mauza Kharak Tahsil Hansi, District Hissar in  Punjab  is the subject-matter of this  appeal  which  is before  us on a certificate of fitness granted by  the  High Court of Punjab. The appellant claimed the properties as the successor of the last Mahant of the Dera-Kishan Puri who died on February 15, 1951.   The  fortunes  of  the  litigation  started  by  the appellant have greatly fluctuated.  His suit was decreed  by the  learned  trial  Judge,  was  dismissed  by  the   first appellate Court, was again decreed by a learned Single Judge of the Punjab High Court on second appeal but this  judgment has  again  been reversed on Letters Patent appeal  and  the suit directed to be dismissed.  On a certificate of  fitness granted by the High Court the matter is now before us. The  last Mahant of this Dera-Kishan Puri died  on  February 15,  1951.  Immediately on his death disputes seem  to  have arisen as regards the succession to the Dera.  Neki Puri-the original  respondent in this appeal (now deceased)  claiming to be a Chela of the deceased Mahant appears to have entered into  possession  of the properties belonging  to  the  Dera basing  his  title  thereto on an appointment  made  to  the office  by  the Bhekh and the people of  the  village.   The appellant  nevertheless claiming to be in possession of  the property  as  the successor of the deceased Kishan  Puri  by virtue of a title as the Gurbhai of the deceased, brought  a suit  for  a  declaration regarding his  title  and  for  an injunction  restraining Neki Puri from interfering with  his possession  Neki Puri, as 235 stated  earlier,  claimed that he was in possession  of  the



properties and asserted a title to such possession by  being a  Chela who had been appointed by the Bhekh.  An issue  was raised in the suit as to whether it was the plaintiff or the defendant  who was in possession of the properties and on  a finding recorded that Neki Puri was in possession, the  suit for  a  mere declaration and injunction was held to  be  not maintainable  and was, therefore, dismissed.   Incidentally, however,  evidence  was recorded on an issue as  to  whether Neki  Puri was a Chela of Kishan Puri-the last Mahant and  a finding  was recorded on this question adverse to the  claim of Neki Puri.  An appeal against this judgment was dismissed and ’hat decree has now become final. The   suit  for  declaration  and  injunction  having   been dismissed, Bralima Nand Puri-the appellant-brought the  suit out  of  which  ,his appeal arises, in the  Civil  Court  at Hissar for a decree for possession of the properties movable and  immovable belongingto the Dera.  The suit being on  the basis of the plaintiff’s title, his was formulated thus :               "5.  According to custom regarding  succession               of  the Dera and the Riwaj-i-Am of  Deras  the               plaintiff being Gurbhai was entitled to Gaddi,               as he is the eldest Chela of Shanker Puri  and               the  people  of  the  village  and  the  Bhekh               appointed  him as Mahant after performing  all               the ceremonies on the 17th day of the death of               Shri Kishan Puri and made him occupy the Gaddi               of dera of Kharak." An  alternative basis for the title was also put forward  in paragraph 8 in these terms :               "8.  If for any reason it is held  that  after               the  death of Shri Kishan Puri, the  plaintiff               was not appointed as Mahant of the Dera,  even               then   according  to  the   custom   regarding               succession  of  the Dera and  Riwaj-i-Am,  the               plaintiff is entitled to become Mahant of  the               Dera  as  he  is the Gurbhai  of  Kishan  Puri               deceased.   It was held in the  previous  case               that according to the Riwaj, in the absence of               a   Chela  his  (deceased  Mahant’s)   Gurbhai               becomes Mahant of a Dera." in  the  Written Statement that was filed by Neki  Puri  two defences were raised : (1) that Neki Puri was a Chela and he had  been appointed to succeed Kishan Puri by the Bhekh  and other   villagers.   In  other  words,  he  put  forward   a preferential  title  based  on  Chelaship  followed  by   an appointment by the Bhekh and others.,2) Alternatively, while admitting that Brahma Nand Puri was 236 a Gurbhai of the deceased Mahant, he denied that he had been appointed  by  the Bhekh and also urged that  there  was  no custom by which a Gurbhai who had not been appointed by  the Bhekh was entitled to succeed as Mahant merely by reason  of his  being  a  Gurbhai.   On  these  pleadings  4  principal questions (omitting certain others which are not relevant in the  present context) arose for trial : (1) Was Neki Puri  a Chela  of  the  deceased Kishan Puri ?, (2)  Was  Neki  Puri appointed by the Bhekh ? It was admitted by Brahma Nand Puri that a Chela had a right superior to a Gurbhai and therefore if  these two issues were found in favour of Neki  Puri  the plaintiff’s  suit  had  admittedly to  fail.,  (3)  Was  the plaintiff  appointed by the Bhekh ? No serious  attempt  was made  to establish that the plaintiff had been appointed  by the Bhekh and hence the 4th question that arose was  whether there  was a custom by which a Gurbhai could succeed to  the Mahantship of this institution without an appointment by the



Bhekh  as  pleaded in paragraph 8 of  the  plaint  extracted earlier.   On  these four matters the  learned  trial  Judge recorded the following findings : (1) that Neki Puri had not been  proved  to be the Chela of the last  Mahant.,  (2)  No definite  finding was recorded on the second point  but  the trial Judge was of the opinion that there was no proof  that the  Bhekh  could  appoint as Mahant a person  who  was  not either a Chela or a Gurbhai or that they actually did so  in the present case., (3) A definite finding was recorded  that the  plaintiff was not appointed by the Bhekh., (4)  Without recording a finding on the custom set up by the plaintiff in para 8 of the plaint the learned trial Judge held that under the  law in the Punjab in the absence of a Chela, a  Gurbhai was entitled to succeed to the Gaddi apart from any question of  appointment by the Bhekh and on this  reasoning  decreed the plaintiff’s suit. The  defendant went up in appeal to the Additional  Sessions Judge.   The  appellate Court reversed the  finding  of  the trial Judge on the issue as to whether Neki Puri was a Chela of  the  deceased Mahant and held that he was.   A  definite finding  was also recorded on the basis of the evidence  led by the defence that Neki Puri had been appointed to  succeed the  deceased  Mahant by the Bhekh and  the  villagers.   As admittedly a Chela had a superior title to a Gurbhai in  the matter of succession the learned District Judge allowed  the appeal of the defendant-Neki Puri and directed the dismissal of the suit. The  plaintiff took the matter to the High Court by  way  of second  appeal.   The  learned Single Judge  who  heard  the appeal  in  his  turn  reversed the  finding  of  the  first appellate Court on the issue 237 regarding  Neki  Puri being a Chela of the  deceased  Kishan Puri.  He considered that the finding on this matter by  the Additional Sessions Judge was vitiated by serious errors  of law and misappreciation of facts.  Having thus put aside the claim  of Neki Puri to succeed by holding that he was not  a Chela, the learned Judge upheld the plaintiff’s claim on the ground  that a Gurbhai was entitled to succeed to the  Gaddi even  if  he  had  not been appointed  by  the  Bhekh.   He, therefore,  decreed  the suit of the plaintiff.,  Neki  Puri then in his turn took the matter before a Division Bench ’by a Letters Patent appeal.  The learned Judges concurred  with the  learned  Single Judge on the issue as to  whether  Neki Puri  was  a Chela or not.  They agreed with  him  that  the first  appellate Court had committed serious errors  in  its reasoning  in  finding that Neki Puri  had  established  the claim  to  be  the Chela of Kishan  Puri  and  affirmed  the finding of the learned trial Judge in that regard.   Dealing next  with  the  title of the plaintiff to  the  Gaddi,  the learned Judges held that the custom set up in paragraph 8 of the plaint that Gurbhai could succeed without an appointment by  the Bhekh had not been made out on the evidence  and  on this  reasoning  they allowed the appeal  and  directed  the dismissal  of  the  suit.  It is  the  correctness  of  this decision that is challenged before us by the appellant. Two  points were urged before us by  Mr.  Chatterjee-learned Counsel for the appellant.  The first was that under the law applicable to Deras in the Punjab that is to say apart  from any special custom, a Gurbhai was entitled to succeed to the Dera even without an appointment by the Bhekh or fraternity, (2)  that  even  if that was not the law and  a  custom  was required  to  sustain  that plea, such  a  custom  had  been established by the evidence adduced by the appellant in  the present case.



Pausing here, we might mention that Mr. Chatterjee  referred us  to  the  circumstance that during the  pendency  of  the appeal  in  this Court Neki Puri had died and  that  certain others who, he stated, had even less claims to a  Mahantship were in possession of the property and that seeing that  the appellant  was  admittedly  a  Gurbhai  it  would  be   most inappropriate  that  his rights should be overlooked  and  a stranger  permitted to squat on the property.   We  consider this  submission is devoid of force.  The  plaintiff’s  suit being  one  for ejectment he has to succeed or fail  on  the title  that he establishes and if he cannot succeed  on  the strength  of  his title his suit must  fail  notwithstanding that  the  defendant  in  possession has  no  title  to  the property, assuming learned Counsel is right in 238 that submission.  As pointed out in Mukherjea’s Hindu Law of Religious and Charitable Trust, Second Edn., page 317 :               "The party who lays claim to the office of the               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 the               particular usage under which succession  takes               place in the particular institution." We,  therefore,  dismiss  this  aspect  of  the  case   from consideration. Taking  the first point urged by Mr. Chatterjee, we  do  not consider that learned Counsel is justified in his submission that  under  the law as obtains in the Punjab a  Gurbhai  is entitled  to succeed without reference to an appointment  by the  Bhekh  or  the fraternity.   In  Rattigan’s  Digest  of Customary Law the position as regards religious institutions in the Punjab is thus stated :               "There   is  no  general  law  applicable   to               religious  institutions in this Province,  and               each institution must bedeemed to be regulated               by  its  own custom and practice.  There  are,               however, certain broad propositions               which  judicial decisions have shown  to  have               received  very general recognition, and  these               propositions  are  embodied in  the  following               paragraphs :-               84.   The  members  of such  institutions  are               governed exclusively by the customs and usages               of  the particular institution to  which  they               belong.               85.   The office of Mahant is usually elective               and not hereditary.  But a Mahant may nominate               a  successor  subject to confirmation  by  his               fraternity." From paragraph 85 it would follow that the office of  Mahant being  usually elective and not hereditary, anyone who  lays claims  to  the office on the basis of  a  hereditary  title resting on Chelaship simplicitor or Gurbhaiship  simplicitor must establish it. (See also Jiwan Das v. Hira Das)1 Though, no  doubt, the usage of one institution is no guide to  that of  another,  it  may be mentioned that  in  regard  to  the succession  of the Mahantship of a Thakurdwara belonging  to the  Ram Kabir Sect of Hindu Bairagis in district  Jullundur in the Punjab this Court held in Sital Das v. Sant Ram 2 (1) A.I. R. 1937 Lah. 31 1. (2) A.I.R. 1954 S.C. 606. 239



that  the  usage required an appointment by  the  fraternity before  a  person  could become a  Mahant.   On  the  basis, therefore,  of  the passage in Rattigan’s Digest,  which  we have  extracted,  it  appears to us that the  first  of  the submissions  made  by Mr. Chatterjee cannot be  upheld.   In fact,  the tenor of para 5 of the plaint we  have  extracted earlier  itself  shows a consciousness on the  part  of  the plaintiff himself that he considered that an appointment  by the Bhekh was necessary to clothe him with the title to  the Gaddi  besides  his  status  as a  Gurbhai.   No  doubt  the plaintiff  was a Gurbhai but he had not established that  he had  been  appointed  by the Bhekh or  fraternity.   In  the absence of such appointment under the law and apart from any special custom pertaining to this institution the  appellant could claim no title to the Gaddi, by his being a Gurbhai. This  takes us to the second point urged by  Mr.  Chatterjee that on the evidence the plaintiff had made out the  special custom pertaining to this institution that no appointment by the  Bhekh  was necessary before a Chela  or  Gurbhai  could succeed to the Gaddi.  We have been taken through the entire evidence  in  the case.  In the first place,  there  are  no documents  or anything in writing in support of  the  custom and  the  matter  depends  entirely  on  the  testimony   of witnesses produced before the Court.  P.W. 4 who claimed  to be a Bhekh of this Dera stated in chief examination :               "According  to  the custom of our Bhekh  if  a               Mahant  died  without  leaving  a  Chela   his               Gurbhai  became  the  successor.   If  however               there is Chela he is the successor." In cross examination be stated               "The  custom of succession stated by me  above               is written nowhere : it is followed by us." and then he continued :               "In  village  Bata there is  a  Sanyasi  Dera.               There also Prabhu Puri Chela was not found  to               be  a good man and Sunder Puri Gurbhai of  the               last Mahant was installed.  In Guna there is a               Sanyasi  Dera.   Lachhman  Gir  Sanyasi   died               without leaving a Chela.  His Gurbbai Phag Gir               succeeded him to the Gaddi." It  would  be seen that there was nothing  specific  in  his evidence about the absence of an appointment by the Bhekh in those  instances  which  is the  special  custom  which  the plaintiff  sought  to prove by this evidence.   P.W.  II  is another witness to whose 240 evidence reference was made. He stated in his chief exami- nation :               "  According to the custom of the Bhekh  if  a               Mahant               leaves  no Chela, his Gurbhai succeeds to  the               Gaddi." In cross examination he stated :               "The custom of succession which I have deposed               to  above  is at par with  the  General  Hindu               Customary   Law  ....  There  might  be   many               instances.  But I cannot recall to my mind any               such instance now." P.W. 13 belongs to a different Dera but he claimed that  the Dera at Kharak was similar to his institution and stated  in his chief examination :               "Amongst us if a Sadhu does not leave a Chela,               the  Gaddi goes to his Gurbhai.  There  is  an               instance in the Gurdwara of Kosli near my Dera               of  a  Gurbhai  succeeding  a  Mahant  in  the



             absence  of  a Chela.  There is  another  such               instance ofDera at Nangri in Rajasthan."  The evidence ofP.W. 16 was similar: "My  Guru  succeeded  to the Gaddi as Gurbhai  of  the  last Mahant." Evidence  of P.Ws. 17 and 18 was identical with that of  the witnesses who preceded them :               "According to custom of the Bhekh if a  Mahant               dies  without  leaving  a  Chela  his  Gurbhai               succeeds." It would be seen from this evidence : (1) that it is lacking in  particulars as regards the instances, and (2)  there  is nothing stated as to whether even in the instances  referred to, there was no recognition, appointment or confirmation by the  Bhekh  which  according  to Rattigan  is  part  of  the customary  law of the Punjab as the source of title for  the Mahantship.   We are, therefore, not prepared to  hold  that the  appellant  has  established the  custom  which  he  put forward  in paragraph 8 of his plaint in derogation  of  the ordinary law viz., that without an appointment by the  Bhekh or fraternity a Chela or, in his absence, a Gurbhai succeeds to  the  headship  of a Dera.   The  plaintiff’s  suit  was, therefore, in our opinion, properly dismissed. Mr.  Naunit  Lal, learned counsel for the  respondent  urged that the learned Single Judge was in error in reversing  the finding  of  the first appellate Court that  Neki  Puri  had proved  that  he  was a Chela of  Kishan  Puri-the  deceased Mahant.  It might be noticed 241 that the Division Bench had concurred in the views expressed by  the learned Single Judge as regards the defects  in  the judgment  of  the first appellate Court on its  findings  on this  issue.   Learned Counsel submitted  that  the  learned Single Judge fell into serious errors in interfering with  a finding  of  fact.   Though we are  satisfied  that  certain portions  of  the judgment of the learned Single  Judge  had suffered  from  errors, we do not purpose  to  examine  this question as the same is wholly unnecessary for the  disposal of  this appeal.  It is only in the event of  our  accepting the  submissions of Mr. Chatterjee that the  correctness  of the  reversal of the finding on the Chelaship of  Neki  Puri would  have  become  material.  In the  view  that  we  have expressed  as regards the appellant’s title to the Gaddi  we do  not consider it necessary or proper to discuss what,  in fact, is merely an academic question. The result is, the appeal fails and is dismissed with costs. Appeal dismissed, 242