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PETITIONER: BABA CHARAN DASS UDHASI

       Vs.

RESPONDENT: MAHANT BASANT DAS BABAJI CHELA BABA LAXMANDAS UDASI SADHU

DATE OF JUDGMENT:       14/07/2000

BENCH: Y.K.Sabharwal, M.Jagannadha Rao

JUDGMENT:

     Y.K.SABHARWAL, J.

     The  dispute in this appeal relates to the appointment of the Madathipathi of Shiva Kanchi Udasi Math, Kanchipuram. The  parties or through whom they claim have been litigating for the last more than four decades.

     The  Math  in question was founded by  one  Yogadhiana Mahant  Bavaji under an instrument dated 29th January, 1870. The  executant  of  this document described himself  as  the disciple  of Bavaji Niranjan Dass and executed the  document in  favour  of  Gurusarandass Bavaji describing him  as  his chief  disciple.   This  document not only  establishes  the foundation  of  the Math but also provides for the  mode  of devolution  of  its  headship.    The  outgoing  head  could nominate  his  disciple  to be the next head.  The  mode  of devolution   thus   is  from   Guru  to   disciple   (Sishya Parambarais).   Gurusarana  Dass Bavaji later  succeeded  as Madathipathi   (hereinafter   referred    to   as   ’head’). Gurusarana Dass Bavaji was succeeded by Narayana Dass Bavaji as head under the will dated 2nd September, 1901 executed by said  Gurusarana Dass.  Mahant Narayana Dass Bavaji remained head  of  the  Math  from  1901  to  1925.   By  a  deed  of appointment dated 1st May, 1925, Mahant Narayana Dass Bavaji appointed one Ramjidass as the head of the Math.

     Nagendra Dass came on the scene in the year 1928.  The appellant  claims  through  Nagendra  Dass.   Nagendra  Dass allegedly appointed Surjan Prakash who in turn appointed the appellant as the head of the Math.

     Ramji  Dass  executed a power of attorney  dated  11th January,  1928  appointing Nagendra Dass as his agent.   The reason  for the execution of the power of attorney is stated to  be  that  Ramji Dass had to often remain  away  visiting villages  and, therefore, he appointed Nagendra Dass to look after  the  Math and its properties.  Nagendra Dass  claimed that  Ramji Dass had appointed him as the head of the  Math. There  is, however, no document appointing Nagendra Dass  as head  in  succession of Ramji Dass.  In respect  of  earlier appointments  of  heads upto the appointment of Ramji  Dass, the  documents of succession have been placed on record  and

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proved.

     The  Society  by the name of Shri Pujya  Padh  Aduyath Panch  Parmeshwar  Panchayati Akara Bara Udasin Nirwan  (for short  the  "Allahabad  Society")   having  head  office  at Allahabad  was founded as a religious society and registered under  the Societies Registration Act of 1860.  In substance the  disputes  are between the Allahabad Society  and  those claiming  through the said society on one hand and  Nagendra Dass or those claiming through him on the other.

     The  Memorandum  of the Association of the Society  of the year 1927 inter alia provide as under:

     "1.   To manage the funds provided by the Udasin Sants Mahants and householders for the service of the Udasi Sadhus of the Akhara while establishing the same and to increase by proper  means  the  said fund as well as these that  may  be required  or  added to it from the to time and we spend  the same  or objects which are in accordance with the  religious principles  and practices of the Udasin and to maintain  and improve the position of the akhara.

     2.    To   make   arrangements   for  the   food   and accommodation  of such Udasis Mahants and Sants as may visit and  of the centers of this Akhara, or attend the fairs such as  Eambha and the Adhkumbi bathing fairs, which are usually held  at  certain  places  of  pilgrimage  for  the  meeting together of Sadhus;  and

     3.   to  make  arrangements  for  the  appointment  of Mahants  of  the Sthans of Udasis called Sangate  which  are independent  of this Akhara but from which the Akhara  often draws  its disciples and for the protection and  supervision of  the  said Sangate and to take proper steps  to  maintain their states in case of interference on the part of others".

     Nagendra  Dass  is described as a disciple  of  Mahant Karan  Dass  and  is  a   signatory  to  the  Memorandum  of Association  of the Allahabad Society holding the office  of Mukami(Agent).  A Mukami is a person appointed in accordance with  the rules of the Allahabad Society and entrusted  with the  management  of  the  head office and  branches  of  the society.

     In  the  judicial proceedings initiated on  behalf  of Muth  in  the  year  1928  and 1944  by  Nagendra  Dass,  he described  himself  and also acted as a Mukami appointed  by the  Allahabad  Society.  The said proceedings pertained  to the management of the Math and its properties.

     The  disputes  between  the   Allahabad  Society   and Nagendra  Dass  commenced some time in the year  1955.   The genesis of the dispute is said to be the alleged transfer of Nagendra  Dass  made  by  Allahabad  Society  from  Math  in question  to Gaya.  According to the society, Nagendra  Dass handed  over  possession of the properties of the  Math  but later  trespassed  into  the  said  properties  and  assumed possession  thereof asserting that the Math in question  was an  independent institution of which he was the head.   This led  to  the  filing of suit No:  OS No.12 of  1956  by  the Allahabad  Society  seeking declaration that the  properties belong to it and also praying for delivery of possession and certain  other  reliefs.  Nagendra Dass contested that  suit

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inter  alia  contending that the society was no more than  a voluntary  organisation formed for the mutual hold, benefit, guidance  and better management of the various  institutions of  the religious order of Udasis which had been founded and established in several parts of the country and that neither he nor his predecessors surrendered to the society any power or authority over the Math in question.  During the pendency of  the suit Nagendra Dass was appointed receiver and in the said  capacity  he was submitting accounts to the  court  in respect  of the management of the Math properties.  The said suit  was dismissed on 12th February, 1960.  However, in the judgment  certain  observations  were made and some  of  the findings  were recorded against Nagendra Dass as well.   The result was that both the society and Nagendra Dass preferred separate  appeals  before the Madras High Court.   The  High Court  while  dismissing the appeals by judgment dated  29th April,  1966,  issued directions for the appointment of  the head  of the Math.  Nagendra Dass was not found by the  High Court  to be a duly installed or duly appointed head of  the Math and he was thus held incompetent to nominate or appoint his successor.  It is evident that the High Court thought it fit  and  proper to issue directions for due appointment  of the  head  of the Math for future even while confirming  the judgment  of the trial court dismissing the suit.  It  seems that  the  High Court adopted this course on account of  the peculiar  circumstance, namely, the incompetency of Nagendra Dass  to  nominate or appoint his successor and was  of  the view that the Math should not remain headless.  The relevant part of the judgment dated 29th April, 1966 reads as under:

     "If  the defendant’s statement as to his nomination by the  predecssor  is  not  made out the  question  may  arise whether  he  is properly in office this may lead to  further difficulties  as if he is not validly in office he would  be incompetent  to  nominate or appoint his successor.  In  the circumstances it is desirable that the validity of the claim of  the defendant to the headship is determined.  If he  has not  been  duly  nominated to the office  but  is  otherwise suitable  his  position as head will have to be  regularised according  to  the practice of the Math in question  or  the vacancy has to be filled up in accordance with the rules and usages governing the Math which in a way have been indicated above  briefly.   So far as the fitness of the defendant  to the office is concerned, from the secular aspect the learned District  Judge observes that he has been managing the  Math properties  to  the best of his ability in the interests  of the  Math.   Steps  in  this regard  for  regularisation  if required of his headship of the Math may have to be taken by persons  interested.  The defendant himself admits that  the plaintiff  society  has  been formed for  the  guidance  and better  management  of  the   various  institutions  of  the religious  order  of  udasis.   The  rules  and  regulations governing  the  plaintiff  society also provide  for  making arrangement for the appointment of the mahants of the sthans or  udasis  called  sangats  which are  independent  of  the plaintiff  Akhara from which the Akhara draws its disciples. In  the  circumstances  it  will be open  to  the  plaintiff society itself to move in the matter or the disciples of the suit  udasi Math may take the necessary action.  We may also point  out that if need be the Commissioner under the Madras Hindu  Religious and Charitable Endowments Act (Act XXII  of 1959) may intervene and take steps to fill up the vacancy if any  in the headship of the Math.  Meanwhile in our view  it is   desirable  that  the   defendant  continues  to  submit statement  of  accounts  of  the affairs of  the  Math  duly

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audited by a chartered accountant at the expense of the suit Math to the plaintiff society and to the trial court once in six months."

     Nagendra  Dass  did not challenge the judgment of  the High Court.  The Allahabad Society, however, filed an appeal before  this Court (Civil Appeal No.799 of 1967).   Nagendra Dass  died during the pendency of the appeal.  He is  stated to  have  been died on 8th February, 1970.  In  the  appeal, Surjan  Prakash was substituted as a respondent in place  of Nagendra  Dass.   The  appeal  was,  however,  dismissed  as withdrawn  in  terms  of the order of this Court  dated  3rd August,  1972.   The  order  records that  counsel  for  the appellant  sought permission to withdraw appeal and  counsel for  the  respondent gave an assurance that his client  will not  apply  for withdrawal of the amount in deposit  in  the district  court  for  a  period of two months  so  that  the appellants,   if  they  so   desire,  may  take  appropriate proceedings as indicated in the judgment of the High Court.

     After  the withdrawal of the appeal as aforesaid,  the suit  (OS No.:  21 of 1973) out of which the present  appeal has  arisen  was filed.  In the plaint, it was, inter  alia, pleaded that the plaintiff was legally and validly appointed as  head of the Math in question according to the rules  and regulations  of  the Allahabad Society and the practice  and the customs prevailing in the Udasis Sect of Sadhus in terms of  the document dated 20th November, 1972 and that all  the formalities  regarding Madathipathiship have been  completed according to the customs prevailing in the community and the plaintiff  has been accepted as Madathipathi of the Math  in question  by  memebers  of the fraternity.  It  was  further pleaded  that  the  defendant Surjan Prakash  was  illegally occupying  the  said Math without any authority and that  it had been finally held by the court of law that Nagendra Dass was  not  the Madathipathi of the Math in question  and  the vacancy  was  to  be  filed according to rules  and  as  per directions contained in the judgment dated 29th April, 1966. The  further averment made in the plaint was that Ramji Dass was the last head of the Math and he did not nominate anyone as  successor.  Nagendra Dass was not the disciple of  Ramji Dass  to succeed as head as a Chela succeeding the Guru  and he  was only appointed as agent under the power of attorney. There is no head for the Math after Ramji Dass death and the plaintiff was rightly appointed on 20th November, 1972.  The decree  for declaration was sought that the plaintiff is the Madathipathi  of the Math and its properties detailed in the schedule annexed to the plaint in respect whereof decree for possession was also sought.

     The  suit was resisted on various grounds by defendant Surjan  Prakash.  By judgment dated 12th of July, 1979,  the Principal Subordinate Judge, Kanchipuram dismissed the suit. In  appeal preferred before the High Court, the three points urged on behalf of the plaintiff were:

     1.   whether  the appointment of the plaintiff as  the Head of the suit Math is valid and binding?

     2.   Whether  the  defendant is a  properly  appointed Madathipathi of the suit Math?

     3.   Whether the defendant has perfected his title  by

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adverse possession?

     The  High Court by the impugned judgment held that the judgment  and  decree of the trial court is not  sustainable and  thus  allowing  the  appeal, the suit  as  prayed,  was decreed.   The  impugned judgment is substantially based  on the  earlier  judgment of the High Court dated  29th  April, 1966  which  became  final.  The High Court  has  held  that Nagendra  Dass was not legally and validly appointed as head of  the  Math  and  his appointment was  not  recognised  or regularised  by  any  of the modes directed in  the  earlier judgment  of the High Court and that the plaintiff had  been validly  appointed.  Surjan Prakash, the original  defendant having  died  during the pendency of the appeal  before  the High  Court,  the  present appellant was  substituted  as  a respondent having been allegedly appointed as a successor by Surjan  Prakash.   The contention of adverse possession  was also rejected.

     The  basis of the right of the respondent  (plaintiff) to  occupy  the  office  of  the head of  the  Math  is  the Memorandum  of the Allahabad Society of the year 1927;   the earlier  judgment of the High Court and his appointment as a head  on 20th November, 1972.  The claim of the appellant is based upon the rights of Nagendra Dass and Surjan Prakash.

     Learned  counsel  for  the   appellant  submits   that Nagendra  Dass was appointed and remained a head of the Math during  his  life  time and after his demise  his  appointee Surjan  Prakash and after him, the appellant was rightly and validly  appointed  as the head of the Math and,  therefore, the  office of the head of the Math was not vacant and  thus there could be no question of appointing the respondent as a head  of  the Math.  In our view, The question  whether  the vacancy  of  the  head  of the Math existed  or  not  stands concluded  by the earlier decision of the High Court  which, inter  alia, directed the vacancy to be filled in accordance with the rules and usages governing the Math.  Further there is  ample material on record to establish that Nagendra Dass was  appointed merely a Mukami (Agent) and was not appointed head  of  the Math.  Nagendra Dass had himself so  described his  status in the judicial proceedings initiated by him  in respect of the properties of the Math against third parties. In OS No.43/44 which was pending before Sub-Judge, Chittore, Nagendra  Dass had stated that he had been appointed by  the Allahabad  Society.  Nagendra Dass was appointed as an agent as per general power of attorney executed by Ramji Dass.  In view  of  the overwhelming evidence the appellant cannot  be allowed  to  plead that Nagendra Dass was head of the  Math. That  being  the position he could not validly nominate  any person  as  head  of the Math.  The  alleged  nomination  of Surjan  Prakash  was,  therefore, illegal and  so  also  the nomination  of the appellant.  In the earlier decision,  the High Court had concluded that Nagendra Dass was "incompetent to nominate or appoint his successor."

     The  Allahabad Society, it was next contended, had  no power  to make the appointment of the head of the Math.   It deserves  to  be  noticed  that   the  appointment  of   the respondent  as  a head of the Math has not been made by  the Allahabad  Society  but has been made in a  congregation  of Mahants  arranged  by the society.  Para 3 of Memorandum  of Association of Allahabad Society extracted hereinabove shows

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that the society could make arrangements for the appointment of the Mahants of the Sthans of Udasis called Sangats and it seems  that in view thereof the earlier decision of the High Court  directed the vacancy of the office of the head of the Math  to  be  filled  in accordance with  rules  and  usages governing  the  Math.   Learned counsel  for  the  appellant contended  that  the  words ’to make  arrangements  for  the appointment  of  Mahants’ does not mean that  the  Allahabad Society  has been given power to appoint a Mahant and as per para  3 of Memorandum of Association the Society could  only make  arrangements  for such appointment which is  different than  making  appointment itself.  We are unable to see  any relevance  of the fine distinction sought to be made by  the learned counsel.  In any case, the appointment has been made in  the  congregation called by the Allahabad Society.   The appointment  as such has not been made by the society.   The society  had only called for the meeting of various  Mahants which  amounts to making arrangement for the appointment  of the  Mahant  of the Math in question.  In that  meeting  the respondent/plaintiff  was appointed as Mahant, i.e., head of the  Math.   Nagendra Dass had admitted that  the  Allahabad Society  had  been  formed  for   the  guidance  and  better management of various institutions of the religious order of Udasis.  In fact, even these questions cannot be reopened in view  of  the decision dated 29th April, 1966.   Considering that  Nagendra Dass was not validly nominated as head of the Math  in  question,  the High Court while  deciding  earlier appeal,  was  left with the option to either let the  things remain  as they were which may have resulted in  uncertainty and  possibly  further  litigation  or  to  issue  necessary directions  for the filling up of the vacancy of the  office of  the head of the Math.  While dismissing the appeal,  the High  Court  exercised the second option leaving it open  to the Society to even regularise/appoint Nagendra Dass as head of  the  Math  according  to the practice  of  the  Math  in question  and in the meantime Nagendra Dass was directed  to continue  to submit statement of accounts of the affairs  of the  Math  duly  audited by a Chartered  Accountant  to  the Allahabad Society and to the trial court once in six months. It  appears that Nagendra Dass had come down from  Allahabad some  time in the year 1925 and was appointed as an agent of Ramji  Dass  to assist him in the management of the Math  in question  under the terms of the power of attorney  referred to  above.   He continued to act as an agent even after  the demise of Ramji Dass who died at Hardwar in 1932.  There are documents  proved on record in respect of appointment of the other heads of the Math but there is no document showing the appointment  of Nagendra Dass as head of the Math.  It seems that  no religious head/Madathipathi of the Math in question was  appointed after the demise of the last appointee namely Ramji   Dass.   Under  the   aforesaid  circumstances,   the Allahabad  Society  had  rightly called for the  meeting  to appoint  head of the Math in question.  It may, however,  be clarified that once someone is validly appointed as the head of the Math, the future mode of devolution would be governed by  the  Sishya Parambarais(Guru to disciple) which  is  the mode  contemplated  by  the document by which the  Math  was established.  There could not be any departure from the said mode  without  any  valid   justification.   It  is  neither necessary  to  decide  nor there is sufficient  material  on record to form a definite opinion as to why departure of the mode  of  Sishya  Paramparai was made on  earlier  occasion. Ordinarily the devolution should be from Guru to disciple.

     Nagendra  Dass  was neither appointed as head nor  his

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appointment was regularised during his lifetime.  He died in Feb.   1970.   The  resolution  dated  20th  November,  1972 unanimously  appointed  plaintiff as the head of  the  Math. The  said meeting, it has come on record, was attended by 21 Mahants  of  independent Maths and 12 Members  of  Governing Body  of the Society.  In that congregation was also present the  Mahant  of  Maharashtra Mandal.  It has  also  come  on record  that about 2000 Udasin Mahants spread over different parts of the country come under four pangats.  The said four pangats  are further divided into 50 mandals and the Math in question  comes under Maharashtra Mandal.  It has also  come in  evidence that since there was no separate Udasin  Mandal for  Udasin  Maths  in Tamil Nadu, for sake  of  convenience Udasin  Maths  in  Tamil Nadu were included  in  Maharashtra Mandal  for  proper management.  In view of the evidence  on record, the contention that the respondent/plaintiff was not validly appointed as the head of the Math in question cannot be accepted.

     Learned  counsel  for the appellant further  contended that  Nagendra Dass was functioning as the Mahant since 1932 and, therefore, the suit filed in 1973 was hopelessly barred by  limitation  and also that he had perfected his title  by adverse  possession.  Learned counsel for the respondent, on the  other  hand,  sought  to  rely on  Section  10  of  the Limitation  Act.  In our view, however, the said Section has no  applicability  as  it only excludes the  application  of limitation  in  suits  against trustees.  That was  not  the status  of  either  Nagendra Dass or Surjan Parkash  or  the present  appellant.  We, however, need not dwell further  on this aspect as in our view, even otherwise there is no merit in  the contention urged on behalf of the appellant.  It has been  established that Nagendra Dass had been only acting as an  agent till 1954.  It is only in 1955 or thereabout  that he had set up an independent title which led to earlier suit being  filed  in February 1956.  In that suit Nagendra  Dass was  appointed as a Receiver.  That position continued  even when  the  appeal of the Allahabad Society was dismissed  by the  High Court on 29th April, 1966.  In the judgment  dated 29th  April,  1966, the High Court continued the  status  of Nagendra  Dass as a Receiver till such time the  appointment of  Mahant  is made in accordance with the judgment  of  the High  Court.   It  was  directed that  Nagendra  Dass  would continue  to submit statement of the accounts of the affairs of  the  Math duly audited by a Chartered Accountant to  the Allahabad  Society  and  to  the trial  court.   As  already noticed  in  this Court, the appeal against the decision  of the Madras High Court was withdrawn on 3rd August, 1972 with a  view  to take proceedings for appointment of the head  of the  Math  as indicated in the judgment of the  High  Court. The  said proceedings took place on 20th November, 1972  and soon thereafter the suit out of which the present appeal has arisen was filed.

     The  last contention urged on behalf of the  appellant relying  upon  Section 60 of the Madras Hindu Religious  and Charitable  Endowments  Act  is   that  the  appointment  of Nagendra  Dass as a Mahant was regularised under the  orders dated  4th June, 1973 passed by the Commissioner and on this ground  too  suit  ought  to   have  been  dismissed.   This contention also deserves to be rejected.  Prior to 4th June, 1973  the  respondent  had been appointed as a head  of  the Math.  Further, Section 60 only empowers the Commissioner to take  steps for the temporary custody and protection of  the endowments  of  the  Math.    Thus,  the  regularisation  of

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appointment,  if any, could only be as a temporary  measure. Section  60  does not empower the Commissioner to appoint  a head of the Math.  The said Section reads as under:-

     Section  60(1) :  When a vacancy occurs in the  office of the trustee of a math or specific endowment attached to a math  and  there  is  a  dispute  respecting  the  right  of succession  to  such office or when such vacancy  cannot  be filed up immediately, or when the trustee is a minor and has no  guardian  fit and willing to act as such or there  is  a dispute  respecting  the  person who is entitled to  act  as guardian, or

     When  the trustee is by reason of unsoundness of  mind or  other  mental or physical defect or infirmity unable  to perform the functions of the trustee.

     The  Assistant  Commissioner take such steps and  pass such order as he thinks proper for the temporary custody and protection  of the endowments of the math or if the specific endowment  as  the case may be, and shall report the  matter forthwith to the Commissioner."

     (2)   Upon  the  receipt  of   such  report,  if   the Commissioner,   after  making  such   enquiry  as  he  deems necessary,   is  satisfied  that  an  arrangement  for   the administration  of  the  math and its endowments or  of  the specific  endowment,  as the case may be, is  necessary,  he shall  make  such  arrangement as he thinks  fit  until  the disability of the trustee ceases or another trustee succeeds to the office, as the case may be.

     (3)  in making any such arrangement, the  Commissioner shall  have due regard to the claims of the disciples of the math, if any.

     (4)  Nothing in this section shall be deemed to affect anything  contained  in the Tamil Nadu Court of  Wards  Act, 1902.  (Tamil Nadu Act I of 1902)."

     The  last  contention is thus also without any  merit. The  direction in the earlier judgment that the Commissioner under  the Madras Hindu Religious and Charitable  Endowments Act  may intervene and take steps to fill up the vacancy  if any in the headship of the Math has to be understood to mean that  the  vacancy is to be filled by the Commissioner as  a temporary  measure  within  the  ambit   and  scope  of  the provisions  of the said Act.  The appellant cannot make  the order  of  the Commissioner dated 4th June, 1973 as a  basis for his rights to be appointed as a head of the Math.

     For the aforesaid reasons, we find no substance in the appeal  which  is accordingly dismissed.  The  parties  are, however, left to bear their own costs.