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PETITIONER: HIS HOLINESS DIGYA DARSHAN RAJENDRA RAM DOSS

       Vs.

RESPONDENT: DEVENDRA DOSS

DATE OF JUDGMENT06/11/1972

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. GROVER, A.N. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR  268            1973 SCR  (2) 911  1973 SCC  (1)  14

ACT: Tirupati Mutt-Succession to office of Mohunt-Successor  must be  North-Indian  Brahmin and senior-most disciple  of  last Mohunt-Agreement  acknowledging R as  North-Indian  Brahmin- Agreement cannot support plea of estoppel when both  parties adduce evidence before the Court-If there is a break in line of succession the custom must be reestablished as from death of last reigning mohunt.

HEADNOTE: Succession  to the office of Mohunt of the Mutt at  Tirupati in Andhra Pradesh is regulated by custom which provides that upon the death of a Mohunt his senior disciple becomes  next mohunt.  This is, however, subject to the condition that the senior  disciple must be a North-Indian Brahmin. in  1947  P was  the  Mohunt of the Mutt.  Upon his death  in  1947  the succession  was  disputed between N and C, The  dispute  was resolved  under the terms of the compromise recorded in  Ex. B-8.   Under the compromise N became the Mohunt,  and  after him  the office was to devolve on C and after C on a  senior disciple of N. Upon the death of N in 1958 there was again a dispute as to succession.  C claimed to be the. mohunt under the terms of Ex.  B-8, while R the present appellant claimed the office, by virtue of his status as a senior disciple  of N., The’ dispute was settled in terms of a document Ex.  B-1 whereby C was to succeed N and after C the, office was to go to R. Very soon after this on 18 March, 1962 C died. Dispute again  arose about succession R claimed the office in  terms of Ex.  B-8 and Ex.  B-1 and also by virtue of his being the only surviving disciple of N. The other claimant was D,  the respondent in this appeal, who put up claim to the office by virtue  of  his  Position as senior  disciple  of  the  last reigning, Mohuat.  As D was a minor, a suit was filed on his behalf  by his next friend.  In that suit he claimed  for  a declaration  of his title to the office of mohunt  with  all the  properties  attached  to  the  office  as  well  as  an injunction  against R restraining him from interfering  with affairs of the Mutt.  The subordinate Judge held that R  was a  North-Indian Brahmin and was entitled to succeed  as  the senior  disciple of N and the period of mohuntship of C  was to  be treated as a break in the practice of  the  customary

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rule  that only the senior most disciple succeeds  upon  the death of the reigning mohunt.  In the appeal the High  Court found  that N was not a North Indian Brahmin  and  therefore not  entitled to succeed.  The High Court further held  that since D was a senior disciple of C he should by the rule  of custom succeed to the office of the mohunt upon the death of C.   R appealed to this Court with certificates. HELD:(1) The High Court was right in its findings  that the plaintiff wasa   North-Indian   Brahmin   while   the defendant was a South-Indian Iyengar. It  was  true   that there  was a recital in Ex.  B-1 that R was  a  North-Indian Brahmin.   Apart  ’from the solitary  evidence,  the  entire evidence on record went to show that R was not  North-Indian Brahmin. [915 C] Even though a clear plea of estoppel arose from the  recital in  Ex.  B-1  the defendant did not rely on  this  plea  and entered  into an issue on the fact so that the whole  matter became  open  for the decision of  the  learned  subordinate Judge., R not only failed to invoke the doctrine of estoppel before  the learned Subordinate Judge but joined issue  with the 912 plaintiff upon the question whether the defendant was not  a North-Indian Brahmin and accordingly an issue was raised and evidence adduced on this question R could not therefore rely on  the doctrine of estoppel to prevent the  plaintiff  from proving  that R was in fact not a North-Indian Brahmin.   In the  light  of  the foregoing considerations  there  was  no reason  to discard the finding of fact recorded by the  High Court  to the effect that D was North-Indian Brahmin  and  R was not L916 C; E & 917 A] Young  and  Anr. v. Raincock, 18 L.J.C.P. 193 and  Greer  v. Kettle  Re  Parent Trust & Finance Co. Ltd., [1937]  4  All. E.R. 397, referred to. (2)It was not possible to make R the mohunt for the simple reason that he was not a North-Indian Brahmin.  The, rule of custom  should prevail in all cases and if  any  aberrations have  to be corrected such correction must take its  in  the direction of reestablishing the rule of custom. [1918 A] Annasami  Pillai and Ors. v. Ramakrishna Mudaliar and  Anr., I.L.R. 28 Mad., 219, relied on. (3)in most cases if there is a break in the customary rule it  may  not  at  all be possible to  revert  back  to  the’ customary succession if one has to start from the point when the original break had commenced.  In such cases even if  it may be possible to revert to the customary practice, it  may not be possible to go back to the point where the customary. line of succession had its first break.  Thus, in this  case though it had been possible to trace at least one person who was  a disciple of N after ,whom the customary practice  was broken and the office handed over to an alleged  interloper, even  this lone survivor of the original line of  succession was  not a person who was competent to become the Mohunt  by the  immemorial custom of the Mutt.  Therefore, it  was  not possible  at  all  to  reestablish  the  customary  line  of succession  if  one treats the period of C’s  mohuntship  as altogether  non-existing. it was not open to the  Court  ,to lay  down a new rule of succession or to alter the  rule  of succession ,completely.  The only way to save the custom was by  accepting  something  as a fact which had  so  far  been accepted by everybody concerned with the Mutt as a fact  and which  could  not any longer be undone  without  demolishing altogether the custom of the Mutt. [918 EG] In  these circumstances.it must be held that D was  entitled to succeed C as his senior-most disciple on the strength  of

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immemorial custom of

JUDGMENT: CIVIL  APPELLATE JURISDICTION :Civil Appeal No. 407  (N)  of 1971. Appeal  by  certificate from the judgment and  decree  dated September 21, 1970 of the Andhra Pradesh High Court in  A.S. No. 476 of 1966. M.C.  Chagla,  M. X. Cardoze, E. C. Agarwala  and  A.T.M. Sampath, for the appellant. K.R.  Chowdhary and K. Rajendra Chowdhary, for  the  res- pondent. The Judgment of the Court was delivered by. MUKHERJEAJ.   This appeal by certificate from a judgment  of the High Court of Andhra Pradesh arises out of a dispute re- 913 garding  the succession to the office of the spiritual  head (Mohunt) of Sri Swami Hathiramjee Mutt, Tirumalai  Tirupati. The  facts  out  of which the appeal arises  may  be  stated briefly.  Succession to the office of the Mohunt of the Mutt is  admittedly regulated by custom which provides that  upon the  death of a mohunt his senior disciple becomes the  next mohunt.  This is, however, subject to the condition that the senior disciple must be a North-Indian Brahmin.  In 1947 Sri Prayagadasjee  Varu  was the Mohunt of the Mutt.   Upon  his death  in 1947 there was a dispute about the  succession  to the  office  of  Mohuat between two  contestants  viz.   Sri Narayanadasjee Varu and Sri Chetandossjee Varu.  The dispute appears to have been resolved by the intervention of what is described  as the Supreme Council of Mohunts viz  the  Akada Panchayat.   Under the terms of compromise which are  to  be found in Ex.  B-8, Sri Narayanadasjee Varu became the Mohunt and  after him, the office was to devolve on Chetandoss  and after Chetandoss on a senior disciple of Narayandasjee Varu. Narayandasjee  Varu  died  in 1958 and  there  was  again  a dispute  as to who would become the next mohunt.   Chetandos claimed  to be the mohunt under the terms of Ex.  B-8  while Sri Rajendra Ram Doss Jee Varu the present appellant  before us  claimed the office by virtue of his status as  a  senior disciple of Narayanadasjee Varu.  Rajendra Ram Doss Jee Varu filed  a suit to establish his right.  The dispute  and  the suit   were  both  settled  by  another  agreement   between Chetandoss and Rajendra Ram Doss Jee Varu the terms of which are  to  be  found  in  Ex.   B-1.   Under  this   agreement Chetandoss  was  to succeed Narayanadasjee Varu  and,  after Chetandoss, the office was to go to Rajendra Ram Doss.  Very soon after this, however, on 18 March 1962 Chetandoss  died. This  became the occasion for yet another dispute about  the succession  to the office of the mohunt.  Rajendra Ram  Doss claimed to be the mohunt in terms of the two agreements  we have  referred to just now and also by virtue of  his  being the   only  surviving  disciple  of   Narayanadasjee   Varu. Devendra  Doss Jee, the respondent in this appeal,  however, put  up  a claim to the office of mohunt by  virtue  of  his position  as a senior disciple of the last  reigning  mohunt Chetanctoss.   He was, however, a minor at that time  and  a suit  was  filed  on  his behalf  by  his  next  friend  Sri Mukundadas  jee  Varu, Mohunt of Bugga Mutt,  Tirupati.   In that  suit  he claimed for declaration of his title  to  the office  of  the  mohunt with all  the  properties  that  are attached  to  that office as well as an  injunction  against Rajendra Ram Doss Jee Varu restraining him from  interfering with the affairs of the Mutt.

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At the time of the trial of the suit it both parties  agreed about two propositions :               (i)   By immemorial custom and practice,  upon               the  death  of a mohunt his eldest  or  senior               most disciple succeeds to the Gaddi; and               914               (ii)  Only a North-Indian Brahmin is  entitled               to be a mohunt. It   was  contended  by  each  party  before   the   learned subordinate  Judge  that the other party was  not  a  North- Indian Brahmin.  The learned Subordinate Judge held that the defendant  Rajendra Ram Doss was a North-Indian Brahmin  and was  also  entitled  to succeed as the  senior  disciple  of Narayanadossjee Varu.  According, to the learned Subordinate Judge  the  period  of mohuntship of Chetandoss  was  to  be treated  as  a break in the practice of the  customary  rule that only the senior most disciple succeed’s upon the  death of the reigning mohunt.  Devendra Doss appealed against this judgment  to the High Court.  The High Court found on  facts that  Narayan Doss was not a North-Indian Brahmin  and  was, therefore,  not entitled to being considered as  a  possible successor  to  the  office of the mohunt.   The  High  Court further  held  that  since  Devendra  Doss  was  the  senior disciple  of  Chetandoss  he should by the  rule  of  custom succeed  to  the  office of the mohunt  upon  the  death  of Chetandoss.   On  these grounds the High  Court  upheld  the plaintiff’s appeal and gave a declaration in his favour  and also  an  injunction against Narayan Doss  from  interfering with  the  affairs of the Mutt.  Rajendra Ram Doss  has  now appealed from the decision of the High Court. Mr.   Chagla   appearing  for  the  appellant   raised   two contentions in support of ’the appellant’s claim.  First, he contended that the customary rule by which a senior disciple succeeds  to  the  Gaddi of a mohunt upon  the  death  of  a reigning mohunt has always prevailed in this Mutt except for what may be described as an interregnum when Chetandoss  was installed  as  the Mohunt.  It was during this  period  that there was a departure from the custom and at the end of this period the custom has been restored.  Therefore, Mr.  Chagla argued,  if  after  the death of Chetandoss  his  period  of mohuntship  be altogether ignored, Rajendra Ram  Doss  would automatically  become entitled to become the mohunt  as  the senior disciple of Narayandass.  Secondly, Mr. Chagla argued that  Devendra  Doss,  the  respondent,  is  bound  by   the agreement  of 15 July 1961 which- not only  recognised  that Rajendra  Ram  Doss  was a  North-Indian  Brahmin  but  also ’Stipulated  that  Rajendra Ram Doss as the  only  surviving disciple  of  Narayanadass should become the Mohunt  of  the Mutt.  It was contended that since Rajendra Ram Doss claimed through  Chetandoss,  he  could  not  throw  overboard   the agreement to which Chetandoss was a party.  In other  words, Mr. Chagla sought to meet the finding of fact arrived at  by the High Court to the effect that Rajendra Ram Doss was  not a  North-Indian Brahmin by pointing out that  Devendra  Doss would be estopped from making that contention in view of the clear  statement  in the agreement of 29 October  1947  that Rajendra Ram Doss was in fact a North-Indian Brahmin. 915 For the sake of convenience we shall examine these two  con- tentions of Mr. Chagla in the reverse order; that is to say, we  shall deal with his second contention first.   The  High Court  after carefully examining the evidence on record  has come to a clear finding on facts that Rajendra Ram Doss  was not  a North-Indian Brahmin.  The High Court has also  found that  the  respondent  Devendra  Doss  was  a   North-Indian

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Brahmin.  This Court is not generally inclined to set  aside or  ignore the. findings on fact of the High  Courts  unless they  appear to have been manifestly wrong.  In  this  case, however,  after going through the evidence ourselves we  are clearly of the opinion that the High Court was right in  its findings that the plaintiff was a North-Indian Brahmin while the  defendant was a South-Indian lyengar.  It is true  that there  is  a  recital in Ex.  B-1  which  is  the  agreement executed by and between Chetandoss and Rajendra Ram Doss  on 15  July  1961, that Rajendra Ram Doss  was  a  North-Indian Brahmin.   It  may be useful here to set  out  the  material portion of the agreement               "Now, therefore, it is agreed as follows:--               (1)   x    x    x               (2)   x    x    x               (3)   Sri Digyadarsan Rajendra Ramdossjee Varu               (the  plaintiff  in the suit) who is  a  North               Indian  Hindustani Brahmin and a  disciple  of               the  late  Mahant Narayandossjee Varu  has  to               succeed   to   the   Mahantship   after               (the Defendant) Sri Mahant Chothandossjee Varu               and till then he shall be the junior Mahant; Far from treating this as an evidence in support of  Raendra Ram Doss’s contention that he was a North-Indan Brahmin  the High  Court considers this to be a very suspicious  recital. The High Court observes :               "..........   The  very  description  of   the               defendant in Ex. B-1 as a North-Indian Brahmin               when  in the context of that document  it  was               really  unnecessary  to describe him  as  such               makes the recital suspicious." Apart  from  this solitary evidence of Ex.  B-1  the  entire evidence  on record goes to show that Rajendra Ram Doss  was not  a NorthIndian Brahmin.  Mr. Chagla, however,  contended that since Devendra Doss is claiming through Chetandoss,  be is  estopped from denying the correctness of  a  categorical statement  made  in an agreement to which Chetandoss  was  a principal party.  The principle on which, Mr. Chegla  relies has been formulated by Cross in his book on Evidence,  Third Edition, in the following manner :- L521Sup.CI/73 916 .lm15 "It   not  infrequently  happens  that-two  people   agree,, expressly,  or  by necessary implication, that  their  legal relations  shall be based on the assumption that  a  certain state  of  facts exists, and, when this has been  done,  the original parties to the agreement, as well as those claiming through them, are estopped from denying the existence of the assumed state of facts." Though this principle invoked by Mr. Chagla is quite correct so  far  as  it  goes and is a  principle  which  has  found expression  in  a  large number of  judgments,  ancient  and modern,  we do not think that in the facts of this case  Mr. Chagla’s  client can rely on this principle.  Even though  a clear  plea of estoppel arises from the recital in Ex.   B-1 the defendant did not rely on this plea and entered into  an issue on the facts so that the whole matter became open  for the decision of the learned Subordinate Judge.  In Young and Anr. v. Raincock(1) Coltman, J. after having observed that " where it can be collected from the deed that the parties  to it have agreed upon a certain admitted state of facts as the basis on which they contract, the statement of those  facts, though put in the way of recital, shall estop the parties to aver the contrary", yet refused to treat the recital of  the

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deed as conclusive on the question before him on the  ground that if the estoppel appears on the record the party who  is entitled to take the advantage of it, instead of relying  on it  goes to issue on the fact, he puts the matter at  large, and  the jury may disregard the estoppel". In  the  instant case  Rajendra Ram Doss, the defendant, not only  failed  to invoke  the  doctrine of estoppel before  the  learned  Sub- ordinate Judge but joined issue with the plaintiff upon  the question  whether  the  defendant  was  not  a  North-Indian Brahmin  and  accordingly an issue was raised  and  evidence adduced  on  this  question.   Rajendra  Ram  Doss   cannot, therefore,  rely on the doctrine of estoppel to prevent  the plaintiff  from proving that Rajendra Ram Doss was  in  fact not   a  North-Indian  Brahmin.   The  principle  has   been confirmed  by  a recent decision of the House  of  Lords  in Greer v. Kettle Re Parent Trust & Finance Co., Ltd. (2 ) Re- ferring  to the decision of Lainson v. Tremere(3)  which  is often relied upon as an authority for the proposition  that, in all circumstances, statements in deeds estop all  parties to  the deed from ever alleging and proving the true  facts, Lord Russell, in his opinion, observed :               "I would not, speaking for myself, be prepared               to  accept it as authoritative at the  present               day........ Later decisions, however, put  the               matter on what seems to be the sounder basis."               (1)  18 L.J.C.P. 193.              (2)  [1937]               4AII.E.R.397.               (3) [1834] 1 AD & EL. 792.                917 Then,  his Lordship quotes with approval the observation  of Coltman  J. in Young and Anr. v. Raincock(1) which  we  have already  cited  above.   In  the  light  of  the   foregoing considerations  we see no reason to discard the  finding  of fact recorded by the High Court to the effect that  Devendra Doss  was a North-Indian Brahmin and Rajendra Ram  Doss  was not. We now come to the first contention of Mr. Chagla.  Starting from  the proposition which is admitted by both parties  to the  suit  ,and which states that by immemorial  custom  the office of Mohunt upon the death of a reigning mohunt  goes to  the latter’s senior most disciple, Mr.  Chagla  contends that  by  this test Chetan Doss could not  have  become  the Mohunt  when he assumed that office ,as a result of the  two agreements  embodied in Ex.  B-8 and Ex.  B-1.   He  further suggests  that the period between Chetan Doss’ accession  to the-  office and his demise should be treated as  an  inter- regnum of irregularity which is to be ignored completely  as if it never came, to happen.  On this footing, since  Chetan Doss  succeeded Narayan Doss the office of the Mohunt is  to be filled up by finding out who would be the person entitled to succeed upon the demise of Narayan Doss.  That is how Mr. Chagla  sought  to claim this office for Rajendra  Ram  Doss who,  it was contended, was the only surviving  disciple  of Narayan Doss.  Reliance was placed for this proposition on a Division Bench Judgment of the Madras High Court in Annasami Pillai and Ors. v.  Ramakrishna  Mudaliar  and  Anr.(2)   in which it was held that it     would  seem "not  unreasonable to hold that where a person, who   had   no  right  to   the office  of  a trustee according to the  rule  of  devolution established  by the founder, acquires a title to the  office by prescription, but restores it to one, who, except for the transferor’s prescriptive title, could have taken the office according  to  the  rules laid down  by  the  founder,  such transfer  should be treated as an exception to  the  general doctrine  that a trusteeship is not  assignable........  for

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such  a  transfer would put an end to the continuance  of  a management  inconsistent  with the founder’s  intention  and once  more let in the class of persons by whom  the  founder contemplated  the management should be carried on".  It  was argued  that  after  the death of Narayan  Doss  his  senior disciple should have become the Mohunt according to the rule of  custom which is paramount in these matters.  Though  the fact  remains that Chetandoss became the Mohunt as a  result of  two  agreements after his death, the customary  line  of succession  should  be  restored and a  senior  disciple  of Narayan Doss at that point of time should become the Mohunt. This  could be achieved only by giving the office of  Mohunt to Rajendra Ram Doss. (1) 18 L.J.C.P. 193.              (2) I.L.R. 28 Mad. 219. 918 As we have already seen, it is not possible to make Rajendra Ram  Doss the Mohunt for the simple reason that he has  been found not to be a North-Indian Brahmin.  Even on the assump- tion that Rajendra Ram Doss was the senior-most disciple  of Narayan  Doss  at  the  time  of  the  latter’s  death  and, therefore, satisfies the requirement of one customary  rule, Rajendra Ram Doss cannot become the Mohunt according to  the other equally customary rule that only a North-India Brahmin can be the Mohunt of this mutt. In  our  opinion the rule of custom should  prevail  in  all cases  and  if  any aberrations have to  be  corrected  such correction  must take us in the direction of  reestablishing the rule of custom.  To that extent the principle laid  down in  the  case  of Annasami Pillai and  Ors.  v.  Ramakrishna Mudaliar and Anr. (supra) is a correct principle and has  to be followed.  That, however, does not resolve the difficulty in  this case.  Assuming that Chetan Doss was not a  validly appointed  Mohunt  so  that his period of office  is  to  be ignored,  the  question  still arises whether  in  making  a reversion to the customary rule of succession to the  office of  a  mohunt such reversion is to operate  from  the  point where Chetan Doss’ period ended or from the point when  this had  commenced.   It is only an accident that in  this  case Chetan boss had a very brief period of office so that on his death  it  was  at  least possible  to  find  one  surviving disciple  of the Mohunt who held the office  be-fore  Chetan Doss  succeeded him.  In most cases if there is a  break  in the  customary rule it may not at all be possible to  revert back  to the customary succession if one has to  start  from the  point where the original break had commenced.  In  such cases even if it may be possible to revert to the  customary practice,  it  may not be possible to go back to  the  point where  the  customary line of succession  had  its  original break.   Thus, in this case though it has been  possible  to trace at least one person who was a disciple of Narayan Doss after whose death the customary practice was broken and  the office  handed  over to an alleged  interloper,  this   lone survivor  of  the  original line of succession _  is  not  a person  who  is  competent  to  become  the  Mohunt  by  the immemorial  custom  of  the  Mutt.   Therefore,  it  is  not possible  at  all  to  reestablish  the  customary  line  of succession  if  one  treats  the  period  of  Chetan   Doss’ mohuntship as altogether non-existing.  If we have to revert to the custom of the Mutt we cannot do so from the point  of time  when  Narayan  Doss died and Chetan  Doss  became  the Mohunt.   We have to do so from the point when  Chetan  Doss died.   After all, Chetan Doss has been  unquestionably  the Mohunt  of  the Mutt.  It is true that on a  subsequent  re- examination  of the whole matter. doubts have been  cast  on his  title  for the office but by common acceptance  of  the

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Chelas of the Mutt he had become the Mohunt and had remained a mohunt till his death.  Ignoring the fact that 919 he was really the Mohunt of this Mutt for a specific  period does  not help us reestablish the rule of custom  prevailing in this Mutt.  The only possible way in which the old custom may  be  reestablished is by making a fresh start  from  the point of the death of Chetan Doss and that can only be  done by allowing Devendra Doss to be the Mohunt.  The High  Court has  come to a clear finding that Devendra Doss is a  North- Indian Brahmin and is therefore fit to hold the office of  a mohunt according to the custom of this Mutt.  The High Court has  also  found  that he was the  senior-most  disciple  of Chetan Doss who had been the reigning mohunt upto the  point of  time  when the dispute regarding succession  arose.   If Rajendra Ram Doss’ right to become the Mohunt be rejected on the  ground that Chetan Doss was perhaps ,an interloper  the whole  line  of succession will be broken beyond  repair  or redemption, for, once it is accepted that Rajendra Ram  Doss is  not  a  North-Indian Brahmin there is  no  other  living disciple of Narayan Doss who could restore the original line of succession.  In our view it is not open to us to lay down a new rule of succession or to alter the rule of  succession completely.   The  only  way we can save the  custom  is  by accepting  something as fact which has so far been  accepted by  everybody  concerned with the Mutt as a fact  and  which cannot  any longer be undone without demolishing  altogether the custom of the Mutt.  In these circumstances we hold that Devendra  Doss  is entitled to succeed Chetan  Doss  as  his senior-most  disciple  on  the strength  of  the  immemorial custom of this Mutt. In the view that we take of this matter the appeal fails and is dismissed.  In the peculiar circumstances of this case we make no orders to costs.  All the stay orders passed in this matter by this Court shall stand vacated. G.C.                     Appeal dismissed. 920