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PETITIONER: MAHANT BHAGWAN BHAGAT

       Vs.

RESPONDENT: G.   N. BHUGAT AND ORS.

DATE OF JUDGMENT04/01/1972

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR  814            1972 SCR  (2)1005  1972 SCC  (1) 486  CITATOR INFO :  R          1974 SC 199  (60)

ACT: Custom-Mutt-Method  of  choice  of successor  to  office  of mohunt.

HEADNOTE: Three  aspects have to be borne in mind in  connection  with the  question of succession to the office of a mohunt :  (i) if the rounder or endower has laid down any particular  rule of  succession, that is to be given effect to; (ii)  in  the absence   of   the  above  the  usage  of   the   particular institution, is to be followed; and (iii) the party who lays claim to the, office on the strength of any such usage  must establish it affirmatively.  The fact that the defendant  is a trespasser would not entitle the plaintiff to succeed, un- less he succeeds in proving the particular usage under which he claims. [1 009 E-G] In a Mourasi mutt the office of the mohunt is hereditary and devolves upon a disciple of the existing mohunt who  usually nominates him as the successor.  Though generally the senior disciple  succeeds, a junior disciple may succeed if  he  is found more capable and if he is selected by the last  mohunt as his successor.  The appointment or nomination is done  by the  reigning mohunt during his life time or shortly  before his death and it is possible for the mohunt to make over the endowment during his lifer time to the successor. [1010 B-D, F] In  the present case, the mutt was a Mouriasi mutt  and  the second  respondent was its mohunt.  He nominated  the  first respondent as his successor by a deed. and by a second deed, surrendered to him his right to, the office of mohunt.   The appellant  claimed the office as the senior disciple on  the contention  that  the devolution to the office  was  to  the senior  disciple according to the tenets and customs of  the sect which established the mutt. The  trial  court decreed the suit but the  High  Court  set aside the decree Dismissing the appeal to this Court, HELD  : The appellant had not discharged the onus which  lay

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on  him  to  substantiate the custom pleaded  by  him.   The documentary  evidence, which was ante litern motam  did  not support the appellant’s case that invariably only the senior disciple was selected.  On the contrary, the entire evidence in  the  case led to the conclusion that in  the  matter  of nomination of a successor to the office of mohunt  seniority was   not  the  decisive  factor,  but  that  ability and efficiency   in  management  coupled  with  a   good   moral character,  adherence  to the religious rites  practised  at the. mutt and a spirit of service to the sadhus etc. entered into consideration in the selection of a successor. [1012 A- D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 171 of 1967. Appeal from the judgment and decree dated April 12, 1966  of the  Patna High Court in Appeal from Original Decree  No.445 of 1963. 1006 D.   V. Patel and U. P. Singh, for the appellant. C.   B. Agarwala, Umesh Chandra singha , R. Goburdhun and D.   Gob urdhun, for respondent No. 1. The Judgment of the Court was delivered by Mitter,  J. This is an appeal from a judgment of  the  Patna High Court reversing the decree in favour of the  plaintiff- appellant declared to be the duly installed Mahant of  Turki Math and of all its subsidiary maths and as such entitled to possession of the properties covered by the decree. The,  undisputed  facts are as follows.  In the  village  of Turki  in  North  Bihar there is a Math or as  that  of  the Kabirpanthi  Bhagatatha  Vairagi  sect  established  over  a century   back.   There  are  asthals  subordinate  to   the principal  one  at Turki located in different  districts  of Bihar.  Devolution of the Mahantship has always been from  a Guru  to his Chela.  Defendant No. 2 executed a  deed  dated December  17,  1951  nominating the first  defendant  as  Ms successor  to the Mahantship and a second deed on  September 15, 1952 surrendering his right to the Mahantship in  favour of the first defendant with, immediate effect.  The suit  of the appellant was launched in 1959 for a declaration that he himself was the duly installed Mahant of saddar asthal Turki in  the  circumstances  mentioned in the  plaint,  that  the second  defendant  had  ceased  to be  the  Mahant  by  his, voluntary  of  retirement and the first  defendant  being  a junior  Chela could have no right or Claim to  the  Mahants. As a corollary to the above declaration, he also asked for a decree  for recovery of possession of all the properties  of the  asthal including those which had been purported  to  be transferred by the first two defendants. The  appellant made a two-fold claim in his plaint.  It  was his case that under the tenets and the customs of the asthal and  Bhagataha sect of Kabirpanthies, the devolution of  the office  of  Mahantship is always from a Guru to  the  senior celebate Chela ,either, on the death of. the Mahant for  the time  being or by the said Mahant nominating. his  successor by  deed and himself retiring from the Mahantship In  either case,  after the death or retirement of the Mahant  for  the time being, the senior chela succeeds to the Mahantship  and is’  duly  installed on the Gaddi after  the  perfomance  of Bhandara in an assemblage of Mahants and sadhus of the  sect and respectable persons of the locality at which The Chaddar of  Mahanthi is bestowed on the new Mahant by the Mahant  of

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Acharya  Math Dhanauti in the District of Saran.  The  deeds of 1951. and 1952 being in violation  of the ancient custom of  the asthal, the first defendant was never of the  as  or became the Mahant of Turki nor was any Chaddar ceremony 1007 performed at any requisite ceremony in recognition of   such succession.  ’The appellant had filed a suit in the court of the  Subordinate Judge at Muzaffarpur in the year  1953  for declaration of his riots and for setting aside the deeds  of 1951 and 1952.  After the suit was pending for some time,, a compromise  was  arrived at whereby it was agreed  that  the appellant  should assume the office of Mahantship  and  take possession of all the properties of the Math.  The appellant put  his signature on a sheet of blank paper  for  recording the terms of settlement.  He had actually assumed the office of  the  Mahant  of Turki in April 1954,  and  an  elaborate ceremony was performed on the 16th February 1956. whereat he was installed. as the Mahant of Turki and given the  Chaddar of  Mahanti  by  the  Acharya  of  Dhanauti  before  a   big gathering.  A document known as the Surat Hall was  prepared regarding  the  plaintiff’s  installation.   This  bore  the signature, of innumerable persons.  This was followed by his taking,  charge  of  all the properties of  the  saddar  and subordinate  asthals.  The first two  defendants  thereafter dispossessed him and being unsuccessful in proceedings under the  Code of Criminal Procedure for securing  possession  of the  math and its properties, he was compelled to  file  the suit. Respondents  1 And 2 filed a joint written statement.   They pleaded  that  the  custom  and usages  of  the  Turki  Math relating to devolution of Mahantship was for the Mahant  for the  time  being nominating a fit and proper person  as  his successor  from  amongst  his  Chelas  irrespective  of  his seniority and the person so nominated invariably became  the Mahant on the demise or retirement of the; incumbent Mahant. A  ceremony of installation of the new Mahant on  the  Gaddi and the bestowing of a Chaddar on him were not essential for establishing  his  title  to this office  in  place  of  the retiring or the deceasing Mahant.  The defendants denied the factum of the installation of the appellant relied on in the plaint.   According to them the appellant had at  all  times knowledge  of the nomination of the first defendant  by  the deed of December 17, 1951 and his appointment with immediate effect  by  the,  deed of September 15,  1952.   It  was  on realisation  of  the  weakness  of  his  case  that  he  had approached  the  defendants for a  compromise  agreeing,  to given up his claim in the suit of 1953.  He had appended his signature  to the petition of compromise in that suit  being fully conversant with the terms thereof. The  two main issues framed by the trial court and  relevant for the disposal of this appeal bear on the custom governing the succession to the  Mahantship of the Turki Math and  the right of the incumbent mahant to nominate a junior Chela  in preference  to a senior Chela.  Issues were also  framed  by the  trial court as to whether an installation ceremony  was an essential pre-requisite 1008 to  a Mahant’s lawfully functioning as such and whether  the plaintiff  had factually been installed as a Mahant  of  the Turki Math.  The findings of the trial court were as follows :- 1.From  1899  onwards only senior  Chelas  had  succeeded their Gurus. 2.According to the custom of the Muth the Mahant had  the right  to nominate his successor and the choice rested  upon

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the    senior   Chela   unless   he   suffered   from    any disqualification  or was found to be unfit for  the  office. The right of nomination was not absolute but was subject  to the approval of others. 3.An installation ceremony was not essential to complete the title of the Mahant.  Such a ceremony had been performed  in the  ease of the plaintiff in 1956 and he became the  Mahant of  Turki  although  not in  possession  of  the  properties thereof at the ,time of the suit. The  High Court rejected the custom as to succession set  up by the plaintiff.  It found- 1.Since  the time of the founder, Chaturbhuj Gosala,  six Mahants had occupied the office of whom three were described as junior Chelas by some of the witnesses on the defendant’s side.   The  evidence did not establish that  there  was  an invariable custom of the senior Chela being nominated by the outgoing Mahant. 2.The Mahant in office had an undoubted right to nominate his  successor and ordinarily the right of  appointment  was exercised  in favour of the senior Chela but the choice  was exercised in favour of a celebrate chela taking into account his  all round ability and character.  The second  defendant had  as a matter of fact nominated one Ganesh Bhagat as  his successor  even  before the deed of nomination  of  1951  in favour  of the first defendant.  This nomination  of  Ganesh Bhagat was cancelled as he was found to be unfit.   Compared to the plaintiff, the first defendant was decidedly superior in  learning, ability and conduct : as the main function  of the  Mahant  was to propagate the Kabirpanthi cult  and  the maintenance  of a peaceful and harmonious atmosphere in  the mutt where people were expected to congregate for  religious discussion and discourses and other benevolent functions the choiceof the, first defendant by the second defendant in preference  to the plaintiff was not undeserved and must  be taken as final. 3.   The  High  Court  did not examine the  question  as  to whether  an installation ceremony was necessary  to  perfect the title of Mahantship in view of the concession by counsel for  the plaintiff Differing from the finding of  the  trial court, the High Court held that no ceremony of  installation of  the plaintiff had been performed in 1956 as  alleged  in the plaint. 1009 4.The deeds of nomination and surrender in 1951 and  1952 by the first defendant were valid and binding. The  general law as to succession to Mahantship is now  well settled  by innumerable decisions of the Judicial  Committee of  the Privy Council and some decisions of this Court.   It will  be enough to quote some passages from Mukharji’s  book on  the Hindu Law of Religious and Charitable  Trusts.   The learned author states (third edition, p. 257):               "Once  a  Mutt is established,  succession  to               headship  takes  place  within  the  spiritual               family according to the usages that grow up in               a particular institution."               "The,  primary purpose of a Mutt......  is  to               encourage  and  foster spiritual  learning  by               maintenance  of a competent line  of  teachers               who  impart  religious  instructions  to   the               disciples and followers of the Mutt and try to               strengthen  the  doctrines of  the  particular               school  or order of which they profess  to  be               adherents."               At page 269 :               "In a Mutt.... it is the custom or practice of

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             a  particular institution which determines  as               to how a successor is to be appointed."               Three  aspects  have to be borne  in  mind  in               connection with the question of succession  to               the office of a Mahant (p. 269):               "The  first  is that if the grantor  has  laid               down  any particular rule of succession,  that               is  to  be given effect to. Secondly,  in  the               absence   of  any  grant  the  usage  of   the               particular institution is to be followed;  and               in  the third place, the party who lays  claim               to  the office of a Mohunt on the strength  of               any such usage must establish it affirmatively               by  proper legal evidence.  The fact that  the               defendant  is a trespasser would  not  entitle               the  plaintiff to succeed even though he be  a               disciple   of  the  last  Mohunt,  unless   he               succeeds  in proving, particular  usage  under               which succession takes place in the particular               institution."               At p. 270 :               "Generally  speaking,  the Mutts  are  divided               into three classes according to the  different               ways  in  which  the heads  or  superiors  are               appointed.  These, three descriptions of Mutts               are  Mourasi, Panchayati and Hakimi.   In  the               first, the office of the Mohunt is  hereditary               and  devolves upon the chief disciple  of  the               existing Mohunt 1010               who  moreover  usually nominates  him  as  his               successor;  in  the  second,  the  office   is               elective, the presiding Mohunt being  selected               by an assembly of Mohunts.  In the third,  the               appointment of the presiding Mohunt is  vested               in  the ruling power or in the party  who  has               endowed the temple               In a Mourasi Mutt the chela or disciple of the               last Mohunt succeeds to the office when  there               are more, chelas than one the eldest generally               succeeds, but a junior chela may succeed if he               is found more capable and if he is selected by               the last Mohunt is his successor               In various institutions the custom is that  in               order  to entitle a chela to succeed, be  must               be  appointed  or nominated  by  the  reigning               Mohunt during his life time or shortly  before               his  death  and this may be done either  by  a               written   declaration   or   some   sort    of               testamentary document.  In other cases  again,               the  nominee  is  formally  installed  in  the               office   and  some  sort  of  recognition   is               accorded   to  him  by  the  members  of   the               particular sect either during the life time of               the last Mohunt or when the funeral ceremonies               of the latter are performed."               At p. 273.               "When the Mohunt has the right to appoint  his               successor, he may exercise the right by an act               inter vivos or by will."               At p. 274 :               "In  a  Mourashi Mutt it is possible  for  the               Mohunt  to make over the endowment during  his               life  time to his chela whom he appoints as  a               successor."

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             At p. 275:               "In  many cases when a successor is  appointed               by  Mohunt,  he is installed  in  office  with               certain ceremonies,This cannot be deemed to be               essential." Admittedly  Turki  was  a Mourasi Mutt The  evidence  as  to custom  adduced  in the case Is both documentary  and  oral. The   oral  evidence  which  will  be  noted  hereafter   is discrepant and mostly of persons who were not disinterested. The documentary evidence undoubtedly furnishes more reliable testimony  being ante item motam and brought into  existance at  a time when the plaintiff was not on the scene and  when no dispute as to succession to ship was raging. 1011 The earliest document exhibited in this case is that of 1899 executed  by  Mahant  Lal Bahadur Bhagat in  favour  of  Ram Bhagat  describing  him as the senior chela,  able,  clever, literate  and by all means tit for the  Mahantship.   Mahant Ram  Bhagat  in  his turn nominated Mahadeo  Bhagat  as  his successor by a deed of November 1910.  Like the document  of 1899  this deed also describes the nominee as  able,  clever and fit to discharge the duties of the Mahant Mahadeo Bhaaat however  is not described as the senior Chela but only as  a disciple of the executant.  By a deed of August 1937  Mahant Mahadeo Bhagat nominated Narsingh Bhagat, defendant No. 2 as his  successor  describing the latter as his  only  disciple worthy, clever and fit in all respects for the Gaddi.  By  a document  of June 1947 Narsingh Bhagat nominated one  Ganesh Bhagat  as his successor to the Gaddi.  This nomination  was cancelled  by Narsingh Bhagat on the ground of unfitness  of the nominee for the office but mention is made in this docu- ment  of  1947 of the practice and custom  relating  to  the succession to the office of the Mahant.  This document  goes against  the contention of the plaintiff that by custom  the senior Chela was eligible to the office in preference to all others.  It recites :               "It  has been the practice in the Asthal  from               the   time   of  my  predecessors   that   the               Gadinashin leads a life of Brahmacharya and he               does   not  marry.   One  Mahanth   Gadinashin               appoints  and nominates his  able  Brahmachari               disciple  as Gadinashin and  future  successor               during  his lifetime.  After the death of  his               Guru,  the rightful disciple becomes heir  and               Gadinashin of the Asthal of the Sadar Nath  at               Turki.   I the executant thought it proper  to               make  over  the  management  of  the  property               under a will, according to previous custom and               appoint Ganesh Bhagat as my successor." This  was  followed  by  a description  of  the  nominee  as literate, able and efficient.  The document of December 1951 by  Narsingh Bhagat in favour of Girija Nandan  Bhagat.  the first defendant. describes the nominee as fit and  qualified in  all respects to be the Mahant and recites the custom  as in the case of Ganesh Bhagat. The  trial Judge’s view that the nominations if  1899,  1910 and 1937 ’being invariably in favour of the senior  disciple went  a  long way to establish the custom relied on  by  the plaintiff  was not accepted by the High  Court.   Apparently the  trial  Judge was of the view that Mahadeo  Bliagat  who became  the  Mahant  in 1910 was the only  disciple  of  Ram Bhagat  and it was therefore not felt necessary  to  mention him  is  the  senior chela Quite  a  number  of  defendants’ witnesses  made statements to the effect that Ran-.   Bhagat had  a  number of Chelas.  The trial Judge  obviously  over-

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locked   the  statement  of  the  plaintiff  in  his   cross examination that 1012 Ram Gossai had 5 or 6 Chelas and he himself had seen all  of them.   A fairly large number of witnesses stated  that  the qualifications  for a person’s nomination to the  Mahantship did  not depend only on seniority but on ability to  manage, celibacy,  adherence to religious principles and a habit  of serving  sadhus,  fakirs and visitors besides a  good  moral character.  Some even suggested that it was the ablest Chela who  was  made  the Mahant.  Making due  allowance  for  the witnesses  who  came  to  support the case  of  the  party examining them, the oral testimony unquestionably leads  us to  hold that in the matter of nomination of a successor  to the  Mahantship  seniority was not the decisive  factor  but that  ability  and efficiency in management coupled  with  a good  moral character and adherence to the  religious  rites practised at the mutt and a spirit of service to sadhus etc. all  entered  into  consideration  in  the  selection  of  a successor by a Mahant.  This conclusion is fortified by  the documents  exhibited.  As already noted they do not  support the plaintiff’s version that invariably the senior Chela was selected.   In  our view the document executed  by  Narsingh Bhagat in favour of Ganesh Bhagat sets out the custom as  to succession fairly accurately. The  argument advanced on behalf of the appellant  that  the plaintiff  was  installed  as the Mahant of  Turki  in  1956 before a wide gathering of sadhus and respectable persons at which the Chaddar ceremony was performed does not merit  any elaborate  or serious consideration.  As noted already,  the trial,  court did not take the view that the performance  of the  Chaddar ceremony was an essential pre-requisite  to  a person  becoming a Mahant and before the High Court  counsel for  the plaintiff expressly gave up that  point.   Although the trial court found in favour of the plaintiff that such a ceremony had actually been performed, the High Court came to a  different conclusion.  One of the reasons which  prompted the  High  Court  to take this view was  that  the  document evidencing  the installation ceremony styled the Surat  Hall had  not  been  produced  in any court  of  law  before  the institution  of  the  suit of 1959  although  litigation  in respect  of the properties of the mutt and  the  plaintiff’s right  to possession were being canvassed before ,courts  of law.   The  High Court also relied on the fact that  a  res- pectable and reliable witness like the Mahant of the Acharya Mutt  denied  having  signed this document  Ex.   1  and  no attempt  was made on behalf of the plaintiff  to  controvert the  said  denial by examination of a  hand-writing  expert. Reliance was also placed by the High Court on the fact  that the plaintiff who filed a petition under ss. 107 and 145 Cr. P.C.  against  the  first defendant and  12  others  on  8th December,  1956  described himself as the Mahant  of  Chanwa Math  and  made no reference in the petition itself  to  the installation  ceremony at Turki.  The High Court  also  ,did not  believe  the plaintiff’s version that he had  signed  a blank 1013 sheet  of paper to be used as a compromise petition  in  the earlier  suit filed by him and nothing has been shown to  us as to why we should take a different-view. In  the  result  we hold that the plaintiff  was  unable  to discharge  the  onus which lay on him  to  substantiate  the custom  as  to succession pleaded in his  plaint.   He  also failed  to establish that he had in fact been  installed  as the  Mahant  of  the said Math.  The  appeal  fails  and  is

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dismissed with costs. V.P.S.             Appeal dismissed. 17-736 Sup CI/72 1014