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PETITIONER: MATH SAUNA AND ORS.

       Vs.

RESPONDENT: KEDAR NATH @ UMA SHANKAR & ORS.

DATE OF JUDGMENT04/09/1981

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR 1878            1982 SCR  (1) 659  1981 SCC  (4)  77        1981 SCALE  (3)1577

ACT:      Hindu  Law-Sannyasi-Whether   could  acquire   personal property Property  acquired by  application of  nucels-Tests for deciding.

HEADNOTE:      The  plaintiffs   in  their   suit  claimed   that  the properties in  dispute belonged to the Math Sauna temple and that one  of the  plaintiffs Mahant  Sadashiva Yati  on  the death of his predecessor was elected as Mahant of the temple and that  therefore as Sarbarakar he was entitled to all the properties  recorded  in  the  name  of  the  deity  or  his predecessor.      The defendant claimed that by virtue of a will executed by Mahant  Shivshankar Yati,  the  predecessor  Mahant,  the properties in  dispute which  were his  personal  properties devolved on him.      The Civil  Judge decreed  the plaintiffs’  suit with  a finding that Mahant Sadashiv Yati was not the Sarbarakar.      Upholding the  respondent’s claim,  the High  Court  in appeal, held  that the  properties did  not belong either to the Math  or the  deity but  were the  personal and separate properties of Mahant Shivshankar Yati.      In appeal  to this  Court the  appellants impugned  the correctness of the High Court’s view.      Dismissing the appeal, ^      HELD: The  properties in  dispute did  not form part of the properties  of Math  Sauna or  of the deity but were the personal properties of the respondent.                                                   [664 D-E]      It is  well accepted  that certain  sects  of  Sanyasis (such as  Dashnami Sanyasis  in  this  case)  could  acquire personal property  of their  own and that the pronamis given to a  Mahant are  generally his  personal property. The mere fact that  a  Mahant  is  an  ascetic  does  not  raise  any presumption that  the property  in his possession is not his personal property.  There is  no presumption  either way. In each case the burden is upon the plaintiff to establish that the  properties  in  respect  of  which  he  is  asking  for possession are properties to which he is entitled. [662 F-G] 660

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    In the  instant case  the three  earlier Mahants before they took to sanyasa had been grahasthas. They were entitled to possess,  enjoy and  acquire  personal  property.  Mahant Shivpher  Yati,   one  of  the  predecessor  Mahants,  whose reputation as a man of learning and personal attainments was high, received  personal bhents  from many  of his  affluent chelas. In  addition, on the death of his predecessor Mahant Shivbaran Yati.  Mahant Shivpher Yati inherited his personal property, all  of which  devolved  on  Shivshankar  Yati.  A succession certificate  in respect  of these  properties was granted in the name of Shivshankar Yati. The revenue records also showed  him as  the owner of the properties and not the Math or the deity. None of the transfers of small parcels of these properties  made by  Mahant Shivshankar Yati from time to time  was challenged  by the plaintiffs at any time. [663 A-l]      Whether a  property was  acquired by the application of the nucleus  could only  be  determined  after  taking  into consideration all  the facts and circumstances of a case and on a  balancing of  the entire evidence. The burden of proof rests on the party making the claim. [663 F-G]       In  the present case there is no material on record to how whether  the total  income from the properties belonging to the  Math and  the deity,  left any  appreciable  surplus after meeting  the expenditure on bhog and other ceremonies. The High  Court rightly  held that  the fund  from which the properties were  acquired constituted  the personal property of Mahant  Shivpher Yati  on whose  death  Shivshankar  Yati employed it for the purchase of the properties and by virtue of his  will the properties devolved on the respondent. [663 H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 196 of 1 970.      From the  judgment and  decree dated  April 21, 1969 of the Allahabad High Court in First Appeal No. 80 of 1964.      S.T. Desai,  A.T.M.  Sampath,  Mukul  Mudgal  and  Raju Ramachandran for the Appellants.      R.K. Garg,  Mrs. Urmila Sirur and Shiv Pujan Singh, for the Respondents.      The Judgment of the Court was delivered by       PATHAK,  J: This  appeal arises on a certificate under sub-cl. (b) of clause (I) of Article 133 of the Constitution granted by the Allahabad High Court against its judgment and decree dated  April 21,  1969 disposing  of appeals out of a suit for declaration and possession.       The plaintiffs filed a suit claiming that the property in dispute  belonged to  the Math  Sauna or  the  deity  Sri Thakur Gokarneshwar 661 Mahadeo Ji  installed in  the Math  Sauna temple,  and  that Mahant Sadashiva  Yati  was  in  possession  as  Mahant  and Sarbarakar. It  was claimed  that in  the  event  of  Mahant Sadashiva Yati  being found  out of  possession a decree for possession should  be made.  Sadashiva Yati  pleaded that on the death  of Mahant  Shivshanker Yati he was elected Mahant of Math  Sauna and was, therefore, entitled as Sarbarakar to all the  properties recorded  in the  deity Mahadeo Ji or in the  name  of  Mahant  Shivshanker  Yati.  These  properties included properties  in village  Amauli.  He  asserted  that Shivshanker Yati  possessed no  personal property.  The suit was contested  by the  first defendant,  Kedar Nath Chaubey,

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also referred to as Uma Shanker Yati. He alleged that Mahant Shivshanker Yati  owned personal  properties which  included the properties  in village  Amauli, that he was the chela of Mahant Shivshanker Yati and the Amauli properties had passed to him under a will executed by the Mahant. We are concerned in this appeal solely with the Amauli properties.      Math Sauna  is an  old Math  situated in the village of that name in Tehsil Saidpur in the district of Ghazipur. One of the  earliest Mahants  of the  Math Mahant  Gokaran Yati, raised a  temple in the premises of the Math and installed a deity acclaimed  by the  name of  "Gokarneshwar Mahadeo". On his death  he was  succeeded by  Mahant Shivbaran  Yati, who executed a waqf deed on November 12, 1892 dedicating various properties to  the deity  with the  intent that arrangements for bhog,  deepdan and  other expenses be met from them. The surplus, the  deed directed was to be employed for acquiring further property  in the name of the deity and was not to be applied by the Sarbarakar to his personal use.      The learned Civil Judge decreed the suit but included a finding in  his  judgment  that  Sadashiv  Yati  was  not  a regularly constituted Mahant of Math Sauna and Sarbarakar of the deity.  Two appeals  were filed in the High Court. First Appeal No.  80 of 1964 was filed by Kedar Nath Chaubey @ Uma Shanker  Yati   against  the  declaration  that  the  Amauli properties were  owned by  Math Sauna  or the deity and that Sadashiv Yati  was  in  possession  thereof  as  Mahant  and Sarbarakar. The  other appeal,  First Appeal No. 270 of 1965 was filed  by the  plaintiffs for  the relief  that Sadashiv Yati was  a properly  constituted Mahant  of Math  Sauna and Sarbarakar of  the deity.  The High  Court allowed  both the appeals by  its judgment and decree dated April 21, 1969. It held that  the  Amauli  properties  had  been  purchased  by Shivshanker Yati in 1921 from 662 the personal  and separate  funds inherited  by him from his predecessor Shivpher  Yati, and  that the  Amauli properties must, therefore,  be regarded  as his  personal and separate properties and they did not belong to the Math or the deity. The present  appeal is  directed against  that part  of  the judgment and decree of the High Court.      It is  admitted between  the parties  that  the  Amauli properties were purchased by Mahant Shivshankar Yati for Rs. 40,000 forming part of a fund left behind by his predecessor Mahant Shivpher  Yati. The point for decision is whether the fund was  the personal property of Mahant Shivpher Yati, and if so, whether it devolved on Mahant Shivshankar Yati.      The Mahants  and members  of Math Sauna belonged to the Dashnami  Sanyasi   sect.  The   material  on   the   record establishes  that   they  could  own  and  possess  personal property. They  included  sanyasis  who  had  formerly  been married men and householders, men who had passed through the grihastha ashram. Some of them continued to possess and even to acquire  personal property  after taking  sanyas. It  was observed in Sushil Chandra Sen v. Gobind Chandra Das(l) that Dashnami sanyasis  mixed freely  in the  business world  and carried on  trade and often accumulated property. This Court in Gurcharan  Prasad v. Krishnanand (2) affirmed that Nihang Dashnami Sanyasis  could pursue  money-lending business  and could own  property as  absolute owners,  and enjoy  them as their personal  property. That  certain  sects  of  sanyasis could acquire personal property was accepted by that eminent Judge, Dr.  B.K. Mukherjee,  in his  "Hindu Law of Religious and Charitable Trusts",(a) where he says: "A Mohunt, and for the matter  of that,  any other Sanyasi can acquire personal property of  his own...The  Pronamis given  to a  Mohunt are

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generally his  personal property..  The  mere  fact  that  a Mohunt is  an ascetic  does not raise any presumption that a property in  his possession  is not  his personal  property. Strictly speaking, there is no presumption either one way or the other, and in each case the burden is upon the plaintiff to establish  that the  properties in respect of which he is asking for  possession are  properties to  the possession of which he is entitled in the right in which he sues". 663      There is  reason to believe that Mohant Shivbaran Yati, Mohant Shivpher  Yati and  Mahant Shivshankar  Yati were not celibates and  had been  grihasthas, and  were  entitled  to possess, enjoy  and acquire  personal property. The evidence discloses that  Mahant Shivpher Yati was held in high regard on account of his personal learning and attainments, and has a large  number of  chelas including  many affluent  persons from whom  he received  personal bhents or pranamis of large amounts of  money. His  personal  property,  on  his  death, included  cash,   sovereigns  and  gold  besides  two  fixed deposits with  the Bank of Bengal of Rs. 45,000. He had also inherited the  personal property  of Mahant  Shivbaran Yati, who owned  three private  properties in village Shiv Dass in the district  of Banaras.  On his  death in  1917, all those properties and  wealth devolved  on Mahant Shivshankar Yati. He was  granted a  succession certificate  by  the  District Judge, Ghazipur in respect of the two fixed deposits made by Mahant  Shivpher   Yati  in   the  Bank  of  Bengal.  Mahant Shivshankar  Yati   employed  the  inherited  money  in  the purchase of  two properties in village Amauli in 1921 paying Rs 30,000 for a full interest in one property and Rs. 10,000 for a  moiety  share  in  the  other.  In  respect  of  both properties, the revenue records mentioned the name of Mahant Shivshankar Yati  and not  that of  the Math  or the  deity. Small parcels of these properties were transferred by Mahant Shivshankar Yati  from time  to  time,  and  none  of  those transfers was  challenged by  the plaintiffs  in the present suit.      It is  urged for the appellants that where a nucleus of dedicated property  exists, the  acquisition  of  additional property should  be attributed  to the  application  of  the nucleus  and   must,  therefore,  be  regarded  as  property belonging to  the Math  or the  deity. As has been observed, there can  be no  presumption either  way. All the facts and circumstances must  be taken  into consideration  and  on  a balancing of  the entire  evidence it  has to  be determined whether the  property can  be said  to belong to the Math or deity or  is the personal property of the Mahant, the burden of proof  resting on  the party  who makes the claim. In the present case,  it is difficult to conclude from the material before  us   that  the  total  income  from  the  properties belonging to  the Math  and the  deity left  any appreciable surplus after  meeting the  expenditure on  account of bhog, arpan,  deepdan,   daily  and  annual  puja  and  the  other obligations specified  in the waqf deed. We are in agreement with the  High Court  that the  fund from  which the  Amauli properties were  acquired constituted  the personal property of Mahant Shivpher Yati. On his 664 death in  1917, the  fund passed to Mahant Shivshankar Yati, who in  1921 employed  it for  the purchase  of  the  Amauli properties.      Mahant Shivshankar Yati executed a will in 1956, and it appears beyond  dispute that  by virtue  of  this  will  the Amauli properties devolved on Uma Shankar Yati.      It  is   pointed  out  before  us  that  in  assessment

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proceedings under the U. P. Agriculture Income Tax Act 1948, the Amauli  properties were  described by Mahant Shivshankar Yati as  properties of  the Math  and therefore  a claim  to exemption from  the levy  was made. The High Court has found that the  claim was not accepted by the assessing authority, and that the position in regard to those properties taken in the assessment  proceedings was  adopted by  the Mahant only for the  purpose of  escaping personal  liability to tax. We concur with that finding.      In our  judgment, the  High Court  is right in the view that the  Amauli properties constitute the personal property of Uma  Shankar Yati  and do not form part of the properties of the  Math Sauna or of the deity, Sri Thakur, Gokarneshwar Mahadeoji.      In the result, the appeal is dismissed with costs. P.B.R.                                     Appeal dismissed. 665