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PETITIONER: SRI KRISHNA SINGH

       Vs.

RESPONDENT: MATHURA AHIR AND ORS.

DATE OF JUDGMENT21/12/1979

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) FAZALALI, SYED MURTAZA

CITATION:  1980 AIR  707            1980 SCR  (2) 660

ACT:      Hindu Law-Whether  a Sudra  can enter the order of Yati or Sanyasi-’Sant  Math’ Sampradaya,  denomination of Dasnami Sect-Whether a  Sudra cannot  enter the  order of sanyasi in the Sant  Math and whether a Brahman alsone can be a sanyasi among Dasnamis-Essential  ceremonies for  the initiation  of Dasnamis-Performance of  Atma  Sradh  and  reciting  Pravesh Mantra Sant  Math Sampradaya-Mode  of succession  among  the Sant Math-Raght  to after-acquired  property of a Mahant out of Math funds, whether accrues to natural son.      Abatement of appeal-Maxim of "actio personalis moriture cum persona",  applicability of  in the  case  of  suits  by Mahant for  the recovery  of Math property -Order XXII Civil Procedure Code.

HEADNOTE:      Respondent Mathura  Ahir alias  Swami  Harswanand,  the Mahant of  Garwaghat Math  filed a  suit for  declaration of title to  and possession  of house  No. C/27/33  situate  in Mohalla Jagatgunj,  Varanasi, for  arrears of rent and mesne profits in  respect thereof. The said property was purchased by his  Guru Atma  Vivekanand Paramahans (ne Baikunth Singh) from out  of the  income of  the  Math  i.e.  the  offerings (Bhent)  made   by  the  devotees.  The  appellant  who  was impleaded as defendant 5 to avoid further litigation claimed that this  property acquired  by his  late  father  Baikunth Singh alias  Swami Atma  Vivekanand, after  he became a Guru and out  of Math funds devolved upon him the natural son and disciple. Since  the claim  went in favour of the respondent Mahant the appellant came in appeal by special leave to this Court. The  original plaintiff  died during  the pendency of the appeal.      The  contentions   of  the   appellant  were:  (i)  the plaintiff Mathura  Ahir being  a Sudra could not be ordained to a  religious order  and become  a  Sanyast  or  yati  and therefore  installed   a  mahant   of  the  Garwaghat  Math, according to the tenets of the Sant Math Sampradaya, (ii) In the absence  of proof  of the  performance of Atma Sradh and the recitation of Pravesh Mantram, neither the plaintiff nor his  two   predecessors  Swami  Sarupanand  and  Swami  Atma Vivekanand could be regarded as Hindu Sanyasi; and (iii) the first respondent  Harsawanand the  original plaintiff having died during the pendency of the appeal, the appeal abated in

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its entirety.      Dismissing the appeal, the Court ^      HELD: 1.  A math  is an  institutional sanctum presided over by  a superior  who combines in himself the dual office of being  the religious  or spiritual head of the particular cult or  religious fraternity  and of  the  manager  of  the secular properties of the institution of the Math. [671 D-E]      The property belonging to a Math is in fact attached to the office  of the  mahant, and  passed by inheritance to no one who does not fill the office. The 661 Head of  a Math,  as such,  is not a trustee in the sense in which that  term  is  generally  understood,  but  in  legal contemplation he  has an  estate for  life in  its permanent endowments and  an absolute  property in  the income derived from the  offerings of  his followers,  subject only  to the burden of maintaining the institution. [671 A-B]      In  the   instant  case,   the   evidence   on   record sufficiently establishes  that a Math came to be established at Garwaghat  and the  building known  as "Bangla  Kuti" and certain  other   buildings  including   the  house  in  suit constituted the endowment of the math itself. [671 E-F]      Sammantha Pandara  v. Sellappa Chetti (1879) ILR 2 Mad. 175; Gyanasambhandan Pandara Sannadhi v. Kandaswami Tambiram (1887)  ILR   10  Mad.  375;  Vidya  Purna  Thirthaswami  v. Vidyanidhi Thirtha Swami (1904) ILR 27 Mad. 435; Ram Prakash Das v.  Anand Das  (1915-16) 43  I.A. 73  (PC); Vidya Vanthi Thirtha v.  Baluswami Iyer  (1920-21) 48  I.A. 302; referred to.      2. The  math at  Garwaghat belongs  to the  ’Sant  Mat’ Sampradaya, which is a religious order and the suit property is Math  property. Though  the Math at Garwaghat established by Swami  Sarupanand was  of recent  origin,  the  religious order denominated  as ’Sant Math’ has had large following in Punjab and  some other  parts of  India since  more  than  a century. In a sense, therefore, Swami Sarupanand himself did not for  the first time evolve any new religious order. [672 E, 673 F-G]      The institution  was really  built  up  by  Swami  Atma Vivekanand,  who   was  held  in  great  veneration  by  the followers of  the sect. He preached the tenets of ’Sant Mat’ and  had  a  large  following.  His  ’Sant  Mat’  fraternity comprised of  thousands of  Girhastha and  Virakta disciples who made  large Offerings. Such offerings in cash or kind or in the shape of immovable property which were endowed to the Math. Swami  Atma Vivekanand was the Mahant of the Garwaghat Math. The  two houses  at Varanasi  including the suit house were purchased  by Swami  Atma Vivekanand  from out  of  the offering (Bhent) made by his disciples. [675A-D]      3. Succession  to Mahantship  of a  Math  or  religious institution  is   regulated  by   custom  or  usage  of  the particular institution, except where a rule of succession is laid down  by the founder himself who created the endowment. [675 G-H]      Genda Puri  v. Chatar  Puri, [1886]  13 I.A.100  @ 105; Sital Das  v.  Sant  Ram,  A.I.R.  1954  SC  606;  Mahalinga Thambiran v. La Sri Kasivasi, [1974] 2 SCR 74; followed.      4. The succession to the office of the Mahant according to Sant  Sampradaya is  by nomination,  i.e.  from  Guru  to Chela, the  Guru initiates  the chela  after performing  the necessary ceremonies. The person initiated as a Chela adopts the life  of a  sanyasi and  is pledged  to lead  a life  of celibacy and  religious mendicancy. The sitting Mahant hands over the  management of  the Math  to one  of  his  virtuous

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Chelas fittest  to succeed  when he  nominates and  when  he wishes to install as Mahant after him in his place. He makes clear this desire to the members of his Sampradaya, and also authorises the  nominated chela to give Bhesh Dikshwa. After the death  of the  Mahant, the  Bhesh  and  Sampradaya  give Chadar Mahanti  of the math to the said disciple at the time of the Bhandara. [672 A-C] 662      5. Asceticism  in India has been under the definite and strong sanction  of religion.  In the  doctrine of  the four asramas,  asceticism  was  made  an  integral  part  of  the orthodox Hindu  life, and it became the duty of every Hindu, as advanced  age overtook  him, homeless  and a  wanderer to chasten himself  from earthly  ties, and  of realizing union with Brahman.  And a  religious motive was thus supplied for that  which   in  itself   was  a   welcome   release   from responsibility, care  and  the  minute  requirements  of  an elaborate social  code. In  due course, with the advancement of knowledge,  the shackles  of the caste system were broken through and  the privileges  and powers  of the ascetic life were extended  to Sudras  and in  due recognition  of  their status, they  were treated as Hindu Sanyasis. At the present time, there is no distinction or barrier; any one may become an ascetic, and the vows are not necessarily life long. Some sects, however, still restrict membership to Brahmans, or at least to men of the three higher castes. [681 E-H, 682 G-H]      6. One  who enters  into a  religious order  severs his connection with  the members  of his  natural family.  He is accordingly  excluded   from  inheritance.   Entrance  to  a religious order  is tantamount to civil death so as to cause a complete  severance of  his connection with his relations, as well  as with  his property.  Neither he  nor his natural relatives can succeed to each other’s properties. [676 A-B]      Any property  which may  be  subsequently  acquired  by persons adopting  religious orders passes to their religious relations. The  persons who are excluded on this ground came under three heads; the Vanaprastha or hermit; the Sanyasi or Yati, or  ascetic and the Brahmachari or perpetual religious student. In order to bring a person under these heads, it is necessary to  show an  absolute abandonment  by him  of  all secular property,  and a  complete and final withdrawal from earthly affairs. The mere fact that a person calls himself a Byragi or  religious mendicant,  or indeed  that he is such, does not  of itself  disentitle him  to succeed to property. Nor does  any Sudra come under this disqualification, unless by usage.  This civil  death does not prevent the person who enters into  an order  from acquiring  and  holding  private property which  will devolve, not of course upon his natural relations, but  according to  special rules  of inheritance. But it  would be otherwise if there is no civil death in the eye of  the law,  but only  the holding  by a man of certain religious  opinions   or  professions.   The  after-acquired property passes  on his  death not to his natural but to his spiritual heirs. [676 A-E, 683 A-B]      Dharmapuram v. Vivapandiyan, [1899] I.L.R. 22 Mad. 202, Harish Chandra  v. Alia  Mahamed, [1913] I.L.R. 40 Cal. 545, explained.      7.  The   ’Sant  Mat’   sampradaya   is   a   religious denomination i.e.  a sub  sect of  one of  the Dasnami sects founded by  the Great  Sankracharya. Sankara  was an ascetic and founded  schools of  ascetics. Sankara  established four Maths or  seats  of  religion  at  four  ends  of  India-the Sringeri Math on the Sringeri Hills in the South, the Sharda Math at  Dwarka in the West, the Jyotir Math at Badrikashram in the  North, and  the Govardhan  Math at Puri in the east.

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The monks  ordained by Sankara and his disciples were called Sanyasis. Each  Math has a sanyasi at its head who bears the title of  Sankaracharya in  general. Sankara is said to have four disciples who were all brahmans, from whom the 663 ten divisions  of the  order-hence named as the ten-named or ’dasnami Dandis’  originated.  They  are:  Thirtha,  shrine; Ashrama,  order;  Vana,  wood;  Aranya,  Forest  or  desert; Saraswati and Bharati, the goddesses of learning and speech; Puri, City; Giri and Parvata, a hill; and Sagara, the ocean. [683 C-G]      Dandis or staff bearers occupy a place of pre-eminence. They worship  Lord Siva in his form Bhairava; the ’Terrible’ and profess  to adhere  Nirguna  and  Niranjana,  the  deity devoid of  attribute or passion. A sub section of this order are the  Dandi, Dasnamis  or Dandi  of ten  names, so called from their  assuming one  of the  names  of  Sankara’s  four disciples and six of their pupils. [658 B-C]      The Dandis  keep themselves very distinct from the rest of the  community. They  are Brahmans, and receive disciples only from  the Brahmans. They lead a very austere life. They do not  touch fire  or metal  or vessels made of any sort of metal. It  is equally  impossible also  for them  to  handle money. They  shave their  hair and beard. They wear one long unsewn reddish cloth, thrown about the person. [686 A-B]      There are  but three  and part  of  a  further  ascetic class, or those called Tirtha, Asrama, Saraswati and Bharati who are  still really  regarded as  Sankara’s disciples. The rest i.e.  the remaining  six and a half of the Dasnamis who are considered  as having fallen from the purity of practice necessary to  the Dandis,  are still,  in general  religious characters usually  denominated and are Atits. These are the Atits or  A’Dandis viz.  the Vanas,  Aranytas, Puris, Giris, Parvata, Sagaras  and half  the Bharatia,  reputed  to  have fallen to  some extent  from orthodoxy, but are still looked upon as  religious avatars.  Unlike the Dandis, the Atits do not carry  the shaft  i.e. a  Trishul. They  differ from the former also  in their  use of  clothing money and ornaments, their methods  of preparing  food  and  their  admission  of members from  any order  of Hindus.  Some of  them  lead  an ascetic life, while others mix freely in the world, carry on trade and  acquire property.  Most of  them are celibate but some of  them marry  and  are  often  known  as  Samyogi  or Gharbari Atits.  They are collected in Maths and monastries. They wear  ochre coloured  garments, and  carry a  rosary of rudraksha  seeds   sacred  to  Lord  Siva.  Their  religious theories (when  they have  any) are  based  on  the  advaita Vedanta of their founder Sankaracharya. [686 H, 687 A-D]      There is  also a  sub division  of the Puri division of the Dasanami Sect. They have tenets much in common, based on the central  idea that the Supreme diety is incomprehensible or ’unseeable’.  They denounce  idolatory. This more or less conforms to the tenets of the ’Sant Mat’ Sect. [678 D-E]      The followers  of the  ’Sant Mat’ treat the Guru as the incarnation of  God. They  have no  faith in inanimate idols installed in temples nor do they worship them in their cult. There are  no caste restrictions and any one can be admitted into the  Sant Mat  fraternity. According  to the custom and usage of  the Sant Mat Sampradaya, the initiation of a chela by the  Guru results  in complete  renunciation of the world and he  ceases to  have all  connection  with  his  previous Ashramas before  becoming a  Sanyasi. For becoming a sanyasi it is  not necessary  that he  should  be  of  a  particular Varnashram previously,  i.e.  even  a  Sudra  can  become  a Sanyasi. [671 G-H, 672 E]

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    8. Though  according to  the orthodox  Smriti writers a Sudra cannot  legitimately enter  into a religious order and although the strict view does not 664 sanction  or  tolerate  ascetic  life  of  the  Sudras,  the existing practice  all over  India is quite contrary to such orthodox view.  In cases, therefore, where a Sudra can enter into a religious order in the same way as in the case of the twice-born classes,  such usage  should be  given effect to. [670E-F]      9. In order to prove that a person has adopted the life of a  Sanyasi,  it  must  be  shown  that  he  has  actually relinquished  and  abandoned  all  worldly  possessions  and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his  secular life.  It must  also be  proved in  case of orthodox  sanyasis,  that  necessary  ceremonies  have  been performed   such    as   Pindadana    or    Birajahoma    or Prajapathiyesthi without  which the renunciation will not be complete. [687 G-H]      Amongst Dasnamis, a ceremony called the Bijla Homa i.e. the  Biraja   Homa  has   been  considered   essential.  The recitation of  the  Pravesha  Mantram  or  the  renunciation formula is of course indispensable. [688 A]      In the instant case: (a) there is overwhelming evidence in proof  of the fact that the requisite ceremonies of Biraj homa or  Prajapathiyesthi were  performed in  case of  Swami Sarupanand   and    Swami   Atma    Vivekanand.    If    the Prajapathiyesthi or  Biraj Homa  ceremonies  were  performed then it  must necessarily  give  rise  to  the  irresistable inference that Swami Atma Vivekanand must have performed his Atma Sradh  before he  was initiated  as a  chela;  (b)  The appellant was  precluded from  contending  that  his  father Baikunth Singh  was not  a Hindu  Sanyasi  in  view  of  his express admission  in the  plaint filed  in an earlier suit. The burden  of proof  shifted upon  him to  disprove it; (c) Swami Harsewanand  (Mathura Ahir)  was the validly initiated chela of  Swami Atma Vivekanand and upon his demise was duly installed as the Mahant of ’Garwaghat Math’ according to the tenets of ’Sant Mat’ Sampradaya. [689 G, H, 693 C-D]      10. The  question whether a suit abates in its entirety or not  upon the  death of  the plaintiff  must  necessarily depend upon  the nature  of the suit. This is not a class of case to  which  the  maxim,  actio  personalis  moritur  cum persona applies. [694 C-D]      11.  According  to  Hindu  jurisprudence,  a  religious institution such  as a  math is created as a jurisdic entity with a  legal personality  capable of  holding and acquiring property. It  therefore follows  that the suit instituted by the mahant  for the  time being,  on its behalf, is properly constituted and  cannot abate  under the provisions of Order 22 of the Code of Civil Procedure on the death of the mahant pending the  decision of  the suit  or appeal,  as the  real party to  the institution  is the institution. The ownership is in  the institution  or the  idol. From its very nature a math or  an idol  can act and assert its rights only through human agency  known as a mahant or shebait or dharmakarta or sometimes known  as trustee.  It follows that merely because the mahant  for the  time being  dies and  is  succeeded  by another mahant, the suit does not abate. [695 B-C, E]      Ram Swarup  Das v.  Rameshwar Das  v. ILR  29 Pat. 989, over-ruled.      12. The  general rule  is that all rights of action and all demands  whatsoever existing  in favour  of or against a person at  the time  of his  death survive to or against his

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legal representative  within the  meaning  of  s.  2(11)  of C.P.C. [699 A,F]      Muhamed Hussain v. Khushalo, ILR 9 All. 131; approved. 665

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1802 of 1971.      Appeal by  Special Leave  from the  Judgment and  Order dated 2-11-1971  of the Allahabad High Court in S.A. No. 768 of 1964.      Y. S.  Chitale, Lalji Sahai Srivastava, B. P. Singh and Mukul Mudgal for the Appellant.      R. K.  Garg, S. P. Singh and Sudama Ojha for Respondent No. 1.      S. T. Desai and Uma Datta for Respondent No. 3.      S. C. Patil for Respondent No. 2      M. Veerappa for Respondent No. 4.      The Judgment of the Court was delivered by      SEN J.-This  is an  appeal  by  special  leave  from  a judgment and  decree  of  the  Allahabad  High  Court  dated November 2,  1971 in a suit for declaration of title to, and possession  of   house  No.   C-27/33  situate   in  Mohalla Jagatganj, Varanasi for arrears of rent and mesne profits in respect thereof.      The principal  point in controversy between the parties in this  appeal is,  whether the  plaintiff,  Mathura  Ahir, being a Sudra could not be ordained to a religious Order and become a  Sanyasi or  Yati and,  therefore, installed  as  a Mahant of  the Garwaghat Math according to the tenets of the ’Sant Mat’  Sampradaya. A  subsidiary question  arises as to whether in  the absence  of proof of the performance of Atma Sradh and  the recitation  of  Pravesh  Mantra  neither  the plaintiff nor  his two  predecessors  Swami  Sarupanand  and Swami Atmavivekanand could be regarded as Hindu sanyasis. It also raises  a further  question namely  whether  the  first respondent, Harsewanand,  the original plaintiff having died during the  pendency of the appeal, the appeal abates in its entirety.      The facts  of  the  case  are  set  forth  with  utmost particularity in  the judgment  of the  High Court. It will, therefore, not  be inconvenient to deal with them as briefly as possible.  The history  of  the  Garwhaghat  Math  is  as follows: In  1925, Swami  Sarupanand Paramhans,  disciple of Swami Advaitanand,  a Hindu  ascetic belonging  to the ’Sant Mat’ sect,  came from  the North-Western Provinces, and took his abode at Garwaghat, Mouza Ramna Malhija, in the vicinity of Varanasi  City. He  was a  religious preceptor  of  great learning and  from his  hermitage preached  the  tenets  and precepts of  the ’Sant  Mat’ and soon had a large following. He was  treated  with  great  veneration  and  some  of  his devotees by a registered gift deed dated March 666 18, 1935  endowed the  land and  building, which he named as ’Bangla Kuti’.  Subsequently the  said Bangla Kuti and other lands and buildings appurtenant and adjacent thereto came to be known as the Garwaghat Math of which Swami Sarupanand was initially the  mahant. He  paid a  visit to village Khuruhja for a couple of days and Baikunth Singh, father of defendant No.  5,  Sri  Krishna  Singh,  the  appellant,  was  greatly influenced by his preachings and left for Varanasi for good. In due  course, Baikunth  Singh was  initiated as  chela  by Swami Sarupanand  who named  him  as  Atmavivekanand.  Swami

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Atmavivekanand Paramhans  was the  chief disciple  of  Swami Sarupanand and was given full rights of initiation and Bhesh by his  Guru. Swami Sarupanand took his samadhi at Meerut in 1936 and after his death, according to his wishes, his Bhesh and Sampradya  gave Swami  Atmavivekanand Chadar  Mahanti of Garwaghat Math and made him the mahant. Swami Atmavivekanand also had  a large  following and  his ’Sant  Mat’ fraternity which  comprised  of  thousands  of  Grihastha  and  Virakta disciples  made   large  offerings   and  gifted   extensive properties to him as their religious or spiritual leader.      In 1937,  Swami Atmavivekanand  initiated the plaintiff Mathura Ahir  as his  chela and  named  him  as  Harsewanand according to  the custom  and usage  of the ’Sant Mat’ sect. During his  lifetime, he  purchased the two properties viz., house No.  C-27/33, situate  in Mohalla  Jagatganj and house No. C-4/83,  situate in  Mohalla Sarai Gobardhan in the city of Varanasi  by registered  sale deeds dated December 3, and December 22,  1942 from  out of the income of the math i.e., the offerings  (Bhent) made  by the  devotees and formed the properties  of   the  math.  Swami  Atmavivekanand  died  at Varanasi on August, 23, 1949. A Bhandara was held on October 3, 1949 and according to the wishes of Swami Atmavivekanand, the mahantas  and sanyasis  of the Bhesh and Sampardaya gave the Chadar Mahanti to the plaintiff and installed him as the mahant of  the math  in place  of  Swami  Atmavivekanand  on October 4,  1949 in  accordance with the custom and usage of the Sampradaya.  The mahants  and sanyasis of the ’Sant Mat’ Bhesh who  had assembled  for the  Bhandara also  executed a document to  that effect acknowledging him to be the mahant. The plaintiff  having been  installed  as  the  mahant,  the entire property  of the  Garwaghat Math  along with  the two houses in  the  city  of  Varanasi,  devolved  upon  him  as successor to Swami Atmavivekanand.      On August  21, 1951  the  plaintiff-respondent  No.  1, Harsewanand, brought  the suit,  out of  which  this  appeal arises, in  the court  of  the  City  Munsif,  Varanasi  for ejectment of respondents Nos. 2 to 5 from 667 house No.  C-27/33, situate  in Mohalla Jagatganj, Varanasi. It was  pleaded  that  respondent  No.  2,  Avadesh  Narain, defendant No.  1, had  taken the  house on  rent from  Swami Atmavivekanand, the  late mahant. It was alleged that he had unlawfully sub-let the premises to the respondents Nos. 3 to 5, who  were defendants  Nos. 2 to 4. The suit was contested by these  respondents who  denied the tenancy and inter alia pleaded that  they were in occupation of the house as chelas of Swami  Atmavivekanand in their own right by virtue of the licence granted  to them by him. They denied the plaintiff’s title as well as right to sue alleging that he was neither a chela of Swami Atmavivekanand nor his successor. It was also alleged that  the house in suit was the personal property of Swami  Atmavivekanand  and,  therefore,  on  his  death  his natural son  and disciple,  Sri Krishna Singh, the appellant became the  owner thereof.  The suit  which  was  originally framed by  the plaintiff-respondent No. 1, Harsewanand, as a suit between  a landlord  and tenant  had, therefore,  to be converted into  a suit  for possession  based  on  title  by impleading the appellant, Sri Krishna Singh as defendant No. 5.      It is  not necessary  to mention  in detail  the  other averments in  the plaint, nor is it necessary to mention the various pleas  raised in  the written statement filed by the defendants. It  will be sufficient, however, to mention that the appellant  Sri Krishna  Singh in  his written  statement denied the existence of the math as pleaded by the plaintiff

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and asserted that the house in it, in any case, was not math property. He further pleaded that the plaintiff Mathura Ahir being a  Sudra, was legally incompetent to become a sanyasi, and that  the plaintiff  was not the mahant of the Garwaghat Math. He  further claimed  that after  the  death  of  Swami Atmavivekanand, he  became the owner of the house in suit by inheritance, as  also  of  the  properties  alleged  by  the plaintiff to belong to Garwaghat Math. All these properties, according  to  the  appellant,  were  secular  and  personal properties of  his father Baikunth Singh, who was also known as Swami Atmavivekanand.      In the  trial, the  issues, as  finally framed  by  the learned Munsif  were seventeen  in  number.  Of  these,  the following are  relevant: (1)  Whether the  plaintiff is  the owner of the premises in suit? (8) Whether the plaintiff was nominated as  a mahant  and given  Chadar in accordance with the custom? Is there any custom as alleged by the plaintiff? (12) Was Swami Atmavivekanand a sanyasi and had he ceased to be a  Grihasti? (13)  Is  the  plaintiff  a  Sudra  and  not entitled to  become sanyasi  according to Hindu law? (14) Is the 668 plaintiff chela  of Swami  Atmavivekanand  and  entitled  to succeed to  properties left  by him in preference to his son Sri Krishna? (15) Is the house in suit a Math property?      It appears that the case came up for hearing before the learned Munsif  on October  5,  1953  when  the  plaintiff’s counsel accompanied by his parocar made oral pleadings under O. 10, r. 1 of the Code of Civil Procedure to the effect:           "The ’Sant  Mat’ Sampradaya  is one of the Dasnami      sanyasis founded  by the  great Sankaracharya,  and  is      governed by Naranjini Math Akhara."      The learned Munsif found each and every of these issues in favour of the plaintiff and accordingly decreed the suit.           x     x     x      x       x     x    x    x     x      On appeal  the III  Addl. Civil  Judge, Varanasi by his judgment  dated  January  14,  1964  reversed  some  of  the aforesaid findings while maintaining the rest.      From  the  judgment  of  the  Addl.  Civil  Judge,  the appellant alone  preferred an appeal to the High Court which by  its  judgment  dated  November  2,  1971  on  a  careful marshalling of  the entire  evidence, in  the light of well- settled principles,  agreeing with  the learned  Munsif, set aside the  findings of  the learned  Civil Judge and decreed the plaintiff’s suit in its entirety.      A learned  Single Judge, Kirty J., in the course of his judgment observed  that the  evidence on record sufficiently established that  there had  come into  existence a  math at Garwaghat, of  which Swami Atmavivekanand was the mahant. He referred to  the overwhelming  evidence led by the plaintiff showing that the building known as ’Shanti Kuti’ and certain other buildings constituted an endowment to the math itself, which was  a  monastic  institution  presided  over  by  the mahant. He  further held  that the  house in dispute was not the personal  property of Swami Atmavivekanand but formed an accretion to  the math  as it  had been acquired by him from out of the offerings (Bhent) made by the disciples to him as their religious  or spiritual leader for the purposes of the spiritual  order  of  the  fraternity  and,  therefore,  the natural heirs of Swami Atmavivekanand could have no claim to the property,  which must  descend to  the  plaintiff  as  a successor to him.           x    x    x    x    x     x     x      x      On the  question whether  the  plaintiff  and  his  two predecessors, Swami Atmavivekanand and Swami Sarupanand were

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not legally com- 669 petent to hold office of the mahant of the math in question, the learned Single Judge observed:           "The finding  of the  court below on this point is      in appellant’s  favour, the reason given therefor being      that the  plaintiff failed  to prove  that  he  or  his      predecessors  had  performed  Atma  Sradh  and  uttered      Pravesh Mantra  as mandatorily prescribed by Hindu law.      The factual  part of the finding, viz., the performance      of the  Sradh and  the  utterance  of  the  Mantra,  is      binding in  second appeal,  but  the  conclusion  drawn      therefrom is one of law." After referring  to  the  authorities  on  the  subject,  he observes:           "A reading  of the  judgments in  the  above-noted      cases will  show that  the various observations therein      in regard  to performance of Atma Sradh and other rites      (Prajapathiyesthi Viraja  Homam etc.) and the utterance      of Pravesh  Mantra etc.  were made  with  reference  to      particular sects  or categories of sanyasis claiming to      belong to a particular religious order or class of such      order, or  with reference to "Sanatan", i.e., orthodox,      Hindu Dharma.  It is  true that  on cursory  reading it      would  appear   as  if   the   observations   formulate      indispensable  legal  requirements  of  the  Hindu  law      universally  applicable   to  every   (Hindu)  ordained      sanyasi, but, upon a careful analysis I have found that      that is  not so. The law as stated therein is generally      or usually, but not invariably, applicable." In conclusion, he observes:           "In the absence of any proof that the followers of      Sant Math  or the  tenets of  that Math required of its      Mahant that  he must  necessarily belong  to the twice-      born class  of Hindus  and be  a Sanyasi  in accordance      with all  the rites  and ceremonies  mentioned  in  the      aforesaid cases,  I am  not prepared to hold that Swami      Sarupanand  and   Swami  Atmavivekanand   were  legally      incompetent to  be Mahants  of the  Math  or  that  the      plaintiff is  a person  disqualified from  assuming and      holding that office." He accordingly held that the plaintiff and his predecessors, Swami Sarupanand  and Swami  Atmavivekanand were not legally incompetent to  be the  mahants of  the math.  They did  not inflict themselves  on the  religious fraternity of Sant Mat Sampradaya nor  had they  been foisted  into the  office  of mahant against  the will  or in  spite of the disapproval of the religious fraternity. In any event, even if the 670 plaintiff was disqualified being a Sudra, he was entitled to sue as the de facto mahant.      During the  pendency of  the  appeal,  the  respondent- plaintiff Mahant  Harsewanand having died, respondent No. 1, Mahant Harshankranand  was brought  on record as an heir and legal representative.      It would be convenient, at the outset, to deal with the view expressed  by the  High  Court  that  the  strict  rule enjoined by  the Smriti  writers as a result of which Sudras were considered  to be  incapable of  entering the  order of yati or  sanyasi, has  ceased to  be valid  because  of  the fundamental  rights   guaranteed  under   Part  III  of  the Constitution. In  our opinion,  the learned  Judge failed to appreciate that  Part III of the Constitution does not touch upon the  personal laws  of the  parties.  In  applying  the personal laws of the parties, he could not introduce his own

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concepts of modern times but should have enforced the law as derived from  recognised and  authoritative sources of Hindu law,  i.e.,   Smritis  and   commentaries  referred  to,  as interpreted in  the judgments of various High Courts, except where such  law is  altered by  any usage  or custom  or  is modified or abrogated by statute.      On the  main, in  agreement with the High Court, we are inclined to  take the  view that  though  according  to  the orthodox Smriti  writers a  Sudra cannot  legitimately enter into a religious Order and although the strict view does not sanction or  tolerate ascetic  life of the Sudras, it cannot be denied that the existing practice all over India is quite contrary to  such orthodox  view. In cases, therefore, where the usage  is established,  according to  which a  Sudra can enter into  a religious order in the same way as in the case of the twice born classes, such usage should be given effect to.      The first  question, therefore,  to consider  here  is: Whether there  was a  math in existence at Garwaghat, and if so, whether  the house in suit was an accretion to the math? Math means  a place  for the residence of ascetics and their pupils, and  the like.  Since the time of Sankaracharya, who established  Hindu   maths,  these   maths  developed   into institutions devoted to the teaching of different systems of Hindu religious  philosophy, presided  over by ascetics, who were held  in great  reverence as  religious preceptors, and princes and  noblemen endowed  these institutions with large grants of  property. Dr. Bijan Kumar Mukherjea in his Tagore Law Lectures  on the  Hindu Law  of Religious and Charitable Trusts, 4th ed., p. 321, succinctly states:      "’Math’ in  ordinary language  signifies  an  abode  or residence of  ascetics. In  legal  parlance  it  connotes  a monastic  institution   presided  over  by  a  superior  and established for the use and benefit of ascetics 671 belonging to  a particular order who generally are disciples or co-disciples of the superior."           x        x       x       x        x      The property belonging to a math is in fact attached to the office  of the  mahant, and  passed by inheritance to no one who  does not  fill the  office. The  head of a math, as such, is  not a  trustee in  the sense in which that term is generally understood,  but in  legal contemplation he has an estate for  life in its permanent endowments and an absolute property in  the income  derived from  the offerings  of his followers, subject  only to  the burden  of maintaining  the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects.  The words ’the burden of maintaining the institution’ must  be understood  to include the maintenance of the  math, the  support of its head and his disciples and the  performance   of  religious   and  other  charities  in connection with it, in accordance with usage. See: Semmantha Pandara v.  Sellappa Chetty  [1879] ILR  2 Mad.  175  Giyana Sambandha Pandara  Sannadhi v. Kandasami Tambiran (1887) ILR 10 Mad  375; Vidya  Purna Tirtha  Swami v. Vidyanidhi Tirtha Swamy (1904)  ILR 27  Mad 435;  Ram Prakash Das v. Anand Das (1916) 43  I.A. 73  (PC), Vidya Varuthi Thirtha v. Babuswamy Iyer (1920-21)  48  I.A.  302;  Kailasam  Pillai  v.  Nataji Thambiran (1910) ILR 33 Mad, 265.      From the principles, it will be sufficiently clear that a math  is an  institutional  sanctum  presided  over  by  a superior who  combines in  himself the  dual office of being the religious  or spiritual  head of  the particular cult or religious fraternity,  and of  the manager  of  the  secular

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properties of  the institution  of the  math. In the instant case, the evidence on record sufficiently establishes that a math came  to be  established at  Garwaghat and the building known  as   ’Bangla  Kuti’   and  certain  other  buildings, including the house in suit constituted the endowment of the math itself.      From a  review of the general mass of evidence the High Court, agreeing  with the  learned  Munsif,  held  that  the followers of  the ’Sant  Mat’ fraternity  are members  of  a religious order.  The long  line of  witnesses who  were all disciples of  Swami Sarupanand  and/or Swami  Atmavivekanand have clearly  established that it is a religious institution of monastic nature. It is established for the service of the ’Sant  Mat’   cult,  the   instruction  in  its  tenets  and observance of  its rites. The Swamiji who is the Guru is the Mahant,  the   spiritual  and   religious  leader   of   the fraternity.      According to  the custom  and usage  of the  ’Sant Mat’ Sampradaya, as pleaded by the plaintiff, the initiation of a chela by  the Guru  results in  complete renunciation of the world, and he ceases to have all con- 672 nection  with   his  previous  Ashramas  before  becoming  a sanyasi. For  becoming a sanyasi it is not necessary that he should be  of a particular Varnashram previously, i.e., even a Sudra  can become  a sanyasi. The succession to the office of the  Mahant is  by nomination,  i.e., from Guru to chela, the Guru  initiates the chela after performing the necessary ceremonies. The  person initiated as a chela adopts the life of a  sanyasi and  is pledged to lead a life of celibacy and religious mendicancy.  The sitting  mahant  hands  over  the management of the math to one of his virtuous chelas fittest to succeed  whom he  nominates and whom he wishes to install as mahant after him in his place. He makes clear this desire to the  members of  his Sampradaya,  and also authorises the nominated chela  to give  Bhesh Dikshawa. After the death of the mahant,  the Bhesh and Sampradaya give Chadar Mahanti of the math to the said disciple at the time of the Bhandara.      The Courts  below  have  concurrently  found  that  the custom or  usage, so  pleaded  has  been  established.  They further found  that the plaintiff Mathura Ahir was initiated as a  chela by  Swami Atmavivekanand and nominated to be his successor. They  have also  found that  at the Bhandara held after  Swami   Atmavivekanand’s  death,  the  plaintiff  was installed as the Mahant of Garwaghat Math by the Mahants and Sanyasis belonging  to the  ’Sant Mat’ Sampradaya, according to the wishes of Swami Atmavivekanand Paramhans.      From the evidence on record, there can be no doubt that the math  at Garwaghat belongs to the ’Sant Mat’ Sampradaya, which  is   a  religious  Order.  No  doubt,  the  plaintiff Harsewanand, P.W. 15, asserts:           "Followers of any religion can become a sanyasi in      our cult.  The practice  of becoming  sanyasi has  been      prevalent since  Satyuga. Man’s  life is  divided  into      three Ashramas.  (Again said):  there are four Ashramas      viz., Brahmacharya,  Grihastha, Vanaprastha and Sanyas.      Varnas are three, Dashnami Sanyasis came into existence      after Shankaracharya.  They  are  Puri,  Giri,  Bharti,      Vana, Tirtha, Aranya, Parvat, Sagar and Saraswati. I am      failing to  recollect the  name of  one  of  them.  The      Sanyasis  of   Sant  Mat  are  not  Dashnami  Sanyasis.      Swarupanandji my  Guru or  I are not Dashnamis, but all      these  cults   are  related  with  Sant  Math.  I  know      Niranjani and  Nirvani Akharas. They belong to Dashnami      Sanyasis and  Sant Mat  Sanyasis. We  have  connections

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    with Nirvani  and Niranjani  Maths. Some customs of the      Maths of those Akharas are observed by us also."                                          (Emphasis supplied) 673 This is, however, contrary to what he had stated in his oral pleadings under  O.10, r.  1 of the Code of Civil Procedure. The fact  that the  ’Sant Mat’  Sampradaya  is  one  of  the Dashnami sects cannot be doubted.      There   is    unimpeachable    testimony    of    Swami Viveksukhanand, who  along  with  Swami  Atmavivekanand  and others was  initiated as  a chela by Swami Sarupanand on the same day,  at the  same time.  During his cross-examination, this witness states:           "Sri  Swarupanandji   was  Sadhu  of  Sant  Sanyas      Sampradai. Sant  Sanyas Sampradai  has  been  obtaining      from ancient  time. This  Sampradai  is  of  those  ten      Sampradai which  were founded  by Swami  Shankracharji.      This (Sampradai)  out of the Das-nam is Purinama. There      is no  branch in Purinama (Sampradai).....Niranjani and      Nirvani Akharas are the Akharas of Giri Sampradai. If a      Sanyasi of  Giri, Puri,  Bharti,  or  of  any  Das  Nam      Sampradai  abandons   sanyas  and  re-enters  into  the      Grahast Ashram  he is  called a  Gosain. The  rules for      making disciples  in Giri and Puri Sampradai for making      chief disciples,  and appointing successor are also one      and the  same. The  rules, rituals  and the  ceremonies      which are  performed at  the time  of  installation  to      gaddi in  both these  Sampradai are  also one  and  the      same.  There   is  no   difference  in  Giri  and  Puri      Sampradai. The  rules, practices,  rituals and  customs      followed at  the time  of installation  to gaddi in all      the ten  sampradaiyas founded  by Swami Shankracharyaji      are one and the same.’                                          (Emphasis supplied) Though the math at Garwaghat established by Swami Sarupanand was of  recent origin,  the High  Court  observes  that  the religious order  denominated as  ’Sant Mat’  has  had  large following in Punjab and some other parts of India since more than a  century. In  a sense,  therefore,  Swami  Sarupanand himself did  not for the first time evolve any new religious order.      As regards the origin of the Math, it observed:           "I have,  therefore, no  hesitation in holding, in      agreement with  the finding  of the  trial court,  that      there had  come into  existence a  Math  at  Garwaghat,      Varanasi of which Swami Sarupanand was the Mahant. Here      I may  also mention that from the evidence on record it      appears that  ’Sant Mat’  is not of very recent origin.      Although the  evidence is somewhat scanty on the point,      yet it sufficiently indicates that this Math 674      has had  numerous followers  in Punjab  and some  other      parts of  India since  more than a century. In a sense,      therefore, Swami  Sarupanand himself  did not  for  the      first time  evolve any new religious order. Here it may      also  be  mentioned  that  defendants  other  than  the      appellant did  not seriously  dispute  the  plaintiff’s      allegation in  regard to  the Math  in question and the      allegation that  Swami Sarupanand  and thereafter Swami      Atmavivekanand were its Mahants." Referring to the nature of the property, it said:           "Swami Atmavivekanand  before becoming  a follower      of the  Sant Mat was a Grihasth with a family. From the      evidence on  the record  it transpires that he became a      devotee and  a disciple of Swami Sarupanand and severed

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    all connections  with his  family. In course of time he      was held  in high  esteem by  the followers of the Sant      Mat at  Varanasi and  other places  and large offerings      were made  to him by the devotees. Swami Sarupanand had      nominated him  to be  his successor and after his death      Swami Atmavivekanand did assume the office of Mahant of      the math.  There is  no evidence  from which  it can be      reasonably inferred  that he  treated or  set apart the      offerings either  in their  entirety  or  some  portion      thereof as belonging to him personally. On the contrary      the evidence  on record and the circumstances show that      there was  a complete  blending of  such offerings with      the funds  of the math and used for its purposes. There      is also  no reliable  evidence to  establish  that  the      offerings which  were made to him were made not for the      purposes of  the spiritual  order or the fraternity but      for his  personal aggrandizement. Indeed, when a person      renounces his  family connections and takes to ascetism      it would  be difficult to hold that he would thereafter      start amassing  wealth and  property for  his  personal      benefit or  for the benefit of his family with which he      had severed  his connection. Unless specifically proved      to the  contrary, under  such circumstances  it must be      held that  the offerings made to such a person were not      offerings made  to  him  personally  for  his  personal      benefit but  had been  made for the benefit of the math      or the religious institution itself. In such a case, to      my mind,  the natural  heirs of  the  person  concerned      could have  no claim  to the  property which the person      came by  in his  capacity as the religious or spiritual      leader. The  house in  suit  must  be  held  to  be  an      accretion to the Math." 675      All this  is borne  out by the testimony of plaintiff’s witnesses. The  institution was  really built  up  by  Swami Atmavivekanand, who  was held  in great  veneration  by  the followers of  the sect. He preached the tenets of ’Sant Mat’ and  had  a  large  following.  His  ’Sant  Mat’  fraternity comprised of  thousands of  Grihastha and  Virakta disciples who made  large offerings.  All the  witnesses speak of such offerings in  cash or  kind or  in the  shape  of  immovable property which  were endowed to the math. There are a number of documents showing the endowment by the disciples of their properties  to   the  math,   wherein  they  have  described themselves as  ’disciples of Swami Atmavivekanand’ and he is described therein  as ’Mahant  of the  Garwaghat Math’. Even Avadesh Narain, a Judicial Magistrate, D.W. 1, who practised as a  lawyer at  Varanasi  before  he  was  appointed  as  a Judicial Officer,  admits that  Swami Atmavivekanand  had  a large number  of disciples  in Uttar  Pradesh and Bihar, and that the  property of  ’Bangla Kuti’ might be worth lakhs of rupees. The  two houses  at  Varanasi,  including  the  suit house, were  purchased by  Swami Atmavivekanand  from out of the offerings  (Bhent)  made  by  his  disciples.  We  have, therefore, no  hesitation in  upholding the  finding of  the High Court  as regards  the existence of a math at Garwaghat and the suit property being the math property.      We may  now deal  with the  main questions on which the decision of  the appeal  must turn.  It has been argued that according to  the Smritis  a Sudra  cannot be a sanyasi and, therefore, the plaintiff could not enter the Order of a yati or sanyasi.  It has  further been  argued that  there is  no evidence on  record in  proof of the fact that the plaintiff and  his   two  predecessors   Swami  Sarupanand  and  Swami Atmavivekanand had  performed Atma  Sradh or recited Pravesh

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Mantra and,  therefore, they  cannot be  regarded  as  Hindu sanyasis. It,  therefore, becomes  necessary  to  trace  the origin of  Hindu sanyasis  belonging to  the  Dasnami  sects founded by  the great Sankaracharya, of which the ’Sant Mat’ Sampradaya appears  to be  a religious  denomination i.e., a sub-sect. The first question is, whether a Brahman alone can become a  sanyasi among  Dasnamis? The  second question  is, what are  the  essential  ceremonies  prerequisite  for  the initiation of a Dasnami sanyasi? The third question is, what is the  mode of  succession to the office a mahant of a math or Asthal  belonging to any of the Dasnami sects? It will be convenient to take up the last point first.      The law  is well  settled that succession to mahantship of a math or religious institution is regulated by custom or usage of  the particular institution, except where a rule of succession is  laid down  by the founder himself who created the endowment:  vide Genda  Puri v.  Chatar Puri [1886] I.A. 100 @ 105, Sital Das v. Sant Ram A.I.R. 676 1954 SC  606; Mahalingam Thambiren v. La Sri Kasivasi [1974] 2 S.C.R. 74.           x         x        x       x        x           x         x        x       x        x      One who  enters  into  a  religious  order  severs  his connection with  the members  of his  natural family.  He is accordingly  excluded   from  inheritance.   Entrance  to  a religious order, is tantamount to civil death so as to cause a complete  severance of  his connection with his relations, as well  as with  his property.  Neither he  nor his natural relatives  can  succeed  to  each  other’s  properties.  Any property which  may  be  subsequently  acquired  by  persons adopting  religious   orders  passes   to  their   religious relations. The  persons who are excluded on this ground come under three heads, the Vanaprastha or hermit; the Sanyasi or Yati,  or   ascetic,  and   the  Brahmachari,  or  perpetual religious student.  In order  to bring  a person under these heads it is necessary to show an absolute abandonment by him of all secular property, and a complete and final withdrawal from earthly  affairs. The  mere fact  that a  persons calls himself a  Byragi, or religious mendicant, or indeed that he is such,  does not  of itself  disentitle him  to succeed to property.   Nor    does   any    Sudra   come   under   this disqualification, unless by usage. This civil death does not prevent the  person who  enters into an order from acquiring and holding  private property  which will  devolve,  not  of course upon  his natural relations, but according to special rules of  inheritance. But it would be otherwise if there is no civil  death in  the eye of the law, but only the holding by a man of certain religious opinions or professions(1).      Special rules  are propounded  for  succession  to  the property of  a hermit,  of an  ascetic, and  of a  processed student. Yajnavalkya  states a special rule of succession in regard to  the wealth  of ascetics  and the like: "The heirs who take  the wealth  of a Vanaprastha (a hermit), of a Yati (an ascetic)  and a  Brahmacharin (a  student) are  in their order, the  preceptor, the  virtuous pupil,  and one  who is supposed brother  and belonging  to  the  same  order".  The Mitakshara explains  thus(2): "A spiritual brother belonging to the  same  hermitage  (dharmabhratrekatirthi)  takes  the goods  of   the  hermit   (vanaprastha).  A  virtuous  pupil (sacchishya) takes  the property of a yati (as ascetic). The preceptor (acharya)  is heir  to the  Brahmachari (professed student). But  on failure of these, any one belonging to the same order or hermitage takes the property; even though sons and other natural heirs exist."

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    The property  that  is  referred  to  is  explained  in Mitakshara  and   in  the  Viramitrodaya  as  consisting  of clothes, books and other requisite 677 articles. Practically,  however, such  cases  seldom  arise. When a  hermit or  ascetic holds  any appreciable  extent of property, he  generally holds it as the head of some math or as the  manager of  some religious  or charitable endowment, and succession  to such property is regulated by the special custom of the foundation.      Succession to the office of the Mahant or Mathadhipathi or Pandara  Sannadhi is to be regulated by the custom of the particular institution.  Even where the Mahant has the power to appoint  his successor,  it is  the custom in the various Maths  that   such  appointments   should  be  confirmed  or recognised by  the members  of the  religious fraternity  to which the deceased belonged.      According to the text of Yajnavalkya referred to above, the property  of a  life-long student goes to his preceptor, that of  a hermit  or  Vanaprastha  goes  to  his  religious brother and  that of  a sanyasi or Yati goes to his virtuous disciple. The  principle, so  far as  it affects  maths,  is shortly this,  viz., ’a  virtuous pupil takes the property’. The particular  mode in  which the  virtuous pupil, that is, not merely  a chela,  or a  shishya, fittest  to succeed, is ascertained or  selected  is  a  matter  either  of  express direction on  the part  of the  founder or  of custom in the case of  each foundation.  There are  instances of  maths in which the  mahantship descends  from Guru to chela i.e., the existing  mahant  alone  appoints  his  successor,  but  the general rule  is that  the maths  of  the  same  sect  in  a district, or  maths having  a common  origin, are associated together-the mahants  of these  acknowledging one  of  their member as  a head who is for some reason pre-eminent; and on the occasion  of the  death of  one, the  others assemble to elect a  successor out  of the  chelas or  disciples of  the deceased, if  possible-or if there be none of them qualified then from the chelas of another mahant.(1)      According to  the Dharmasastras,  in the  strict  legal sense,  a   Sudra  cannot   become  a  sanyasi  or  ascetic. Mahamopadhya Dr.  P. V.  Kane in  ’History of Dharmasastra’, Vol. 2, Pt. 1, p. 163, observes:           "As the  sudra could  not be  initiated into Vedic      study, the  only asrama  out of  the four  that he  was      entitled  to  was  that  of  the  householder.  In  the      Anusasanaparva (165. 10) we read ’I am a sudra and so I      have no  right to  resort to  the four asramas’. In the      Santiparva (63.  12-14) it  is said,  ’in the case of a      sudra who performs service (of the higher classes), who      has done  his duty,  who has  raised offspring, who has      only a  short span  of life  left or  is reduced to the      10th stage  (i.e. is above 90 years of age), the fruits      of all 678      asramas are  laid down  (as obtained  by him) except of      the fourth’.  Medhatithi on Manu, VI. 97 explains these      words as  meaning that  the sudra  by serving brahmanas      and procreating offspring as a householder acquires the      merit of  all asramas  except moksa which is the reward      of the  proper observance  of the  duties of the fourth      asrama."      Although  the   orthodox  view  does  not  sanction  or tolerate ascetic  life of  the Sudras, the existing practice all over  India is quite contrary to such orthodox views. In Mukherjea’s Hindu  Law of  Religious and  Charitable Trusts,

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4th ed., p. 328, it is said:           ".... the  practice of  establishing  Maths  which      began with  Brahmin ascetics  gradually spread  to  the      Sudras  and  in  course  of  time  it  was  adopted  by      dissenting  religious   sects  like  the  Jains,  Kabir      Panthis, Nanak Panthis, Jangamus and others though they      do not  believe in the authority of the Vedas or in the      tenets of orthodox Hindu religion." At page 338, it is observed:           "..... according  to orthodox  Smriti  writers,  a      Sudra cannot legitimately enter into a religious order.      Consequently,  the  texts  of  Hindu  Law  relating  to      exclusion from  inheritance applicable  to a  yati or a      sannyasi do  not, in terms, apply to Sudra ascetics. On      this view, it has been held in a series of cases that a      Sudra  ascetic  is  not  incapable  of  inheriting  the      property of  his natural  relations under  the ordinary      law of  inheritance. Although  orthodox view  does  not      sanction or  tolerate ascetic  life of  the Sudras,  it      cannot be  denied that  the existing  practice all over      India is  quite contrary  to such  orthodox  views.  In      cases,  therefore,  where  the  usage  is  established,      according to  which the  property of  a  Sudra  ascetic      devolves in  the  same  way  as  the  property  of  the      ascetics of  the twice born classes, such usages should      be given effect to."                                          (Emphasis supplied)      In the  words of  the Privy  Council  in  Collector  of Madura v.  Moottoo Ramalinga(1),  ’under the Hindu system of law, clear  proof of usage will outweigh the written text of the law’.      Golapchandra Sarkar  Sastri in  his Hindu Law, 8th ed., at pp.  65356, in  a passage  based on translation of slokas from Maha-Nirvana  Tantra, observes  that in  Kali Yug, with numerous sects having their 679 peculiar rites  for being  ordained to  a  religious  order, there  are   five  castes  (varnas),  i.e.,  a  fifth  caste comprising of  all other  beings. He  further observes  that sanyasam according to Vedic rites does not exit and that all the five castes can become Avadhutha Sanyasis:           "... in  the advanced  state of  the Kali age, the      Brahmanas and  the other (four) castes are all entitled      to  these   two  orders   of  life.  The  Brahman,  the      Kshatriya, the  Vaisya, the Sudra, and the general body      of  human   beings,  these  five  are  entitled  to  be      initiated as Sannyasis or ascetics according to Tantric      system."      The orthodox rule laid down in the Mitakshara that only the Brahman  can enter  the fourth  Asram of  life  and  are eligible to  become sanyasis,  has therefore, been commented upon by Golapchandra Sarkar Sastri at p. 662:           "It has  been held  that a  Sudra cannot  become a      sannyasi or  ascetic. This  is undoubtedly the doctrine      propounded in  the Smritis. But the learned Judges have      not  taken   into  consideration   the  modern   usages      introduced by  the Vaishnava  and  Tantrika  and  other      systems according to which a Sudra and even a non-Hindu      such as  Mohamedan may  become a  Hindu sannyasi. There      are many  religious sects  of ascetics among whom caste      distinction is  unknown, who  accordingly initiate  and      admit  Sudras   into  their  brotherhood  if  otherwise      qualified.  In   esoteric  Hinduism   also,  caste   is      individualistic not  hereditary, it being determined by      qualification and  not by  birth.  The  highest  virtue

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    taught by  the Hindu  religion is  that  a  man  should      regard  other  persons  and  beings  as  his  own  self      reproduced in  them, as  the same Supreme Soul pervades      them all." (Emphasis supplied)      Here the  question arises  as to what classes of Hindus should be  denominated as Sudras. It is undoubted that there were originally  four classes:  (1) the  Brahmanas, (2)  the Kshatriyas, (3)  the Vaishyas, and (4) the Sudras. The first three were  the  regenerate,  or  twice-born,  classes;  the latter, the  servile class.  The  three  regenerate  classes exist, it  is  true;  but  it  often  becomes  difficult  to distinguish a  Sudra from  one of the regenerate classes. It is pointed out by Golapchandra Sarkar Sastri at p. 113:           "The Smritis,  which have  thrust into  prominence      this system,  divide men into two large classes namely,      the Sudras 680      and the  Twice-born. The study of the sacred literature      forms the  principle of  this distinction.  They ordain      that by  birth all  men are  alike to  Sudras, and  the      second  birth  depends  on  the  study  of  the  sacred      literature. Thus  Sankha, one  of the  compilers of the      Dharma-Shastras, declares  "Brahmanas (by  birth)  are,      however, regarded  by the  wise to  be equal  to Sudras      until they are born in the Veda (i.e., learn the sacred      literature), but  after that  (i.e., this second birth)      they are deemed twice-born".           Passages to  the same  effect are found in most of      the codes,  according to  which the  recognition of the      title of the Twice-born to superiority over the Sudras,      depends  upon  acquisition  of  the  knowledge  of  the      Vedas."      The learned author then goes on to say at p. 184:           "According to the Smritis, every man is by birth a      sudra; it  is by learning the sacred literature, that a      man becomes  twice-born. The  privilege of studying the      sacred literature is, no doubt, denied to the sudras as      well as  to the  females of  the  so-called  twice-born      classes. But  the status of being twice-born depends on      the acquisition  of knowledge of the sacred literature.      Manu ordains that a twice-born man shall abide with the      preceptor, and  study the Vedas for thirty-six years or      half or a quarter of that period, or until knowledge of      the same is acquired." The consequence  of omitting  to do  the same,  according to Manu, is  that a  twice-born man,  who without  studying the Vedas, applies  diligent attention  to anything  else,  soon falls even when living together with his descendants, to the condition of  a Sudra.  The learned author has observed that the  majority  of  the  so-called  twice-born  classes  have accordingly become  long since  reduced to  the position  of Sudras by  reason of  neglecting the study of the Vedas from generation to generation.      The learned Single Judge accordingly observes:           "It will thus be seen that originally every person      was deemed to be born a Sudra and that it was by virtue      of intensive  study of Vedas that a person attained the      status of a twice-born person. With the passage of time      running into thousands of years, it is evident that the      original hall-marks  for classification  of Sudras  and      twice-born people gradually disappeared and degenerated      into the rigid caste system based on birth." 681      As Dr.  Mukherjea observes,  the disciples  of  Sankara were all Brahmans and originally, according to the rule laid

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down in  Sanyas Grahan  Paddhati, the authorship of which is imputed to  Sankara himself,  only the twice-born people can become sanyasis of the Dasnami orders. As the four stages of life have, in the Vedas, been prescribed only for the twice- born, no  Sudra can,  strictly speaking,  become an ascetic, and that is the view entertained by the Smriti writers.(1).      According to  the Mitakshara,  only  the  Brahmans  can enter the  fourth Asram  of life  and are eligible to become sanyasis; and  this view  is supported  by certain  passages from Manu  where ’Pravrajya’,  i.e. exit from the house, has been spoken  of or  prescribed for the Brahmans alone, and a text of  the Sruiti  which says  "the Brahmans should become ascetics". According  to  Nirnaya  Sindhu,  which  has  been quoted in  West and  Buhler’s  Digest  of  Hindu  Law(2),  a Kshatriya and  a Vaishya  can also  enter into  an order  of sanyasis.      Upon a  view of  all these  authorities, it was held by the Madras  High Court in Dharampuram v. Virapandiyan(3) and the  Calcutta   High  Court   in  Harish   Chandra  v.  Atir Mahamed(4), that  a Sudra  can not  become a  sanyasi  under Hindu Law,  and consequently the devolution of property of a Sudra who  purported to  renounce the  world and  become  an ascetic  would   be  governed   by  the   ordinary  law   of inheritance.      Asceticism in  India, perhaps  more than  in any  other country, has  been under the definite and strong sanction of religion. In  the doctrine  of the  four asramas, asceticism was made an integral part of the orthodox Hindu life, and it became the duty of every Hindu, as advanced age overtook him homeless and a wanderer to chasten himself with austerities. Formally this  was to  be done  for the  sake  of  detaching himself from  earthly ties,  and  of  realizing  union  with Brahman. And  a religious  motive was thus supplied for that which in  itself was  a welcome release from responsibility, care, and  the minute  requirements of  an elaborate  social code. In  due course, with the advancement of knowledge, the shackles of  the caste  system were  broken through  and the privileges and  powers of  the ascetic life were extended to Sudras. 682      Hindu asceticism  represented, further,  a revolt from, or at  least a protest against, the tyranny of caste. In its origin probably  remote from  Brahmanism, and  conveying the ordinary idea  that  bodily  pain  was  profitable  for  the advancement and purification of the spirit, the ascetic life became,  in   association  with   Hinduism  and   under  the prescriptive sanction of Hindu law itself, a refuge from the burden of caste rules and ostracisms.(1)      In Encyclopaedia  of Religion  and Ethics, Ed. by James Hastings, Vol. II, p. 91, it is observed:           "....In the  first instance  apparently, the right      and privilege  of asceticism, according to Hindu custom      or  law,  belonged  to  Brahmans  alone;  it  was  then      extended  to   all  the  twice-born,  and  finally  all      restrictions were removed, and admission into the ranks      of the  ascetics was  accorded to men of every position      and degree." This is  based on  the following  passage from the Ramayana, Uttara Kanda, 74.9ff., quoted in J. Muir’s Original Sanskrit Text, i.119f:           "Formerly in the krta age Brahmans alone practised      tapas; none  who was  not a  Brahman  did  so  in  that      enlightened age....  then came  the treta  age,....  in      which the  Ksatriyas were  born, distinguished still by      their former  tapas ..... Those Brahmanas and Ksatriyas

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    who lived in the treta practised tapas, and the rest of      mankind obedience..... In the dvapara age tapas entered      into the  Vaisyas. Thus  in the course of three ages it      entered into  three  castes;  and  in  the  three  ages      righteousness (dharma) was established in three castes.      But the  Sudra does not attain to righteousness through      the (three)  ages.. such  observance will belong to the      future  race   of  Sudras  in  the  kali  age,  but  is      unrighteous in  the extreme  if practised by that caste      in the dvapara." (Manu: i. 86) It is,  therefore, evident that with reluctance the right to ascetic life  was extended  to Sudras and in due recognition of their status, they were treated as Hindu sanyasis. At the present time,  there is  no distinction  or barrier; any one may become  an ascetic,  and the  vows are  not  necessarily lifelong. Some  sects, however, still restrict membership to Brahmanas, or at least to men of the three higher castes.      The principle  laid down  by the  Madras High  Court in Dharmapuram v.  Virapandiyan (supra)  and the  Calcutta High Court in 683 Harish Chandra  v. Atir  Mahamed (supra) regulating the mode of devolution of property of a Sudras who becomes an ascetic is, however,  not applicable to after-acquired property of a Hindu sanyasi. As has been said above, when a layman becomes an ascetic,  his connection  with  his  natural  family  and existing property  rights are  extinguished. If  he acquires any property  subsequent to  his becoming  an ascetic,  such property passes  on his  death not to his natural but to his spiritual heirs.      It would  be convenient next to deal with the question, firstly, as  to whether  in the  ’Sant Mat’ Sampradaya which being a sect of the Dasnamis, a Sudra cannot enter the order of a yati or a sanyasi; and secondly, whether performance of Atma  Sradh   and  the  recitation  of  Pravesh  Mantra  are ceremonies essential  for the  initiation of  a chela in the ’Sant Mat’  fraternity. That  depends on  whether the matter falls to  be governed  by the Smritis or is regulated by the custom or  usage of  the ’Sant Mat’ Sampradaya which was one of the Dasnami sects.      About  the  eighth  century  A.D.,  Sankaracharya,  the greatest Hindu  scholar and  philosopher  of  modern  India, defeated  the   Buddhists  in  argument  and  re-established Hinduism as  the dominant  religion of India. Sankara was an ascetic and  founded schools of ascetics. Hindu scholars and philosophers like  Mandana Misra, attempted to prove against him that  such ascetism  was against  the law of the Hindus. But all opposition was overborne by the commanding influence of Sankara,  who established four maths or seats of religion at four  ends of  India-the Sringeri  Math on  the  Sringeri Hills in  the south,  the Sharda Math at Dwarka in the west, the Jyotir  Math at  Badrikashram  in  the  north,  and  the Govardhan Math  at Puri  in the  east  and  Mandana  himself became a  Sanyasi disciple  under the name of Sureswara. The monks ordained  by Sankara  and his  disciples  were  called Sanyasis. Each  of the  maths has  a sanyasi at its head two bears the title of Sankaracharya in general. Sankara is said to have four principal disciples who were all Brahmans, from whom the  ten divisions  of the  Order-hence named the ’ten- named’ or  ’Dasnami Dandis’  originated. These  are: Tirtha, ’shrine’; Ashrama,  ’order’; Vana, ’wood’; Aranya, ’forest’, ’desert’, Saraswati  and Bharti,  ’the goddesses of learning and speech’;  Puri, ’city’;  Giri and Parvata, ’a hill’; and Sagra, ’the ocean’.      The orthodox  Hindu recognises  no  other  sanyasis.(1)

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Kabir and Nanka also established monasteries on the lines of Sankara. Chaitanya,  the pure,  the subtle mystic of Naidia, the greatest exponent and exam- 684 ple of  Bhakti, originally  belonged  to  one  of  Sankara’s orders,  namely  Bharati,  though  he  violently  repudiated Sankara’s pantheism,  and his followers founded the class of ascetics   known    as   Byragis,   who   too   have   their establishments. But it is the schools of Sanyasis founded by Sankara that are now predominant and are the wealthiest, and it is of them that we should speak first.      Sankara founded his monastic system on the lines of the Buddhistic Sangharamas,  which were  found existing  at  the time.  The   rules  of   the  Hindu   and   the   Buddhistic institutions,  so   far  as   the  internal  management  was concerned, were  very similar. The Sangharama had a superior under whose  management the establishment was and so had all the Maths  of Sankara,  the superiors  of which  were called Mahants and  Acharyas, etc.  The superior  of a Math had the control of all the property, for he was the Guru whose power no one  could question,  and the nomination of his successor ordinarily lay  with him.  As a  rule,  the  best  and  most erudite among  the disciples,  upon whom  the choice  of the congregation would  naturally fall,  was nominated and there was rarely  any contention.  In course  of time, however, as the wealth  of the  Maths increased  and worldliness and all the vices  of an idle luxurious life took the place of stern austerity and  scholarship above  that of  all Buddhists and other schismatics,  by which  Sankara intended the Sanyasis, specially, the  superiors, should  be distinguished, worldly ideas became the ruling ideas of the establishments.      In imitation  of the Maths of Sankara, the followers of Ramanuja also  founded Maths  reaching  the  Vishishtadwaita system  in   various  parts   of  India.  The  followers  of Madhvacharya, the  chief exponent of the Dwaita system, also founded Maths, the chief among whom are the well-known eight Maths at  Udipi. Similarly, there are Maths of the followers of Ramanund  and Nimbacharya among the orthodox and of Nanak and Kabir  among schismatics.  There  are  also  many  Maths founded by  lesser teachers. All the strictly orthodox Maths are Maths of the three regenerate classes. But the followers of Chaitanya  in Bengal  and of  a teacher named Shankara in Assam have Maths or Akharas in which Sudras are admitted. It is, however,  only in  Madras that  the Shaivas  have  Sudra Maths. The  Tantras allow  Sudras  to  become  Sanyasis  and probably, these are based on the Tantras. The Sudra Maths of Dharmapuram and Tiruvaduthorai are the chief among the Sudra Maths of  the Saiva  Siddhantam School: Sammantha Pandara v. Sellappa Chetti,(1)  G. S.  Pandara Sannadhi  v.  Kandaswami Tam- 685 biran(1),    Vidyapurna     Tirthaswami    v.    Vidhyanidhi Tirthaswami(2),   and    Kailasam   Pillai    v.    Nataraja Thambiran(2).      The most  respectable members  of this  Order of  Hindu ascetics  known   as  Saiva   Gosains  are   the   spiritual descendants of  Sankaracharya, the  very incarnation  of the strictest Brahmanism.  Saiva Gosains  fell into two classes- monks known  as Mathadhari  as contrasted  with Gharbari, or laymen. The  true  Dandi  should,  in  accordance  with  the precepts of Manu Laws (VI. 41ff) live alone near to, but not within a city.      Of Saiva  mendicants  and  ascetic  orders,  Dandis  or staff-bearers, occupy  a place of pre-eminence. They worship Lord Siva  in his  form  of  Bhairava,  the  ’Terrible’  and

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profess to  adore Nirguna and Niranjana, the deity devoid of attribute or  passion. A  sub-section of  this Order are the Dandi Dasnamis  or Dandi  of ten-names, so-called from their assuming one  of the  names of  Sankara’s four disciples and six of their pupils. (4 & 5)      It is customary to consider the two religious orders of Dandis  and  Dasnamis  as  forming  but  one  division.  The classification is  not, in  every instance,  correct but the practices of  the two  are, in  many instances,  blended and both denominations  are accurately  applicable to  the  same individual(6).      The Dandis,  properly  so-called,  are  the  legitimate representatives of  the fourth  Asrama, or  mendicant  life, into which  the Hindu,  according to the instructions of his inspired legislators, is to enter, after passing through the previous  stages   of  student,   householder  and   hermit. Adopting, as  a general  guide, the  rules laid  down in the original works,  the Dandi  is  distinguished  (5  &  6)  by carrying a  small Dand,  or wand,  with several processes or projections from  it, and  a piece  of cloth  dyed with  red ochre in  which the  Brahmanical  cord  is  supposed  to  be enshrined, attached  to it. They develop within themselves a complete detachment  from the  things of enjoyment either of this world  or the  next. Many  Brahmans, even  Pandits,  or learned 686 Brahmans, come  to them  for instruction,  which they impart freely, without  the smallest recompense. All classes of the community pay them the great honour, even worship them(1).      The Dandis  keep themselves very distinct from the rest of the  community. They  are Brahmans, and receive disciples only from  the Brahmans. They lead a very austere life. They do not  touch fire  or metal, or vessels made of any sort of metal. It  is equally  impossible also  for them  to  handle money. They  shave their  hair and beard. They wear one long unsewn reddish cloth, thrown about the person. Although they are on  principle penniless,  yet they  do  not  beg.  Their dependence on the kindness and care of others is thus of the most  absolute  character.  Yet  they  are  not  reduced  to distress or  even to want; they are fed by the Brahmans, and the Gosains,  another class  of devotees.  They sleep on the ground, and  once or  twice in  the day  go round to collect food and  alms, for which they must not ask, but contentedly receive what  is given.  According to  the stated rule, they must not approach a house to beg until the regular meal-time is  passed;   what  remains  over  is  the  portion  of  the mendicant.      A Dandi  should live alone, and near to, but not within a city; but this rule is rarely observed, and in general the Dandis are  found in  cities collected like other mendicants in maths.  The Dandi  has no  particular  time  or  mode  of worship, but  spends his time in meditation, or in practices corresponding to  those of  Yoga, and  in the  study of  the Vedanta works,  especially according  to the precepts of the great Sankaracharya.  As the preceptor was an incarnation of Lord  Siva,   the  Dandis  reverence  that  deity;  and  his incarnations, in  preference to  the other  members  of  the Triad, whence they are included amongst his votarics.      Prof. Wilson in his ’Hindu Religions’ observes:      "Any Hindu  of  the  first  three  classes  may  become      Sannyasi or Dandi, or in these degenerate days, a Hindu      of any  caste may  adopt the  life and  emblems of this      order." (Emphasis supplied) The Dasnami  Dandis, who  are regarded as the descendents of the original  members of  the fraternity,  are said to refer

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their origin to Sankaracharya.      There are  but three,  and part  of  a  fourth  ascetic class, or  those called  Tiratha or Indra, Asrama, Saraswati and Bharati who are still 687 regarded as  really Sankara’s  Dandis. The  rest,  i.e.  the remaining six  and a  half of the Dasnamis are considered as having fallen  from the  purity of practice necessary to the Dandis, are  still, in general religious characters, and are usually denominated  Atits. These  are the Atits or A’Dandis viz., the  Vanas, Aranyas,  Puris, Giris,  Parvatas, Sagaras and half the Bharatis, reputed to have fallen to some extent from orthodoxy,  but are  still  looked  upon  as  religious avtars. The  main distinction  between the  Dandis  and  the Atits is  that the  latter does  not carry  the staff i.e. a trishul. They  differ from  the former  also in their use of clothing, money,  and ornaments,  their methods of preparing food, and  their admission  of members  from  any  order  of Hindus. Some  of them lead an ascetic life, while others mix freely in  the world,  carry on  trade and acquire property. Most of  them are  celibate, but  some of them marry and are often known  as samyogi  or gharbari  Atits. They  are often collected in  maths or monasteries. They wear ochre-coloured garments and carry a rosary of rudraksa seeds sacred to Lord Siva. Their religious theories when they have any) are based on the advaita Vedants of their founder Sankaracharya(1).      There is  also a  sub-division of  the Puri division of the Dasnarni sect. They have tenets much in common, based on the central  idea that the Supreme Deity is incomprehensible or, as  they say, ’unseeable’. They denounce idolatory. This more or  less conforms to the tenets of the ’Sant Mat’ sect. It is  proved by  the evidence  on record  that followers of this sect  treat the  Guru as  the incarnation  of God. They have no faith in inanimate idols installed in temples nor do they  worship  them  in  their  cult.  There  are  no  caste restrictions and  anyone can  be admitted  into the Sant Mat fraternity.      That takes us to the next question as to whether in the absence of  proof of  the  performance  of  Atma  Sradh  and recitation of  Pravesh Mantra  neither the plaintiff nor his two predecessors  Swami Sarupanand  and Swami Atmavivekanand could be regarded as a Hindu sanyasi.      In order to prove that a person has adopted the life of a  sanyasi,   it  must   be  shown   that  he  has  actually relinquished  and  abandoned  all  worldly  possessions  and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his  secular life.  It must  also be  proved, in case of orthodox  sanyasis,  that  necessary  ceremonies  have  been performed,   such    as   Pindadana    or   Birajahoma    or Projapathiyesthi without  which II the renunciation will not be complete. 688      Among Dasnamis,  a ceremony called the Bijja Homa i.e., the  Biraja   Homa  has   been  considered   essential.  The recitation of the Presha Mantram or the renunciation formula is of course indispensable and has been considered essential by the different High Courts. According to Manu giving up of all wordly property is essential.      In Sherring’s  ’Hindu Tribes  and Castes’,  pp. 256-67, the ceremonies  prescribed for  the initiation  of a Dasnami sanyasi are stated thus :      "The ceremony  observed at  the creation of a Gosain is      as follows:  The candidate  is generally a boy, but may      be an  adult. At the Shiva-ratri festival (in honour of

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    Shiva) water  brought from a tank, in which an image of      the god  has been  deposited, is applied to the head of      the novitiate,  which is thereupon shaved. The guru, or      spiritual guide,  whispers to  the disciple a mantra or      sacred text.  In honour of the event all the Gosains in      the neighborhood  assemble together, and give their new      member their  blessing; and  a sweetmeat  called laddu,      made  very  large  is  distributed  amongst  them.  The      novitiate is  now regarded as a Gosain, but he does not      become a  perfect one  until the  Vijaya Hom  has  been      performed, at  which a  Gosain, famous for religion and      learning gives  him the  original mantra  of Shiva. The      ceremony generally  occupies three  days in Banaras. On      the first  day, the  Gosain is  again shaved, leaving a      tuft on the top of the head call d in Hindi Chundi, but      in Sanskrit,  Shikha. For  that day he is considered to      be a Brahman, and is obliged to beg at a few houses. On      the second  day, he  is held  to be  a Bramhachari, and      wears coloured  garments, and  also the janeo or sacred      cord. On  the third  day, the  janeo is taken from him,      and the  Chundi is cut off. The Mantra of Shiva is made      known to him, and also the Rudri Gayatri (not the usual      one daily  pronounced by  Brahmans). He  is now  a full      Gosain or  Wan-parast, is  removed from  other persons,      and abandons  the secular world. Henceforth he is bound      to observe all the tenets of the Gosains."      In Gossain  Ramdhan  Puri  &  Ors.  v.  Gossain  Dalmir Puri(1) Mookerjee and Carnduff JJ., observed at p. 203:      "Every aspirant for entrance into the order of sanyasis      has to  pass through  a period  of probation.  Upon his      first arrival at the monastery his habits and character      are closely 689      watched for  some days, and enquiries are made into his      A caste,  for  the  sanyasis  admit  into  their  order      ordinarily members  of the  twice-born classes and very      rarely take  members of the fourth class. If the novice      is approved,  his head  is shaved,  his name is changed      and upon  the performance  of this preliminary ceremony      he is  regarded as  a probationer for entrance into the      order. The final ceremony, however, which is called the      Biraja Homa ceremony, is not performed for many months,      and sometimes  for many  years. During  this period  of      apprenticeship it is open to the chela to return to his      natural family,  but after the performance of the final      ceremony his  connection with  the world  is deemed  to      have been finally severed." In support  of these observations, the learned Judges relied on the  note of Warden on the customs of Gossains printed as an appendix to steel‘s ‘Law and Custom of Hindu castes’.      As regards Swami Sarupanand, the learned Munsif rightly observes that  ’it would  be unjust to place an unreasonable burden on  the plaintiff  for leading direct evidence of his initiation,  as  Swami  Sarupanand  came  to  Varanasi  from distant land and long ago. The truth has to be discerned out of circumstantial  evidence and  other materiaI  on record.’ That  evidence  clearly  shows  that  Swami  Sarupanand  was acknowledged by his numerous followers to be the head of the ’Sant Mat’  fraternity. That  Swami Sarupanand paid the debt of nature  in 1936  at Meerut and that his Smadhi is situate there is  not  disputed.  The  oral  evidence  lead  by  the plaintiff in  proof of  the fact  that after  the  death  of Swami, his  Bhandara took place at Meerut as well as at Gar- vaghat is irrebuttable. It is common knowledge that sanyasis are not  cremated but  are buried, or their bodies consigned

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to some  river, and that after their demise a Bhandara takes place. Defendants  Nos. 1  to 4  admitted in  their  written statement that Swami Sarupanand was a ’Paramhans’ and that a Bhandara had  taken place  after  his  death.  The  prefixes ’Swami’ and  ’Paramhans’ are  used for  sanyasis and not for men of the world.      In  the   case  of   Swami  Atmavivekanand   there   is overwhelming  evidence   in  proof  of  the  fact  that  the requisite ceremonies  of Birajahoma or Prajapathiyesthi were performed. Swami  Vivekasukhanand, who  was initiated  as  a chela along  with Swami  Atmavivekanand and others speaks of the performance  of BriJahoma  and Prajapathiyesthi  at  the time of their taking sanyas and states:      "I attend satsang. I know Swami Sarupa Nandji. He was a      Sanyasi. I am in Sanyas Ashram. I  became Sanyasi 690      about 28-29  years ago.  Four other  persons  had  also      taken Sanyas  on one  and the  same day.  I  had  taken      Sanyas. Their  names are Swami Atma Vivekanandji, Swami      Aju niya  Nandaji, Swami  Abheda Nandji and Swami Purna      Shabda Nandji.  Swami Atma Viveka Nandji had also taken      Sanyas on  that very day. Praja Prashit.. and Virja Hom      Ceremonies were  performed at  the time  of  my  taking      sanyas. Our  heads were  shaven from  before that.  our      Gurudeo had  taken the  choote. The sacred threads were      burnt in  the fire. Our white clothes were removed, and      in its  place we were directed to put on the clothes of      the ochre  colour. Guru  Maharaj had whispered the Guru      Mantra into  our ears. Hom (Samigri) were sent from the      Mandleshwar of  Benaras, and  Birja  Hom  was  got  per      formed with it. We were at that time relieved off, from      all the  bondages of  Grahast Ashram.  These very cere-      monies were  performed at  the time,  when  Swami  Atma      Viveka Nandji took the Sanyas." (Emphasis supplied)      It is necessary to mention that though this witness was examined at  length, there  is no  question put  as  to  the performance of  Atma Sradh.  This  is  somewhat  significant because this question was put to only one of the plaintiff’s witnesses, Mahesh  Dutt Shukla,  PW 13  and he  replied that according to  the  tenets  of  the  ’Sant  Mat’  it  is  not necessary to perform Atma Sradh for becoming a sanyasi.      The evidence of the plaintiff’s witnesses show that the Biraja Homa  ceremony is  of great  importance, and  if  the Biraja Homa  was performed  by Swami  Atmavivekanand at  the time of his initiation, it is not at all probable that Swami Sarupanand and  Swami Atmavivekanand,  who were men of great ability and  circumspection, should  have  performed  Biraja Homa ceremony  and omitted the essential details, especially the performance  of the  Sradh of  one’s self, that is, Atma Sradh by  Swami Atmavivekanand.  If the  Prajapathiyesthi or Biraja  Homa   ceremonies  were   performed,  then  it  must necessarily give  rise to  the irresistible  inference  that Swami Atmavivekanand  must have  performed  his  Atma  Sradh before he was initiated as a chela.      We are  clearly of  the opinion  that the appellant Sri Krishna Singh,  impleaded as  defendant No. 5, was precluded from contending  that his  father Baikunth Singh, who on his initiation  by   Swami  Sarupanand  was  baptised  as  Swami Atmavivekanand, was  not a Hindu sanyasi. On May 29, 1949 he along with  his brother  brought a suit for partition, being suit No. 389 of 1949 in the Court of Judicial officer, 691 Chandauli, against the other members of their family. It was alleged  in the plaint:           "That the father of the plaintiffs has been a plan

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    of religious  bent of  mind. For  that reason he having      left the  property of  his share  in  the  spurdgi  and      possession of  his sons,  plaintiffs Nos. 2 and 3, more      than twenty  years ago,  left residing  here  and  went      away. Thereafter  he became  a  sanyasi."  Since  then,      plaintiffs Nos.  1, 2 and 3 have been in possession and      occupation of  the same  as of right and also by way of      inheritance.           "That on  account of  the renunciation made by the      father of  the plaintiffs,  the plaintiffs  have become      the principal  tenant according  to law  and they  have      been in  possession and occupation of their share up to      this day."                                          (Emphasis supplied)      In the  aforesaid suit, the appellant Sri Krishna Singh appeared as  D, PW  1 and  in his  deposition, Ext.  101, he stated on oath .           "The land in dispute is under my tenancy. The name      of my  father stands  entered in  our share.  My father      died two  months ago.  After his  becoming a  Sadhu  he      adopted  the  name  of  Atmavivekanand.  He  has  taken      sanyas. He used to live at Gadwadhar Bangla Kuti."                                          (Emphasis supplied)      In para 6 of his written statement, the appellant while denying that  Swami Sarupanand founded any math at Garwaghat averred:           "Sri Swami  Swarupa Nandji  was the  Guru  of  Sri      Baikunth Singh,  alias Sri  Swami Atma  Viveka  Nandji,      hence having regard to his old age and also with a view      of honouring  him, his  name has  been entered  in gift      deed, dated  8-3-1935. In  fact on  the  basis  of  the      aforesaid deed  of gift,  Sri Baikunth  Singh alias Sri      Swami Atma  Viveka Nandji acquired the property and has      been in exclusive possession thereof."      In para 7 he states:           "Sri Baikunth  Singh, alias  Sri Swami Atma Viveka      Nandji was  a Grahast.  He was Chhattri Hindu by caste.      He never took Sanyas nor did he denounce the world. The      real fact  is that when Sri Swarupa Nandji, who was the      resident  of  Punjab,  arrived  at  the  house  of  Sri      Baikunth Singh,  aforesaid, situate  in Mauza  Khuruhja      Pargana Majhuwar, 692      District Banaras,  Sri Baikunth  Singh was impressed by      him, and  under his  influence became religious minded.      He called  himself as  Swami  Atma  Viveka  Nandji.  He      believed only in the worship and Bhakte of his Guru. He      considered his Guru as God. He used to impart this very      teaching to  his  disciples,  and  devotees.  He  never      renounced the  Grahast Ashram.  No body  ever gave  him      Chadar Mahanthi.  He never  became the  Mahanth of  any      Math. Sri  Sarupa Nandji  was also  not the Dasnami. He      never took Sanyas." That appears  to be  a case set up to defeat the plaintiff’s claim. When  he was  confronted with  his admission  in  the plaint  filed  in  the  suit  for  partition,  he  disavowed knowledge of  the fact  of his  father Baikunth Singh having become a  sanyasi. This  was  nothing  but  a  time  serving statement.      In Chandra  Kunwar v.  Chaudhri  Narpat  Singh,(1)  the Judicial Committee of the Privy Council observed:           "The proof  of this  admission shifts  the burden,      because, as against the party making it, as Baron Parke      says in  Slatterie v.  Pooley: "What  a  party  himself      admits to be true may reasonably be presumed to be so."

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    No doubt,  in case such as this, where the defendant is      not party  to the  deeds  and  there  is  therefore  no      estoppel, the  party  making  the  admission  may  give      evidence to rebut this presumption but unless and until      that is  satisfactorily done, the fact admitted must be      taken to be established." It follows  that admission  of  the  fact  that  his  father Baikunth Singh  had become  a sanyasi, shifted the burden on the appellant to disprove that he was Hindu sanyasi.      There  is   direct  oral   evidence  of  the  plaintiff Harsewanand and of his witnesses PWs 2 to 5, 7 to 10, 14 and particularly  that   of  Swami   Viveksukhanand   taken   on commission,  about   the  plaintiff’s  initiation  into  the ascetic order.  All these  witnesses have  amply proved that the particular  ceremonies  including  Prajapathiyesthi  and Biraja Homa  required in  the  ’Sant  Mat’  fraternity  were performed when  the plain  tiff was  made a  sanyasi. It  is amply proved  by PWs  1 to  10  and  13  to  15  that  Swami Atmavivekanand had  not only  initiated him as his chela but also nominated him to be the mahant and that after his death and in  accordance with  his wishes,  he  was  given  Chader Mahanti  on   the  occasion   of  the   Bhandara  of   Swami Atmavivekanand. 693 The document Ext. 100, prepared by the ’Sant Mat’ fraternity on this  A occasion and the photograph Ext. 121, taken lends assurance to  the testimony  of  these  witnesses  that  the plaintiff Harsewanand  was installed  as the  mahant of  the math  in   accordance  with  the  express  desire  of  Swami Atmavivekanand.      The learned  Civil Judge in his judgment observes: ’The fact of  Harsewanand being a sanyasi remains undoubted’. His finding that  he was  not a Hindu sanyasi was based upon the view that  under Hindu  law mere ’renunciation’ of the world is  not  sufficient.  Hence,  he  holds  that  a  Sudra  who renounced the  world and became sanyasi cannot be said to be a Hindu  sanyasi, as according to the Hindu Sastras no Sudra can become  a sanyasi.  The underlying  fallacy lies  in his over-looking that  the question  had to  be  determined  not according to  the orthodox  view, but according to the usage or custom  of the  particular  sect  or  fraternity.  It  is needless  to   stress  that   a  religious  denomination  or institution enjoys complete autonomy in the matter of laying down the  rites and  ceremonies which are essential. We must accordingly  hold   that  the   plaintiff  was  the  validly initiated 1)  chela of  Swami Atmavivekanand  and  upon  his demise was  duly installed  as the  mahant of Garwaghat Math according to the tenets of his ’Sant Mat’ Sampradaya.      There remains  the question whether due to the death of the 15  plaintiff Harsewanand  during the  pendency  of  the appeal the suit brought by him abates in its entirety.      It is argued that the original plaintiff, Mathura Ahir, having filed  the suit  primarily to  establish his personal right  to  the  office  of  mahant  which  entitled  him  to possession of  the property  in suit, the suit abated on his death. The cause of action on which the suit was instituted, it is  urged, was personal to the plaintiff, and in order to establish that  he had been duly and properly initiated as a sanyasi and  installed as  a mahant,  he had  to  plead  and establish all  the necessary facts regarding his capacity to become a  sanyasi, his  nomination  by  his  Guru.  and  his ultimate  election   or  nomination   by  the   ’Sant   Mat’ Sampradaya. The  submission is that these were facts special to the  original plaintiff,  and he  having died, respondent No. 1,  Harshankaranand cannot  claim any  relie unless and

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until he  also establishes  all these facts in regard to his claim to  mahantship. The  original cause  of action,  it is said, has  vanished with  the death of the plaintiff and the respondent No.  1, Harshankaranand  had  necessarily  II  to plead and  establish a  new set  of facts.  In substance, he could not prosecute the cause of action as originally framed and he could 694 not succeed  without materially  altering the  pleadings and substituting another  cause of action, which could very well form the subject matter of a separate suit.      It is  argued that  the nomination  of a  person  as  a mahant invests  him with a ’status’ and, therefore, capacity to succeed  to the  office of  mahant is an incident of that status.  It  is  said  that  the  claim  to  mahantship  is, therefore, a  personal right  which  does  not  survive  the plaintiff; any suit claiming such a status must abate on the death of  the plaintiff.  Alternatively, the  submission  is that if  the Court came to the conclusion that the plaintiff had sued in his capacity as a de facto mahant, it is obvious that the  cause of action would be personal to him and would certainly not  survive the plaintiff. In that event, the , J suit must of necessity abate as a right claimed on the basis of de facto ownership cannot survive the plaintiff.      x       x       x       x          x      The question  whether a  suit abates in its entirety or not upon  the death of the plaintiff must necessarily depend on the  nature of  the suit.  This is not a class of case to which  the  maxim,  actio  personalis  moritur  cum  persona applies. The suit that the plaintiff Harsewanand brought was for possession of the suit house which belonged to Garwaghat Math, in his capacity as the mahant. On denial of his title, he pleaded  that he  was initiated  as a  chela by  his Guru Swami Atmavivekanand, the then mahant, in 1937 and nominated to be  his successor  and accordingly  upon  his  demise  on August 23,  1949, had  been duly  installed as Mahant of the Math by  the ’Sant Mat’ Sampradaya, i.e., by the Mahants and Sanyasis of  the Bhesh and given Chader Mahanti according to the tenets  of fraternity.  It was alleged that according to the tenets  of this  particular sect,  anyone,  including  a Sudra, could  be a  sanyasi, and  further that succession to the office of mahant was from guru to chela according to the custom or usage prevailing in the sect. One of the issues on which the  parties went  on trial  was whether  there was in existence a  math at Garwaghat, and if so, whether the house in suit was an accretion thereto.      The High  Court agreeing  with the  learned Munsif  has upheld the  plaintiff’s claim. It was held that the house in suit was  acquired by  Swami Atmavivekanand  from out of the offerings (Bhent)  made by his disciples and, therefore, was not his  secular property,  but  was  an  accretion  to  the Garwaghat Math.  It has further been held that the plaintiff Harsewanand  was   the  validly  initiated  chela  of  Swami Atmavivekanand and  was duly installed as mahant of the math after his  death, by  the ’Sant Mat’ fraternity according to his wishes.  The  defendants  have  been  held  to  be  rank trespassers. The decree under 695 appeal crystallizes  the rights of the parties. The cause of action  did   A  not   die  with   the  plaintiff.   In  the circumstances, the  respondent No.  1, Harshankaranand,  who now claims  to be  the mahant,  has the right to contest the appeal as  representing the math, being the de facto mahant, for preservation of its properties.       x       x        x       x       x         x

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    According  to  the  Hindu  jurisprudence,  a  religious institution such  as a  math is treated as a juristic entity with a  legal personality  capable of  holding and acquiring property. It  therefore, follows that the suit instituted by the mahant  for the  time being,  on its behalf, is properly constituted and  cannot abate  under the provisions of order 22 of  the Code  of Civil  Procedure, on  the death  of  the mahant pending  the decision  of the  suit or appeal, as the real party  to the suit is the institution. The ownership is in the  institution or the idol. From its very nature a math or an  idol can act and assert its rights only through human agency  known   as  a  mahant,  shebait  or  dharmakarta  or sometimes known as trustee.      Jenkins C.J.  in Babajirao  v. Laxmandas(1) defines the true notion of a ’math’ in the following terms:           "A math,  like an idol, is in Hindu Law a judicial      person capable  of acquiring,  holding and  vindicating      legal rights,  though of  necessity it  can only act in      relation to  those rights  through the  medium of  some      human agency." It follows that merely because the mahant for the time being dies and  is succeeded  by another mahant, the suit does not abate.      The correctness  of the  decision in  Ramswarup Das  v. Rameshwal Das(2) is thus open to question. It does not stand to reason  that when  a suit  is brought for possession by a mahant of  an asthal  or Math. Or by a shebait of a debottar property, and  the defendant is adjudged to be a trespasser, such a  suit should  abate with  the death  of the mahant or shebait.  This   would  imply   that  after   a  long  drawn litigation, as  he-re, the  new mahant  or shebait has to be relegated to  a  separate  suit.  The  definition  of  legal representative as contained in s.2(11) of the Code reads:           "(11) .  "legal representative" means a person who      in law  represents the estate of a deceased person, and      includes any person who intermeddles with the estate of      the deceased  and where  a party  sues or  is sued in a      representative character  the person on whom the estate      devolves on the death of the party so suing or sued." 696      The general  rule is  that all rights of action and all demands whatsoever,  existing in  favour  of  or  against  a person at  the time  of his  death survive to or against his legal representative.  In Muhammad  Hussain  v.  Khushalo(1) Edge C.J.,  while delivering the judgment of the Full Bench, observed:           "I have  always understood  the law  to be that in      those cases.  in which  an action  would abate upon the      death of  the plaintiff  before  judgment,  the  action      would not  abate if  final judgment  had been  obtained      before the  death of  the plaintiff,  in which case the      benefit  of   the  judgment   would  go  to  his  legal      representative." That, in our opinion, lays down the correct test.      In the  instant case,  the appellant  himself  has,  of course, without  prejudice to  his right  to  challenge  the right of  the original  plaintiff, Harsewanand, to bring the suit, substituted  the respondent No. 1, Harshankaranand, as his heir and legal representative, while disputing his claim that he  had been  appointed as  the mahant, as he felt that the appeal  could not  proceed without  substitution of  his name. In  his reply,  the respondent  No. 1, Harshankaranand alleges that  after the  demise of mahant Harsewanand he was duly installed  as the mahant of Garwaghat Math by the ’Sant Mat’  fraternity.   He  further   asserts  that  he  was  in

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possession and enjoyment of the math and its properties. The fact that  he is  in management  and  control  of  the  math properties is not in dispute. The issue as to whether he was so installed  or not  or whether  he has  any right  to  the office of  a mahant,  cannot evidently  be  decided  in  the appeal, but  nevertheless, he  has a right to be substituted in place of the deceased Mahant Harsewanand as he is a legal representative  within  the  meaning  of  s.  2(11),  as  he indubitably  is  intermeddling  with  the  estate.  He  has, therefore, the  right to come in and prosecute the appeal on behalf of the math.      In the  result, the  appeal must  fail and is dismissed with costs. S.R.                                        Appeal dismissed 697