MAHANT BHAGWAN BHAGAT versus G. N. BHAGAT AND ORS.

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MAHANTBHAGWANBHAGAT v. G. N. BHAGAT AND ORS. January 4, 1972 [J. M. SHELAT, I. D. DuA, H. R. KHANNA AND G. K. MITTER, JJ.) Crtstom-Mutt-Method of choice of successor to office of mohunt.

Three aspects have to be borne in mind in connection with tho ques tion of succession to the office of a mobunt : (i) if the rounder or endower bus laid down any particular rule of succession, that is to be given effect to; (ii) in the absence of the above the usage of the partic_ular institution is to be followed; and (iii) the party who lays claim to the office on the strength of any suc-h usage must establish it affirmatively. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed, un Jes:; he suc~eeds in proving tb~ particular usage under which he claims. !1009 E-G]

In a Mourasi mutt the office of the mohunt is hereditary and -~~volves. upon a disciple of the existing mohunt who usually nominates him as the successor. Though generally the senior disciple succeeds, a junior disci· ple ·may succeed if he is found more capable and if he is selected by the last mohunt as his successor. Th~ appointment or nomination is done by the r~igning mohLmt during his life time or shortly before his death and it is pos~ible for the mohunt to make over the endowment during his life time to the mcccssor. [1010 B·D, F]

J n the present case, the mutt was a Mourasi mutt and the second res pondent was its mohunt. He nominated the first respondent as his suc cessor by a deed, and by a second deed, surrendered to him his right to the office of mohunt. The appellant claimed the office as the senior dis ciple on the contention that the devolution to the office was to the senior disciple according to the tenets and customs of the sect which established the mutt.

The trial court decreed the suit but the High Court set aside the decree

Dismissing the appeal to this Court,

HELD : The appellant had not discha:rged the onus which lay on him to substantiate the custom pleaded by him. The documentary evidence, which was ante Jitern motam did not support the appellant's case that in varinbly only the senior disciple was selected. On the entire evidence in the case led to the conclusion that in the matter of nomination of a suCC1!Ssor to the offi~e of mohunt seniority was not the decisive factor, but that ability and ~fficiency in management coupled with a good moral character, adherence to the religious rites practised at the mutt and a spirit of service to the sadhus etc. entered into consideration in the selection of a successOl'. [11)12 A-D]

the contrary,

CrvrL APPELLATE JURISDICTION: Civil Appeal No. 171 ot

1967.

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Appeal lrom the judgm6nt and decree dated April 12. 1966 of the Patna High Court in Appeal from Original Decree No. 445 of 1963.

1006

SUPREME COURT REPORTS

[1972] 2 s.c.R.

D. V. Patel and U. P. Singh, for the appellant.

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C. B. Agarwala, Umesfz Chandra Sinha, R. Goburdhun and

D. Goburdhun, for·respondtmt No. 1.

The Judgment of the Court was delivered by

Mitter, J. This is an appeal from a judgment of the Patna B

High Coui't reversing the decree in favour of the plain1iff-appellant declared to be the duly installed Mahant of Turki Math and of all its subsidiary maths and as such entitJed to possession of the properties covered by the. decree.

The undispu1ed facts are as follows.

In the village of Turki in Not1th Bihar there is a Math or asthal of the Kabirpanthi Bhagatatha Vairagi sect established over a century back. There are asthals subordinate to the principal one at ·Turki located in .different districts of Bihar. Devolution of the Mahantship has always been from a Guru 1to his Chela. Defendant No. 2 exe cuted a deed dated December 17, 1951 nominatin·g the first de fendant as his successor to the Mahantship and a second deed on ·september 15, 1952 surrendering his right to the Mahantship in favour of the first defendant with immediate effect. The suit . of the appellant was launched in 1959 for a declaration that he him self was the duly installed Mahant of saddar asthal Turki in the circumstances mentioned in the plaint, lthat 1he second defendant bad ceased to be the Mahant by his voluntary of retirement and the first defi~ndant being a junior Chela could h3ve no right or claim 1o the Mahan'tship. As a coro1lary to the above declara tion, he also asked-for a decree for recovery of possession of all the properties of the asthal including those which had been pur ported to be transferred by the first two defendants.

The appellant made a two-fold claim in his plaint.

I1 was 11is case that under the te.nets and the customs of the asthal and Bhagataha sect of Kabirpanthies, the devolution of the office of Mahantship is always trom a Guru to the senior celebate Chela either on the death of the Mahant for the time .being or by the said Mahani nominating his successor by deed and himseJf retir In either case, after the dea~h or ing from the Mahantship. retirement of the Mahant for the time being, the s·~nior chela suc <::eeds to the Mahantship and is duly installed on the Gaddi after ·the performance of Bhandara in an assemblage of Mahants and sadhus of the sec't and respectable persons of the Jocality at which 1he Chaddar of Mahanthi is bestowed on the new Mahant bv -the Mahfint of Acharya Math Dhanauti in the. District of Saran. !he ~qs of 1951 anp 1952 bei1ng in violation of the anaient custom of the asthal, the first defendant was never recogpised ·as or became the Mahant of Turki nor was any Chaddar ceremony

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M. B. BHAGAT V. G. N. BHAGAT (Miner, J.)

1007

performed at any requisite ceremony in recognition of such suc cession. The appellant had filed a suit in the court of the Subordinate Judge at Muzaffarpur in the year 1953 for declara tion of his rights and for setting aside the deeds of 1951 and 1952. · After the suit was pending for some time, a compromise was arrived at whereby it was agreed that •the appellant should assume the office of Mahantship and take possession of all the properties of the Math. The appellant put his signature on a sheet of blank paper for recording the tenus cf settlement. He had actually assumed the office 'of the Mahant of Turki in April 1954, and an elaborate ceremony was performed on the 16th February 1956 wh.:.;reat he was installed as the Mahant of Turki and given the Chaddar of Mabanti by 'the Acharya of Dhanauti be{ore a big gathering. A document known as the Surat Hall was prepared regarding the plaintiff's installation. This bore the signature of innumerable persons. This was followed by his tak ing charge of all the properties of the saddar and subordinate asthals. The first two defendants thereafter dispossessed him and being unsuccessful in proceedings under the Code of Criminal Procedure for securing possession of the math and its properties, he was com{)elled to file the suit.

Respondenrts 1 and 2 filed a ioint written statement. They pleaded that the custom and usage of the Turki Math relating to devolution of Mahantship was for the Mahant for the time being nominating a fit and . proper person as his successor from amongst his Chelas irrespective of his seniority and the person so nominated invariably became the Mahan't on the demise or retirement of the inc_umbent Mahant. A ceremony of installa tion of the new Mahant on the Gaddi and the bestowing of a Chaddar on him were nat essential for es'tablishing his title to this office in place of the retiring or the deceasing Mahant. The defendants denied the factum of the installation of the appellant relied on in the plain't. According to rthem the appellant had .at all times knowledge of the nomination of the first defendant bv the deed of December 17. 1951 and his appointment with imme- diate effect by the deed of SeP'tember 1 5, 1952. It was on reali sa!tion of the weakness of his case that he had approached the defendants for a compromise agreeing to given up his claim in the suit of 1953. He had appended his signature to the peti·tion of compromise in that suit being fully conversant with the terms thereof.

The two :rn!lin issues framed by the trial court and relevant for the disposal of this appeal bear on the custom governing the succession to the MahantshiP of the Turki Math and the right of the incu~bent M~h"-nt to .nominate a junior Chela in preference to a semor Chela. Issues were al&o fr~m~ by the trial court as to whether an installation o::remony was an e'isential pre-requisite

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SUPREME COURT REPORTS

[1972] 2 s.c.R.

to a Mahant's lawfully functioning as such and whether the plain tiff had factually been installed as a Mahant of the Turki Math. The findings of the trial court were as follows :-

1. From 1899 onwards only senior Chelas had succeeded

their Gurus.

1. According to the custom of the Muth the Mahant had the right to nom.itnate his successor and the choice rested upon the senior Chela unless he suffered from any disqualification or was found to be unfit for the office. The right of nomination was not ab89lute but was subject to the approval of others.

3. An installation ceremony was not essential to complete the title of the Mahant. Such a ceremony had been performed in the case of the plaintiff in 1956 and he became the Maham: of Turki although not in possession of the properties thereof at the 1time of the suit.

The High Court rejected the custom as to succession set up

by the plaintiff. . It found- 1. Since the time of the

founder, Chaturbhuj Gosala, six Mahants had occupied the office of whom three were descdbed as junior Chelas by some of the wrtnesses on the defendant's side. The evidence did not establish that there was an invariable custom of the senior Chela being nominated by the outgoing Mahant.

2. The Mahant in office had an undoubted right to nominate his successor and ordinarily 1the right of appointment was exer cised in favour of the senior Chela but the choice was exercised in favour of a celeba1e chela taking into account his all round ability and character. The second defendant had as a matter of fact nominated one Ganesh Bhagat as his successor even before the deed of nomination of 1951 in favour of 'the first defendant. This nomination of Ganesh Bhagat was cancelled as he was found to be unfit. Compared to the plaintiff, the. first defendant was decid•.!dly sup~rior in learning, ability and conduct : as the main function of the Mahan't was to propagate the Kabirpanthi cult and the maintenance of a peaceful and hannonious atmosphere in the mutt where people were expected to congregate for religious discussion and discourses and other benevolent functions the choice of the first defendant by the second defendant in preference to the plaintiff was not undeserved and must be taken as fm.al.

3. The High Court did not examine the question as to whether an installation ceremony was necessary to perfect the tWe cf Mahantship in view of the concession by counsel for the plaintiff. Differing from the finding of the trial court, the High Court held that no ceremony of installation of 1he plaintiff had been perform ed in 1956 as alleged in the plaint.

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M. B. BHAGAT V. G. N. BHAGAT (MlUer, J.)

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4. The deeds of nomination and surr:~nder in 1951 and 1952

by the first defendant were valid and binding.

The general law as to succession to Mahantship is now well settled by innwnerable decisions of 1the Judicial Committee of the Privy Council and some decisions of this Court. It will be enough to quote some passages from Mukharii's book on the Hindu Law of Religious and Charitable Trusts. The learned author states (third edition, p. 257):

"Once a Mutt is established, succession to headship takes place within the spiritual family according to the usages that grow up in " particular institution."

"The primary purpose of a Mutt ...... js to en- courage and foster spiritual learning by maintenance of a competent line of teachers who impart religious ins tructions to the disciples and followers of the Mutt and try to strengthen tthe doctrines of the particular school or order of which they profess to be adherents."

At page 269 :

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"In a Muott. . . . it is the custom or practice of a particular institu1tion which determines as to how a successor is to be appointed."

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Three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant ( p. 269) :

"The first is that if rthe grantor has laid down any particular rule of succession, that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is 1to be followed; and in the third place, the party who lays claim to the office of a Mohunt on the strength of any such usage must estab lish i't affirmatively by proper legal evidence. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he be a disciple of the last Mohunt, unless he succeeds in proving the parti cular usage under which succession talres place in the particular institution."

At p. 270:

"Generally speaking, the Mutts are divided inlo three classes aGcording to the different ways in which the heads or superiors are appointed. These three des criptions of Mutts are Mourasi, Panchayati and Hakimi. In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of 1the existing Mohunt

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p. 972] 2 s.c.R.

who moreover usually nominates him as his successor; in the second, the office is elective, the presiding Mohunt ,being selected by an assembly of Mohunts. In the third, . !the . appointment of the presiding Mohunt is vested in .the ..ruling power or in the party who has endowed the temple ..... .

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In a Mourasi Mutt the chela or disciple of the last . , . Mohunt succeeds 'to the office ...... when there are more . chelas than one, the eldest generally succeeds, but a junior . -chela may succeed if he is found more capable and if he is selected by the laslMohunt as his successor ....... . ~:; i. }~!J.n~v~tiQP,s Jnstituti9J?.S tlw c~$tp,m~j~ th~t~~A:~pr9;er ,to ;.(}lltHlei..J4 cl:Jela.. to s:uc~y~d, he :must be .appomted 9r ... rioiiiinated by the reigning Mohunt during his life. time , or . .shortly:.before his death and this may be don~ either .:by a .written declaration or some sort of testamentary document. ln other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either . during the life time of the last Mohunt or when the funeral ceremonies of the latter are performed."

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At p. 273 :

. "When the Moht.mt has the right

to appoint his successor, he may exercise the right by an act inter vivos or by will.''

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.. At p. 274 :

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.~'ln a. Mourashi. Mutt it is possible for the Mohunt , ,,tQ; make .over the endowment during his life time to his

chela whom he appoints as a successor."

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. At p, 275 :

. "In many cases. wh·~n a successor is appointed by Mohunt, he is installed in office wirth certain' ceremonies. This cannot be deemed to be essential."

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Admittedly Turki was a Mourasi Mutt. The evidence as to · · custom adduced in the case is both documentary and oral. The oral evidence which will be noted hereafter is discrepant and mostly of persons who were not disinto~rested. The documentary evidence undoubtedly furnishes more reliable testimony being ante litem ,;.motam and:brought into existence at a time w.hen .t\le pla.intiff was not on the scene and when no dispute as to suCcession to Mahant ship was raging.

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M. B. BHAGAT v, G. N. BHAGAT (Ml'tter, J.)

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The earliest document exhibited in this case is that of 1899 execU'ted by Mahant Lal Bahadur Bhagat in favour of Ram Bhagat describing him as the senior- chela, able, clever, literate and by all means fit for the Mahantship. Mahant Ram Bhagat in his turn nominated Mahadeo Bhagat as his successor by a deed of November. 1910. Like the document of 1899 this deed also describes dw nominee as able, clever and. fit 1o discharge the duties of the Mahant. Mahadeo Bhagat however is not described as the senior Chela but only as a disciple of the executant. By a deed of August 1937 Mahant Mahadeo Bhagat nominated Narsingh Bhagat, defendant No. 2 as his successor describing the laNer as the h!s only disciple worthy, clever and fit { c Oaddi. Bv a document of June 1947 Narsingh Bhagat nominated '·one Ganesh· Bhagat as his suc-.;essor to the Gaddi. This nomiira~ tion. was cancelled by Narsingh Bhagat on the ground of unfi'tness of the nominee for the office but mention is made in this docu ment of 1947 ohhe practice and custom relating to the succession to the office of the Mahant. This document goes against the con- tention of the plaintiff that by custom the ~enior Chela was eligible to the office in preference to all others. It recites :

respects for

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"It has been the practice in the Asthal

the time of my predecessors that the Gadinashin leads a life of Brahmacharya and he does not marry. One Mahanth Gadinashin appoints and nominates his able Braluna- chari disciple as Gadinashin and future successor during his life1ime. After the death of his Guru, the rightful disciple becomes heir and Gadinashin of the Asthal of I the executant thought it the Sadar Nath at Turki. proper to make over the management of the property .. under a will, according to previous cus'l:om and appoint Ganesh Bhagat as my successor."

. This was followed by a description of the nominee as literate, able .and efficient. The document of December 1951 by N arsingh Bhagai in favour of Giriia Nandan Bhagat, the first defendant, . describes the nominee as fit and qualified in all respects to be lfhe Mahant and recites the custom as in 1the case of Ganesh Bhagat.

The trial Judge's view that the nominations if 1899, 1910 and 1937. being invariably in favour of the senior disciple went a long way 1o establish the custom relied on by the plaintiff was nlYt ac c~pted by the High Court. Apparently the trial Judge was of the vtew that Mahadeo Bhagat who became the Mahant in 1910 was feH the only disciple of Ram Bhagat and it was· · therefore not necessary to mention him as the senior chela. Quite a number of defendants' witnesses made statements to the effect ~hat 'Ram Bhagat h'ad a number of Chelas. The trial Judge obviously over looked the statement of the plaintiff in his cross-examination 1hat

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[1972] 2 S.C.R.

Ram Gossai had 5 or 6 Chelas and he himself had seen all of them. A fairly larp;e number of witnesses stated tha~ the .qualifi· cations for a person's nomination t~ :be Mahantship dt~ not depend only on seniority but on dbdtty to. manage! cehbacy, adherence to religious principles and a habtt of serv10g sadhus, fakirs and visitors besides a good moral character. Some even sugges~d that it was the ablest Chela who was made the Mabant. Making due allowance for the witness-;:s who c~me to support. the case of the party examining them, the oral test~on:y unque3tlOn· ably leads us to hold that in the matter of nommatton ci a suc cessor to the Mahantship seniority was not the decisive factor but that ability and efficiency in management coupled wi'th a ,~::ood moral character a.nd adherence to the religious rites practised at the mutt and a spirit of servico;: to sadhus etc. all entered into con· sideration in the selection of a successor by a Mahant. This con· elusion is fortified by the documents exhibited. As already noted the they do nat support the plaintiffs version that senior Chela was selecred. In our view the document executed by Narsingh Bhagat in favour of Ganesh Bhagat sets out the custom as to succession fairly accurately.

invariably

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the TI1e argumerrt :~dvano!d on behalf of the appellant that plaintiff was installed as the Mahant of Turki in 1956 before a wide ~athering of sadhus and respectable persons at which the Chaddar ceremony was performed does not m~rit any elaborate or serious consideration. As noted already, the tdat court did not take the view that the performance of the Chaddar ceremony was an essential pre-requisite to a person becoming a Mahant and before the Hi:!h Court counsel for the plaintiff expressly gave up that point. Althou~ the trial court found in favour of the plaintift that such a ~eremony had ~ctually been performed, the High Court came ~on different conclus~on .. One of the reasons which prompted ~he HtJ!h Court to take tlus Vh!W was that the document evidenc in~r the installation ceremony l'>tyled the Surat Hall had not ~en produced in any court or law before the institution of the suit of 1959 although liti,11.ation in respect of the properties of the mutt and the plaintiffs riJilit to possession were being canvassed before courts of Jaw. Th~: Jlieh Court also relied on the f:~ct that a res pectable :1nd reliable witness like the Mahant of <he Ach:uya Mutt dl!nied havin,l! siJ,!ned thi~ document Ex. 1 and no attempt wns mad.e o!' bch:~lf or the P)~intiff to controvert the said denio! hv ex:Jmm::rtton .or a hand·wntmg expert. Relinnce was 3 tso pla~~d by the Htgh Court on th>! fact that the plaintiff who filed n pe!lho~ under ss. 107 and 145 Cr. P.C. against the first defendant and 1- other' on 8th December. 1956 de!>cribed himself as the !"fohant of <;hanwa. Math and made no reference in the ctition tt~elf to the.tnstallahon ceremony nt Turki. The Hi,l!..h Co~rt :~ls<' did nnt 1-ehevc the plaintiff's version thnt he had si~ned a blnnk

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·M. B. BHAGAT v. G. N. BHAGAT (Mit.ter, J.)

1013

sh\!et of paper to be used as a compromise petition in the earlier suit filed by him and nothin.2 has been shown to us as to why w.:! should take a different view.

In the result we hold that the phintifT was unable to discharge the onus Mti.ch lay on him to substantiate the custom as to suc<:es sion pleaded in his plaint He also failed t-o establish 1hat he had in fact been installed as the Mahant of the said Ma'lh. The appenl fails and is dismissed with costs.

V.P.S.

Appeal dismissed

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17-736 Sup CJ172