Allahabad High Court
Rajesh Kumar Pandey vs Nazool Officer Faizabad on 24 July, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 5 Case :- MISC. SINGLE No. - 1037 of 2009 Petitioner :- Rajesh Kumar Pandey Respondent :- Nazool Officer Faizabad Counsel for Petitioner :- Ajai Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ajay Pratap Singh, learned counsel for petitioner and perused the record.
2. This writ petition under Article 226 of the Constitution of India has been filed by sole petitioner-Rakesh Kumar Pandey son of Himanchal Prasad Pandey, praying for issue of a writ of certiorari quashing order dated 01.09.2008 passed by Nazul Naib Tehsildar, Faizabad rejecting petitioner's application dated 25.09.2002. Petitioner has also prayed for issue of a writ of mandamus commanding Respondent-1, i.e., Nazul Officer to restore application dated 25.09.2002 and decide the same afresh after giving opportunity to all parties after recalling order dated 19.01.1986.
3. Facts, in brief, giving rise to present dispute are that Plots No. 724, 730, 731, 732 and 733, situate in Mohalla Nayaghat Ayodhya, District Faizabad, are Nazul land. The said land was in possession of a Math at Ayodhya known as Dashnami Akhara (hereinafter referred to as "Math"). The Gaddi of Math is said to be a Gaddi of Nihang Sadhus and succession of Gaddi is from Guru to Chela. The pedigree of initial Mahant and thereafter the chain of Chelas is given in para 3 of writ petition and reads as under:
Bhawan Bharti _______________________________________ Anand Bharti (Chela) Sheo Narain Bharthi (Chela) Sheo Ratan Bharti Ram Dayal Bharti Jai Lal Bharti Budh Bharti Jai Bodh Bharti Devanand Bharthi Sheo Shanker Bharti Vishwa Nath Bharti
4. Two disciples of Bhawan Bharti set up two religious Maths, one at Gosai Ganj and another at Bikwajitpur. In respect of Math known as Dashnami Akhara, Ayodhya, names of Jai Lal Bharti and Budh Bharti were recorded in First Settlement of Chaudhary Mahraj Singh after confiscation by Lord Canning on 15.03.1857. The successors of Jay Lal Bharti continued in possession of their half share in property of Math.
5. Deonand Bharti who belong to branch of Sheo Narain Bharti alongwith wife, Ram Peiari executed a sale deed transferring land to Ram Puja Saran alias Dibya Kala Ji. Mahant Vishwanath Bharti challenged the aforesaid sale deed in Original Suit No. 22 of 1953 in the Court of Civil Judge, Faizabad. Suit was decreed vide judgment and decree dated 29.09.1962 and its First Appeal No. 10 of 1963 was dismissed by this Court vide judgment dated 01.03.1973.
6. Mahant Vishwanath Bharti was maternal grandfather (Nana) of petitioner. He executed a registered Will in favour of petitioner on 20.02.1975 appointing him as legal heir in respect of all his properties, movable or immovable. He died on 12.01.1977. However, Sri Deen Anurag Kala Saran alias Anand Swarup Saran Chela Premkala alias Pauhari Saran, filed a mutation application registered as Case No. 395 of 1985 before Naib Tehsildar, Nazul, Faizabad, which was allowed vide order dated 19.01.1986 and his name was mutated in respect of various Arazi including disputed land. When petitioner came to know of the order of mutation, he moved an application under Order 9 Rule 13 C.P.C. before Naib Tehsildar on 25.09.2002 requesting for recall of order dated 19.01.1986 which has been rejected by Naib Tehsildar vide order dated 01.09.2008, impugned in the present writ petition.
7. Learned counsel for petitioner submitted that he moved application as soon as he gained knowledge of mutation order and in any case his right is settled in the light of registered Will, the same could not have been negatived by Naib Tehsildar.
8. In my view, present writ petition is thoroughly misconceived. Admittedly, land in dispute is a "Nazul land". A Nazul land is one which is owned by State Government. It was in possession of Math. Possession could have continued in the light of traditions of Math is a different thing but so far as petitioner is concerned he is neither a person who has been let out the land in dispute by its owner, i.e., State Government nor otherwise could show his right vis-a-vis Math to claim possession over land in dispute. It is said that Parampara in Math is from Guru to Chela and that being so the mere fact that erstwhile Mahant Vishwanath Bharti was maternal grandfather (Nana) of petitioner would make no difference since rights of Math would be governed by traditions of Math and not by family succession laws.
9. Moreover, as admitted by petitioner, Vishwanath Bharti died on 12.01.1977. At no point of time petitioner claimed any right over land in dispute on the basis of alleged Will. As per his own statement, for the first time, he moved application only on 25.09.2002, i.e., almost after more than 25 years of the date of death of Sri Vishwanath Bharti. The order of Naib Tehsildar also shows that even alleged Will was not proved before Respondent-2 inasmuch as unlike other documents, a Will has to be proved in the manner provided in Section 63 of Succession Act, 1925 (hereinafter referred to as "Act, 1925") and Section 68 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872").
10. It could not be disputed by learned Counsel for petitioner that 'Will' had to be proved in the manner as provided in Section 63 of Act, 1925. It reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(emphasis added)
11. Section 63 provides procedure for execution of unprivileged 'Will'. Clause (c) clearly says that 'Will' shall be attested by two or more witnesses, each of whom has seen Testator sign or affix his mark to the 'Will'. It has been held that attestation in accordance with Section 63 (c) of Act, 1925 is mandatory and in absence of attestation in accordance therewith, it cannot be said that 'Will' has been properly attested.
12. In Moonga Devi and others Vs. Radha Ballabh AIR 1972 SC 1471, Court said:
"It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with Clause (c) of that section." (emphasis added)
13. Same issue came up for consideration in Kashibai and another Vs. Parwatibai and others (1995) 6 SCC 213. Court referring to Section 68 of Act, 1872 observed that it relates to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily require by law to be attested. Section 68 of Act, 1872 states, if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
14. "Attestation" and "execution" are two different acts. One following the other. There can be no valid execution of a document which under the law is required to be attested, without the proof of its due attestation. If due attestation is not proved, the fact of execution of document is of no avail. Court in Kashibai and another Vs. Parwatibai and others (supra) referred to Section 63 of Act, 1925 and said as under:
"Clause (C) of Section 63 provides that the Will shall be attested by two or more witnesses, each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark on the signature of such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary."
15. Court referred to definition of expression "attested", contained in Section-3 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") which reads as under:
"3. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant but it shall not be necessary that more than one of such/Witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." (emphasis added)
16. Then in respect of what is required for attestation and to prove attestation, Court said:
"Having regard to the aforementioned definition an attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or after he has received from the executant a personal acknowledgment of his signature or mark or the signature or mark of such other person."
(emphasis added)
17. Court observed that as a matter of fact, none of attesting witness had deposed that executor has signed the 'Will' before them and that being so, attestation was not proved in law resulting in that even execution of 'Will' was not proved. It is true that a witness while deposing statement may not use the language of Section to prove requisite merits but then something which is required by law must be stated in a manner which may be construed by a person of ordinary prudence that it satisfies requirement of law.
18. Again the question of validity of 'attestation' and how it will be proved, came up for consideration in Nagulapati Lakshmamma Vs. Mupparaju Subbaiah 1998 (2) SCALE 705. After referring to Section 63 of Act, 1925 Court made a distinction between 'Testator' and 'Attestors' in the matter of signing 'Will' and said:
"The Section makes a vital distinction between the testator and the attestors in the matter of signing the Will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Many a time, people who are desirous of making testamentary dispositions may be physically incapacitated from signing their names or affixing their marks on account of illness or other causes. Such persons should not be deprived of an opportunity of making a Will. Such persons can instead of signing or affixing their marks themselves can direct some other person to sign in their presence. But in the case of attestors such an enabling provision is absent. The section expressly states that each of the witness shall sign the Will in the presence of the testator. The privilege or power of delegation, if we may say so, is not available to the attesting witnesses under the section. When the same section makes a distinction expressly between a testator and an attestor it is not possible to accept the contention that an attestor can also direct some other person to sign or make a mark on his behalf. If a witness to the execution of the will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by Section 63(c) of the Indian Succession Act. Consequently, he will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act."
(emphasis added)
19. Court then proceeded to hold that expression 'attestation' in Section 63(c) of Act, 1925 is same as is the definition in Section 3 of Act, 1882 and, therefore, it is absolutely necessary that the attesting witness should either sign or affix his thumb impression and thereafter prove the same himself.
20. The statutory provisions discussed above make it clear that attesting witnesses must have 'seen' Testator to sign or affix his mark or his Delegate. The word 'seen' has its own relevance and consequences. If an attesting witness has not seen Testator, signing or affixing his mark on the document, he cannot be said to be an attesting witness and it cannot be said that document was validly attested.
21. Mahant of a Math is like a Shebait and Manager and does not own the property as such. A Will entrusted by a person, may be a Mahant of Math, at the best would cover personal property of Mahant. It cannot be extended to the property and right to Math which is/are to be governed by traditions of Math.
22. I find that a "Math" has been considered as an important kind of Hindu religious endowment. It spells differently at places, namely, 'Math', 'Mutt' or 'Muttum'. In ordinary language, it 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 belonging to a particular order, who generally are disciples or co-disciples of the superior.
23. Detailed history and other characteristics of religious institution, i.e., "Math" has been discussed in the erudite work of Dr. B.K. Mukherjea's, "The Hindu Law of Religious and Charitable Trusts" (Tagore Law Lectures) (hereinafter referred to as "Mukherjea's Hindu Law"), which was first published in 1952, I am referring relevant extract from its 4th edition, edited by P.B. Gajendragadkar and P.M. Bakshi. It is stated in para 7.5 at page 332 that Hindu Maths were established for the first time by Adi Shankaracharya. He himself founded four Maths at the four corners of India and made them centres of his Vedantik teaching. Each of these Maths was placed in the charge of one of his four principal disciples, who were, Padmapad, Hastamalak, Sureswar and Trotaka. These four disciples had their own disciples also. In the course of time ten orders or classes of monks were formed, into which the monks of Shankar School stood divided. These ten orders popularly known as 'Dasnamis' bear the title Tirtha, Asrama, Vana, Aranya, Giri, Parvat, Sagar, Saraswati, Bharati and Puri. The disciples of Trotaka at Jyotir Mutt at Badrinath were Giri, Parvat and Sagar, while Sringeri Math claimed as its adherents Saraswati, Bharati and Puri. In addition to Sanyasis who belong to the fourth stage of life, there were "Naishthik Brahmacharis" or perpetual students attached to all Maths. This practice started by Adi Shankaracharya was followed by almost all the religious teachers since then. First in order of time was Sri Ramanujacharya, who propounded theory "qualified monism" in opposition to the "pure monism" of Adi Shankaracharya. Shankar's theory was based upon rigorous logic, recognised Supreme Brahma as the only one and absolute reality. It regarded everything else as phenomenal or illusory. Ramanuj and other Vaishnava teachers who followed him were all philosophical theists. They tried to reconcile their metaphysical doctrines with the yearnings of human heart which always requires a personal God as the supreme cause of all that exists and an eternal soul which yearns for "an approach to an union with that Being". Followers of Ramanuj are known as "Sri Vaishnavas". The object of their adoration is "Supreme" being in the form of "Vishnu" who is always associated with "Shri" or "Lakshmi". On the model of Dashnami Maths of Shankaracharya, Ramanuj founded a large number of Maths for the purpose of strengthening the doctrine propounded by him. Then came Sri Ramanand (born in 1299 A.D.), disciple of Ramanuj. He founded a sect of Vaishnavas known as "Ramats". Ramanand himself is said to have built a Math, for the "ascetics" of his sect, in Benares. The "Ramats" worship one God in the form of Ram.
24. Ordinarily an 'ascetic' (Sanyasi) is one who renounces the world and devotes himself to religion, owns no property, no fixed place of residence and accepts such food and lodgings as are provided by pious householders. If a pious ascetic gathers around him a number of disciples whom he initiates into the mysteries or tenets of his order and such of his disciples intend to become 'ascetics', renounce all connection with their family including family wealth and completely affiliate themselves with the said spiritual teacher, a spiritual fraternity would eventually grow up. If pious, generous persons endow such a fraternity with property, it naturally vests in the Preceptor for the time being and a home is created for the brotherhood, i.e., a Math and that would lead to the constitution and building of a Math. Once the "Math" is established, succession to headship takes place within spiritual family according to the usages that grow up in a particular institution.
25. The term "Math" has been described in "Law Lexicon"-The Encyclopaedic Law Dictionary by P. Ramanatha Aiyer (1997) at page 1205 as under:
"Math. Although there are some differences between debuttar property and property dedicated to a math, where the math is an idol installed in it, property appertaining to a math, whether dedicated to the idol or not, is not the personal property of the head of the math; and when the holder or Mahant is not only a sanyasi but also a celibate, the property is utterly incapable of passing to natural heirs. The fact that the holder executes a hibanama in which he describes the math as his math carries little weight; the math with the idol cannot be his personal property. The presumption in the case of a mahant who is a sanyasi and a celibate, having no family of his own, and who is free from all worldly attachments, is that the property held or acquired by him is so held or acquired on behalf of the math to which his life is entirely devoted. A presumption of the same kind would arise in respect of the property subsequently acquired by such celibate Mahant. Susil Chandra Sen and another v. Gobind Chandra Das and another, 6 RP 705=150 IC 61=AIR 1934 Pat 431.
The term 'Math' is used in the sense either of an institution or of a building. Maths are in the nature of monastic institutions and the term may also be used for the building in which such an institution is housed. Where originally there was a banking or money-lending business which passed from each of its proprietors to his chosen successor, chosen for his business capacity and not for his learning or piety, and there was no religious object behind the business but they called themselves sanyasis and their residence 'Math', it was held that the property acquired by the proprietors could not be claimed to be 'Math' properties as there was no 'Math" in the legal sense of the word. Mayanand Gir v. Parshottamanand Gir, 1943 ALJ 400=1943 OWN (HC) 250.
An institution comes within the definition of 'math' if it satisfies three conditions; (i) that the institution be for the promotion of the Hindu Religion; (ii) that it be presided over by a person whose duty is to engage himself in-spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and (iii) that the office of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage Srinivas Das v. Surjanarayan, AIR 1967 SC 256, 259. [Orissa Hindu Religious Endowments Act (4 of 1939), Sec. 6(7)]" (emphasis added)
26. In Sammantha Pandara Vs. Sellappa Chetti ILR 2 (1878-81) Madras 175, Madras High Court discusses origin of 'Math' as under:
"The origin of mattams is ordinarily as follows : A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mysteries of the order, and instructs in its religious tenets. Such of these disciples as intend to become religious teachers, renounce their connection with their family and all claims to the family wealth, and, as it were, affiliate themselves to the spiritual teacher whose, school they have entered. Pious persons endow the schools with property which is vested in the preceptor for the time being, and a home for the school is erected and a mattam constituted. The property of the mattam does not descend to the disciples or elders in common; the preceptor, the head of the institution, selects among the affiliated disciples him whom he deems the most competent, and in his own life-time installs the disciple so selected as his successor, not uncommonly with some ceremonies. After the death of the preceptor the disciple so chosen is installed in the gaddi, and takes by succession the property which has been held by his predecessor. The property is in fact attached to the office and passes by inheritance to no one who does not fill the office. It is in a certain sense trust property; it is devoted to the maintenance of the establishment, but the superior has large dominion over it, and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution. Acting for the whole institution he may contract debts for purposes connected with his mattam, and debts so contracted might be recovered from the mattam property and would devolve as a liability on his successor to the extent of the assets received by him.
We do not of course mean to lay it down that there are not mattams which may have been established for purposes other than those we have described, nor that the property may not in some cases be held on different conditions and subject to different incidents. We have, described the nature of the generality of such institutions and the incidents of the property which is devoted to their maintenance." (emphasis added)
27. Considering, what is meant by a 'Math', a Division Bench of Madras High Court in Giyana Sambandha Pandara Sannadhi Vs. Kandasami Tambiran 1887 ILR Vol. 10 Madras 375 held:
"The origin of these associations, their constitution and development, form part of the history of the establishment and spread of the Brahminical system of religious doctrine among the Sudra communities in Southern India. Originally, the ascetic, who renounced the world and devoted himself to religion, confined his attention to the study of theology, to imparting religious instruction to his disciples, and to complying with the ordinances prescribed for the guidance of his order. He then owned no property, except his cloths, sandals, religious books and the idol he kept for his personal worship and a few other articles of trifling value which were absolutely necessary (Mitakshara, Chap. II, s. 8, para. 8). He had no fixed residence and moved from village to village, accepting such lodgings and food as were provided for him by pious laymen, who were in their turn enjoined by the Shastras to honour and support him. This is the mode in which Brahman Sanniyasis live even at the present time. In several villages pious laymen erected buildings for the residence of hermits when they visited their villages, and these were called Mutts. In its original and narrow sense, then, the term "Mutt" signified the residence of an ascetic or Sanniyasi or Paradesi.
But when the Buddhists assailed the Brahminical religion and when Sankarachariyar, the founder of the Advaita or non-dualistic school of philosophy, ultimately prevailed against them, he established some Mutts in order to maintain and strengthen the doctrine and the system of religions philosophy he taught, Sanniyasis being placed at the head of those institutions. After Sankarachariyar, the founders of the Vaishnava, Madhva and other schools of religious philosophy in this Presidency established Mutts for a similar purpose. In former times these institutions exercised considerable influence over the laymen in their neighbourhood; they became centres of classical and religious learning and materially aided in promoting religious knowledge and in encouraging religious and other charities. The ascetics who presided over them were held, owing to their position as religious preceptors, and often also in consequence of their own learning and piety, in great reverence by Hindu princes and noblemen, who from time to time made large presents to them and endowed the Mutts under their control with grants of land. Thus, a class of endowed Mutts came into existence in the nature of monastic institutions, presided over by ascetics or Sanniyasis who had renounced the world. Thus, the ascetic who originally owned little or no property, came to own the Matam under his charge and its endowment, in trust for the maintenance of the Mutt, for his own support, for that of his disciples, and for the performance of religious and other charities in connection with it, according to usage." (emphasis added)
28. In Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha Swami 1904 ILR Vol. XXVII Madras 435, Madras High Court, following its earlier decision in Sammantha Pandara Vs. Sellappa Chetti (supra), observed with respect to original growth of 'Math' in this country as under:
"The origin and growth of mutts in this country is thus described in the two judgments of this Court already referred to : "A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mysteries of the order and instructs in its religious tenets. Such of these disciples as intend to become religious teachers renounce their connection with the family and all claims to the family wealth and, as it were, affiliate themselves to the spiritual teacher whose school they have entered. Pious persons endow the schools with property which is vested in the preceptor for the time being and a home for the school is erected and mattam constituted" (Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran I.L.R., 10 Mad., 375). "The ascetics who presided over them were held, owing to their position as religious preceptors and often also in consequence of their own learning and piety, in great reverence by Hindu princes and noblemen who, from time to time, made large presents to them and endowed the mutts under their control with grants of land. Thus a class of endowed mutts came into existence, in the nature of monastic institutions, presided over by ascetics or sanniyasis who had renounced the world." The object of these mutts is generally the promotion of religious knowledge, the imparting of spiritual instruction to be disciples and followers of the mutt and "the maintenance and strengthening of the doctrines and tenets of particular schools of philosophy."
29. What has been said in Giyana Sambandha Pandara Sannadhi (supra), was followed in Kailasam Pillai Vs. Nataraja Thambiran and Ors. 1910 I.L.R. 33 Madras 265 at page 267.
30. Privy Council in Ram Parkash Das Vs. Anand Das and Ors. AIR 1916 Privy Council 256 had also occasion to consider about 'Math' and observed:
"An asthal, commonly known in Northern India as a muth, is an institution of a monastic nature. It is established for the service of a particular cult, the instruction in its tenets and the observance of its rites. The followers of the cult and disciples in the institution are known as chelas; the chelas are of two classes celibate and non-celibate. In the asthal now being dealt with, the religious brethren were the bairagi or celibate chelas; the lay brethren were girhast or householder chelas. The mahant must, by the custom of the muth, be a bairagi or religious chela."
(emphasis added)
31. Again in Sri Vidya Varuthi Thirth Swamigal Vs. Baluswami Ayyar and Ors. AIR 1922 P.C. 123, Privy Council expressed its views on page 126 about "Maths" in the following words:
"In many cases in Southern India, especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the names of Mutt were founded under spiritual teachers of recognised sanctity. These men had and have ample discretion in the application of the funds of the institution, but always subject to certain obligations and duties, equally governed by custom and usage." (emphasis added)
32. Concept of Mutt, private and public, has been considered in Bihar State Board of Religious Trust Vs. Mahant Sri Biseshwar Das, AIR 1971 SC 2057, and in para 17, Court observed :
"A religious mutt in northern India is usually known as asthal, a monastic institution founded for the maintenance and spread of a particular sampradaya or cult. The distinction between dedication to a temple and a mutt is that in the former case it is to a particular deity, while in the latter, it is to a superior or a mahant. ... A mutt can be dedicated for the use of ascetics generally or for the ascetics of a particular sect or cult, in which case it would be a public institution. Mutts have generally sadavrats, i.e. arrangements for giving food and shelter to wayfarers and ascetics attached to them. They may have temples to which the public is allowed access." (emphasis added)
33. All the aforesaid decisions were considered in Shri Krishna Singh Vs. Mathura Ahir and others 1981 (3) SCC 689=AIR 1980 SC 707. In para 19, Court concluded as under:
"19. ..............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 institution 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."
34. In Krishna Singh (supra), Court also observed that a Math is an institutional sanctum presided over by a superior who combines in himself the dual office of being religious or spiritual head of particular cult or religious fraternity, and of the manager of secular properties of institution of Math. It also held that the principles noticed in the above cases would make it 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 properties of the institution of the math."
35. A "Math" is not a Temple inasmuch it is a place for rendering charitable and religious services in general. Merely there are idols in the Math, it cannot be treated as a 'Temple'. Similarly, an institution which is in its origin a Math, cannot be treated as a temple because idols are also worshipped in the Math. Math can not be treated as a place of public religious worship mere by reason of the worship of idols. The primary purpose of a 'Math' is to encourage and foster spiritual learning by maintenance of a competent line of teachers who impart religious instructions to the disciples and followers of the Math and try to strengthen doctrines of particular school or order of which they profess to be adherents. Deity or an idol may be an essential element in a 'Math' if worship of a God in a certain form is an essential feature of religious doctrine of a certain order. The worship of God in that form would be part of their religious teaching. It would be the duty of any Math of that order to foster and encourage, otherwise it may not be necessary. This has been pointed out in 'Mukherjea's' Hindu Law (supra), 4th Edn. at page 331-332 as under :
"...there are religious orders like those of the Shankara School which believe in monastic doctrines of the Vedanta and to not regard the worship of a personal God as a necessary or essential part of the religious teachings. Even in Shankar Mutts, there may exist a shrine for a particular idol but it cannot be said that the presiding element in a Mutt must be a deity or that there cannot be a Mutt without an idol. A shrine or a temple may ordinarily be seen as an adjunct to a Mutt, but it is not a necessary one and even when it exists, it is not the chief or the indispensable part of the institution. It is only ancillary to the main purpose for whicht he Mutt is endowed and the presiding element in a Mutt is always the Mohunt or the spiritual preceptor."
36. A place of worship is not a necessary part of a Math, though it is often found in such institution and although primarily intended for the use of inmates, the public may also be admitted to such places of religious worship. (See Thamba Vs. Arundel I.L.R. 6 Mad. 287).
37. The presiding element in a Math is an 'ascetic' or a religious teacher, who together with his disciples and co-disciples form spiritual family. It owes its existence to benefactions or grants of property made by pious benefactors. The object of benefaction is the creation of an institution for the benefit of a fraternity of religious men at the head of which stands the superior or Mahant (also termed as "Mohunt"), who represents the entire institution. (vide Satya Charan Sarkar Vs. Mohanta Rudrananda Giri AIR 1953 Cal. 716).
38. In Shri Krishna Singh Vs. Mathura Ahir (supra), Court also quoted the relevant extracts from Mukherjea's Hindu Law (supra) as to what a "Math" would signify. It further held that the property belong to a Math is in fact attached to the office of 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 income derived from the offerings of his followers on charitable or religious objects.
39. The words "the burden of maintaining the institution" must be understood to include the maintenance of 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.
40. According to Hindu jurisprudence, religious institutions such as a "Math" is treated a "juristic entity" with a legal personality capable of holding and acquiring property. The ownership of property vests in the institution. From the very nature of Math, it can act and assert its rights only through a human agency known as "Mahant", Shebait are Dharmakarta or sometimes known as Trustee. Court, in Shri Krishna Singh (supra), quoted following observations of Bombay High Court (Jenkins, C.J.) in Babajirao Vs. Laxmandas 1904 ILR 28 Bom. 215 at 223 with approval which defines 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." (emphasis added)
41. In H.H. Shri Swamiji of Shri Amar Mutt and others Vs. Commissioner, Hindu Religious and Charitable Endowments Department and others 1979 (4) SCC 642, Hon'ble P.N. Shinghal, J., in a separate judgment, though concurring with the conclusion of majority view of Constitution Bench, in para 47 observed "A Mutt is a monastic institution for the use and benefit of ascetics belonging to a particular order presided over by a superior who is its religious teacher. The Mutt property, though originally given by a donor, belongs to that spiritual family represented by the superior or Mahant. It does not, however, vest in him, as he is some sort of a "shebait", and vests in the Mutt as a juristic person." (emphasis added)
42. The term "Mahant" has been described in 'Law Lexicon-The Encyclopaedic Law Dictionary by P. Ramanatha' (supra), on page 1161 as under:
"Mahant. (H.) The head of a religious establishment of the medicant orders of the Hindus. (Wil. Gloss. 317.) A Mahant or the head of a Math is not a "trustee" in the sense in which that term is understood in English law. The only law as to a Mahant and his office, functions and duties, is to be found in custom and practice, which is to be proved by testimony. But though a Mahant is not a trustee, in the English sense, he is, in view of the obligations and duties resting on him, answerable, as a trustee in the general sense, for the proper administration of the institution of which he is the head. The existence of a very wide discretion in the Mahant as to the application of the income of the Math or asthal is by no means inconsistent with a fiduciary obligation so to manage the property of the Math that the objects for which the Math exists shall be effectively serve."
(emphasis added)
43. The position of a "Mahant" of a "Math" is like that of a "Head of the institution". He is neither a corporation nor a life tenant in respect of Math property. He is also not a trustee in the sense in which the term is understood in English law. Call by whatever name, he is the manager or custodian of the institution. The property which he holds does not vest in him; it vests in the institution and is held by him as a Manager of the same. [See Vidya Varyathi Vs. Baluswami (Supra)].
44. In Krishna Singh Ahir (supra) regarding succession of Mahantship of a Math or religious institution, Court said:
"30. 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. See: Genda Puri v. Chatar Puri (1886) 13 Ind App 100 (PC); Sital Das v. Sant Ram AIR 1954 SC 606 and Mahalinga Thambiran v. La Sri Kasivasi (1974) 2 SCR 74."
(emphasis added)
45. According to usage, wide discretion in the application of funds of institution is possessed by "Mahant" but it is always subject to certain obligations and duties equally prescribed by customs and usages.
46. I may also refer to one more aspect of a Math, i.e., public and private Maths. B.K. Mukherjea in Hindu law (supra) has discussed about such Maths and observed that there can be a private Math depending upon the construction of grant, customs and usage of the institution etc. However, it has further observed, where the body is created for the benefit of public generally, Math is dedicated for the use of ascetics generally, such Math would be regarded as public institution. Maths have generally Sadavrats or arrangement for feeding and giving shelter to wayfarers and ascetics attached to them. They may also have Temples to which the public is allowed access. Such circumstances might indicate public character of endowment but nevertheless it is probable to have a private Math where endowment is not intended to confer benefit upon the public generally or even upon the members of a particular religious sect or order.
47. Probably for this reason petitioner did not claim any right over property in dispute which belong to Math after death of Vishwanath Bharti on 12.01.1977, but subsequently with a mischievous intention he filed application before Naib Tehsildar on 25.09.2002 which has been rejected by Naib Tehsildar.
48. In my view, present writ petition is nothing but a gross abuse of process of law on the part of petitioner.
49. There is another serious obstruction in the matter. Assuming what has been said by petitioner is correct, the facts borne out from writ petition are that with respect to property in dispute, Respondent-2 allowed mutation in favour of Respondent-3. An order of mutation does not confer any title and if there is a dispute of title the same has to be settled by seeking declaration in common law.
50. Supreme Court very recently, in Bhimabai Mahadeo Kambekar (D) th. L.R. Vs. Arthur Import and Export Company and others 2019 (2) SCALE 336, referring to various earlier authorities on the subject, has said:
"The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court.
This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni (Smt.) v. Inder Kaur, (1996) 6 SCC 223, Balwant Singh and Anr. v. Daulat Singh (dead) by L.Rs. and Ors., (1997) 7 SCC 137 and Narasamma and Ors. v. State of Karnataka and Ors., (2009) 5 SCC 591)."
(emphasis added)
51. This Court also in Arjun Vs. Board of Revenue & others 1983 All. L.J. NOC 1, placing reliance on Jaipal Vs. Board of Revenue AIR 1957 All. 205 and Lekhraj & another Vs. Board of Revenue & others 1980 All. L.J. 904 dismissed the writ petition challenging the revisional order arising out of mutation proceedings, observing that the aggrieved party having efficacious alternative remedy of suit for seeking redress of his grievance, petition is not maintainable.
52. This Court in Writ Petition No. 25961 of 2008 (Smt. Anisa Khan Vs. State of U.P. and others), decided on 29.7.2010 placing reliance on Jaipal Vs. Board of Revenue (supra), Summer Lal Vs. Board of Revenue 1996 (87) RD 569, Sahed Jan @ Bonde Vs. Board of Revenue 2004 (96) RD 656 and Jagdish Narain Vs. Board of Revenue 2007 (102) RD 20, referring to the impugned orders in that writ petition observed as under:
"All the three authorities have decided the mutation proceedings and as such being summary in nature cannot be the subject matter of interference in this writ petition since the said impugned orders do not confer any title on the respondents and are only made for the purpose of either realization of land revenue or to refer to possession at that time."
53. In view of above, I do not find any reason to interfere with the order impugned in this writ petition.
54. Further, I find that petitioner has not only initiated proceedings lacking bona fide but the litigation before this Court is also nothing but a gross abuse of process of law. It is accordingly dismissed with exemplary cost, which I quantify to Rs. 50,000/-.
Order Date :- 24.07.2019 AK