Rajasthan High Court - Jaipur
Poonam Chand By L.Rs. And Ors. vs Laxmi Narain on 28 March, 1988
Equivalent citations: 1988(2)WLN351
JUDGMENT Navin Chandra Sharma, J.
1. Facts leading to the filing of this second appeal are as follows: On January 23, 1961, Dev Kishan, Mangi Lal and Poonam Chand instituted Civil Original Suit No. 14/1961 in the Court of the Civil Judge, Nagaur with the averments that there is a "Bagichi" just adjacent to Pratap Sagar at Nagaur well-known as "Ramcharan Dasji-Ki-Bagichi" with a temple of the diety of Shri Sita Ramji in it. This temple is visited by the public of Nagaur for "sewa pooja" and "darshan". About hundred or hundred twenty-five years back there had been a learned Saint Shri Ram Charan Dasji and during his life time, his followers had got constructed this "Bagichi" for him. On the death of Shri Ram Charan Dasji, his object remained Pujari of the diety of Shri Sita Ramji. The last Chela (disciple) was Saint Premdas who expired in miti Mah Budi 8 S.Y. 1999. Mahant Premdas had neither appointed any Chela as his successor and nor he had left any Will in that respect to enable the public to appoint a Chela and Pujari or Mahant of this "Bagichi".
2. On the death of Mahant Premdas, one Bhure Khan made an application to the authorities in Nagaur regarding this 'Bagichi" whereupon some escheat proceedings were initiated and the "Bagichi" was taken over into possession by the State. The Executive Officer Shri Roshan Lal, on the application moved by the public, created trust for the management of this "Bagichi" and plaintiffs Nos. 1 & 2, Gopikishan, Nanu Ram Soni, Mohan Lal Rathi, Asha Ram Bhati and Hargovind Chander were appointed as trustees of the "Bagichi" and they were entrusted with the duty to look after and manage the movable and immovable properties of the "Bagichi" and also of the performance of "Sewa Pooja". Since then the "Bagichi" remained under the management of these trustees. Mohan Lal Rathi, Gopi Kishan Nanu Ram Soni and Asha Ram have expired and on the date of the institution of the suit, plaintiffs Nos. 1 & 2 and defendant No. 6 (Har Govind) are the "Prabandhaks" of the "Bagichi". For the performance of "Sewa Pooja" in the temple of Shri Sita Ramji located inside the "Bagichi", the trustees from time to time, appointed Pujari on payment of salary. Following persons remained Pujari during different periods, namely:
[a] Ram Kishan Shreemalee from miti Mah Budi 12 to Phalgun Budi 15.
[b] Baba Jai Siya Ram of Ratan Sagar from Phalgun Budi 1 to Phalgun Budi 15 S.Y. 1999;
[c] Moti Sad of Nagaur from Chait Budi 1 to Chait Sudi 15 S.Y. 1999;
[d] Laldas Sad from Baisakh Budi 1 to Mah Budi 15 S.Y. 2000; and [e] Nanak Das Sad (father of defendant No. 1) of village Ral from miti Mah Sudi 1 S.Y. 2000 to Phalgun Budi 15 S.Y. 2007.
3. On request being made by Laxmi Narain (defendant No. 1) and under an oral agreement, he was appointed as Pujari to perform "Sewa Pooja" of the diety of Shri Sita Ramji with effect from miti Phalgun Sudi 1 S.Y. 2007 corresponding to March 8, 1951 on a monthly salary of Rs. 12/-which was accepted by the defendant No. 1. At the time of appointment of the defendant No. 1 as Poojari, the ornaments of the diety and utensils kept in the "Bagichi" for the purpose of picnics held by public trust as detailed and described in the Schedule annexed to the plaint were entrusted to the defendant No. 1. The trustees paid monthly salary of Rs. 12/- and other expenses incurred in performance of "Utsavas" in the 'Bagichi" and the amounts paid were entered in regularly maintained account books. The defendant No. 1 also gave receipts in this regard.
4. The plaintiffs alleged that the trustees were un-happy with the defendant No. 1 for the following causes, namely:
[a] The defendant No. 1 does not perform "Sewa Pooja" of the diety of Shri Sita Ramji regularly and properly;
[b] The doors of the temple are not opened for "Darshan" in time and "Tulcha Amrit" and "Prashad" is also not distributed Utsavas not celebrated as before. The defendant No. 1 is a" Government employee and also takes tutions and as such is not able to devote time for "Sewa Pooja";
[c] the defendant No. 1 has started a work shop for manufacturing toys and painting them;
[d] defendant No. 1 was married and lives with his wife and children in the "Bagichi" which affects the sanctity and purity of the temple and in "Darshan" of the diety and in the holding of picnics in the "Bagichi";
[e] defendant No. 1 quarrels with the tenants of the "Bagichi" which results in financial loss; and [f] defendant No. 1 does not properly utilise the utensils entrusted to him to enable the public to hold picnics in the "Bagichi.
5. For above reasons, the trustees, on receiving public complaint removed the defendant No. 1 from pujariship on November 9, 1960 and he was telegraphically informed about it. The defendant No. 1 was required by a notice dated November 28, 1960 to hand over back the ornaments and utensils specified in the Schedule to the plaint to the trustees. The defendant No. 1 has, however, not handed over charge of the "Bagichi" and of ornaments and utensils to the trustees. On November 13, 1960, the defendant No. 1 made a showy performance of wrapping on his body the "Chader" of Mahant Premdasji and began to assert his proprietary right in relation to the "Bagichi". Plaintiff No. 3 and defendants Nos. 2 to 5 are heirs of Gopi Kishan, Nanoo Ram and Asha Ram trustees but except plaintiff No. 3, the other heirs do not take any active interest in the "Bagichi" and, therefore, have been impleaded as proforma defendants. The plaintiffs prayed in the suit that a decree for ejectment of the defendant No. 1 and his family members from the "Bagichi" and the temple may be passed and the management of the "Bagichi" and the temple may be entrusted to the plaintiffs as Managers. They have further prayed for restoration of the ornaments and utensils specified in the Schedule to them.
6. The defendant No. 1 Laxmi Narain did not dispute the existence of the "Bagichi" and the temple of Shri Sita Ramji. He is ignorant as to who had constructed the "Bagichi". It was not disputed that the last disciple Prem Das died in S.Y. 1999. It was, however, denied that Prem Das had died without nominating any disciple. The defendant No. 1 pleaded that he had been appointed disciple by Prem Das during his life time. At that time the defendant No. 1 was a minor. He was sent by Prem Das to Mathura, Vrindavan and Kashi for further studies. After the death of Prem Das, Nanak Das, father of the defendant No. 1 started managing the "Bagichi" which he did upto S Y. 2007. The defendant No. 1 heard of his father's death in S.Y. 2007 upon which he came to Nagaur. He took possession and management of "Bagichi" in his hands as disciple of Mahant Prem Das on November 13, 1960. He was installed Mahant of the "Bagichi" by leading Mahants of the "Sampradaya" and since then he was in possession and management of the '"Bagichi". It was denied by the defendant No. 1 that he was appointed Pujari by the trustees. As regards the appointment of trustees, his case was that due to the absence of the appellant and owing to his minority, certain persons of the public approached the Hakim and the Hakim appointed some trustees. The appointment of trustees by the Hakim was pleaded to be illegal.
7. Following issues were framed by the trial Court:
[1] Whether, the plaintiffs and the defendant No. 6 and Nanu Ram Mohan Lal, Gopi Kishan and Asha Ram were appointed as the trustees of the suit property?
[2] Whether, the plaintiffs have the right to file this suit?
[3] Whether, the plaintiffs along with other trustees appointed defendant No. 1 as Pujari of the temple on Rs. 12/- per month on 8-3-1951?
[4] Whether, the plaintiffs for reasons mentioned in para No. 4 of the plaint are entitled to remove the defendant No. 1 from the post of the Pujari?
[5] Whether, the articles mentioned in the Schedule attached to the plaint were entrusted by the plaintiff to the defendant No. 1 at the time of his appointment and the plaintiffs are entitled to receive them back?
[6] Whether, the plaintiffs should have paid the Court fees on the full value of the suit property?
[7] Whether, the suit property is of the value of Rs. 15000/- and the suit is beyond the jurisdiction of this Court?
[8] Whether, the defendant No. 1 was in possession of the suit property as the recognised Chela of Mahant Prem Das since S.Y. 2007?
[9] Whether, on 13-11-1960 the defendant No. 1 was appointed the Mahant by the important Mahants of his sect as per custom?
[10] Whether, the Executive Hakim, Nagaur had the right to appoint the plaintiffs and other persons as trustees?
[11] Relief?
8. The trial court held that after the death of Mahant Prem Das, one Bhure Khan had made an application on January 31, 1949 to the Executive Hakim that Prem Das had died issueless and, therefore, proper arrangement might be made of the suit "Bagichi" Har Dayal PW 17 was Executive Hakim, Nagaur during the relevant period and on March 31, 1949, he appointed plaintiff Mangi Lal and some other persons as trustees of the suit property. The trustees were in effective management of the "Bagichi". The trial court held that the Executive Hakim of the erstwhile State of Marwar had no legal authority to appoint trustees to manage the properties of a religious or charitable institution, The trial court held under issue No. 2 that the plaintiffs as de facto managers or trustees, had the right to file the suit for recovery of the Math properties from the possession of the defendant No. 1 in case the defendant No. 1 had no right, title or interest in the suit property. The trial court further found the defendant No. 1 was appointed as Pujari of the temple on March 8, 1951 on a monthly pay of Rs. 12/-only by the trustees. On issue No. 4 the trial court held that a master has inherent right to dismiss his servant. The defendant No. 1 had started setting up an adverse title to the trust property as against the trustees and that was a good ground for the trustees to remote him from Pujariship. On issue No. 5, it was held that was there no evidence from the side of the plaintiffs that the articles mentioned in Schedule attached to the plaint were entrusted by the plaintiff to the defendant No. 1 and this issue was, therefore, decided against the plaintiffs, While deciding issue No. 9, the trial court held that in the circumstances of the case, the adoption of defendant No. 1 as a Chela by Mahant Premdas was extremely improbable. It held that the defendant No. 1 was never adopted as a Chela by Mahant Prem Das. Dealing with the custom regarding succession to this Math, the trial court held that the custom as to succession in "Bagichi" of Ramcharan Dasji was that a Chela succeeded to his Guru. The trial court held that there was no doubt that it was amply proved that the defendant No. I was installed as a Mahant on miti Mangsar Budi 10 S Y. 2017. The trial court, how ever, observed that the custom in the Math in suit was that only un-married person could be made a Mahant. It concluded:
Since I have decided that defendant No. 1 was never adopted as a Chela to Mahant Prem Das, he could not succeed to him. Otherwise also because he was a 'Grahasti' he could not succeed to Mahant Prem Das.
It also held that the defendant No. 1 had failed to prove that he was de jure trustee and, therefore, the plaintiffs as de facto trustees could sue the former. The suit of the plaintiffs for ejectment of the defendant No. 1 from the "Bagichi" was decreed. However, the suit relating to restoration of ornaments and Utsava mentioned in the Schedule to the plaint was dismissed.
9. Laxmi Narain (defendant No. 1) filed Civil First Appeal No. 108 of,1968 before the District Judge, Merta. The District Judge, by his judgment and decree dated August 23, 1974, allowed the appeal of the defendant No. 1 and dismissed the suit of the plaintiffs. The District Judge, in dis-agreement with the trial court, held that the defendant No. 1 had been in fact nominated Chela of Mahant Prem Das. The District Judge, however, agreed with the trial court that the defendant No. 1 was appointed Pujari of the temple and as such, he was managing the "Bagichi" under the general suprevision of the trustees. The fact that he was Chela of Mahant Premdas did not confer any right upon him in the year 1951 because, even according to the defendant No. 1, he was appointed Mahant in the year 1961 and not in March, 1951. The District Judge was of the opinion that the facts that the defendant No. 1 was Chela of Mahant Premdas and was appointed as a Pujari by trustees were compatible with each other and were not mutually destructive. It was further held by the District Judge that the defendant No. 1 was installed as Mahant by the leading Mahants of the religious fraternity. He observed that once it was held that the defendant No. 1 was installed as Mahant, it was difficult to see how de facto Managers like plaintiffs, whose appointment was invalid, could eject the defendant No. 1. With regard to the findings of the trial court that a married person could not be installed as Mahant, the District Judge stated that this point was not at issue between the parties and there were no pleadings to that effect. He was of the view that the trial court should have refrained from considering the stray and casual admission of the defendant No. 1 and his witnesses. It was held that the trial court was not right in holding that a married person could not be installed as Mahant. On the basis of these findings, the District Judge reversed the decree passed by the Civil Judge, Nagaur and dismissed the plaintiffs' suit holding that the plaintiffs, though de facto Managers of "Bagchi", were not entitled to eject the defendant No. 1 who was initially their servant, but by change of circumstances had been validly installed as 'Mahant' of the "Bagichi". The legal representatives of the plaintiffs Nos. 1 to 3, defendants Nos. 2, 4, 5 & 6 have come up in second appeal to this court against the appellate decree of the District Judge, Merta dated August 23, 1974.
10 Mr. Murli Manohar Vyas, learned Counsel appearing for the appellants, contended that both the courts below have concurrently held that Laxmi Narain (defendant No. 1) was appointed Pujari by the trustees after the former Pujari Nanakdas (his own father) had expired. Services of the defendant No. 1 were terminated on November 9, 1950 and from that date he became a trespasser. On November 13, 1960, the defendant No. 1 assembled some other Mahants and declared himself Mahant and refused to vacate the 'bagichi' and the temple. It was urged that a person who has come into possession under a licence or permission of another cannot deny the right of that person to grant licence or permission. The rule that a tenant cannot deny his Landlord's title, it was argued, extends also to the case of a person coming in by permission as a mere lodger, a servant or under a licence. It was contended that Section 116 of the Evidence Act does not contain the whole law of estoppel. When the defendant No. I had been handed over possession of the 'bagichi' and the temple as pujari, then without openly surrendering back the possession to the de facto trustees, he cannot assert in him any other title. The next contention of Mr. Vyas was that this "Asthan" was always a "Nanga Gaddi." Only celibates could be Mahant in Ramchandra Das-ji-ki Bagichi. Since the defendant was a married person, he could not be installed its Mahant. It was pointed out that the defendant No. I has admitted that all Mahants before him were celibates. Apart from that, the trial court after thoroughly considering various circumstances had held that Laxmi Narain Was not adopted as chela of Prem Das. The defendant No. 1 has also been describing himself as son of Nanu Ram and not as chela of Ram Das. The plaintiffs had proved several documents including Ex. 75 PW 1'6 wherein the defendant No. 1 had described himself as son of Nanu Ram and it was for the latter to explain his admissions, ft was urged that the trial court had exhaustively enumerated the conduct of the defendant No. 1 and his father Nanu Ram which was inconsistent with the defendant No. 1 being chela of Mahant Prem Das. Apart from that, it was neither pleaded nor proved that in the case of Ramchandas ji-ki-Bagichi there was a custom that the Mahant was installed by the fraternity. Even the "bhandara" ceremony takes place on the 17th day of the death of the Mahant. It was the nomination by the previous Mahant which gave the right and not merely the installation by the fraternity. On the basis of the above arguments, Mr. Murli Manohar Vyas urged that the District Judge, Merta was wrong in reversing the decree passed by the Civil Judge, Nagaur.
11. As against this, Mr. Lekh Raj Mehta appearing for the defendant No. 1 urged that during the minority of the defendant No. 1, the Executive Hakim had entrusted ornaments etc. to the certain "Mukhiyas." The defendant No. 1 was chela of Mahant Premdas and he was not a Pujari of the temple. The entries of account books produced by the plaintiffs were not in regularly kept books. When the defendant No. 1 was a minor he was out of Nagaur and any temporary arrangement made during his absence was not binding on him. The plaintiffs were not legal trustees of the 'bagichi' and the temple. The defendant No. 1 was duly installed as Mahant and there was a custom that only celibates could succeed as Mahant. The father's name of the defendant No. 1 had been recorded as Nanu Ram from his child-hood and that was why it continued later also. From this, no adverse conclusion could be drawn against the defendant No. 1 It was also urged that diety was a necessary party to the suit. Lastly, it was urged that no question of estoppel arises in the case.
12. It was not in dispute between the parties that there is a Bagichi just adjacent to Pratap Sagar at Nagaur well known as Ram Charan Dasji ki Bagichi and that there is a temple in this Bagichi in which the deity of Shri Sitaramji is consecrated. This temple was visited by the public of public of Nagaur for Seva Pooja and Darshan. It is also not in dispute that Ram Charan Das, whose name is attached to this Bagichi was a learned saint. Further it is not in dispute that Mahant Premdas was the last mahant of this Bagichi. Mahnat Premdas died on Miti Maha Budi 8, ST. 1999 corresponding to the year 1942 A.D. The Gaddi of the Bagichi belonged to Ramanuj Beragi Sampradaya. Some shops and Kothas were also attached to this Bagichi.
13. According to the plaintiffs, Mahant Prem Das did not leave any Chela (disciple) behind him and be neither nominated any disciple by will and nor enabled the public to appoint any person as Chela of Mahant Prem Das and Mahant of the Bagichi. On the death of Mahant Premdas, one Bhurekhan son of Mehrao khan made a report on January 30, 1943(Ex. 73) to the Executive Hakim, Nagaur stating that Premdas had died issueless and without leaving any disciple. It was prayed that proper and adequate arrangement may be made regarding the management of the Bagichi and its property. One Gangadas filed objections Ex. 69 stating that he was a collateral of Mahant Premdas and he had a right to succeed to his Gaddi. However, it appears from the evidence of Hardayal PW 17, who was Executive Hakim, Nagaur in the year 1943, that he, on an application filed by plaintiffs Nos. I and 2, Gopi Kishan, father of plaintiff' No. 3, Nanu Ram Soni and Mohanlal Rathi (Ex. 70) that they were prepared to act as trustees of the Bagichi, Hardayal Executive Hakim passed an order that the property of the Bagichi may be handed over to the trustees. By a receipt Ex. 71, the trustees acknowledged the receipt by them of the ornaments of the deity and utensils, Ex. 74 contains the details of the ornaments and the utensils handed over to the trustees. There after these trustees were managing the Bagichi and the properties annexed to it.
14. The findings given by the trial court and by the District Judge in appeal on various issues framed in the suit have already been stated above The District Judge held that the defendant No. 1 Laxminarain had been in fact nominated Chela by Mahant Prem Das. How ever, the District Judge agreed with the trial court that the defendant No. 1 was appointed Poojari of the temple and as such, he was managing the Bagichi under the general supervision of the trustees appointed by the Executive Hakim. The District Judge stated:
The fact that he was 'chela' of Mahant Premdas did not confer any right upon him in the year 1951 because, even according to the defendant No. 1, he was appointed Mahant in the year 1961 and not in March 1951. The facts that the defendant No. 1 was 'chela' of Mahant Premdas and was appointed "poojari" by trustees were compatible with each other and were not mutually destructive.
The District Judge further held that the defendant No. 1 was installed as Mahant by the leading Mahants of religious fraternity and once he was installed as Mahant, it was difficult to see how de facto Managers like plaintiffs whose appointment was invalid, could eject the defendant No. 1. The trial court, on the other hand, had held that the adoption of defendant No. 1 as a disciple by Mahant Premdas was extremely improbable and that the defendant No. 1 was never adopted as a Chela by Mahant Premdas. How ever, the trial court held that it was amply proved that the defendant No. 1 was installed as a Mahant on Miti Migsar Budi 10, Samvat 2017. How ever it was held that since it had been decided by him that defendant No. 1 was never adopted as Chela to Mahant Premdas, he could not succeed to him because the custom regarding succession to this Math was that a Chela succeeded to his Guru and also for the reasons that the defendant No. 1 was "grahasti" and not a celibate. The District Judge in appeal held the a question whether a married person could be installed as a Mahant or not was not an issue between the parties and there were no pleadings to that effect and, therefore, the trial court should have refrained from considering the stray and casual admissions of the defendant No. 1 and his witnesses. The trial court was accordingly held to be wrong by the District Judge in holding that a married person could not be installed as Mahant of this Bagichi.
15. Dr, Bijan Kumar Mukherjee in Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust IV Edition at page 321 succinctly stated:
Math in ordinary language signifies an abode or the residence of ascetics. In legal parlance it connotes a monastic institution over by a superior and established for the use or benefit of, belonging to a particular order who generally are disciples or co-disciple of the superior.
16. It is well settled that 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 property is generally vested but in legal contemplation, he has an estate for life in its permanent endowment and an absolute property in the income derived from the offerings or' 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 purpose of religious and other charities in connection with it in accordance with usage (See: Krishna Singh v. Mathura Ahir and Ors. AIR 1980 S.C. 707(713)-para 20.
17. The law is equally well laid down that succession to Mahantship of a Math or religious institution must be governed and regulated by custom or usage of the particular Mohuntee See: Greedharee Doss v. Nundo Kissore Doss, Mohant 1867 cases of the Privy Council 405. Ramalingam Pillai v. Vythilingam Pillai [(20 Indian Appeals 150 (PC)], Gendapuri and Anr. v. Chhatar Furi [(13 Indian Appeals 100 (PC)], Ram Prakash Das v. Ananddas and Ors. AIR 1916 PC 256)], Sitaldas v. Sant Ram and Ors. , Satnam Singh v. Bawa Bhagwan Singh AIR 1938 PC 216, Mahant Bhagwan Bhagat v. Girjanandan Bhagat and Ors. and Krishan Singh v. Mathura Ahir AIR 1980 SC 707.
18. As observed by their Lordships of the Supreme Court in Krishna Singh v. Mathura Ahir (supra), about the 8th Century A.D. Sankara Charya, the greatest Hindu Scholar and philosopher of Modern India, defeated the Buddhist in arguments and re-established Hinduism as the dominant religion in India. Sanakara was an ascetic and founded schools of ascetics. He established four Maths or Seats of religion at four ends of India-Sringeri Math on the Sringeri hills in the south, the Sharda Math of Dwarka in the West, the Jyotir Math at Badrikashram in the north and the Goverdhan Math at Puri in the east. The monks ordained by Sanakara and his disciples were called Sanyasis, Kabir and Nanak also established monasteries on the lines of Sanakara. Chaitanya, the pure, the subtle mystic of Nadia, the greatest exponent and example of Bhagati, originally belonged to one of Sanakara orders viz. 'Bharti' though he voluntarily repudiated Sanakaras pantheism and his followers founded the class of ascetics known as Byragis who too have three establishments. In imitation of the Maths of Sanakara, the followers of Ramanuja also founded Maths preaching the vishsht-Adwaita system in various parts of India. The followers of Madhwacharya, the chief exponent of Dwaita system, also founded Maths the chief among whom are the well known 8 Maths at Udipi. Of Saiva mendicants and ascetics orders, Dandis or staff-bearers, occupied a place of pre-eminence. They worship Lord Shiva in the form of Bahirava and profess to adore Nirguna and Niranjana, the deity devoid of attribute or passion.
19. Yajnavalkya states a special rule of succession in regard to the wealth of ascetics and the like. "The heirs who take wealth of a Vanaprastha (a hermit) or a Yati (an ascetics) and a Brahmchari (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:
A spiritual brother belonging to the same hermitage (Dharma-Bhratra-ka-tirthi) takes the goods of the hermit. A virtuous pupil takes the property of a Yati. The preceptor is heir of the Brahmchari 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.
20. One who enters into a religious order severes his connections 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 connections with his relations as well as with his property. Neither he nor his natural relative can succeed to each others properties. Be that all as it may succession to the office of Mahant is to be regulated by the custom or usage of the particular institution. Even where the Mahant has the power to appoint his successor, it is a 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. 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 ordain are associated together the Mahant of these acknowledging one of their members 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 Chela of another Mahant.
21. The customs relating to the appointment of Mahants vary greatly from each other in different institutions and it is not possible to enumerate them exhaustively. Generally speaking the Maths are divided into three classes according to different ways in which the head or the superiors are appointed. These three descriptions of the Maths are Mourasi, Panchayati and Hakimi In the first, the office of the Mahant is hereditary and devolves on the chief, disciple of the existing Mahant who more-over usually nominates him as successor. In the second, the office is elected, the succeeding Mahant being selected by an assembly of Mahants. In the third, the appointment of the Presiding Mahant is vested in the ruling power or in the party who has endowed to the temple.
22. As has already been stated above, the trial court had held that the defendant No. 1 Laxminarain was not adopted as Chela by Mahant Prem das How ever, the first appellate court has reversed this finding of fact given by the trial court. Mr. Murli Manohar Vyas appearing for the appellants strenuously contended that the District Judge has reversed the finding of the trial court without considering all the circumstances on which the finding was based and therefore, the finding of the District Judge is not binding on this Court and' should be set aside and that of the trial court restored. As observed in Sri Sinna Ramanuja Jeer and Ors. v. Sri Ranga Ramanuja Jeer and Anr. (530), it is well settled that the High Court has no Jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however, gross the error might seem to be. In that case, their lordships held that the High Court was in error in reversing the finding the District Judge, which was one of fact that the Emberumanar temple was neither subordinate to nor part of the Althinathalwar temple and no office holder of the former could, therefore, become office bearer of the latter Thus how so ever, erroneous the finding of fact on the question whether Mahant Premdas adopted Laxminarain defendant No. 1 as his Chela might be, this Court in second appeal has no jurisdiction to interfere in that finding of fact. I, therefore, refuse to interfere with the finding of fact arrived at by the District Judge that the defendant No, 1 was Chela of Mahant Premdas.
23. I may next examine the question about the custom or usage in this religious institution about successor on the death of Mahant The defendant No. 1 in his written statement, after pleading that he was adopted as Chela by Mahant Premdas, did not assert that only by virtue of that he became Mahant of this religious institution on the death of Mahant Premdas On the other hand, in para 15 of the written statement he pleaded that on hearing about the death of his father in S.Y. 2007 he came back to Nagaur from out-side and took over the management of the Bagichi as the disciple of Mahant Premdas. On November 13,1960, the other Mahants of the religious fraternity customarily and lawfully installed him on the 'gaddi' of Mahant by covering his body with the "Chadar" of deceased Mahant Premdas and since then he has all the rights of the Mahant in respect of the Bagichi Thus the case of the defendant No. 1 was that the assembly of Mahant of the same religious fraternity elected and installed him as Mahant of the Bagichi because he was disciple of late Mahant Premdas. In other words, what the defendant No. 1 pleaded was that although a disciple of the Mahant succeeds him as Mahant but a ceremony of installation by the community of Mahantas of the same religious fraternity is required to make, him the Mahant of the Math As has been observed in Krishna Singh's case (supra), there are instances of maths in which Mahantship descends from Guru to Chela but the general rule is that the maths of the same sect in district or Maths having a common origin are associated together-the mahant of these acknowledging one of their members as a head who for some reason is prominent; and on the occasion of the death of one the others assemble to elect a successor out of the disciples of the deceased, if possible or if there be none of them qualified then from the Chelas of another Mahant.
24. From the side of the plaintiffs, there was no definite evidence about any different custom. Mangilal PW 1 stated that he does not know how a Chela is adopted. He also stated that no one can become a Mahant unless he is adopted as Chela. He showed ignorance about the custom or usage as to how a Mahant was installed in this institution. All that he said was that in S.Y. 2017, the defendant No. 1 fakedly played a drama of becoming Mahant Poonamchand PW 2 deposed that when a disciple becomes Mahant the 'Chadar' of the deceased Mahant is wrapped around him. This ceremony is performed by other Mahants. Other witnesses examined on behalf of the plaintiffs threw no further light on the matter. So far as defendant No. 1 himself is concerned, he stated in his cross-examination that all the previous Mahants of this Gaddi were celibates. Previously no 'Grahasti' became Mahant of this Gaddi. He was the only person who had been married by his real father after the death of Mahant Premdas and before his being installed as Mahant by the other Mahants of the same fraternity. He also stated in his evidence that the Gaddi of this Bagichi is of Ramanuj Beragi cult. He also deposed that there are 10 other Caddies of Ramanuj cult in the area. Before a Mahant is installed the Mahants of other Gaddies are summoned. They are taken into a procession Next day Bhandara takes place and the Mahants, after shaving the head of the disciple, install him as a Mahant of the institution. The defendant No. 1, has examined Premdas DW 2, Shiv Ramji DW 3, Shamdas DW 4 Kishore Das PW 5 Asha Ram DW 6 and some other witnesses to support his version that the Mahants of the same cult assembled and installed him as Mahant and successor of late Mahant Premdas on Miti Magsar Budi 10, S Y 2017 corresponding to the year 1960 i.e. about 18 years after the death of Mahant Premdas.
25. The trial court, while dealing with issue No. 9 observed as under:
It was with difficulty that custom pleaded by defendant No. 1 in his written statement could be extracted. The relevant paras in the written statement are para 8 and para 13. From these paras it appears that the custom which defendant No. 1 wanted to set up was that a recognised Chela of the deceased is installed as a Mahant by the prominent Mahants of his sect by placing a "Chaddar" over such Chela.... Curious feature of the case is that the plaintiffs chose not to file any rejoinder or lead evidence to rebut this issue.... Normally this evidence which has not been specifically rebutted by the plaintiffs should be enough to prove that the defendant No. 1 was adopted as Chela of Mahant Premdas. But.... I hold that defendant No. 1 was never adopted as a Chela of Mahant Premdas.... If Laxminarain was a Chela of Mahant Premdas normally he should succeed to him.... I hold that the custom as to succession in Bagichi of Ramcharandasji was that a Chela was succeeding to his Guru.... I would say that it has been proved that the defendant No. 1 was installed as a Mahant.... The custom in the Math in dispute was that only unmarried person could be made a Mahant as would be clear from the evidence of defendant.... It appears that this Math was of celibates and only celibate would become a Mahant.... Since I have decided that defendant No. 1 was never adopted as a Chela to Mahant Premdas he could not succeed to him. Otherwise also because he was a Grahasti he could not succeed to Mahant Premdas.
28. So far as the District Judge is concerned he stated as under:
It appears that the appellant was appointed Poojari of the temple and as such he was managing Bagichi under the general supervision of the trustees. The fact that he was Chela of Mahant Premdas did not confer any right upon him in the year 1951. According to the appellant himself, he was appointed Mahant in the year 1961 and not in March 1951. In my opinion, the facts that the appellant was Chela of Mahant Premdas and was appointed as a Poojari by the trustees are compatible with each other and are not mutually destructive I, there fore, in agreement with the learned court below hold that the appellant was in fact appointed Poojari by the trustees. This was not-with-standing the fact that the appellant was also a Chela of Mahant Premdas.
I have gone through the statements of these witnesses. They amply prove that the appellant was installed as Mahant by the leading Mahants of the religious fraternity.... Once it is held that the appellant was installed Mahant it is difficult to say how de facto managers, namely, Plaintiffs, whose appointment was invalid, could eject him. I, therefore, hold that the decree of ejectment against the appellant who was duly installed as Mahant cannot be sustained.
It would appear from the above findings of the courts below that both of them have found it a fact that Laxminarain defendant No. 1 was appointed a Poojari of the temple of Shri Sitaramji in the Bagichi by the trustees appointed by Executive Hakim on a monthly pay of Rs. 12/-. It has also been found by them that in S.Y. 2017 i.e. 1960 A.D. the defendant No. 1 had been installed as Mahant of this Bagichi by an assembly of Mahants of the same sect. Both these findings are findings of fact and cannot be interfered in the second appeal.
27. With regard to the findings of the trial court that the custom in the Math in question was that only unmarried persons could be made a Mahant, the District Judge stated that he had carefully gone through the plaint filed by the plaintiffs and he did not find any averment to the effect that a married person was ineligible from becoming Mahant of the community It was further stated by the District Judge that if the plaintiffs wanted to say that a married person could not be installed as a Mahant, they should have said so specifically. No rejoinder was filed by the plaintiffs to the written statement to say that a married person could not be installed as Mahant and no issue was framed on the point. On account of this fact, the District, Judge held that the trial court was not right in holding that a married person could not be installed as Mahant.
28. The Judicial Committee laid down in Genda Puri v. Chhatar Puri (supra) that in determining who is entitled to succeed as Mahant, the only law to be observed is to be found in (he custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it.... Mere infirmity of the title of the defendant who is in possession will not help the plaintiff." The same view was reiterated by their Lordships of the Judicial Committee in Ramlingam Pillai v. Yahilingam Pillai (supra) It was for the defendant No. 1 in the instant case to allege and prove the custom about succession as Mahant in this religious institution and not for the plaintiffs. So far as defendant No. 1 is concerned, he has clearly admitted that this Gaddi of the Bagichi was of Ramanuj Bairagi cult. He also unequivocally admitted that prior to him no Grahasti became Mahant of this Bagichi. It is important to note that this religious institution was established about 100 years or 125 years before the institution of the suit. Marriage by itself is not a disqualification, but the initiation of a married man' must be preceded by the entire and permanent separation from his wife and by the giving up of all worldly ties. This is the rule in all ascetic foundations where the members have to take the vow of celibacy. In my view, the trial court was right that the defendant No. 1 being married and having not separated from his wife and having not renounced the worldly order, was not qualified to become Mahant of this Bagichi in which only celibates' have all along been the Mahants since it is founded. I do not agree with the conclusions arrived at by the District Judge.
29. There is one more important aspect in the case which has to be given due consideration. As already stated, both the trial court and the District Judge have found that the plaintiffs and other trustees have appointed Laxminarain as Poojari of the temple on the monthly pay of Rs. 12/-on March 8, 1951. It also been found that the Executive Hakim had appointed the plaintiffs and Ors. as trustees and that they were de facto trustees. The trustees having appointed the defendant No. 1 Laxminarain as a Poojari on monthly pay of Rs. 12/-were entitled to remove him. The service of defendant No. 1 was terminated by the trustees on November 9, 1960, by a notice It was on November 13, 1960 that the defendant No. 1 called Mahants of the same sect and got him himself installed as Mahant. Reference may be made to Section 116 of the Evidence Act, which estops a tenant and a licensee from denying the title of his land-lord or as the case may be, of the person granting the licence. It has been stated in Halsbury's Laws of England (IV Edition) page 1097-para 1627 as follows:
There is no distinction, so far as concerns the law of estoppel, between a licensee and a tenant, and a licensee who had obtained possession by aid of the licence before he can show that his licensor had no title or that his licensor's title has been determined must first surrender possession of the premises. Same thing has been said in relation to a tenant in para 1626 that if the tenant came into possession under the lessor, the better opinion would seem to be that he must surrender possession or must have been evicted by a person having a title paramount before he disputes the lessor's title.
In a case where the defendant No. 1 claimed his own right as a Mahant over the "Bagichi", he has to first surrender possession of the premises to the de facto trustees and then vindicate his right by a separate suit.
30. In Mst. Bilaskanwar v. Dash Raj Ranjeet Singh AIR 1915 PC 96 it was laid down that a tenant has been let into possession cannot deny his land lord's title however defective it may be so long as he has not openly, restored possession by surrender to his landlord. In Mujjibur Rehman v. Isub Surati AIR 1928 Cal 516, a Division Bench of the Calcutta High Court stated that Section 116, Evidence Act does not contain the whole law of estoppel and that the tenant's estoppel upholds even after the determination of the tenancy. The Privy Council also said in Chandrika Prasad v. Bombay Baroda and Central India Railway Company AIR 1935 PC 59 that tenant cannot dispute his lessor's title so long as he remains in possession under an agreement which he had made with them.
31. In Ajitullah v. Bilatibibi AIR 1932 Cal. 383 a single Judge of the Calcutta High Court stated that Sections 115 to 117 of the Evidence Act are not exhaustive and the principle of estoppel contained in these sections be applied by analogy to the parties not mentioned there in, the whole basis of the doctrine being the letting into possession. It can be applied to the case of a licensee or an agent let into possession. To the same effect is the decision reported in I.O.R. (1906) 33 Cal. 915 (921).
32. As to the competence of the plaintiff's to file the suit even on the footing that they were not de jure trustees but only de facto trustees, it may be, stated that it is well-settled that the ordinary rule that the persons without title and who were mere intermeddlers cannot sue as of right is clear. But where public trusts are concerned, courts have a duty to see that their interests and the interests of those for whose benefit they existed are safeguarded. The courts must possess the power to sustain proper proceeding by them in appropriate case and grant the relief in the interest of and for the express benefit of the trust imposing such conditions as may be called for. Therefore a person who has been de facto in possession and management of a math and its properties for a long time claiming to be its trustee under the decree of the court, valid or invalid, has sufficient interest, to maintain proceedings for the warding off a cloud cast by the defendant's action and the interest of the Math See: Vikarmadas Mahant v. Dash Ram Asthana paras 14 to 16 per Jagananthadas, J.)]. Their Lordships of the Judicial Committee also in Mahadeo Prasad Singh and Ors. v. Karia Bharti LR-LXII Indian Appeals 47 held that as K, was in actual possession of the Math, he could maintain the suit for its benefit. That was a suit by de facto Mahant. Their Lordships relied upon the decision in Ramcharandas v. Naurangilal 60 Indian Appeals 124. The plaintiffs, being de facto trustees, therefore, filed this suit for ejectment of the Poojari. The trustees were admittedly realising rent of the properties attached to the Bagichi.
33. I may refer to the decision of their Lordship's of the Supreme Court in Peria Swami v. Sunderesa Ayyar . A suit was filed by the trustees of a temple for possession of the temple lands on the basis of the title of the temple. The relief claimed was the eviction of Archaka and their alienees from the suit land on the ground that they had no title to remain in possession. The Archaka raised the plea that the title of the deity was confined only to 'meevaram' in the plaint schedule lands and that they had no title to the Kudivaram. Both the courts confirmed the title to the deity to both the interests and negatived the title of the defendant Archakas. The High Court further held that the Archakas were entitled to a portion of the lands allotted to them towards their remuneration for service to temple, though there was no pleading or issue or contention to that effect. Subbarao, J. speaking for the Court, held that the High Court went wrong in making an allocation of lands between the trustees and the Archakas in a suit for ejectment. The High Court had no option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing scheme for a temple, the court may, in an appropriate case, put the Archaka in possession of a portion of the temple lands towards his remuneration for service to the temple but that was not a suit for framing a scheme. His Lordships relied upon the decision in B. Satyanaraina v. K.A. Venkatapayya . Poojari was undoubtedly a servant of the defacto trustee.
34. I agree with the findings of the trial court that the Executive Hakim Nagaur of the former Marwar State had no right or authority to appoint trustees to manage the properties of a religious or charitable institution but as already stated above, the plaintiffs as de facto trustees had a right to file the suit for ejectment of defendant No. 1 who was admitted by them as Poojari on monthly pay of Rs. 12/- on March 8, 1951. The District Judge, Merta was wrong in holding that the plaintiffs, though de facto Managers of the Bagichi, were not entitled to eject Laxminarain defendant No. 1. I have already stated that Laxminarain was admitted by the de facto trustees as a Poojari in the year 1951 and he is estopped from denying the title of the de facto trustees until he first surrendered the possession of the Bagichi and the temple therein to the de facto trustees. It has further been found by me that only celibates could be Mahant of the Bagichi in the suit.
35. Before parting with this judgment I would like to observe that the plaintiffs-appellants and other trustees were not validly appointed by the Executive Hakim as he had no power to appoint them to manage the properties of this religious institution. The trustees are Maheshwaries by caste and they cannot be said at all to be worthy to manage this Math. A Mahant should and is necessary to be appointed in respect of this Bagichi and the properties and the temple attached thereto. These intermeddlers should not be allowed any more to reap the fruits of the properties attached to the temple. The Math was founded by believers of Ramanuj sect and its Mahant should be installed in accordance with the custom and usage of this Math as held in this judgment. I, therefore, order that a copy of this judgment be sent to the Advocate General Rajasthan and Devasthan Commissioner Rajasthan immediately for appropriate action.
36. With the above directions, this second appeal is allowed; the decree of the District Judge Merta dated -August 23, 1974 is set aside and the decree of the Civil Judge, Nagaur is restored. Looking to the entire facts and circumstances of the case the parties are left to bear their own costs throughout.