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1. This is an appeal by defendant 1 against the Judgment of the Subordinate Judge, Cuttack declaring the plaintiff's right to succeed to the Mahantship of the Katarpa Math, situated, in the district of Cuttack, of which the last Mahant was one Ram Narayan Das. The appellant Tulsiram Das is the son of Mahant Ram Narayan Das by his second wife, Tulsi Dibya, the plaintiff being the son of Raja Ram the deceased son of Ram Narayan by his first wife.

2. The plaintiff alleges in his plaint that the Math at Katarpa was founded by one Lalu Das, a Gruhasth Brahmin Vaishnab and that devolution of the succession to the office of Mahant in that Math is governed by the rule of lineal primogeniture. The plaintiff further avers that, in accordance with the direction of the original founder Lalu Das the Mahantship has descended to the eldest male line all along. The plaintiff being an issue of Ram Narayan by his eldest son, claims the headship of the Math as of right according to the rule of primogeniture prevailing in the institution which is admittedly a Vaishnab Mourasi Math of the Sri Sampradaya Sect.

9. It should be stated here that learned counsel for the respondent did not challenge the finding of the trial Court on the legitimacy of the appellant. It was also conceded that the deed of appointment executed by the late Mahant was not vitiated by undue influence exercised by either the appellant or his mother. The controversy has thus been narrowed down to a single question, namely, whether there is a custom of succession by lineal primogeniture prevailing in the suit endowment, or whether the last Mahant has the right of nominating his successor.

14. By the very nature of the office, a Mahantship must be held to be inalienable and impartible. It is common ground that the office can be held only by a single heir at a time. These features which are common to impartible estates as well as to the office of a Mahant have led to some confused thinking and arguments were addressed to us on the assumption that there is absolutely no difference between the two.

It should be remembered however that impartibility does not always necessarily imply primogeniture though estates which are Impartible are often subject to the rules of primogeniture, due to historical reasons. Nor does a single succession mean succession by the eldest son. The rule of lineal primogeniture should be distinguished from the rule of primogeniture by proximity according to which the person nearest in blood takes.

The contesting defendant Tulsiram alias Baldhar (defendant 1) is Mahant Ramnarayan's son by his second wife. The plaintiff alleged that succession to the Mahantship and Sebait Marfatdari right devolved on him according to the rule of lineal primogeniture which was a special custom of the institution and that he was, therefore, the preferential heir. Defendant 1, however, alleged that there was no custom or rule of lineal primogeniture prevailing in the institution but that the reigning Mahant had the right to nominate his successor.