Mahant Goswami Krishnadevanand Ramji vs Mahant Kapildeo Ramji

This petition in revision is directed against a summary order passed u/s 194, Succession Act (39 of 1925), regarding the possession of properties which to start with, were described as the properties of a muth called the Rajipur Asthal otherwise known as Dhana Asthal. The last mahant of the Asthal was Mahant Goswami Madhwanand Ramji who died on 26th February 1940. Thereupon dispute arose regarding succession to the office of mahant.

On 21st March 1940, Mahant Goswami Kapildeo Ramji filed an application u/s 192, Succession Act, impleading 17 persons as opposite party, in the Court of the District Judge, Patna, alleging that he was the lawful successor-in-office of the last Mahant "by virtue of his being descended from the common Mahant of the institution aforesaid and also by virtue of his having been so nominated by the Mahants of the neighbouring places and districts," and that

the opposite party with a view to make illegal and wrongful gain to themselves have been trying to take possession of the properties by forcible means although the petitioner has taken possession of the properties of the Muth in exercise of his legal right to the properties aforesaid,

and praying that peaceful possession of the properties of the Muth be given to the applicant. On receipt of this application the learned District Judge examined the applicant on oath, as required by Section 193 of the Act, and being satisfied that there were sufficient grounds for taking further action, as laid down in that section, he summoned the opposite party u/s 194 of the Act. He also appointed a curator u/s 195 of the Act. The application was opposed by the opposite party No. 1 (hereinafter referred to as the objector), one Kishundeo Pandey son of Sheopujan Pande, who however appeared not intnat name but as Mahant Goswami Krishnadevanand. He claimed that he was the duly adopted Chela of the deceased Mahant and as such had succeeded him and come into possession of the Asthal and its properties. He altogether denied the claim of the applicant. He also raised an objection to the maintainability of the application on the ground that the properties in dispute being properties of the Asthal, the provisions of Section 192 and the succeeding sections of the Act were not applicable.

On 15th April 1941, the following points were settled for determination: (1) Is the application maintainable? (2) Was opposite party No. 1 adopted as Chela by the late Mahant of Rajipore? (3) Is the opposite party No. 1 a minor? (4) Is opposite party No. 1 not a Sadhu? (5) Was the applicant recognised by neighbouring Mahants as Mahant of Eajipore after the death of the late Mahant? (6) Is the applicant of a different sect from the late Mahant?

The learned District Judge first took up the preliminary point No. 1, and by his order of 6th May 1941, he held that the application was maintainable. The objector did not come up in revision against that order to this Court, but waited till the disposal of the case on the merits. The case was taken up for hearing on the merits on 19th June 1941. Before recording evidence the District Judge laid down certain limits to which the evidence was to be confined, as the proceeding before him was to be summary. He ruled that

The evidence should be confined to certain main points which should be sufficient for giving a summary decision on the question of title subject to the decision of a subsequent title suit.

Both parties wished to adduce evidence of statements of the deceased Mahant bearing on the question whether he had adopted the objector as his Chela, but under the ruling of the learned District Judge such statements were excluded from evidence. Still the parties examined a number of witnesses, and evidence was recorded at no small length on as many as 17 days. Arguments were heard for three days. On the evidence the learned District Judge held that the objector was not initiated as Chela by the deceased Mahant and that the applicant

was actually recognized by a number of neigh boring Mahants at a formal ceremony held at Rajipur on the 13th day after the death of the late Mahant Madhwanand.

He decided points Nos. 3 and 4 in favour of the objector and point No. 6 in favour of the applicant. In the result he passed the following order on 18th August 1941:

Under Section 194, Succession Act, therefore I determine that the petitioner has the right to possession over the properties which were held by the late Mahant Madhawanand and possession will be delivered to him accordingly.

Against this order the objector filed this petition in revision on 22nd August 1941. The first contention raised by Mr. P.R. Das, on behalf of the objector is that the District Judge had no jurisdiction to entertain the application u/s 192, Succession Act. To this the first answer given by the Advocate-General, appearing on behalf of the opposite party, is that the point was decided by the District Judge by his order of 6th May 1941, and the objector, not having moved in revision against that order, but having waited till the disposal of the case on the merits, this Court cannot now be asked to interfere in revision with that order. Mr. P.R. Das attempts to meet this objection by saying that the objector was entitled to wait till the final disposal of the case. In support of this contention, reference is made to the analogy of a case where, on the decision of a preliminary issue regarding the maintainability of a suit in favour of the plaintiff, the defendant is entitled to challenge it in an appeal from the decree in the suit. This analogy is of no assistance. In the first place, no appeal lies from a decision of a particular issue, (unless of course it amounts to a decision of the suit itself). Secondly, while an appeal, where it lies, is, to the aggrieved party, a matter of right, the power of revision u/s 115, Civil P.C., is a discretionary power conferred upon this Court, as is clear from the terms of the section itself. In the present case the order of the District Judge regarding the maintainability of the application was made on 6th May 1941. The objector could have at once filed a revisional application against that order, and if he had done so, the question of maintainability would have been finally disposed of before the case could be taken up for hearing on the merits by the District Judge, further proceedings before him being stayed in the meantime, if necessary; and if this Court had upheld the objection regarding the maintainability, there would have been no need at all for the District Judge to take evidence and deal with the case on the merits. The objector thus took his chance of a decision on the merits in his favour, and as he failed ultimately, this Court will not be too ready to assist him in revision on the preliminary point--compare Drobo Moye v. Bepin Mundul (''68) 10 W.R. 6. His present petition in revision is moreover directed specifically against the order of the District Judge dated 18th August 1941: if it had been directed against the order of 6th May 1941 alone, it would have been out of time. It is true that the Limitation Act makes no provision for an application for revision, but it is the usual practice of this Court not to entertain petitions for revision filed beyond 90 days. If the order of the District Judge dated 6th May 1941 had been immediately challenged in revision, and the revisional application had succeeded, not only would much public time have been saved in the Court below (where there were as many as 20 hearings on this account), but the parties would also have been spared much unnecessary trouble and expense. In these circumstances, this seems to be pre-eminently a case in which the High Court should refuse to exercise its discretionary power of revision, so far as the order dated 6th May 1941 is concerned.

Let us, however, turn to the merits of the objection regarding the maintainability of the application u/s 192, Succession Act, as the point has been so elaborately argued before us. This section and the sections that follow up to Section 210 form Part VII, Succession Act, when is headed "Protection of Property of deceased." It will be useful here to quote the following sections:

192 (1) If any person dies leaving property, moveable or immovable, any person claiming aright by succession thereto or to any portion thereof may make application to the District Judge of the district where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.

(2) Any agent, relative or near friend, or the Court of Wards in cases within their cognizance, may, in the event of any minor, or any disqualified or absent person being entitled by succession to such property as aforesaid, make the like application for relief.

The District Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.

194.If the District Judge is satisfied that there is sufficient ground for believing as aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant or disturbed possession by publication, and, after the expiration of a reasonable time, shall determine summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession accordingly;

Provided that the Judge shall have the power to appoint an officer who shall take an inventory of effects, and seal or otherwise secure the same, upon being applied to for the purpose, without delay, whether he shall have concluded the inquiry necessary for summoning the party complained of or not.

195.If it further appears upon such inquiry as aforesaid that danger is to be apprehended of the misappropriation or waste of the property before the summary proceeding can be determined, and that the delay in obtaining security from the party in possession or the insufficiency thereof is likely to expose the party out of possession to considerable risk, provided he is the lawful owner, the District Judge may appoint one or more curators whose authority shall continue according to the terms of his or their respective appointments, and in no case beyond the determination of the summary proceeding and the confirmation or delivery of possession in consequence thereof:

Provided that, in the case of land, the Judge may delegate to the Collector, or to any officer subordinate to the Collector, the powers of a curator:

Provided, further, that every appointment of a curator in respect of any property shall be duly published.

An application under this Part to the District Judge must be made within six months of the death of the proprietor whose property is claimed by right in succession.

The decision of a District Judge in a summary proceeding under this Part shall have no other effect than that of settling the actual possession; but for this purpose it shall be final, and shall not be subject to any appeal or review.

Mr. P.R. Das''s argument, in substance, is this. Part VII, Succession Act, deals with "Protection of Property of Deceased." "Property of deceased" means property of which the deceased was the owner or proprietor. This is further borne out by the use of the expression "the lawful owner" in Section 193 and of the word "proprietor" in Section 205. But Muth property cannot be said to be property of which the deceased mahant was the owner or proprietor. A mahant is merely a manager of the Muth, as held by their Lordships of the Privy Council in Vidya Varuthi v. Balusami Aiyar AIR 1922 P.C. 123 .

Part VII of the Succession Act incorporates the provisions of the Succession (Property Protection) Act (19 of 1841) otherwise known as the Curators Act, which, as the preamble shows, was an Act "for the protection of moveable and immovable property against wrongful possession in oases of successions." The sections of the present Succession Act quoted above also make it clear that Part VII is intended to provide for speedy relief against wrongful possession in cases of successions. This object is carried out by prescribing a summary proceeding in which the Court is to determine the right to actual possession: and Section 209 distinctly provides that the decision in such a proceeding shall have no other effect than that of settling the actual possession and shall not be subject to any appeal "or review." The very next Act passed by the Legislature, Act 20 of 1841, was the Collection of Debts on Succession Act, which was replaced by Act 27 of 1860. This in its turn made way for the Succession Certificate Act, 7 of 1889, which now forms Part X of the Succession Act, and authorizes the Court in a summary manner to decide the right to a succession certificate, even without going into intricate questions of law or fact, on the basis of prima facie the best title, subject to appeal, and without barring the trial of any question of right (if already dealt with in the summary proceeding) in any suit or other proceeding between the same parties (see Sections 373(3), 384 and 387). In the words of Jenkins, C.J., the Legislature here contemplates "a short inquiry, leading up to and resulting in a rapid decision, in contrast with the lengthy investigation which may be required for the more tardy determination of a regular suit" Gulabchand v. Moti (''01) Bom. 523. The analogy of this Act helps to throw some light on the scope of the Curators Act.

Although muth property may not vest in the mahant as owner, it is he that has the right to its possession. The property is attached to the office of mahant and none but the mahant has the right to hold the property. The property passes with the office. In Gnansambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 their Lordships of the Privy Council said "there is no distinction between the office and the property of the endowment. The one is attached to the other." Where the office of mahant devolves by succession, as in the present case, the successor not only succeeds to the office of mahant but by virtue of such office, he acquires the right to possession of the muth property. The right to the office of mahant and the right to possession of the property go together. It is only in an ideal sense that the muth property is held by the muth. "It still remains" as Lord Macnaghten said in a case of dedication to an idol, "that the possession and management of the dedicated property belongs to the shebait, and this carries with it the right to bring whatever suits are necessary for the protection of property. Every such right of suit is vested in the shebait, not in the idol." [Jagadindra v. Hemanta (''05) 32 Cal. 129 (italics not in the original) an observation which applies to the mahant of a muth in respect of muth property as well].

It is true that in Vidya Varuthi v. Balusami Aiyar AIR 1922 P.C. 123 their Lordships of the Privy Council pointed out that the position of a mahant is that of a manager, but it does not seem correct to take that ease as deciding that the mahant has no higher rights than a mere manager. The question for decision in that case was whether Article 134, Limitation Act, which refers to a suit "to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or the mortgagee for a valuable consideration" would apply to a transfer by a Mahant. Their Lordships held that a Mahant is not a trustee in the strict English legal sense of the term and that therefore a transfer by him would not come under Article 134 which refers to "property conveyed or bequeathed in trust." At p. 840 their Lordships did say "Called by whatever name, he is only the manager and custodian of the idol or the institution," but the context makes it clear that this was only said in order to negative the position that the property of the institution was conveyed to or vested in him in any case or that he was a trustee in the English sense of the term. It was not actually decided that the mahant possesses no higher rights than a mere manager. Their Lordships themselves quoted, apparently with approval, the following passage from Sammantha Pandara v. Sellapa Chetti (''78) 2 Mad. 175:.,

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 mattamiand 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.

This passage has an important bearing on the present case. In the opening part of this passage the property of the muth is regarded as passing by inheritance to the succeeding mahant. In the concluding portion the debts contracted by the deceased mahant for the purposes of his muth are considered as devolving "as a liability on his successor to the extent of the assets received by him." Prom the same case Sammantha Pandara v. Sellapa Chetti 2 Mad. 175 the following passage had been quoted a few years previously with unmistakable approval, by their Lordships of the Privy Council in Ram Parkash Das v. Anand Das AIR 1916 P.C. 256 :

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 instals 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.

Here the disciple is spoken of as taking by succession the property which was held by his predecessor. And their Lordships, while dealing with the position of the mahant of a muth, observed at p. 713 that "the whole assets are vested in him as the owner thereof in trust for the institution itself." Again, at p. 714, their Lordships after quoting the following passage from Sammantha Pandara v. Sellapa Chetti (''78) 2 Mad. 175:

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.

observed

It is, however, the rule that this property is held by the mahant as its owner, and the succession to him in such property follows with the succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the muth or institution itself, and it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning mahant, this trust does exist, and it must be respected.

It must of course be taken as settled by the decision in Vidya Varuthi v. Balusami Aiyar AIR 1922 P.C. 123 that in such contexts the term trustee is used in a general sense by way of a compendious expression to convey a general conception of the obligations attached to the office of the mahant. But what is important for the purposes of the present case is that the mahant has large powers over the property of the muth akin to those of an owner in trust. And even in Vidya Varuthi v. Balusami Aiyar AIR 1922 P.C. 123 their Lordships spoke at p. 843 of the shebait or mutwali holding property for the idol or institution, "as manager with certain beneficial interests regulated by custom and usage." Again in Srinivasa Chariar v. Evalappa Mudaliar AIR 1922 P.C. 325 their Lordships observed at p. 581:

The position of dharmakartha is not that of shebait of a religious institution, or of the head of a muth. These functionaries have a much higher right with larger power of disposal and administration, and they have a personal interest of a beneficial character.

From all these decisions, it seems fairly clear that the mahant has some interest in the muth property which on his death devolves by inheritance on his successor.

Mr. P.R. Das lays much stress on the fact that in the claimant''s own application u/s 192 it is stated that the disputed properties belong to the muth and that the deceased mahant used to manage the muth and its properties. This, it is argued, c means an admission that the deceased was a mere manager of the disputed muth and its properties. The statement, however, is merely a statement regarding the legal position, as it then appeared to the claimant or his lawyer. It is not disputed before us that the deceased mahant was actually recorded in the Collectorate D Register as the proprietor of the different estates that are in question. The Act under which these entries are made by revenue officers specifically distinguishes between proprietors and managers or persons in charge of property on behalf of a religious or charitable foundation--see the definitions in Clauses (8) and (5) of Section 3, Ben. Land Reg. Act, 7 of 1876. Prima facie, therefore, the disputed properties could, for the purpose of this summary proceeding, be regarded as properties of the deceased mahant Mr. P.R. Das contends that an entry in the D Register is no evidence of title, as held by the Privy Council in Nirman Singh v. Rudra Partab Narain Singh AIR 1926 P.C. 100 and also in Shyama Sundari Dasya v. Mahomed Zarip (''09) 9 C.L.J. 91 and Saiyid Ekram Hussain v. Saiyid Ali Hussain (''33) 17 P.L.T. 423. But these were all cases in which the question arose in title suits between parties setting up rival claims to the disputed property. Here the question simply is whether for the purpose of a summary enquiry under Part 7, Succession Act, the estates entered in the D Register in the name of the deceased mahant should be regarded as his property or as the property of the Muth. The said decisions, in our opinion, are of no assistance in the present case.

Is there any reason why Part 7, Succession Act, which refers to "property of deceased" should not apply to property held by a deceased mahant as mahant Muth property is held by the mahant, and on his death his successor-in-office is entitled to hold that property. When the mahant dies the property is left by him, and his successor-in-office is entitled to claim a right by succession thereto. Section 192 would thus seem in terms to apply to muth property. The words "owner" and "proprietor" used in Sections 195 and 205 respectively will of course not, strictly speaking, apply to a mahant. But these words are taken from the corresponding Sections 5 and 14 of Act 19 of 1841, an Act which was passed at a time when the law had yet to be developed and it was by no means clear that a mahant was not the owner of the muth. How long the un certainty lasted may be seen from the fact that as late as 1921 their Lordships of the Judicial Committee had in Vidya Varuthi v. Balusami Aiyar AIR 1922 P.C. 123 , to overrule the view of the Madras High Court that the law had been crystallized in Ram Parkash Das v. Anand Das AIR 1916 P.C. 256 , at p. 714 where it had been observed that

this property (referring to muth property) is held by the mahant as its owner, and the succession to him in such property follows with the succession to the office.

It is true that the Succession Act of 1925 was passed after the decision in Vidya Varuthi v. Balusami Aiyar AIR 1922 P.C. 123 , but it was, as the preamble shows, only a consolidating Act, and Part 7 merely reproduces the sections of Act 19 of 1841. This part must, therefore, be interpreted in the light of the earlier Act 19 of 1841. If, having regard to the general scheme of the Act 19 of 1841, muth property be held not to be excluded from its operation, Part 7, Succession Act, must also be held to apply to such property.

It may be observed that there are a large number of ancient muths and other public religious institutions in India, and cases of disputed succession and wrongful possession, such as were contemplated by the Curators Act (19 of 1841), were even more likely to arise with regard to the properties of such institutions than with regard to ordinary secular properties. This makes it difficult to attribute to the Legislature an intention to exclude from its operation the properties of such religious institutions. Mr. P.R. Das suggests that as Bengal Regulation 19 of 1810 which was in force till 1863, when Act 20 of 1863 was passed, and contained provisions vesting the power of general superintendence of all lands granted for the support of public institutions in the Board of Revenue, the Legislature may have considered it unnecessary to include such properties in the Curators Act. He has taken us into the various provisions of the regulation, but has not been able to point to any which deal with cases of disputed succession and wrongful possession, such as were contemplated by the Curators Act.

Learned Counsel has also relied on Jib Lal Gir v. Jaga Mohan Gir 16 C.W.N. 798 and Parsania v. Hari Charan Das (''12) 17 C.L.J. 65 in the former case the head-note runs thus:

A mahant is not the owner of the property of the muth, and on his death a person claiming to be his successor-in-office cannot apply under Act 5 of 1881 for letters of administration in respect of the muth property. Section 37 of the Act is in tended to apply only to property in which the deceased person had ownership so as to constitute it a portion of his estate although he held it in trust.

From the judgment, however, it appears that it was not disputed in that case "that the deceased mahant had no ownership in the property of the muth which was in his change." The reason for the actual decision is to be found in the following passage:

No doubt the shebait ''administers'' the affairs of the idol in the sense that he carries on the general management; but that is not ''administration'' in the restricted technical sense in which, i.e., the word is used with reference to the estate of a deceased person.

The case thus turned on the meaning of ''administration,'' as used in the Probate and Administration Act (5 of 1881). This decision was followed in Parsania v. Hari Charan Das (''12) 17 C.L.J. 65 in these words:

It was pointed out by this Court in Jib Lal Gir v. Jaga Mohan Gir (''12) 16 C.W.N. 798, that a mohunt is not the owner of the property of the muth and on his death a person claiming to be his successor in office cannot apply under Act 5 of 1881 for letters of administration in respect of the muth property. It is further clear that there are no assets to be administered in this case.

The effect of these decisions is no doubt that letters of administration cannot be granted in respect of muth property, but it does not follow from this that no summary proceeding under Part 7 of the Succession Act, can be taken with respect to muth property. The Probate and Administration Act of 1881, incorporated in Part 9 of our Succession Act, was enacted with a very different object from that of the Curators Act, Act 19 of 1841, now Part 7, and also from the Collection of Debts Act, Act 20 of 1841, or the Acts of 1860 and 1889 now Part 10. The two decisions referred to seem to us to have little or no bearing on the present case. It is perhaps more to the point to note that in Mohant Sheo Prokash Doss v. Mohunt Joyram Joyram Doss (''66) 5 W.R. Misc. 57, the chela of the mahant of a religious endowment was held to be heir and as such entitled to a certificate enabling him to collect the debts of a deceased mohant, and that there is nothing in the report to show that the debts were due to the mahant in his personal capacity.

The next objection taken by Mr. P.R. Das is that the learned District Judge in coming to his decision on the merits acted illegally and with material irregularity in the exercise of his jurisdiction. This objection is three-fold, first, that the learned Judge wrongly excluded certain evidence, namely, the statements said to have been made by the deceased mahant to some of the objector''s witnesses, particularly to the Raja Bahadur of Nashipur (O.W. 2); secondly, that the learned Judge did not at all address himself to the most material question of fact, namely, what was the usage of the muth regarding succession to the office of mahant, though, as laid down by the Privy Council, the question as to who has the right to succeed to the office of a mahant depends not on general customary law, but upon the custom and usage of the particular muth and thirdly, that learned Judge did not frame any issue as to whether the opposite party was gurubhai of the deceased mahant.

As regards the first ground, the learned Judge excluded the statements of the deceased mahant for the following reasons:

Firstly, the admission of such evidence would undoubtedly have prolonged the enquiry very considerably and have led to the investigation of a large number of incidents in which the alleged statements were said to have been made. Secondly, such evidence may be regarded as a sort of indirect or secondary evidence because, the admission of such evidence would involve not only the consideration of a volume of oral evidence to decide what statements of the late mahant Madhwanand were actually established but also will raise the question of the exact meaning of such statements and the question whether the late mahant was telling the truth or not, on any of those occasions. For the purpose, therefore, of a summary enquiry I thought it best that the evidence regarding adoption of the objector as chela should be confined to more direct evidence.

Mr. P.R. Das contends that the statements of the deceased mahant were relevant evidence and the District Judge was not justified in excluding such evidence. The learned Judge, however, gave reasons for excluding such statements from his summary enquiry. There must be some distinction between a summary enquiry and a regular title suit, though as Jenkins C.J. observed in the Succession Certificate Act, case of Gulab Chand (''01) Bom. 523 (already referred to), it may not be possible precisely to define it. The limits of the summary enquiry were, therefore, a matter to be judicially determined by the Court holding the enquiry. In proceeding on the footing that if indirect evidence were to be adduced, the enquiry would be unreasonably prolonged, the District Judge cannot, having regard to the object of the inquiry prescribed in such cases, be said to have acted illegally or with material irregularity in the exercise of his jurisdiction.

With regard to the second ground, the learned District Judge followed the principle laid down by this Court in Mahanth Dewa Das Vs. Shew Prasad Singh and Others, , namely, that where a particular custom has not been established, succession must follow the general Hindu law. He considered that the general Hindu law, as stated in Shamacharn Sircar''s Vyavashtha-Darpana, is that where a mahant dies without appointing a successor, his successor is selected generally from amongst his pupils by the mahants convened at his Bhandara. It is suggested by Mr. P.R. Das that this view of the law is wrong. But assuming that it is so, the decision cannot be interfered with in revision on that ground.

As regards the third ground, it must be said that the learned District Judge does not appear to have applied his mind to the question whether the opposite party was the gurubhai of the deceased mahant. It appears however that the learned Judge after hearing the pleaders on both sides settled the points for determination in the case in the application filed under S 192, it was stated that the applicant and the deceased mahant were descended from a common mahant. This allegation does not appear to have been specifically denied in the objection filed by the objector. The objector has not been able to explain why, if he thought that an issue should have been raised on the question whether the claimant was the gurubhai of the deceased mahant, he did not ask the District Judge to frame such issue, or draw his attention to the omission to frame it. However, the learned Judge came to the finding, first, that the objector was not adopted as chela by the deceased mahant and secondly, that the claimant was recognized by the neighbouring mahants as mahant of Rajipur. On these findings the learned Judge considered that the claimant had the right to possession. This decision, being a decision in a summary proceeding, does not call for interference in revision.

Mr. P.R. Das further argues that the District Judge did not comply with the provisions of Section 193, Succession Act. But it appears from the order of the District Judge dated 26th March 1940 that he examined the applicant and was satisfied that there were sufficient grounds for taking further action, as laid down in Section 193. Whether right or wrong, his finding is there, and it cannot be challenged in revision. In this connexion Mr. P.R. Das relies on Mahmadbhai Peerbhai Vs. Bai Havabai, , in which the Bombay High Court observed that

The Act (19 of 1841) is, really out of date, and there is no necessity whatever for parties claiming the estate of a deceased person to have recourse to it.

What the learned Judges, however, actually decided was that the provisions of the Act must be strictly complied with before giving any relief. In that case, in the application that was filed under Act 19 of 1841 the substantive prayer was that "an inventory of the estate and assets of the deceased Haji Nabi Miyaji should be made and some officer of the Court appointed as curator of the property belonging to the deceased.

There was also a general prayer "for any other relief that might be deemed fit and proper." Upon an application of this sort, the learned Judges thought that the Court below was not justified in taking any action under Act 19 of 1841. Reliance is also placed on Sato Koer v. Gopal Sahu (''07) 34 Cal. 929, in which the High Court set aside the order passed by the District '' Judge under Act 19 of 1841 on the ground that the provisions of that Act had not been strictly complied with. In that case, the applicants before the District Judge were not examined in support of their application, as contemplated by Section 3 of the Act (corresponding to Section 193, Succession Act), nor were any witnesses examined to support their case. Both the cases therefore are distinguishable on their facts.

The objector is faced with a further difficulty in this revisional application. It has been repeatedly held by this Court that ordinarily it will not interfere in revision where the petitioner has another remedy against the order complained of: see Raghunandan Prasad Misra v. Ram Chandra Mandal AIR 1919 Pat. 425 at p. 105, a case decided by a Special Bench; Syed Ali Zamin Vs. Nawab Syed Muhammad Akbar Ali, Hurmoozi Begum v. Ayasha AIR 1921 Pat. and Kapileswar Jha v. Raghunandan Prasad A.I.R 1924 Pat. 134 Here the objector has got the right to bring a regular suit, as provided in Section 208, Succession Act. It is however contended that if the summary order complained of be not interfered with in revision (notwithstanding the concluding words of Section 209) the objector will suffer irreparable injury. But, on his own showing, the disputed properties belong to the muth, and the mere fact that he will be kept out of possession on behalf of the muth till he gets his title, if any, decided by a regular suit is not ground for interference, especially as he has filed to satisfy the District Judge on the point of actual initiation as chela by the late mahant. The petition therefore must be dismissed with costs, hearing fee five gold mohurs.