(Mahant) Raghunath Das vs Sheo Kumar Missir

Bucknill, J.—This is an appeal from the decision of the Subordinate Judge of Muzafferpur, dated the 18th December 1918.

The circumstances under which this litigation has taken place are in themselves simple enough but raised somewhat difficult questions. The defendant is the mohunt of an Asthal of considerable historic importance which has been referred to throughout the proceedings as the Sitamarhi Astal. It appears to have been founded in the year 1599 and to have been situated near a water from which the goddess Sita is believed to have emanated. The first mohunt appears to have been one Hiram and since him there have been seven more; the last being the defendant. It is common ground that, ever since the foundation of this establishment, each mohunt has appointed as his successor his nephew, and that all the mohunts have hitherto been unmarried. What has happened up till now is that each successive mohunts has token his nephew as his chela and has been succeeded by him. Although in the plaint in the suit brought by the plaintiff against the defendant there are various allegations, such as of illegal dealing with property attached to the Asthal, the only matter which has been brought before this Court on this appeal is the admitted fact that the defendant has married, and it is alleged by the plaintiff that by having contracted a marriage the defendant has incurred forfeiture of his mohuntship; in addition to this question arises the further point as to whether the plaintiff has any legal status for bringing this suit. The plaintiff was admittedly a chela of the defendant''s predecessor whose name was Bhagwat Das and he claims to be an agnate relative of the defendant; he does not claim to be the defendant''s nephew but to be the nephew of one of the second cousins of the defendant; he also is admittedly guru bhai of the defendant, they both having been chelas of the defendant''s predecessor. In 1915 the plaintiff brought his action against the defendant and he asked, firstly that it might be declared that the plaintiff was entitled to the mohuntship and gaddinashini of the Asthal; secondly that the right of the defendant thereto has become extinct; that he is not entitled to keep the property appertaining thereto and that his possession is unlawful; thirdly, that a decree might be passed in his favour awarding him possession and dispossessing the defendant; and, fourthly, that an enquiry should be made as to the mesne profits from the date of the defendant''s marriage. The defendant raised various defences; firstly, that the suit was barred as it had not been brought under the provisions of section 92 of the Civil Procedure Code; secondly, that marriage did not entail forfeiture and that the defendant was entitled to marry without incurring any disability; thirdly, he denied having dealt illegally with or wasted or mismanaged the property; fourthly, he denied that the plaintiff belonged to the family of his predecessor or that he was a Gotia or blood relation, and, lastly, he disputed, in any case, the claim made by the plaintiff to the succession on the ground that he (the defendant) had initiated several chelas who were relatives of the family of previous mohunts.

A very large quantity, both of oral and documentary evidence, was produced before the Subordinate Judge, who, in the course of a long and elaborate judgment, came to findings to the following effect:-

That the fact that the provisions of section 92 of the CPC relative to the procedure to be adopted where litigation is contemplated in connection with public charities had not been adopted was a bar to the plaintiff''s suit, in so far as the question of wastage of the Asthal properties was concerned but did not debar him from obtaining relief if the defendant by his marriage had put himself under such disability as would prevent him from continuing to hold his mohuntship.

That there had in fact been no wastage by the defendant of the Asthal properties.

That the properties in suit were all properties attached to the Asthal and that if the defendant lost his post as mohunt he would lose the properties also.

That the plaintiff was not an agnatic cousin or even an agnatic relative of the defendant.

That the defendant had initiated Bairagic chelas.

That the defendant''s marriage did not result in forfeiture of his office.

The Subordinate Judge on these findings dismissed the plaintiff''s claim with costs. Some of these findings, such as, for example, that on the question of waste, have not been argued before this Court and indeed the case has, I think, been presented to this Court in a somewhat different way to that in which it was placed before the Subordinate Judge. To my mind there are really but two points which have to be considered These are:-

Has the plaintiff any locus standi to bring this suit in its present form?

If he has, then does the fact, that the defendant has married, result in his having to give up office at mohunt of the Asthal?

Now, with regard to the first question, it is very important to see in what way the plaintiff himself placed his claim in his plaint. He says in paragraph 3 "that for the purposes of appointment of a successor to the reigning mohunt the said Asthal is a maurusi one, that is to say, that the reigning mohunt has the right to appoint one of his Bairagi chelas as his heir, representative and successor under a deed or without it by giving him tilak. konthi, chaddar and pugri. It has been the custom of the said Asthal that the reigning mohunt has been appointing one of his Bairagi chelas belonging to his girhasti family as his heir, representative and successor." Now, so far, the defendant admits this and that the statements made by the plaintiff are substantially correct, specifically doing so in paragraph 20 of his statement of defence. The plaintiff, however, then proceeds to say, "it is also the custom of the said Asthal that if the reigning mohunt die without appointing his successor or heir or do any act which renders him unfit to remain as such, the eldest of an Vaishnab Bairagi chelas who is also his agnate by descent or in case of there being no such Vaishnab Bairagi chela, the eldest of his Vaishnab Bairagi guru bhars who is his agnate by descent, would be the gaddinashin of the said Asthal and would take possession of the properties appertaining thereto." This part of the claim is stoutly denied by the defendant. In paragraph 7 of his plaint the plaintiff claims that, as a chela of the defendant''s predecessor and as the only girhasti chela of that mohunt he is the only person who is entitled to become the mohunt, on the forfeiture, owing to his (the defendant''s) marriage, of the post and the appurtenant properties. It has been pointed nut how it would appear that, so long as it was possible, all mohunts of this Asthal have taken as their chelas and nominated as their successors their agnate nephews; but there is no evidence whatever, in my opinion, to show (and indeed there could be none to show) that if, as in this ease, there was no nephew, there was any custom of the Asthal as to who should succeed the mohunt; for no occasion has occurred on which any question of what was the proper method of succession had arisen. It seems, therefore, to me to be impossible that there should have been any evidence of custom as is alleged by the plaintiff as to what was the nature of succession where a mohunt had no Bairagi chela belonging to his agnatic girhasti family.

The primary question which has to be carefully considered is, who is, the proper successor to the mohunt of this Asthal. As has been mentioned before, the matter hitherto has given rise to no diffculty for the simple reason that each mohunt has in fact adopted, as his chela and successor, his agnatic nephew. Out of this fact arise several questions: firstly, does this fact constitute a custom which excludes the succession to the mohuntship of any one who is not an agnatic relation to the out-going mohunt? What is the proper method of succession? I think that it is here of very great importance to see if there is anything in the documentary evidence which helps in a, decision upon this point and here must be noted a document (Exhibit E which is dated 13th of Kartik 1007 F.S. (1595 A.D.) which constitute a grant, from one Sri Nirpati Singh in favour of the first mohunt, she is described as Fakirana Gosain Sri Hira Ram Mohunt, of certain Monzas, in the following terms.-"You shall cultivate, grow corn and settle the said Mouza and with your disciples and disciples of disciples shall enjoy the entire produce thereof. The Mouza should be treated as (sic) and no resistance should be offered." Now, it is perfectly clear that, at any rate, with regard to this endowment it was thought that not an unusual practice would be followed, namely, that each mohunt would be succeeded by his chela. There is no idea in the mind of the donor that the chela successor must necessarily be a relative of the mohunt. It is quite intelligible that, as a matter of family interest, it has been the practice very naturally to keep the valuable properties appertaining to this Asthal in the hands of the mohunt''s family, but it is very difficult to say that it is possible to assert that any exclusive custom has been established which would prevent a mohunt, should he so wish, from appointing as his successor a chela who is not necessarily a member of his girhasti family. The question is whether, if a mohunt chose to appoint as his successor one of his chelas who is not a relative, the family of the mohunt could successfully oppose such an, appointment. This point, namely, that there can be no exclusive custom in this Asthal that the devolution of the mohuntship must fall upon a blood relative, has been very forcibly urged before this Court by Mr. Hasan Imam, Counsel for the respondent. It is contended by him that, as it is possible here to trace the nature of the original grant of, at any rate a portion of what now forms the Asthal properties and that as in that document the usual succession from mohunt to chela is contemplated it is not competent for the donee and his successors to graft on to the conditions of this grant any custom which would restrict the devolution of the incumbency to the family. And it is also pointed out that in numerous other documents which indicate the manner in which other properties became appurtenant to the Asthal there is nothing to indicate any form of restrictive devolution. I am bound to say that it seems to me that this argument possesses considerable force but when one considers that for 300 years the incumbency has been maintained strictly within the family by the adoption by the reigning mohunt of his agnatic nephew I am inclined to think that it would be contrary to good sense to depart from that practice. But there is more than this to be said about the matter. It would appear quite clear that this point was not raised before the Subordinate Judge and is raised now by the respondent as what is practically a new case on appeal and one which the plaintiff has never had a proper opportunity of meeting. The Subordinate Judge writes in his judgment "it is an admitted fact that the mohunt of of Sitamarhi Asthal must be a Gour Brahmin connected with their natural family." Again, in paragraph 20 of the statement of defence it, is definitely stated that "the custom and usage alleged by the plaintiff in the first part of paragraph S, to wit, that the Sitamarhi Asthal is a maurusi (one that goes by descent) Asthal and a chelas related by blood to the reigning mohunt succeeds on the demise of reigning mohunt, are substantially correct." It is also quite clear from the defendant''s own evidence that the tradition and the method of devolution was in fact always normally to be followed if possible and he states "in case I bad died immediately after Bhagwat Das''s death, Raghubir Das who is a chela of Bhagwat Das and who is my agnate''s cousin''s son (mohunt Janki Das''s son) would have become the mohunt after me." The plaintiff''s own case is, of course, based upon the necessity for maintaining the agnatic tradition. To my mind, therefore, there is no doubt that before the Subordinate Judge the whole case proceeded on the common ground that there did exist a definite custom that the mohuntship and possession of the properties of the Sitamarhi Asthal were limited primarily to chelas who are blood relatives of the deceased or the outgoing incumbent. I do not think therefore, that it is possible to allow the respondent to raise this question at this stage.

Having now disposed of this point, I think before proceeding to the next, it is desirable to endeavour to ascertain what is really meant by the use of certain (sic) which seem to have been some what loosely utilised. We see the words "natural family" "girhasti family" and "blood relation," and the question really is, whether they are used as intended to have the same meaning; can they be utilised in the ordinary way to denote cognatic as well as agnatic relationship? Here, again, I think that the case before the Subordinate Judge proceeded on the assumption that an agnatic chela of an out-going mohunt would take preference over any other chela; and it would seem from what the defendant himself states that if he had died without having appointed any chel, an agnatic chela of his predecessor would succeed to the post. This, coupled with what I have stated above, shows, I think that the belief of those connected with the Asthal, of whatever party they may be, was that, in the event of there being no agnatic chela of an out going mohunt any agnatic relative who had been a chela of any mohunt of the Asthal would succeed. But the matter has to be followed out a little further; the question is whether this insistence on the agnatic succession would, in the event of the out-going mohunt having appointed chelas who though not agnates were cognatic relatives or who perhaps were not even relatives at all, have the effect that such chelas of the out going mohunt would be preferred in the succession to an agnatic relative who was a chela of an earlier mohunt. This is the natural question which is the next one in this case which arises for consideration, for it is here admitted that the defendant has appointed chelas, that these chelas are not agnatic relatives but some, at any rate, of them are cognatic relatives. There is really nothing much which can possibly guide one in coming to a definite decision upon this point and perhaps it is unnecessary to say more than that whilst, on the one side, one sees the principle (indicated in the grant) that the mohuntship should descend to a mohunt''s chela, on the other side, one has the strong impression of traditional necessity for keeping the incumbency in the agnatic family. If a cognatic chela of the outgoing mohunt would not be preferred to an agnatic chela of a prior one, it is obvious that a chela of an out-going mohunt who was not even a cognatic relative could not have any priority over a chela who was an agnatic relative of a prior one; and, if one cared to explore this matter still further it might be of importance to ascertain whether any agnatic relative who was properly trained and qualified to be a mohunt, would not be preferred to any one else even though he may not have been a chela of any of the mohunts of he Asthal.

But in addition to this, i.e., a claim as an agnatic relative, the plaintiff also bases his claim not only on being an agnatic relative but also on being a guru bhai of the defendant. There is nothing, however, which I can see in the evidence, which can possibly substantiate his claim to succeed to the incumbency merely as a guru bhai of the present holder of the position and his status must, apart from any other question, be, in my opinion, dependent upon whether he is or is not in fact an agnatic relative. Now, on this very important question there was a great deal of evidence of an extremely contradictory character and the two stories put forward respectively by the plaintiff and the defendant are completely in conflict. The plaintiff maintains that he is, what I suppose in English terminology would be called, a third cousin of the defendant on the father''s side. The defendant on the other hand alleges that the plaintiff is not an agnatic relative at all but that he is connected with him by the fact that his (plaintiff''s) brother''s son married the defendant''s niece''s daughter. The Subordinate Judge has examined the voluminous evidence at considerable length and with considerable care. He comes to the conclusion that the plaintiff has failed to prove that he is an agnatic relation. I think that it is conceded by the defendant and certainly there is ample evidence to show that the plaintiff was not only a person of considerable importance in the affairs of the Asthal but was connected in some way with him; he was undoubtedly a chela of the defendant''s predecessor and a guru bhai of the defendant. There is however, very little documentary evidence in support of the plaintiff''s claim to relationship of an agnatic character. In Exhibit 1, which is a deed dated the 8th December 1901, executed by the Mohunt Bhagwat Das in favour of the plaintiff''s brother and others, a certain passage occurs which is thus translated," "but Ramautar Missir (this person is admittedly the plaintiff''s brother) and others are related to the girhasti family of me, the declarant." The important word here is the word ''related'' and the Subordinate Judge, who gives the passage in the vernacular, does not consider that the word there used necessarily connotes any agnatic relationship. The learned Subordinate Judge in coming to this conclusion has taken into account also a passage in Exhibit D which is a deed also made by the Mohunt, Bhagwat Das on the 9th of December 1904 in which a word occurred which is again translated as "related". The two words in the two documents are in fact connected, that in the first being "rishtamana" whilst in the latter the word is "rista". All that the learned Subordinate Judge can decide on this point with regard to these documents is that the word "rishtamand" might include either agnatic or cognatic relatives However, there is another way in which this document, Exhibit 1, has been utilised by the defendant; it is to attempt to destroy the statement by the defendant that the only relationship between the plaintiff and the defendant is through the plaintiff''s brother, Ramautar Missir, by the latter''s son''s marriage to the defendant''s niece''s daughter; it is utilised in this way:- It is said by the defendant in his evidence that this marriage took place some 12 or 13 years ago; the defendant gave his evidence in August 1918 and it is point d out, therefore, that it would seem that Exhibit No. 1, which was dated the 8th December 1904, was probably executed before the marriage and that, if that was really so there was some connection other than that through the marriage between the plaintiff and the defendant or otherwise he would not have used in that deed the word translated as "related." I am not at all sure, even supposing that it was clearly proved that the marriage took place after the execution of this deed that the expression in the deed proves anything conclusive, although I think it is not at all improbable that in some way or other the plaintiff was connected with the family of the mohunts. But the onus upon him of course, is to prove his agnatic connection without any doubt. The Subordinate Judge goes through the oral evidence given in favour of the plaintiff at some length and with one or two exceptions specifically refers, I think, to all those witnesses who speak as to the relationship. I have myself made an independent analysis. There is, first of all, the plaintiff himself who says that Bhagwat Das the mohunt who was the defendant''s predecessor was cousin to the plaintiff''s father and he gives a detail of relationship which can be worked out in the following table:-

His brother supports him, but the Subordinate Judge does not feel that he can accept their evidence as in any way reliable or trustworthy as they are such deeply interested parties.

[Here His Lordship deals with the evidence for and against agnatic relationship of plaintiff, with defendant.]

The Subordinate Judge has weighed the evidence given on both sides. He has seen the witnesses and he has come to the conclusion that the weight of evidence is undoubtedly in favour of the defendant. Unless I could see very strong reasons for saying that the Subordinate Judge was wrong, I think it would be altogether improper to disagree with the conclusion to which he has come; and indeed, on reading through and considering carefully the evidence on both sides, I have come to the conclusion that the Subordinate Judge was quite right; I think that the plaintiff by his evidence succeeded in giving to his claim to be an agnatic relation of the defendant some semblance of plausibility; I do not, however, think that the evidence nut forward on his behalf is, when it has bee a so seriously challenged and strongly met, sufficient to prove conclusively his story. If the plaintiff is not an agnatic relative, he, whatever may be the other circumstances or whatever may be the other questions for decision, clearly has no locus standi for bringing the present suit. The matter is, therefore, substantially disposed of by the view which I take of this point. As however, it is possible that the case may go further it is perhaps desirable that I should express my opinion upon certain other points which have been raised. The first of these is whether the plaintiff is debarred from bringing this action because he has not taken the steps which, under certain circumstances, are laid down by section 92 of the Code of Civil Procedure. This section reads as follows:

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Local Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree:-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(d) directing account and. inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act 1863 no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in re-peel of any such trust as is there in referred to except in conformity with the provisions of that sub-section.

The Subordinate Judge thought that a mohunt of and Asthal being merely a sort of trustee an be removed from his office if he is guilty of violation of his trust and that the plaintiff was barred by section 92 from claiming any relief against the defendant on account of the alleged waste of the trust property but on the other hand the Subordinate Judge thought that section 92 did not debar the plaintiff from obtaining the relief which he sought on the ground that by the defendant''s marriage he (the defendant) had forfeited his (sic). It should be observed that what the plaintiff claims here in his plaint does not altogether contemplate merely matters which are comprised in section 92, for he claims, as in his own right of succession, possession of the properties as well as the position of mohunt on the ground that the defendant has forfeited them owing, amongst other reasons, to the fact that he has married. Although it may be that, mingled with this application, there is also a claim based upon an alleged breach of trust such as is contemplated u/s 92, I hardly (sic) that a claim for ejectment and possession of the character made in the present case, such claim being based upon an alleged personal right of the plaintiff, is one which can be regarded as falling within the purview of section 92.

I do not think that it is necessary to comment in any way upon the question as to whether the defendant was guilty of any of the charges which were brought against him in connection with waste for misappropriation of the property appertaining to the Asthal, for the point has not been raised here in this Court, although before the Subordinate Judge it was strongly urged but decided by him in favour of the defendant.

The only other question for consideration is as to what, if any, is the effect upon the position of the defendant in relation to his mohuntship produced by the admitted fact that he has contracted a marriage alliance. It must be confessed that, when entering upon this question, one finds oneself confronted with considerable difficulties. These difficulties present themselves from more than one direction. In the first place, one is plunged into the extremely intricate sea of observances and traditions which surround the hierarchy of the Hindu priesthood; secondly one is met with a mass of evidence much of which appears to be entirely contradictory although in some cases adduced by witnesses whose character and credibility one would think were normally beyond criticism. I am trying, however, to think that to a large extent much of what appears to be the conflict between what is stated by some of the witnesses on the part of the plaintiff and some of those on behalf of the defendant is due to the fact that some of the technical religious or semi-religious words which are used by them are not always used in precisely the same sense; and, from what I have been able to gather during the hearing of this appeal, it is certainly the case that some of these phrases are in ordinary parlance often utilized in a somewhat loose fashion. So far as it is of any value, however, in the plaintiff''s favour, a start m the consideration of the question may be made by the admitted fact that, from the commencement of the foundation of this Asthal in 1599, all the Mohunt have been celibates until the defendant, the 8th Mohunt, chose to marry. There is also no doubt that the fact of his having done so has been the, or one of the, causes which has given rise to this expensive and protracted litigation and has given umbrage to some of those who are connected with the Asthal, It must not, however, be lost sight of that the incumbency of this Asthal is a valuable and coveted possession and probably one from which the incumbent can derive possibly both for himself, his family and his adherents and, for all I know properly, a comfortable livelihood. There is nothing, so far as I can ascertain, in the documents which have been produced in this case to show that any condition of celibacy was extrinsically imposed upon the holders of the Mohuntship. It may, however, be contended, with some force, that if the custom or usage or tradition of succession by agnatic chelas (mentioned at an earlier stage of this judgment as obtained since the foundation of the Asthal) is to be regarded as a definite custom now binding upon the institution and which cannot properly and legally be departed from (unless, of course, no agnatic relation qualified for the post existed) and one to which effect must be given, it is difficult to see why this tradition of celibacy extending over a like period should not also be recognised as a custom equally obligatory upon the incumbents of the Asthal. Indeed, in some respects it may be thought that the presumption, in favour of the tradition of celibacy being obligatory, might be considered as stronger than that of the agnatic succession; for whilst the latter can be clearly comprehended-owing to the natural desire to retain the benefits derived from the Asthal in the hands of the family the former is, speaking generally, a departure from the normal and is a self-imposed condition which essentially is not usual in ordinary human life. I have, however, at an earlier stage of my observations already dealt at considerable length with the question as to the binding character and the usage of agnatic succession. I have pointed out that it was a custom which, so far as this case is concerned, had, in my opinion, not been in issue between the parties and that, although I was inclined to think that after so long a period it might be regarded as a tradition which should rightly and properly be always followed, a decision as to this point did not arise in this litigation and should not perhaps be allowed to be raised in this Court. The position with regard to the necessary celibacy of the Mohunt of this Asthal has, on the other hand, always been, together with the relationship between the plaintiff and the defendant, the principal point at issue between the parties to this litigation. I must admit that in my mind I think that the very fact that none of the Mohunt of this Asthal have ever married hitherto presents the plaintiff with a strong prima facie case; but, on the other hand, it must be remembered that up till now the adoption by each incumbent mohunt of his nephew as his chela and successor has presented no difficulties. The defendant himself states in his evidence that his predecessor, the mohunt Bhagwat Das, observing that this tradition of nepotic succession was in most serious danger of coming to an end desired that the defendant should marry in order, presumably, to retain the mohuntship and the benefits derived from the properties appertaining to the Asthal in close agnatic succession contemplating that the devolution would descend upon a son who might be born to the defendant. This testimony may or may not be true but it sounds plausible and, if credit should be attached to it, it shows that the tradition of celibacy was not thought to be more than a self-denying ordinance in no way inviolable and one the practising of which did not affect the tenure of any incumbent who so contracted a matrimonial connection. Although, therefore, at first sight, one would be inclined to think that the fact that for over three centuries no mohunt of this Asthal had in fact married constituted a strong presumption in favour of ecclesiastically obligatory celibacy of the holders of the office, I think that it is legally necessary to look at the matter from a somewhat broader point of view and to consider whether as a fact there is any clear reason to think that marriage by a mohunt would necessarily result in the extremely grave effect that he should in law be compelled to abdicate or be capable of ejection from his position. I feel very great (sic) in venturing to enter into the tangled paths of the doctrinal and dogmatic rules which govern the priests of the Hindu religion, or in particular, of all those sections of it to which it is supposed that the mohunt of this Asthal must adhere, and I am afraid that my efforts so to do must of necessity appear to those who are thoroughly familiar with the subject as somewhat elementary; and I cannot help feeling that in matters of this kind it might be advantageous if the Legislature could devise some tribunal composed of clerse assisted possibly by some chosen from the laity which could deal with questions of this character in a more complete manner than they can be dealt with by persons who may be of a different faith, unversed in such religious or sectarian practices and only schooled in the original principles of jurisprudence. However, the matter has to be faced and I accordingly venture to give a short summary of what I assume to be a real issue between the parties. The position may roughly be recorded thus:-

A guru, a holy man, who was the ancestor of the defendant, migrated from Misraulia, his family home in the Shahabad District in this Province, about the end of the 16th century and took up his station near a lank of water at a place then known as Sulochini but now called Sitamarhi. This locality was a very famous one in Hindu mythology because the belief was that, after the conclusion of the ancient Sages of Hindu folk and religious lore, the goddess Sita who had been there transported arose from a crucible unearthed where this water now stands. This archaic legend seems to correspond to some extent with the western Aryan myth of the birth of Aphrodite. This worthy guru evidently succeeded in attracting interest from the great personality of the neighbourhood, for he obtained the grant in November 1599 of the Mauza now known as Sitamarhi to which reference has already been made; and eventually, a building was erected near the tank where the principal deity of the Hindu pantheology worshipped was Sri Jankiji Maharani; this goddess is regarded as the daughter of the God Janaka and the goddess Sita. Prosperity and accretions of property gradually came and the Asthal is now a very important one.

Now, it is agreed that, in connection with the worship of the great god Ram, there have been several revelationists; one of these was named Ramanand whose work lay in the 12th century: a later teacher who appears to have been of a more liberal type was Ramanuj, According to the theory which is put forward on behalf of the plaintiff, the followers of Ramanand are more ascetic than the followers of Ramanuj; and I think that, broadly speaking, this may be regarded as correct. The former, it is said, may not, the latter may, marry. We see the same kind of difference in the priesthood of various branches of the Christian Church in which, though Roman Catholic Priests must be single, the Greek Catholic Clergy need not be so although a Bishop of the Greek Catholic Church cannot be a married man although he may be be a widower; whilst, in the Anglican community there is nothing in the nature of enforced celibacy of any kind. We here come to several moot points relating to phraseology. It is said on behalf of the plaintiff that a mohunt who belongs to the Ramanandi sect cannot marry whilst in regard to the Ramanuji sect it is said that there are two classes the first being called "Acharya," who are what may be described as, lay teachers and upon whom celibacy is not imposed, the other portion consisting of what are called "Bairagis," who are ascetics, and who Laving cut off their connection with all worldly matters, must be celibate. It is here that we begin to experience confusion with regard to the use of particular vernacular expressions and it is quite obvious, after reading through the evidence, that many of the witnesses did not mean with precision exactly the same when they were using the same words. The principal controversy arises with regard to several vernacular words with which, to the best of my ability, I shall now try to dealt. The first of these is the word "Bairagi"; I suppose that this word means "withdrawn from worldly affairs" and perhaps in its primary sense it was intended to convey the idea of complete asceticism, that is to say, an eremitic life in which the individual cut himself off from his wordly desires and environments and retreated into a condition of isolated contemplation of things divine; but there is no doubt from the evidence before me that this word has long since ceased to have any such restrictive meaning and it would seem that it now almost only has the significance of a person devoted to religion and does not itself in any way contemplate the necessary incidence of celibacy. The next word which gives rise to some difficulty is the word "Birakt." This word is found prefixed to the word "Bairagi" and it would be seen to connote a more rigid asceticism than is indicated by the word "Bairagi" alone. I gather that it essentially means "one who has renounced the world"; but whatever may have been its original meaning, it now seems to be like the word "Bairagi" used some what loosely and I am not sure that "Birakt", even with the conjunction of the word "Bairagi", now necessarily contemplates a non-marriageable state.

The Subordinate Judge, Mr. B.K. Biswas, who is a Hindu himself, has dealt with this matter in very great detail and with a wealth of knowledge of Hindu religious matters with which it is quite impossible for me to compete. He gives the whole history of the Ramanandi and Ramanuji movements; and he comes to the conclusion that the Sitamarhi Asthal was not a Ramanandi but a Ramanuji foundation, He considers the term "Bairagi" as simply denoting one who can restrain his passion and that it is not a phrase descriptive of any particular religious order of which a man must he member in such a fashion that his property can be inherited by others than his blood relations. Like myself, in my groping enquiry he attaches little legal importance to the expression "Bairagi" which he regards merely as of a loosely descriptive character. It is said, next, that when an individual became a mohunt of the Sitamarhi Asthal he changed his family gotra whatever it may have been into the celestial gotra of "Achyut" that is to say, be became one of the deity''s chosen people. He does not attach any great importance to this question because he does not think, that as a matter of fact, any such change took place nor does he think that, at any rate, the last mohunt prior to the present defendant ever disassociated himself from his grihasti family.

I have already said that there is on both sides in this case a great deal of documentary and oral evidence which bears upon the question of fact as to whether the mohunt of this Asthal are condemned or not to celibacy. The documentary evidence is not very convincing; there is some to show that, when an outlying property which appears, perhaps, originally to have belonged to or to he appertaining to the Sitamarhi Asthal and there are several outlying properties of this big institution), went out of the possession of its incumbent, one of the mohunt of Sitamarhi (the 4th) took steps, at the instigation of the widow of the mohunt of his outlying temple, to recover the property and to bring it back under the control of the Sitamarhi Asthal, that Sitamarhi mohunt does not seem in any way to have been affected by the fact that the incumbent of the Subordinate Institution (admittedly under the control of the Sitamarhi Asthal) had married but on the contrary appears to have made provision for the maintenance of his widow. The 7th mohunt, as I have previously mentioned appears pretty clearly not to have been a supporter of any necessary obligation of celibacy.

When we come to the oral evidence we get much divergence of opinion and much evidence which, although possibly in the main of no doubt honest character, indicates how differently different persons construe religious tenants. The Subordinate Judge has dealt with these witnesses very carefully and with a knowledge which I do not profess to own. He comes to the conclusion that the Sitamarhi Asthal does not belong to the Ramanandi sect but is a Ramanuji foundation and that the mohunts of the Sitamarhi Asthal did not altogether, and need not altogether, cut off their connection with their girhasti family. He also deals with the important question as to whether under the Hindu Law a property once vested in an individual can be diverted on account of subsequent disability. This aspect of the case, I must confess is to me somewhat novel but at any rate there are possibilities u/s 92 of our Civil Procedure Cede which seem to enable the difficulty initiated by the Subordinate Judge to be overcome in many respects, particularly with regard to a concern which may be considered as in the nature of a public religious institution. The Subordinate Judge quotes numerous Hindu authorities to show that there is nothing in the Hindu Law to prevent a mohunt from contracting a matrimonial alliance and he had no authority produced before him to indicate that by so doing a mohunt must necessarily abdicate his incumbency He points out that it is admitted that no vow of celibacy is taken by any bairagi chela of the mohunt of this Asthal; he also says that there are many monastic or religious institutions in this Province the hearts of which are, as a matter of fact, celibate; but he does not conclude that the fact of marriage of a mohunt necessarily (sic) a forfeiture of his position. He then proceeds to point out, as is undoubtedly the case that there are a large number of religious institutions in this Province where the mohunts have been married men; he indicates that some of the immediate apostles of Ramanandi of whom, notably, is Sur Siranand Pipe, were married; he also indicates as an important factor that a certain. Totadri Swami, who is a witness for the defendant and who is a man of admittedly very great importance in the Ramanuji hierarchy, came from the Deccan, where he occupies a position of the utmost importance, being styled as His Holiness, and visited recently the Sitamarhi Asthal. He thinks that had this Asthal belonged to the Ramanandi sect or its mohunt become (sic) (outcaste) by his marriage it would have been altogether impossible for him to pay it a visit. I think that the evidence of this gentleman, whose testimony shows the broadminded aspect of religion adopted in modern days by most great prelates, is of the utmost importance in this case and I am sure that it will be useful if I quote some portion of what he says. His name is Swami Ranga Acharya Koil Kandhare Gobardan and he is a Tamil Brahmin residing at Gobardhan and Brindaban in the United Provinces; he is a Hindu priest, He is a man of very high religious rank; he takes the view that there are no real differences of doctrine or should not be between the Ramanandi and Ramanuji sects. He is quite satisfied that the mohunt of the Sitamarhi Asthal is an Acharya of the so-called Ramanuji portion of his sect. It is obvious from his evidence that this clerie was a man of high position and of very considerable knowledge; a broad-minded modern priest. He says that the Sitamarhi Asthal was founded indeed by a disciple of his own ancestor Ganga Ram and he definitely states that a mohunt of Sitamarhi Asthal can continue as a mohunt and perform the puja of the idols in spite of his having been married. He confirms the suggestion that Birakt and Bairagi should be construed as meaning the same thing and states that the mohunt of Sitamarhi Asthal are not of that category. He is himself a married man which in no way interferes with the tenure of his high and important office.

The Subordinate Judge, then, comes to the conclusion that the Sitamarhi Asthal is a Ramanuji Asthal and that the mohunt did not disassociate themselves from their family; he goes on to point out what is the real meaning of the word Bairagi and states that there is no Sastric religious prohibition against the marriage of either Ramanandi or Ramanuji Bairagis and, finally, he considers the question whether, in view of the long tradition of celibacy, the fact that this mohunt (the defendant) has married entails upon him burden of forfeiture of his office. He appreciates very fully the fact of the tradition for so many years and he then proceeds to examine in detail the evidence which has been adduced on both sides with regard to what happened to a mohunt who was not a celibate. He says, and I think rightly, that the plaintiff has failed to show any direct instance where a mohunt has been compelled to forfeit his office on account of his subsequent marriage: but, on the other hand, he shows also that the defendant has adduced evidence of the marriage of many mohunts of different places some of whom appear to have been even of Ramanandi sect and others of the Ramanuji persuasion. He therefore, comes to the conclusion, in which I think he is right that the plaintiff has failed to show in this case that the marriage of a mohunt (and that is to say, of the defendant) necessarily entails a forfeiture of his office and he accordingly on that ground amongst others dismissed the plaintiff''s suit.

I must congratulate the Subordinate Judge upon an extremely able judgment upon matters of Hindu religion upon which it is difficult for a Christian unversed in these subjects to express any very confident opinion: but it is impossible, unless very cogent argument is produced before this Court to show that the Subordinate Judge was wrong, that this Court should upset his finding upon questions which after all are merely questions of fact. No one realises more than I do the importance, which to those interested, is attached to the possession of this undoubtedly valuable property and position; I should have personally thought, as a matter of abstract opinion, that the traditions of agnatic succession and celibacy ought, if possible, to have been maintained. That, however, is one of those views which have nothing to do with the legal aspect of any case but which cannot but compel one to think, as I have said before, that the most suitable solution of questions such as this would better be entrusted to the consideration not of the ordinary Civil Courts but of a tribunal composed of ecclesiastical personages (assisted no doubt by same legal chairman) which would decide matters of the nature op lines and with knowledge which might be more satisfactory and more certain than those upon which the High Courts in this country can ordinarily proceed.

In my opinion, therefore, this appeal must be dismissed with costs.

Das, J.

I entirely agree.