(Mahanth) Jagernath Dass vs Jang Bahadur Rai (alias) Sitaram Das

Dawson-Miller, C.J.—The suit which is the subject of this appeal arises out of a dispute between the plaintiff and the defendant as to the right to succeed to the mahantship of the Satlakha Asthan in mauza Satlakha in the Muzafferpur District of this province on the death of the late Mahant Manohar Dass who died in June 1915.

The learned Additional Subordinate Judge of Darbhanga before whom the suit came for trial found in favour of the Defendant and dismissed the plaintiff''s claim. From that decision the plaintiff has preferred this appeal.

According to the Appellant''s case, Mahant Manohar Dass, who was admittedly the last incumbent of the office, appointed the Appellant, his chela, in March 1898, since when he has acted in that capacity performing the puja and faithfully carrying out the duties of a chela and up to the date of his death in 1915 Manohar Dass appointed no other chela. Upon the death of his guru the Appellant, as his heir and successor, performed the sradh and bhandara and was presented with the pagri and chader of mahantship by the mahants and sevaks of the neighbouring Asthans and entered into possession of the Asthan and the properties appertaining thereto until he was dispossessed by the defendant in February 1916.

It appears that the respondent, the defendant in the suit, applied for registration of his name in the Collectorate in place of the late Mahant Manohar Dass. The appellant entered an objection and the ease was decided by the Deputy Collector on the 11th February 1916 in favour of the respondent. On that occasion the respondent produced a document which has been referred to as a Will and which purports to be executed by the late mahant and attested by several witnesses appointing the respondent his successor. The Deputy Collector was not satisfied with the evidence of either party as to possession of the property appertaining to the Asthan but considered that the respondent was in possession of the Asthan itself and he relied upon the so-called Will executed by Manohar Dass in the respondent''s favour. He accordingly ordered the respondent''s name to be entered in the register. About the same time proceedings under S. 145 of the Criminal Procedure Code were instituted by the respondent against the appellant and were heard on the 16th February 1916. The'' Sub-Divisional Officer considered that the question of possession had been decided by the previous order of the Deputy Collector and made no order under S. 145, but as he considered that the attitude of both parties was such that a serious breach of the peace was likely to occur, he passed orders under S. 144 of the Criminal Procedure Code directing the appellant not to commit a breach of the peace by interfering with the possession of the respondent. The appellant has accordingly instituted the present suit claiming a declaration of his rights and possession of the property.

The appellant contends that by the custom and usage of the Satlakka Asthana the chela of a deceased mahant succeeds him in his office. He denies that the respondent was ever appointed a chela of the last mahant, but pleads that, even if he was, the custom is that where there are a number of chelas, the eldest is entitled to succeed and the respondent being many years junior to him can claim no right of succession, nor has the mahant for the time being any power of appointment.

He further disputes the authenticity of the Will which is dated the 27th February 1915, that is about four months before the death of Manohar Dass, and says that at that time and for many months before his death he was not physically fit to execute, or to understand the contents of, such a document. He alleges that it was a fraudulent and spurious document got up by the Respondent''s relations and that one of the attesting witnesses whose name appears thereon was not alive at the time. He further says that the Respondent is not a bairagi, a person who has renounced the world, but girhast and still lives and dines with his mother and brothers, and eats food cooked by girhasts and is a man of bad character and quite unfitted for the spiritual duties of a mahant.

The respondent, on the other hand, denies every material allegation made by the appellant. His case is that the appellant never was the chela of Manohar Dass but was a cook in the service of the mahant of Basuara, an old enemy of the Satlakha Asthan at whose instigation the suit has been brought. He denies the custom as to the order of succession alleged by the appellant and says that, where there are more chelas than one, the Custom is for the mahant during his life-time to appoint his successor, but, failing such appointment during his lifetime, then after his death the mahants and sevaks present at the bhandara appoint the chela, or, where there are more than one, the most deserving chela of the late mahant as his successor. He denies that the appellant performed the sradh and karaj and asserts that he himself performed those ceremonies and the bhandara on the late mahant''s death. He denies that the late mahant was ill or incapacitated for several months before his death and says he was ill for 10 days only and continued to work and remained in possession of all his faculties up to the day of his death. He contends that the Will was a genuine and valid instrument and relies on the fact that it was duly registered on the 27th April 1915.

In this mass of contradictions it is perhaps not easy to ascertain on which side the truth lies. The difficulty of arriving at any confident conclusion is increased by the fact that a great number of witnesses on either side, many of them apparently respectable, have deposed to the facts alleged on behalf of the rival claimants for whom they respectively appear. Nor is it in any way diminished by the fact that, apart from the "Will already referred to, no documents of much importance and no records of the Asthan which has been in existence for some seven generations have been produced, and there is nothing except the oral evidence of the witnesses from which we can come to a conclusion as to the rules or customs regulating the succession to the mahant-ship. The respondent is admittedly in possession of the records and in so far as their non-production affords any presumption, it must raise a considerable amount of suspicion as to the genuineness of the respondent''s case when he asserts that the existing mahant has power to appoint his successor during his life-time.

Three issues only were framed for determination by the trial Court. They are as follows:-

Whether the plaintiff or defendant is the chela of Manohar Dass?

What is the custom of succession to the mathantship of Satlakha Asthana?

Whether the Will is genuine or fraudulent?

Whether Manohar Dass had the right to execute it?

These issues were considered together by the learned Additional Subordinate Judge. He arrived at a conclusion by a process of reasoning which leaves much to be desired. He considered that the whole case depended upon the question of whether the Will executed by the late mahant in favour of the respondent was genuine. He further considered that the story put forward by the appellant that he was the only chela of Manohar Dass was greatly discredited by the fact that he also pleaded that, where there were more than one chela, the senior chela succeeded as mahant according to the custom of the Asthan. He says that this demolishes his story that he was the only chela of the mahant, and that the appellant should have shown a bold front by one definite prayer and clear evidence of his being the only chela of Manohar Dass. I can see no reason why the appellant''s story should be suspected merely because he pleads that he was the only chela and, even if the respondent was at a later time appointed chela, the custom of the Asthan provides that the senior chela should succeed. It must be remembered that the respondent only claims to have been appointed chela some nine months before the death of Manohar Dass. The appellant contended that the respondent was never a bairaqi but always continued to live with his family and to eat food prepared by girhasts, and, further, that the ceremony whereby the respondent was appointed the chela was not orthodox and that he was not appointed on ramnomi day, the most propitious day in the year when all chelas are appointed, but on janmasthami day which is quite irregular, and that his head was not shaved nor were other necessary ceremonies carried out. He knew before the suit was instituted that the respondent was claiming to be a chela and further that his case was that the mahant had the power of appointing his successor. In these circumstances it is difficult to see why the appellant''s case should be discredited merely because he pleaded that even if the respondent were in fact a chela he was not entitled by the custom of the Asthan to succeed. The same suspicion might equally be applied to the case of the respondent who pleads not only that he was the sole chela but also that, where there are more than one, the mahant may during his life-time appoint his successor and, failing this, the successor is appointed after his death at the time of the bhandara by the mahants of the neighbouring Asthans and the sevaks present at that ceremony. He then considers the facts relating to the execution of the Will and comes to the conclusion that it was a genuine document and, having arrived at this conclusion, adds that the late mahant had a right to execute it as no law had been shewn by the appellant that the mahant cannot appoint a successor by a registered deed. He does not deal in detail with the facts which would go to shew whether the appellant war, ever a chela of Mahant Manohar Dass or not, but states simply that "the plaintiff is proved not to be the chela of the late mahant at all"; he accordingly dismissed the suit.

The evidence with regard to the execution of the Will is of a most unsatisfactory character throughout. It is not a Will in the proper sense of the term. It is fact an appointment by Manohar Dass of his successor with a schedule of the properties of the Asthan attached. It directs that the respondent shall, after his death, be installed on the gadi and made the mahant in his place and take possession of the moveable and immovable properties according to the details given in the schedule and that he shall get his name registered in his place. It is important, as bearing upon the credibility of the respondent''s case, to notice that it begins by stating that the executant always remains ill and has become about 70 years old. It further states that he has one disciple only, namely, the respondent, and gives as a reason for executing the document that it is generally seen that after the death of the mahant, there is always a dispute as to who will succeed him and in order to guard against any such dispute in the future he wishes to make some arrangement. In this connection it should be pointed out that according to the respondent''s case the mahant was in perfectly good health until about 10 days before his death in June 1916. The Will is dated the 27th February 1916 and the recital that he now remains always ill supports the appellant''s case and is entirely at variance with that put forward by the respondent. Again, if in fact he had only one disciple, namely, the respondent, it is not easy to appreciate why there should be any fear as to the appointment of his successor. It is the case of both parties that if there is only one chela, he, and he alone, has any right to succeed. The one fact which appears to arise, with any reasonable certainty, out of the mass of contradictory evidence is that the appellant was in fact appointed chela of Manohar Dass in March 1898 having gone to the Asthan in the previous year. If the respondent''s case that the appellant never was the chela of Manohar Dass is to be believed it would follow that from 1898 up to 1914 when the respondent says he was appointed chela, the late mahant never had any bairagi chela at all. It is not suggested that any person other than the appellant was the bairagi chela during those years. It is difficult to believe that such a state of affairs could have existed and I am satisfied, on the evidence, that the appellant was in fact appointed and acted as chela from 1898 up to the time of Manohar Dass''s death. There are also documents in existence executed by the appellant, according to his case, on behalf of mahant, in which he describes himself as the chela of Manohar Dass. Ex. 5 is a mortgage bond, dated the 30th June 1910. The scribe of this document was one Bup Lal Das who was at that time the patwari of Manohar Dass. The Appellant is openly described therein as a bairagi and the chela of Manohar Dass. It is difficult to believe that he would have so described himself in a document written by the patwari of the mahant if it were not the fact, as at that time no dispute as to his right of succession had arisen and there was no object in giving a false description of his status. This document and one other of a similar nature were produced by the appellant himself, all the other documents being in the possession of the respondent. It was argued that the fact of these documents having been retained by the appellant shewed that they were not transactions executed on behalf of the mahant but related to his own private affairs. A bairagi chela who has renounced the world is not in a position to lend money on his own account and I must accept the appellant''s statement that these documents were executed by him as a benamidar on behalf of the mahant. The loans had been repaid and the documents returned to the lender. The importance of them, however, is that they describe the appellant as the bairagi chela of Manohar Dass at a time when there was no reason for giving a false description and I have no doubt, upon the evidence as a whole, that the appellant was, as he says, the bairagi chela of the late mahant. It may be that the respondent was also appointed in 1911 although the ceremonies attending his appointment appear to have been somewhat unorthodox. The respondent was closely related to the late mahant. He was in fact his nephew, and it may be that his relations, as alleged by the appellant, were primarily responsible for bringing about the execution of the document of the 27th February 1915 in favour of the nephew. It is possible also in the circumstances that the late mahant was not an unwilling party to this document but the evidence with regard to it is so unsatisfactory, as I shall presently shew, that I am not prepared to accept it as proof that Mahant Manohar Dass executed the document with full knowledge and appreciation of its contents. Nor does the document alone, if genuine, prove that the mahant for the time being had any power of appointment with regard to successor.

[The judgment then discussed the evidence about the Will and after holding it to be not genuine or at least that the mahant was not aware of the nature and contents, discussed the evidence about the parties being chelas and proceeded.]

I am satisfied on the evidence that the appellant was appointed bairagi chela of the late mahant in 1898 and that the respondent was also appointed in 1914, and I further find that the document of the 27th February 1915 cannot be accepted as an effective appointment of the respondent as the successor of the late Mahant Manohar Dass.

The question as to what was the custom of succession in the Satlakha Asthan remains to be considered. I have already found that the authenticity of the Will is not satisfactorily proved and must be rejected. But I further consider that the evidence of the custom given on behalf of the appellant is preferable to that of the respondent and should be accepted. The evidence on the point on each side is entirely oral and is supported by no documents. Both sides are agreed that seven mahants in all have presided over the Asthan since its institution many years, probably more than a century, ago. They also agree as to their names although the second and third names given by the appellant are reversed in the order given by the respondent. It is the appellant''s case that in each instance the senior chela succeeded his guru and the names of the chelas are given. The respondent alleges that in three instances a junior chela succeeded, the last instance being that of Manohar Cass himself who, it is claimed, was the junior chela of his predecessor. It is admitted that the documents and records relating to the Asthan are in the respondent''s possession and it is reasonable to suppose that they would afford some evidence of the custom prevailing. If a junior chela were appointed by the mahant in his life-time as his successor by Will or deed, such an important document would undoubtedly be preserved and I can only presume that the absence of all documents is due to the fact that if produced they would not support the respondent''s case. It is admitted by the respondent that Satlakha is a mourasi Asthan, that is to say, one in which the office of mahant is hereditary and, apart from custom, devolves upon the chief disciple of the existing mahant. If therefore the respondent wishes to prove that some other mode of devolution is customary the onus rests on him to prove it. The question of the devolution of the mahantship in a mourasi muth was decided as long ago as 1839 when the case of Mahant Ramanooj Doss v. Debraj Doss (1839) 6 S.D.A. Beng. 262 came before the Sudder Dewani Adaulat in Bengal. In that case the Court directed the Pundit to state what was the law of the shastras in regard to the appointment of the presiding mahant of a mourasi muth; whether the principal disciple of the last mahant should succeed or whether the existing mahant was competent to appoint whom he pleased among the body of his disciples. The reply of the Pundit was "under the circumstances stated in the question the principal chela, or pupil is entitled to succeed on the death of the presiding mahant of a mourasi or hereditary muth. If the principal pupil be personally unfit to succeed, or be disqualified by any of those causes which, according to the shastras, are sufficient for such disqualification, then in that case the presiding mahant should, during his life-time, select one properly qualified from among his pupils to succeed him. The person so selected will succeed."

No doubt different customs prevail in different muths, and, where such are proved to exist, they must govern the order of succession. But I apprehend that in the absence of proof of any special custom we should follow the general rule laid down in 1839 with regard to mourasi or hereditary muths. The respondent has in my opinion for the reasons already given failed to prove the custom as to devolution which he alleges and has admitted that the Satlakha Asthan is one of the description known as mourasi. For this reason also, apart from the fact that I consider the evidence of the appellant''s witnesses more reliable as to custom, I think the appeal should be allowed and the decree of the Additional Subordinate Judge set aside.

It will accordingly be decreed and declared that the appellant is entitled to succeed the late Mahant Manohar Dass as mahant of the Satlakha Asthan and that the document of the 27th February 1915 purporting to be executed by the Mahant Manohar Dass is of no force and effect and that by the rules of the said Asthan the senior bairagi chela on the death of the mahant is entitled to succeed to the mahantship and that the appellant is entitled to possession of the said Asthan and the properties appertaining thereto.

The appellant is entitled to his costs against the respondent here and in the trial Court.

Jwala Prasad, J.

I agree to the order proposed.