Ramlakhan Tiwari vs Ramlagan Gosain and Others

Macpherson, J.—This appeal from the decision of the Subordinate Judge of Muzafferpur is preferred by Ramlakhan Tiwari, the first of defendants six in the suit and (except that defendant 6 filed a written statement) the only contesting defendant.

The suit out of which the appeal arises was instituted by Mahant Ramlagan Gosain, Mahant of the Damodarpur Lohari math in the district of Saran against the appellant and; (2) Sarjug Jha, son of Abhidatta Jha, a Brahman; (3) Achhelal Sahu son of Nandipat Mahto, a Sundi; (4) Raghunandan Raut, apparently a Goala; (5) Gena Mahto, a Nonia; and (6) Baldeodas, a Brahman fakir, for whom was substituted Rajadas described as the disciple of Baldeodas deceased, a fakir, all cultivators of Dostia (sometimes wrongly written Dosaria)-Araria in the district of Muzaffarpur. The names and description of the defendants have some significance.

The material allegations were briefly as follows: The plaintiff is the mahant of the Damodarpur Lohari math in the district of Saran which is a Bhagtahi Kabirpanthi institution, that is to say, of that cult or sect (panth) of the followers of the religious reformer kabir (15th century A.D.) who are termed bhagtahis. The term "bhakti" or as it is pronounced in Bihar "bhagti" means devotion or loving faith and involves the idea of God as a personal being.

A former mahant of that math, Alam Gosain, had five disciples including Sheonath, Subhao and Tahal Gosains. Sheonath became mahant of Damodarpur-Lohari and the other disciples established maths at different places which remain subordinate to the parent math. One such math was Dostia Araria (formerly in Champaran, now in Muzaffarpur district) of which the mahant was Bhagwat Bhagat who died in January 1920, without leaving any chela (disciple). The present appellant, a recent arrival in the neighbourhood, having won over Bhagwat Bhagat whose intellect was enfeebled from age, in collusion with the other defendants, manufactured a fraudulent mukhtarnama dated 4th November 1919, purporting to be executed by Bhagwat Bhagat (although the latter had no power to execute such a document); and relying upon it defendants 1 to 5 have illegally taken possession of the math and its properties and appointed defendant 6 as pujari.

The defendants being girhasts (householders or laymen, as opposed to bairagis) could have no claim, and least of all, defendants 1 and 6 (Baldeodas) who are Brahmans. Defendants 1 to 5 had no power to appoint a pujari contrary to the practice of the plaintiff''s sect prevalent in the Dostia-araria math which is subordinate to his math. This practice is set out in para. 5 of the plaint and is that on the demise of the mahant of a subordinate math, the mahant of Damodarpur-Lohari appoints as successor one of the disciples of the deceased or any other person of the Bhagtahi Kabirpanthi sect belonging to the Damodarpur-Lohari math whom he considers fit, and invests him with the chadar of mahantship at a formal ceremony and until such appointment is himself in possession of the property of the math; the mahant of a subordinate math has no power to nominate a successor or to settle what is to be the management or who is to be the manager after his death If the mahant of a subordinate math dies without leaving any chela and the superior math does not appoint a mahant, the subordinate math and its property come into the possession and management of the mahant of the superior math.

The claim was for recovery of possession of the math and its property and for mesne profits for the three years allowed by the law of limitation, on a finding that the plaintiff was, in accordance with the prevailing practice and usage, entitled to take possession of and manage the same and further to appoint another mahant, and in the circumstances to retain possession until such appointment. The suit was valued at Rs. 10,000 of which Rs. 9,000 was the value of the property and Rs. 1,000 mesne profits. The schedule set out an aggregate of about 98 bighas of land but admittedly only an area of about 37 bighas is in possession of the math, and in fact since the suit was decreed a separate suit has been brought for the recovery of property sold by Bhagwat Bhagat mainly to defendant 5 and the father of defendant 3 The suit would therefore appear to have been overvalued.

The main contentions of defendant 1 wore that Bhagwat Bhagat had sold some of the properties in suit and had by a samarpannama dated 5th September 1917, dedicated the remainder to Sri Sri Khanti Maharaj and the transferees were necessary parties, while defendant 2 (D.W. 4) had no interest. The property in suit was the exclusive property of Bhagwat Bhagat and he was entitled to execute the samarpannama. The mahant at Dostia-Araria was not subordinate to the plaintiff''s math; in fact, there was no math at Dostia, the dwelling house of Bhagwat Bhagat who was a Kabirpanthi bairagi, being popularly called a math, while of the property some was ancestral and some self-acquired. The allegations in para. 5 of the plaint were denied and it was alleged that Bhagwat Bhagat was competent to appoint any chela, as he had in fact appointed Kashi Bhagat who died shortly before his own death. The plaintiff was not even the mahant of Damodarpur-Lohari.

Mahadeo Mahto had tried to defend himself in a criminal case by claiming to be a chela of Bhagwat Bhagat but failed.

After the death of Bhagwat Bhagat, Gopi, brother of Mahadeo, claiming to have succeeded Bhagwat Bhagat, unsuccessfully sued defendant 5 and others in 1920 for the cancellation of some of the sales above-mentioned and now Gopi and Mahadeo have set up the plaintiff as the mahant of Damodarpur-Lohari and instigated the suit. Bhagwat Bhagat had appointed this defendant as his am-mukhtar under the am-mukhtarnama of 4th November 1919, and it was executed in good faith for the management of the properties of Khanti Maharaj. Defendants 3 and 5, purchasers from Bhagwat Bhagat, were in collusion with the plaintiff. In evidence the case was that the math in suit was originally founded by Budhram Bhagat, and on his death, his chela Puran Bhagat succeeded him and was himself succeeded by the late Mahant Bhagwat Bhagat, the properties being acquired in the time of the first two and extended in the time of the last mahant.

The pujari, defendant 6, supported defendant 1 on matters of title and claimed to have been validly appointed. Baldeo was himself not a Kabirpanthi but a Vaishnavite bairagi.

The issues were as follows: 1. Is the suit barred by limitation? 2. Were the properties in suit the personal properties of Mahant Bhagwat Bhagat as alleged by the defendant? 3. Is Dostia math subordinate to the math at Damodarpur-Lohari? If so, what is the custom and usage regarding the succession and appointment of successors to that math? 4. Is the plaintiff entitled under the law and custom to take possession of the Dostia math and its properties, and to appoint a mahant for the same? 5. Is the mukhtarnama dated 4th November 1919, valid and legal and have the defendants acquired any right to keep possession of the math and its properties? 6. Is the defendant (sic) a bairagi and has he got any right to act as pujari? 7. Is the plaintiff entitled to wasilat? If so, how much?

Issue 1 was not pressed. Issue 2 was decided against the defendants, and the point has not been seriously pressed in appeal. The deceased mahant always described himself as a bairagi. Indeed the defence allegations in this regard were given up at the trial. The properties certainly appertain to the Dostia-Araria math. As to issues 3 and 4, it was at the trial the case of both parties that the Dostia Araria math was a Kabirpanthi establishment and was a subordinate math. The learned Subordinate Judge negatived the contentions of the defence that the founder Budhram was a girhast chela of the mahant of Musaharnia, a Satkahi (Satkabir) foundation, that Dostia Araria was therefore subordinate to Musaharnia and that a new mahant was installed by the Mahant of Musaharnia, and held that the Dostia-Araria math was Bhagtahi and sprang from and was subordinate to the plaintiff''s math, that Bhagwat Bhagat had no power to transfer the power of management vested in him as mahant or the properties of the muth by the samarpannama in his lifetime, much less after his death, and that accordingly the deed of mukhtarnama in favour of defendant 1 could not vest him or defendants 2 to 5 with any power of management, that as the mahant of a subordinate muth ascended the gadi on investiture with chadar--the shawl of office--by the mahant of the superior muth, the plaintiff has, in the circumstances which have happened:

the right to nominate a fit successor to Bhagwat Bhagat and in the event of its failure to annex the muth and its properties to his own mutt.

It will be observed that this finding goes beyond the claim which merely is that the plaintiff:

Has, in the circumstances, the right to retain possession of the said muth until the appointment of another mahant.

In connexion with the samarpannama of which the appellant produced a certified copy (Gopi Bhagat had produced the original in his suit), he found that the worship of Khanti Maharaj to whom the dedication is made, if done at all, is secondary and his cult would not permit the deceased mahant as a Bhagtahi to worship Khanti Maharaj which is a symbol of the Satkabirs. He concludes:

Therefore there was no idol worshipped by the late Bhagwat Bhagat and hence there could be no dedication of the property to any such idol. The samarpannama may not be fraudulent as I find there is no evidence to show fraud of any kind in its execution--but Bhagwat Bhagat held no right to dedicate the properties. He was not a worshipper of Khanti Maharaj and hence there was no object to whom the dedication could be made. The deed therefore fails of its effect.

He accordingly decided issue 5 in the negative and issue 4 in the affirmative. On issue 6 he decided that defendants 1 to 5 being girhasths could not act as pujaris. This is not quite clear. Issue 7 he decided in the affirmative, leaving the amount to be determined in execution. In the decree however as drawn up, there is no reference to mesne profits, apparently through inadvertence.

Mr. Jayaswal for the appellant broadly claims: (1) that the cult of the mutt in suit is entirely different from that of the Damodarpur Lohari mutt, the difference being not merely in degree but in kind; and (2) that the plaintiff has not established the custom (a) that the appointment to the mutt in suit is made by him and/or (b) that on failure of chelas of the late mahant or other appointment he is entitled to annex.

It is expedient now to set out certain facts derived mainly from the record but elucidated by the books of reference produced: the Imperial Gazetteer, the Encyclopaedia of Religion and Ethics, Westcott''s "Kabir and Kabirpanthis," and Keay''s "Kabir and his Followers."

The followers of Kabir come from all castes, but in this province they are usually drawn from inferior castes of Hindus. Thus among the satkahi sect Abhidas who established the Musaharnia mutt was a Chamar and witness Gobind Das of Musaharnia was a Dusadh, while Mahant Phulchand Das (P.W. 7) of the other mutt at Dostia was a Lohar. They are all admittedly Satkahis. At Dostia-Araria Budhram and his ''nephew'' Puran Gosain were Goalas while Bhagwat Bhagat is said to have been Puran''s son by a Telin and some of the disciples are Sunris or Goalas. On the other hand, Bhagwat''s bairagi chela, Kashi Bhagat, had been a Rajput.

Kabir proclaimed the vanity of idols ("No visible object in the world should be worshipped"), and the Kabirpanthi foundations are not temples but mutts, the object of which generally is the promotion of religious knowledge and imparting of spiritual instruction to the disciples and followers of the mutt. There may be idols connected with mutts but the worship of them is a secondary matter. In respect of idolatry however "practice lags behind precept," as stated in the Imperial Gazetteer, Vol. 1, p. 425, at least in certain sects. In some cases the idolatry is broadly of the same kind as Kabir''s for instance, a saligram is generally installed in the mutt. In Dostia-Araria it was in the main mutt and (according to appellant''s evidence) incense and offerings are first made to it.

In Bihar an important organisation is the Dhanauti mutt in Saran, a description of which, collected at the spot, is given by Dr. Keay, most of the facts being also available in the evidence in this litigation with some slight variation. The following succession or, as it is termed, genealogy of mahantship is derived from the evidence.

(For genealogical Table see next page.)

It shows how Damodarpur-Lohari was founded by a chela of the Mahant of Dhanauti and has had six mahants, its chelas have founded not only Dostia-Araria, but also Khwajabazar and Deorhi and on failure of chelas of the late mahant in these two cases, a mahant was appointed by the Mahant of Damodarpur-Lohari from amongst his own chelas.

The connection between Dhanauti and Damodarpur-Lohari and between the latter and its own subordinate muths Deorhi, Dostia-Araria and Khwajabazar and of Damodarpur and Dostia-Araria with Dhanauji (with its own offshoot Pokharbinda) appears from this table. There was also produced by the Mahant of Dhanauti who was examined on commission, a large Hindi volume (Ex. 1) in beautiful manuscript Nagri purporting to show the genealogy of the Mahants of the Achariya math at Dhanauti and of its branch maths. The evidence of this witness is that the writer, a deceased chela named Cheta Gosain, whose writing he proves, made it over to his predecessor Hanuman Gosain over thirty years ago and it belongs to his math.

It has a few more recent additions in pen or pencil in different handwriting, but the fact is not important for the present purpose. The learned Subordinate Judge has relied upon it and I see no reason to differ. It shows that Damodarpur-Lohari math founded by Alam Gosain is an offshoot of and subordinate to Dhanauti math, that the math in suit is a subordinate branch math of Damodarpur-Lohari and was founded by Tahal Gosain, a chela of Mahant Alam Gosain of Damodarpur-Lohari math, and that when there was a failure in the succession at Deorhi and Khwajabazar,

Bhakta of Dhanauti (Saran) | Kesri of Dhanauti who founded Dhanauji (in Champaran) | 1. Alam who founded Damodarpur-Lohari (Saran) and amalgamated Dhanauji with it. | | | | 2. Sheonath 1. Subhao (founded 1. Tahal (founded | Deorhi math) Dostia Araria math). | | | | 3. Rewal 1. Ramdat (founded | 2. Budhram | Khwajabazar) | | | | | 4. Dayal. 5. Adya 6. Ram 2. Ramlagan | | lagan (1906) and Ramphal 2. Fakir 3. Nakched. (plaintiff) (died 1925) | [Chelas of 4. Bhagwan Rewal (3)] | | 5. Budhhram [Chela 3. Ramlagan (P. 1.) of Rewal (3)] | 6. Hulas | 7. Gurucharan (P.W. 7.) | | | 3. Puran 1. Gajraj (re-occupied Dhanauji) | | 4. Bhagwat (died 1920) 2. Jhaman | | Kashi (died 1918) 1. Phaudi (Pokhar Binda) | 2. Bihari Bhagat.

similarly subordinate maths, because the Mahant left no chela, a chela of the Mahant of the Damodarpur-Lohari math was appointed Mahant. There is abundant evidence that the appointments in these instances were made by the Mahant of Darnodarpur-Lohari. It also appears that the re-establishment of the Dhanauji Math, once amalgamated with Damodarpur-Lohari, was effected by a chela of Budhram Gosain, Mahant of Dostia-Araria.

As to the tenets of the section of Kabirpanthis of whose organization Dhanauti is the Acharya math, there is little controversy. They have the usual organization of: (1) bairagis or sadhus; persons who have renounced the world; and (2) girhasth chelas or lay disciples. All the gurus of the section are celibate bairagis and are called Bhagat or Gosain and the section itself and its followers are designated Bhagtahis. The Mahants who gave evidence, deny that Bhagtahis worship any idol and reliance is placed on the Bijak of Kabir which prohibits "worship of any deity either in the form of an image or by raising earth or otherwise". In fact no worship is done in the maths unless the reading by the Mahant from the Bijak from a Nagri manuscript copy be included within the term. The Mahants are buried in samadhs (or samadhis), but the samadhis are not worshipped by Bhagtahis. The sect appears to be comparatively puritan.

In this trial several sects of Kabirpanthis are mentioned; but apart from the fact that the Mahant of Marpa which is subordinate to Malogwa math, is examined as witness No. 3 for the plaintiff and describes himself as "Kabirpanthi only" we are concerned only with the Bhagtahis already mentioned and the Satkabirs or Satkahis. According to Phulchand Das, who is Mahant of the other math at Dostia (called Dostiapatti math) which is Satkabir, the two do not interdine, their tilak is different and the Satkabirs are called Das while the Bhagtahis are known as Bhagat or Gosain. The Satkabirs worship Khanti Maharaj. According to Gobind Das who is the adhikari of the Musaharnia math,

When the math is established, the founder makes a mound of earth and worships it: we call it khanti ... Bhagtahis do not worship any idol or Khanti Maharaj ... Khanti Maharaj is our chief idol of worship among Satkabirs although they keep Saligram idol too,

According to Phulchand Das "the founder of a math makes the mound of earth like that of the idol of a ''debi'' and "some of us make chelas of females". Gobind Das deposed

Khanti Maharaj is kept in a room inside the math while the room in which Saligram is kept is outside it. The samadhis are in the room of khanti maharaj....The samadhis of the mahants is (sic) at one place while those of the other saahus is (sic) at different places.

He also deposed:

Arti and incense is offered to the samadhis of the mahants and bhog too is offered to them.

It is here very important to observe that at the math in suit the saligram is within the math proper whereas in the atkabir maths where there is idolatry, the khanti maharaj has this place of honour and the saligram is relegated to a room outside. At the math in suit the samadhis are outside and indeed, according to the defence, in the same room as khanti maharaj. (After discussing the evidence of the defence witnesses and that of the plaintiffs'' witnesses the judgment proceeded ) The defence that Dostia-Araria is a satkabir math and subordinate to the Musaharnia math which has its acharya math at Bakamia in Nepal, is, in my opinion, pure fabrication later than the depositions of 1922. Dostia Araria had no khanti maharaj at all, as a satkabir math would have. There are other cogent grounds for rejecting both allegations. It is highly improbable that there would be two satkabir foundations in Dostia.

In the adjoining village of Bishunpur, one of the two maths is bhagtahi and one satkabir. Then there is no trace of Bhagwat Bhagat ever being called Das. Phulchand Das, the most important supporter of the claim that the math in suit is satkabir is completely discredited by the evidence which he gave in Gopi''s suit before the question of sect was agitated, that while he himself was a bairagi of satkabirpanthi, Bhagwat Bhagat on the other hand was a kabirpanthi of the bhagtahi form and that he was a gyani, a term in plying a person possessing too much wisdom to worship idols. The appellant also made similar statement in that suit, adding further that Dostia Araria was subordinate to Dhanauji in Saran, meaning Dhanauti in Saran, or, at any rate, Dhanauji in Cham paran which is closely connected both with Dostia-Araria and Dhanauti and in any case a bhagtahi math

The very least that can be inferred is that the math to which he then asserted Dostia-Araria to be subordinate was not Musaharnia in Muzaffarpur district. True, in the samarpannama it is alleged that khanti was worshipped in the math, but it is sufficient to state here that, as will appear later, no reliance can be placed upon any statement in that document as a record of a fact. Then it is important that no one can suggest the name of the mahant of Musaharnia who was Budhram''s guru. Again it is incredible that if Dostia-Araria was satkabir, plaintiff would have been asked by appellant to send there a pujari who must have been bhagtahi and therefore could not worship khanti. I hold, therefore, that the math in suit is not of the cult of the satkabirs, as suggested by Mr. Jayaswal, and that it is not subordinate to musaharnia, nor founded by a chela of that math nor by Budhram Gosain who moreover was not a satkabir. The present story of the appellant to that effect has been crudely manufactured for this occasion.

On the other hand, the learned Subordinate Judge rightly accepting Ex. 1 and the testimony of plaintiff''s witnesses who are reliable persons and in a position to know, correctly held that Dostia-Araria is a bhagtahi math, founded by Tahal Gosain, a chela of Damodarpur Lohari whose samadhi is in the math as are those of his three successors, Budhram, Puran and the late mahant Bhagwat Bhagat. (After considering the evidence, both documentary and oral, the judgment proceeded.)

I find that the Dostia-Araria math had no chslin, but was a celibate institution. I find further that there was no khanti buried in any mound there either at its foundation or subsequently nor (apart from the existence of the saligram) any worship of khanti maharaj or of any symbol or idol or of samadhis. In my considered judgment there can be no doubt that the subordination of Dostia-Araria is to Damodarpur-Lohari math and as claimed by the plaintiff.

A number of witnesses have been examined on both sides who aver, those on behalf of the plaintiff that the mahant of Damodarpur-Lohari and those on behalf of the defendants, that the mahant of Musaharnia, installed the late Bhagwat Bhagat as mahant of Dostia-Araria in 1895. Each side has adduced both sadhu and lay witnesses. (After referring to the evidence, the judgment proceeded.) Bhagwat Bhagat always speaks of (himself as Mahant Bhagwat Bhagat, chela of Mahant Puran Gosain or sometimes as chela of Mahant Puran Bhagat. There is no doubt that he was a bhagtahi and that Dostia-Araria is a bhagtahi math, the deceased mahant being a celibate bairagi, that he made no chelin and that Mai Ram or Garib Bhagtin whom appellant put forward for his own purposes, was merely a maid-servant popularly designated bhagtin because she was living at the math.

What then is the explanation of the samarpannama in favour of khanti maharaj executed by Bhagwat Bhagat towards the end of his days? (After considering the circumstances, the judgment proceeded.) The dedication to a nebulous khanti was simply an expedient devised by the harpies surrounding Bhagwat Bhagat when his intellect was enfeebled by age (he was about 90 years old). He was not really a free agent Even less was he a free agent when he executed the mukhtarnama in 1919 which was what in popular parlance is termed "a pure ramp" on the part of the appellant and the vendees and their transferees. Furthermore the math and its property being in the possession of Bhagwat Bhagat as a trustee, he was not entitled to transfer the right of management vested in him to khanti maharaj during his lifetime or if he pro posed to change from one sect to another, to carry with him the property of an institution belonging to his former sect. (After considering certain matters, his Lordship concluded). As a trustee he was not entitled to vest the power of management after his death in appellant, with or without the assistance of panches.

Accepting the oral and documentary evidence on behalf of the plaintiff, I find that the math in suit was founded by Tahal Gosain, chela of the bhagtahi math of the plaintiff, that there are four samadhis in the math in suit beginning with that of Tahal Gosain, that Dhanauji, an old bhagtahi foundation, was reestablished from Dostia Araria, an indication of close connexion in constitution and organization, that the subordination was not limited merely to the formal investiture of the mahant with the shawl of office, that the plaintiff''s math and the plaintiff himself vigilantly concerned themselves [see Ex. 3(e)] with the main affairs of the math in suit throughout and with details from the demise of bhagwat, that khanti was not an object of worship and generally that the other findings of the Court below are correct. The first submission of Mr. Jayaswal is not well founded. As to the second point pressed by Mr. Jayaswal, many considerations in favour of the plaintiff have transpired in the preceding pages and are set out in the judgment under appeal.

No doubt it does not necessarily follow from the fact that the plaintiff''s math is the parent math and the math in suit is a math subordinate thereto, that the allegations set out in para. 5 as to the devolution of the math and its property are correct. The plaintiff must further establish what the relations are in this regard between the parent math and its offshoot, and that the latter follows the customs prevailing in the former or in the organization of which both are a part. That can only be done by evidence of the practice. Mahant Phul Chand Das deposed:

We are made mahants according to our custom... the guru of the superior math comes and gives chadar to make the mahant of the subordinate math

and this is true of all sects. Mr. Jayaswal contends that no custom can arise in these four generations, and that no direct evidence of value respecting the succession in the three relevant cases is forthcoming.

But to my mind there is good evidence that the practice alleged is prevalent as between the Dhanauti math and all the maths which are offshoots from it and in particular, as between the plaintiff''s math and its offshoots. All such offshoots remain subordinate to the parent math. It is common ground and also well established that a mahant of Dostia Araria must be installed by the mahant of its superior math. Apart from the evidence of Raghunandan Das and the mahant of Dhanauti and the plaintiff himself there is the evidence of the mahant of Deorhi (P.W. 7) and the mahant of Hasanpura (P.W. 8). Both of these are subordinate to Damodarpur Lohari and prove that the mahant of their superior math appointed and installed them according to the custom and that it is the same with the math in suit. As the acharya, he gives the chadar of office to the succeeding mahant. The former further states that he is the chela of Hulas Gosain who was the chela of Bodram Gosain of plaintiff''s math and that Bodhram was appointed by the mahant of that math after the previous mahant of Deorhi, a chela of Damodarpur-Lohari, had died leaving no chela. This case and that of Khwajabazar, as well as the similar cases of Bishunpur and other maths directly subordinate to Dhanauti which are also in point, will be further discussed below.

In my judgment it is established that when a chela of a mahant of a subordinate math in the Dhanauti organization succeeds his deceased guru he must be installed (at least) by the mahant of the superior math and that when there is no chela (or perhaps, no worthy chela) the mahant of the superior math appoints from the members of his own math (or possibly the maths subordinate to him) a successor to the late mahant, and installs him. In particular, the position is the same between the math in suit and its immediate superior at Damodarpur-Lohari as between the latter and its acharya math of Dhanauti. In respect of appointment as well as installation the math in suit was and regarded itself as governed by the invariable practice of his superior math and all other branch maths of the Dhanauti organization. Mr. Jayaswal contends strongly that, at any rate, there is no escheat or right of annexation.

The evidence of the head of the mahant of Dhanauti, the acharya math, which I would accept is that in his presence the following, among many other subordinate maths, had been taken possession of by the math to which they are subordinate and dealt with in the manner set out in para. 5 of the plaint: Bishunpur math (in the village contiguous to DostiaAraria) Batra and Nakatha in Nepal, Sankhera in Baroda in Gujrat, and Kaparpura in Saran. Bishunpur math remained in possession of the Dhanauti math for two or three years. That and similar cases however probably only prove an interregnum. Dhanauji is also a case of amalgamation in the time of Mahant Alam Ahagat of a math started in his guru''s time which was afterwards re-established by a chela of the math in suit which itself is a subordinate math of Damodarpur-Lohari. The case of Deorhi appears from the evidence of its mahant (P.W. 7) and the genealogy. There can be no doubt on the evidence of the mahant of Deorhi, that upon the failure of chelas of the previous mahant, his grandfather guru was appointed by the mahant of Damodarpur Lohari whose chela he was.

Then we have the instance in which the plaintiff himself was concerned, namely the succession to the mahant of Khwajabazar in Monghyr. The gurbahi of his guru had founded that math and upon his death the plaintiff himself and another chela named Ramphal Gosain was deputed by his guru who was then the mahant of Damodarpur-Lohari, to be mahants of this subordinate math. The plaintiff himself having become mahant of the head math in 1906, Ramphal carried on till his death in 1925, whereupon many claimants appeared, but the claim of the plaintiff was upheld by the criminal Court in 1926. The inference is that no mahant has yet been appointed up till 1930 when plaintiff gave evidence.

My conclusion is that while the first part of the second plea of Mr. Jayaswal is untenable and must be rejected, there is some force in the second plea. On the cases instanced and the other evidence an inference of a right of complete escheat or annexation under the custom is not clearly warranted. It is only possible to say on the evidence that the plaintiff has a right to temporary possession pending appointment by him within a reasonable time of a suitable mahant from among the bairagis of his own or a subordinate math. As a matter of fact that was substantially his claim and the learned Court below mistakenly found that the plaintiff also had the right to annex.

To sum up, I would find all the questions at issue in favour of the plaintiff respondent save as indicated in the preceding paragraph. The math at Dostia-Araria was founded by Tahal Gosain as a bairagi chela of the Damodarpur-Lohari math of the bhagtahi sect of kabirpanthis, and his three successors Budhram, Puran and Bhagwat were of that cult. It was not a satkabir math and there was no worship of Khanti Maharaj prior to the date approximately of the samarpannama of 1917. The deceased mahant Bhagwat Bhagat like his predecessors was a trustee of the property of the math and he bad no ownership therein or right to execute the samarpannama of 1917 or the mukhtarnama of 1919 under which the appellant purports to be acting, or any power of transfer (except for legal necessity) or of dedication to a new deity or of nomination of a successor (unless he was the chela who would ordinarily succeed.) The appellant who is a man of dubious character whose evidence, where it differs from his previous deposition or where it is uncorroborated, is entirely unreliable, was the person who with defendants 4 and 5 and the respective father of defendants 2 and 3 induced Bhagwat Bhagat when no longer in a position to understand the deeds, to execute the samarpannama and the mukhtarnama for their own ends, the latter as a support to their acquisition of math lands and appellant for the advantage that his superior shrewdness might secure him in this pre-eminently inferior-caste math.

The practice or usage governing the succession and appointment of new mahants to the math in suit is substantially as alleged by the plaintiff and it regulates the relations in this regard between the superior and inferior maths of the whole Dhanauti organization. The plaintiff as head of the math immediately superior to the Dostia-Araria math is, by the custom of the sect and of the Dostia-Araria foundation and similar foundations under the Dhanauti organization, the authority who installs a mahant in place of one who has died.

There is good evidence that on the last occasion, in conformity with the practice, the plaintiff''s predecessor so installed the deceased Bhagwat Bhagat in 1895. The math in suit was and regarded itself as subordinate to and as a dependant of plaintiff''s math in respect of appointment of a mahant. If there had been chelas of the late mahant, one of them, being not unworthy, would have been appointed (the method of selection inter se need not here be determined), and he would have been installed by plaintiff. Where there is no chela of the late mahant, the plaintiff is entitled, as stated above, to appoint a chela from his own or a subordinate math and to be in possession of the math and its property for a reasonable time until he has so appointed and installed the new mahant in the vacancy. There is no absolute lapse to the plaintiff''s math.

Upon this view the first part of the second submission of Mr. Jayaswal fails completely and the second part only succeeds in a point which is immaterial to the decree under appeal, that is to say, the finding is that the plaintiff has proved what he sought to prove, as set out in relief No. (1), but not the right to annex the math in suit without appointing a new mahant which, though found by the Court below, did not arise and is not established by the evidence adduced. The appellant and other defendants have no title whatever to the math or its property nor any right to be or to remain in possession, and the decision of the trial Court and its decree declaring the plaintiff''s right to the math and its properties as claimed in the reliefs to the plaint, and directing that he be put in possession of the same accordingly by evicting all the defendants, are right. Accordingly the appeal fails and I would, dismiss it with costs to the plaintiff-respondent.

Kulwant Sahay, J.

I agree.