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Ramprasadgiri Guru Tukangir Gosavi Vs. Krishnanandgiri Guru Purshottamanandgiri - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies ;Property
Decided On
Case NumberFirst Appeal No. 196 of 1929
Reported inAIR1938Bom23; (1937)39BOMLR867; 173Ind.Cas.113
AppellantRamprasadgiri Guru Tukangir Gosavi
RespondentKrishnanandgiri Guru Purshottamanandgiri
DispositionAppeal dismissed
math-math property-custom-power of guru to disqualify chela-effect of disqualification-civil court-no jurisdiction to declare mahant unfit-can oust mahant declared unfit by proper authority-trusts-inherent jurisdiction of courts to deal with-power to remove trustee-instrument dedicating property to charity-interpretation of-point not pleaded and not decided1 by trial court cannot be raised in appeal-res judicata-not only issue of law but also issue of fact-cannot be raised in appeal if not pleaded.;according to the law and custom of gosavis of maths, a chela who has been declared unfit or nalayak by his guru is debarred from all interest in the math property and is cut off from the family of the guru.;a civil court is not entitled to disqualify a man from his position of a mahant because.....barlee, j.1. this litigation was instituted by the present respondent no. 1, purushottamanandgiri, against the present appellant, ramprasadgiri, for possession of certain property claimed to be the property of an institution called the 'dharmanath bova devasthan,' and for a declaration that it was not subject to any encumbrance except one created by the decree in a suit filed by the plaintiff, purushottamanandgiri, against amritgiri, a predecessor of ramprasadgiri in the mysore court.2. a gosavi by name ramkrishnagiri lived in poona city. ramkrishnagiri when very old went to benares and shortly before his death, that is, on november 28, 1901, he made a will. it is pleaded that by this will he dedicated all his property to a charitable trust, the dharmadaya bova devasthan, and gave.....

Barlee, J.

1. This litigation was instituted by the present respondent No. 1, Purushottamanandgiri, against the present appellant, Ramprasadgiri, for possession of certain property claimed to be the property of an institution called the 'Dharmanath Bova Devasthan,' and for a declaration that it was not subject to any encumbrance except one created by the decree in a suit filed by the plaintiff, Purushottamanandgiri, against Amritgiri, a predecessor of Ramprasadgiri in the Mysore Court.

2. A gosavi by name Ramkrishnagiri lived in Poona city. Ramkrishnagiri when very old went to Benares and shortly before his death, that is, on November 28, 1901, he made a will. It is pleaded that by this will he dedicated all his property to a charitable trust, the Dharmadaya Bova Devasthan, and gave instructions for the management of the Devasthan. The will was in favour of his chela, Amritgiri, who obtained probate and managed the property. Under the will he had to defray the expenses of the Dharmanath Bova math and the temple out of the said property, and to perpetuate the name of his ancestors. He was entitled to enjoy the usufruct of one land called Mali Munjeri which, according to the will, was the private property of the testator, Ramkrishnagiri, but was prohibited from alienating or encumbering any property. In spite of this, the plaintiff pleaded, Amritgiri alienated some of the property. He died in 1911, and his chela, Dalramgiri, who succeeded him, died a few months later. On his death Ramprasadgiri, defendant No. 1, the present appellant, began to manage the property. But plaintiff Purushottamanandgiri pleaded that Ramprasadgiri had been declared unfit by Ramkrishnagiri, and had therefore ceased to be a member of the guru family; further, that, owing to his conduct, subsequent to the will, he had become unfit to manage the charity; that he was a bad character, and had been convicted of theft; and for this reason also he was not entitled to retain possession of or manage the samadhi and the math of Dharmanath Bova under the will, or according to the custom, religious beliefs, law, and also according to the Dangli gosavi caste, religion, custom, etc., on these grounds the plaintiff claimed that he being the nearest heir in the family of the founder had a right to be the manager of the charity.

3. Purushottamanandgiri asked for accounts and a declaration that the property mentioned in the schedule belonged to the Devasthan of the Dharmanath Bova and was subject to no encumbrance except one created by a decree which he himself had obtained against Amritgiri; secondly, for a declaration that defendant No. 1 had become unfit to manage the estate, and, lastly, as vahivatdar of the Devasthan and on behalf of the Devasthan, for possession of any property of the charity which might be in the hands of any of the defendants.

4. Defendant No. 1, who was the principal defendant, pleaded that the plaintiff was not a member of the guru family of the deceased, Ramkrishnagiri gosavi. He admitted that Ramkrishnagiri had left a will giving the property to a charity trust, but pleaded that the charity was private and not public. He alleged that on the death of Amritgiri and his chela Dalramgiri the property had come to him as owner inasmuch as Dalramgiri had no chela, and he as guru uncle was the nearest heir and had become owner of the estate. He further stated that he himself at times created his own chelas, and one chela, Subhangir, was living with him at the date of the written statement, that he was managing the estate jointly with him and through a Brahmin having the worship of the tomb performed. In the 4th paragraph he pleaded that Amritgiri had no right to dispose of the suit property except for a reasonable and urgent cause. In the 5th paragraph he admitted that he had mortgaged the property, but pleaded that he had done so for a reasonable cause, and alleged that since he had entered into possession he had been collecting the rents of the property and performing all the religious rites descended from Ramkrishnagiri and the puja archa of the tomb of Dharmanath Bova. In the 11th paragraph he stated that it was not true that Ramkrishnagiri either was entitled to or had extinguished his rights and that the property had come into hands in his right as the heir of Dalramgiri and that under the law the deceased Ramkrishnagiri could not deprive his right of heirship. In the 12th paragraph he denied that he was a religious out-caste, or that he was not found incompetent according to the custom of the caste, religion and creed of the Dangli gosavis, and asserted that he had full right and jurisdiction to keep the property in possession and make the vahivat.

5. These are the principal pleas in the plaint and the written statement of defendant No. 1, the present appellant. We are not concerned in this appeal with the defences of the other defendants. They, some of them, have filed appeals against the decision of the learned Judge with which we will deal in due course.

6. The suit was heard and decided as long ago as July 12, 1921. It was a suit of 1918. The learned Judge, Mr. Rego, dismissed it with costs. The plaintiff appealed to this Court, and the decree of dismissal was set aside and the suit was remanded for trial. We are not concerned with the reasons for those decisions except that the Appellate Judges found that the learned Judge had refused to admit any oral evidence. The suit then went back to the Poona Court for trial according to law. The learned Subordinate Judge, Mr. Parekh, disposed of it on August 2, 1928, and passed judgment declaring that the plaint properties were private charitable trust properties of the samadhi of Dharmanath Bova, and that defendant No. 1 was not fit to manage the same, and ordered that he should be removed from the office of the manager, and the plaintiff should recover possession. He granted other reliefs and passed other orders with which we are not concerned at the present moment.

7. As the basis for his decision he found that the plaintiff was entitled to maintain the suit, that he had a cause of action, since he was an heir of the deceased Ramkrishnagiri having regard to the usages and tenets of Dangli gosavis; that defendant No. 1 had not been disqualified by Ramkrishnagiri but was disqualified by his bad conduct which he had not expiated. On issue No. 15 he found that it was not proved that defendant No. 1 had a chela of his own.

8. No serious argument has been addressed to us on the question of the relationship between defendant No. 1 and Dalramgiri. The learned Subordinate Judge has dealt with it satisfactorily in paragraph 4 of his judgment. Defendant No. 1 had denied, as I have said, the plaintiff's relationship and put him to the proof of the facts which he had alleged in his plaint, but he admitted in his evidence and pleadings that he was ignorant on the point, and the genealogical table at p. 5 of the print shows the connection. The learned Subordinate Judge has held that if defendant No. 1 be excluded, or if it be established that he was not entitled to succeed to Dalramgiri there was no one to be preferred to the plaintiff. As regards defendant No. 2, he said, and this has not been challenged, that his right, if any, was extinguished by defendant No. 1 himself, who stated in his evidence that he had declared him unfit, and it is proved by other evidence, that a guru has a right to declare his chela nalayak or unfit, and can by such a declaration sever the bond of guru-chela relationship between them. There is one other person who it was said is nearer than the plaintiff, one Shankar, said to be a chela of Lachman, who was one of the chelas of Ramkrishnagiri, the testator. But though it appears that Lachman was at one time a chela of Ramkrishnagiri, it; has not been satisfactorily shown that Shankar was his chela.

9. I shall now deal with the question arising out of issues Nos. 3 and 13 in the lower Court and reserve my remarks on issue No. 12. The learned Subordinate Judge in paragraph 30 of his judgment, after disposing of the plaintiff's plea that the Benares custom governed the Poona math, and holding that the custom of a particular math has to be proved by oral testimony, goes on to deal with the principal question in the case, whether defendant No. 1, Ramprasadgiri, was disinherited by the testator, Ramkrishnagiri, and the effect of the will. It was pleaded that Ramkrishnagiri by his will declared defendant No. 1 to be nalayak, and therefore severed the guru-chela relation so that he ceased to have any connection with the guru family. The learned Subordinate Judge has not accepted this view. He says 'there is nothing specific in the will to show that defendant No. 1 cannot succeed even as the heir of any other person whom Ramkrishnagiri appointed as his next successor for the office.' By this apparently he means that the only effect of the will was to declare that Amritgiri was the heir and that defendant No. 1 was not to succeed as his heir, but that he was still capable of and qualified to succeed to Amritgiri if Amritgiri should not provide for the succession by appointing a chela. Amritgiri provided a chela Dalramgiri but Dalramgiri did not appoint a chela, and the learned Subordinate Judge has held that Ramprasadgiri was entitled to succeed and did succeed by the ordinary law of intestate succession, as the nearest member of the guru family to which both belonged. The learned Subordinate Judge has relied for this purpose on the case of Erasha Kaikhasru v. Jerbai I.L.R. (1880) Bom. 537. This was a case of Parsi succession. A Parsi died leaving various relatives including a daughter, and expressly directed by his will that his daughter should take no share of his property, which he bequeathed to his brother. The brother predeceased him, and the daughter then applied for letters of administration as the nearest heir on intestacy. It was held that the use of mere negative words, unaccompanied by any effective disposition of his property, could not exclude his daughter. That decision, however, is not very helpful in the present case. If, as the learned Subordinate Judge has held, the will merely nominated one chela as the successor and stated that the other chelas were not to succeed, he would be right. But, in our opinion, the learned Subordinate Judge has not given full effect to the terms of the will. Ramkrishnagiri did not merely nominate the chela of succession, but he distinctly declared that Ramprasadgiri and other chelas were of bad character and bad conduct, and stated that due and regular release should be taken from each of them on payment of Rs. 100. Further he stated-

Should any one of them refuse to pass the aforesaid deed nothing whatsoever should be paid to the refusing party. None of them have any concern or connection whatsoever with the property left by me regarding which this will has been made. Any claim ever made by any of the abovementioned three or any one else should be considered null and void according to this will.

It appears to us that in this paragraph the testator declared Ramprasadgiri, defendant No. 1, unfit, and the law and custom of the gosavis is that a chela who has been declared unfit by his guru is debarred from all interest and cut off from the guru family. The evidence on this point has been taken on commission at Benares. Now, the Benares custom is not necessarily the Poona custom, but in the absence of evidence of the special custom of Poona, we think we are entitled to accept it as binding on the parties to this case. Mr. Pendse has drawn our attention to the fact that there is a certain amount of evidence of Poona custom, but none of the passages to which he has drawn our attention are relevant for our present purpose. They are concerned with such points as concubinage, marriage and sale of property, penance and the like. No evidence was given of any special custom which would prevent a guru from severing the spiritual connection between himself and an unfit chela. On the other hand there is definite evidence on the custom obtaining in Benares which we see no reason to discard.

10. Swami Vishudhanand at p. 105 of the paper-book has deposed-

If a mahant or a sanyasi commits an immoral act, keeps a woman or is convicted of any offence he becomes a patit or a fallen man and ceases to be a sanyasi and he also forfeits his right to continue as a mahant, manager or a trustee of the math or the trust property. Should a fallen sanyasi continue to hold property belonging to or appertaining to math or trust property he can be turned out through Court at the instance of any other sanyasi closely related and belonging to the same family as the fallen man (patit).

and he gave instances of sanyasis who had been dispossessed of maths by becoming patits.

11. Witness, Goshain Mahant, exhibit 428, also stated that a sanyasi could be removed by the sanyasi member of the same family, and he also gave instances. He stated, further, that a patit sanyasi or one declared nalayak by the last mahant could never succeed to his property belonging to the math, and could not be appointed a chela.

12. Mahant Anandgiri, witness exhibit 432, at p. 137, gave an instance of the removal from the gadi of a mahant, who had been put in jail, by the mahant of the Bara Mutt, i.e., by his superior.

13. Witness, Paramhans Sanyasi, exhibit 434, deposed that a chela declared nalayak by the Guru Gaddinish could never succeed to the gadi, that he would not be considered as one of the family, and that a nalayak chela cannot become the manager or trustee of math property.

14. Witness Nand Lal Puri, exhibit 438, stated-

The nalayak chela can get neither the math property nor any private trust property standing in the name of the mahant.

and he gave an example. He himself had turned out a chela who was a bad character. He added-

When a chela has been declared nalayak he can never get his guru's gadi.... If a mahant dies leaving a nalayak chela the gadi will then go to his guru's heir.

Two other witensses have given similar evidence. In fact it seems to be perfectly clear that just as a guru can adopt a chela and make him his spiritual son, so if he turns out unfit, he can untie the bond of relationship. Such a rule is most natural, and no evidence or authority has been shown to the contrary.

15. The only question then is, as I have said, whether the effect of the will was to declare defendant No. 1, Ramprasadgiri nalayak, and exclude him from the family, or merely, as the learned Subordinate Judge has held, to postpone him to a fitter chela as the immediate heir; and, with respect, we have little doubt that the former is the true interpretation, and that this defendant No. 1 was not then entitled to claim heirship to Dalramgiri on intestacy.

16. To continue my remarks about the judgment, the learned Subordinate Judge has found on the evidence that defendant No. 1 had kept concubines, and had in fact a mistress at the date of the suit. This is not denied. He held, however, that there was a custom in Poona of keeping concubines, but he refused to recognise this custom as being moral. We can hardly agree with him that there was such a custom, for it appears to us that the evidence merely makes out that there was considerable laxity in Poona, but no more. We, also, cannot go so far as to call such connections adulterous or incestuous, because there was nothing to show that they involved adultery or incest. But we agree with him since chastity is required of this community of gosavis it would require very strong evidence to prove that a man who keeps mistresses, or who continues to keep a mistress, is a proper person to be the mahant of a math. I would, however, like to point out that the conduct which is required from the mahant of a public math may be stricter than what one would require from an ordinary gosavi and that the so-called math is only a private institution.

17. The learned Judge, then, goes on to deal with the question of convictions, which it was alleged by the plaintiff disqualified defendant No. 1 from being the vahivatdar of this charitable institution. The facts are admitted. Defendant No. 1 was convicted in or about the year 1911 of being a member of a gang of dacoits, and in 1912 when this succession opened he was in jail. These facts are not disputed. The learned Subordinate Judge is probably right in saying that the offence of being a member of a gang of dacoits, though not included in the list of offences which involve a stigma of impurity, is sufficient to make a man patit. He held also that there can be no penance and there has been none. We are not willing to agree that such stains cannot be washed out by penance. But we do not think it necessary to deal with these matters at all. this Court is not a Court of morals, and we are not entitled to disqualify a man because of his bad behaviour, though we would no doubt be entitled to oust a mahant declared disqualified by proper authority. The evidence shows that there are authorities who can deal with such matters, and it is probably true. Whether that be correct or not we are confident that a civil Court has no authority, and that the learned Judge was wrong in deciding that he was entitled to remove defendant No. 1 from the gadi (to use a convenient term) because of his bad character.

18. However, it seems to us that the learned Judge was on surer ground when he held that he was entitled to remove the trustee of a private religious charity from the control of the trust property on the ground of waste and neglect. He has dealt with these in paragraphs 38 and 39. In paragraph 38 he gives a number of instances of waste and in paragraph 39 he sums this up-

There can be no answer to his agreement to sell house No. 400 for Rs. 30,000. A trustee cannot lease out properties permanently or for a period of 99 years. He however leased them to defendants Nos. 7 and 23. Of course the agreement with defendant No. 7 seems to have fallen through. But the fact remains.

He also held on the evidence that the objects of the charity are neglected. He says-

It seems to me clear from this that defendant No. 1 has not made any arrangements for the naivaidya of the deity and according to his own admission the deity was not properly looked after in its usual and customary ceremonies.

19. Now, this is not a case under Section 92 of a public charity, nor is it a private charity which comes within the purview of the Indian Trusts Act, nor does the Religious Endowments Act, which forms the basis of the decision of the Privy Council case in Hussain Bibi v. Nur Hussain Shah (1928) 30 Bom. 849, on which the learned 1937 Subordinate Judge relied, apply to Poona. Nevertheless, we are confident that there is an equitable jurisdiction inherent in the Courts to deal with trusts and to assure that they are properly managed apart from legislation, and we agree then that the learned Subordinate Judge had jurisdiction to remove defendant No. 1 from the trust property if the property was trust property.

20. This brings me to Mr. Pendse's clear and lucid arguments on behalf of defendant No. 1, the appellant in this case. The learned advocate has pleaded that in fact the property in dispute was not trust property. Under the will it has been held that the property was the self-acquired property of Ramkrishnagiri. This has been decided by the learned Subordinate Judge in this case, and it was also decided in the case in suit No. 274 of 1902 between Amritgiri and Ramprasadgiri, and on this point I need only say that the plaintiff has in the first lines of his plaint stated that Ramkrishnagiri by his last will made the property in suit 'Dharmadaya Trust.' We start then with the fact that this was the self-acquired property of Ramkrishnagiri for the purpose of the present argument. Mr. Pendse's next step is that by the clear terms of the will Amritgiri was made owner, and therefore, it is not trust property with which the Court has any jurisdiction to deal under its equitable jurisdiction to protect trusts; secondly, the learned advocate contends that even if Ramkrishnagiri intended to create a trust, he did not succeed in doing so, inasmuch as in effect he left the bulk of his property for the enjoyment of his successor, Amritgiri.

21. To take the first argument, we do not agree with the learned advocate that Ramkrishnagiri intended to make Amritgiri the owner of the property rather than the vahivatdar of the trust. Actually, in the will, according to the correct official translation which has been given us, the testator states that the whole of the estate with the exception of one land was wakf property and belonged' to the Devasthan of Dharmanath Bova, and he states further that Amritgiri was to be the executor to administer all the property and the wakf property so that he might properly administer the said properties just as they were administered during his lifetime, and

Further, he shall, as hitherto, expend monies over the math and temple out of the income derived therefrom. Further, he shall perpetuate the name of the ancestors.

Thus, it would appear that according to the will most of the property was wakf in the testator's hands. But the parties have gone to trial on the footing that the property was self-acquired property in the hands of the testator, and that he created a trust, and we can find nothing in the evidence to show that he intended to make Amritgiri a full owner rather than the manager of the Devasthan. Actually the defendant himself admitted that the property was trust property, and though he also stated that Amritgiri was the owner, evidently he did not mean that Amritgiri had all the rights of ownership, for he expressly pleaded that Amritgiri disposed of the trust property for pressing and urgent needs, and later on that he as vahivatdar had been justified in selling and mortgaging the property because of urgent need. It is, therefore, clear that it was no part of the defence in the lower Court that Amritgiri took possession as full owner. But Mr. Pendse argues that though the will purported to create a trust, actually the bulk of the property was given to Amritgiri for his enjoyment, and only a small portion was to be used for the use of the Devasthan, and thus by the authority of the undermentioned rulings the effect of the will was not to create a trust but to give the property to Amritgiri in full ownership subject to a charge in favour of the deity. The cases relied on by the learned advocate are-Konwur Doorganath Roy v. Ram Chunder Sen , Ashutosh Dutt v. Doorga Churn Chatterjee , Pande Har Narayan v. Surja Kunwari , Sri Thakurji v. Sukhdeo Singh I.L.R. (1920) All. 395, Bhekdhari Singh v. Shri Ramchanderji I.L.R. (1931) Pat. 388, and Gopal Lal Sett v. Purna Chandra Basak . The general effect of these rulings is given in Pande Har Narayan v. Surja Kunwari. The head-note is to this effect-

In determining whether the will of a Hindu gives the testator's estate to an idol subject to a charge in favour of heirs of the testator, or makes the gift to the idol a charge upon the estate, there is no fixed rule depending upon the use of particular terms in the will; the question depends upon the construction of the will as a whole.

Thus, although a will provides that the property of the testator 'shall be considered to be the property of' a certain idol, the further provisions such as that the residue after defraying the expenses of the temples 'shall be used by our legal heirs to meet their own expenses,' and the circumstances, such as that in the ceremonies to be performed were fixed by the will and would absorb only a small portion of the total income, may indicate that the intention was that the heirs should take the property subject to a charge for the performance of the religions purposes named.

22. All these cases are of the same type. They show that the question whether a charity or an idol should be considered the true beneficiary subject to a charge in favour of the heirs for their upkeep [to quote the heading in Bhekdhari Singh v. Shri Ramchanderji], or the heirs should be considered the true beneficiaries of the properties subject to a charge for the upkeep of the worship and the expenses of the idol, is a question which can only be settled 'by a conspectus of the entire provisions of the instrument.' The Courts have always laid it down that a document which purports to create a trust must create a genuine trust, and not create a provision for relatives under the guise of a trust, and the test is the proportion of the funds to be allotted to the idol or charity. Here, however, we have a case of a different type, for there is nothing in the will to show that any part of the trust funds was to be allotted to any other object except the charity. It may be true as Mr. Pendse has pointed out that a very small proportion of the income of the trust properties has been used for the charity. But this need not continue. No evidence has been given on this point, and it may be that there is ample scope for the employment of all the funds for the charity. Many institutions which start with small beginnings have ultimately grown to large proportions. We, therefore, are of opinion that this argument cannot be supported by the will. But there is also another answer to it, that this is a new point which was not taken in the lower Court. I have already given a summary of defendant No. 1's written statement, and there he distinctly stated that the whole property had been left in charity. We do not think that the word 'ownership' read with its context where it occurs means more than vahivatdarship. Further, taking the view we have taken on the question of the relation of defendant No. 1 to the testator, that he was declared a nalayak, we find that the result would be the same because if he ceased to be a member of the; guru family he ceased to have any preferable claim as heir to Dalramgiri.

23. Another point which has been insisted on by the learned advocate for defendant No. 1-appellant is that in fact there is no math and that what the testator was disposing of was a mere private residence. Here too we find a difficulty owing to the fact that this question was not pleaded or decided by the lower Court, and all we need say is that the will speaks, of a math in which there was a samadhi and makes a provision for the expenses of the math and mandir, i.e., the math and samadhi. It is true, as has been pointed out to us, that the word 'math' may have several meanings. We have been referred to Molesworth's Dictionary on the point and we find that the term is sometimes given to the residence of a gosavi. But if it was defendant No. 1's case that as there was no math in the technical sense of the word, therefore the property is not the subject of a trust, and he must fail since he did not raise this objection at the proper time.

24. The next question which the learned advocate has raised is that of res judicata. He bases it on the decision of suit No. 274 of 1902 filed by Amritgiri against Ramprasadgiri, the present appellant, for a declaration that he was entitled as heir to the ownership of the trust property, and for an injunction to restrain the defendant from interfering with him. Defendant No. 1, who was also defendant No. 1 in that case, pleaded that the plaint property being a religious endowment and not Ramkrishnagiri's private property he was not empowered to make a testamentary disposition of it and that the will was invalid. The Court framed three issues, which are relevant to our present enquiry-(1) Whether the deceased Ramkrishnagiri was. the owner of the property? (2) Was he not competent to dispose of the property by will? and (3) If he was, is this alleged will bequeathing the said property in favour of the plaintiff proved to be genuine and valid? And the learned Judge recorded finding on these issues in the affirmative. Mr. Pendse's argument is that since it was found that the property was private property of Ramkrishnagiri in spite of his objection that it was trust property, the present plaintiff, who claims through Amritgiri, is debarred from, pleading that the property is trust property. But the question there was not the same as that which we have to deal with. The whole dispute appears; to have been about the genuineness of the will and the power and the right of the testator to bequeath this property in trust to Amritgiri. The learned Judge held that the will was genuine, but at p. 254, he wrote-

The translation of the will accompanying the probate shows that all the property is made wakf or an endowment to the Dharmanath Bowa tomb.

and though at p. 257 of the paper-book he held that Amritgiri was entitled to the property and to an injunction to get possession he declared that he was not concerned directly with the question whether the property was trust property in Amritgiri's hands. We do not find, therefore, that this question which we have to deal with in this case was directly an issue in the former case. Apart from this, however, we cannot allow defendant No. 1 to succeed on this point inasmuch as he did not plead res judicata in this suit. There is nothing in his pleadings that this was his defence and there was no issue framed on it and there is not a word in the judgment on this subject. An issue of res judicata is not only an issue of law but also an issue of fact, and a party who fails to plead this defence is not entitled to take advantage of an evidence which happens to be on the record for a different purpose to establish such a claim.

25. This judgment, however, has been made use of by Mr. Pendse in another way. The learned advocate has not challenged the findings of fact contained in paragraphs 38 and 39 of the judgment of the lower Court, on the question of waste and laches. But he has argued, in the first place, that a genuine belief in his right of ownership and a bona fide assertion of such ownership are not disqualifications for a trustee. He has cited Chintaman Bajaji Dev v. Dhondo Ganesh Dev I.L.R. (1888) Bom. 612, Damodar v. Bhat Bhogilal I.L.R. (1896) 22 Bom. 493, and Peary Mohan Mukerji v. Manohar Mukerji I.L.R. (1921) Cal. 1019 : 23 Bom. L.R. 913, a Privy Council case. We concede that what would disqualify a trustee is a deliberate breach of trust and not a breach due to ignorance of the nature of the trust property with which the trustee is endowed. But in this case we do not find any valid ground for the argument, and it also does not appear to be an argument which was put forward in the lower Court. Again, I may refer to the defendant's pleading that the property was trust property and his further pleading to the effect that alienations were necessitated by pressing needs. There is nothing in the statement to show that he was unaware of the nature of the property, and when we come to the judgment in this litigation of 1902 on which Mr. Pendse has relied we find no sufficient support to his present argument. I would again refer to the statement in that judgment at p. 254 of the paper-book that in the opinion of the Judge all the property was made wakf or an endowment to the Dharmanath Bova's tomb. It is impossible then for defendant No. 1, the appellant, to plead in justice that he was misled by this judgment.

26. Our conclusion then is that this appeal must fail, though our reasons are in some respects different from those of the lower Court. We hold that when defendant No. 1 was disqualified by the testator he ceased to have any right to inherit in the family. We also hold that he has shown himself unfit to be a trustee owing to his mismanagement of the property, and that the plaintiff as the nearest member of the guru family is entitled to succeed both as heir to Dalramgiri, and that his position as a member of that family also entitled him to ask the Court to protect the true beneficiary, i.e., the charity, from waste.

27. The result then is that the appeal fails and is dismissed with costs in favour of plaintiff-respondent No. 1.

Tyabji, J.

28. The appeal raises questions relating to the inheritance of property that had been possessed by a gosavi and administered as a math, but which is not a charity for a public purpose.

29. The ultimate authority for the devolution of such property is traced to Yajnavalkya, 2, 138,-

The heirs of a hermit, of an ascetic, and of a professed student, are, in their order, the preceptor, the virtuous pupil, and the spiritual brother and associate in holiness.

The verse is commented upon by the Mitakshara in Ch. II : Section VIII, in the Vyavahara-Mayukha, Ch. XII : Section VIII, and in the Dayabhaga, Ch. XI, Section 6, sl. 35. None of the commentators seem to add very much to the original verse in so far as the questions that we have to decide are concerned. Accordingly the rule laid down is subject primarily to the customs of the particular math, succession to which has to be determined.

30. The principal provision in the rule of succession contained in the verse with which the appeal is concerned, is that the pupil is not recognised as entitled to succeed unless he is a virtuous pupil. In connection with this provision and its ramifications, custom was pleaded and the parties were prepared to adduce evidence to prove the customary rules relied upon. When, however, the suit was first tried, the learned Subordinate Judge who was then in charge of the suit refused to take any oral evidence. On appeal to the High Court the case was remanded for evidence of custom being taken; and we have in the judgment under appeal reference to a great deal of evidence produced on behalf of the plaintiff with reference to the interpretation that Yajnavalkya's verse must bear in accordance with custom,-mainly directed to indicate when a pupil is to be considered virtuous, and when he is to be deemed to be disqualified on the ground that he is not virtuous : whether the question of a pupil being or not being virtuous is to be decided by the Court, or solely by the deceased mahant or by the guru of the pupil : or whether the opinion of the surviving gosavis in the brotherhood connected with the math, succession to which is in question, must prevail.

31. On several of these details the evidence is not uniform, but the evidence is practically unanimous to this extent that when the guru has formally declared or expressed an opinion that one of his chelas is not virtuous-the expression used in the evidence nalayak-literally unfit, but the word is generally used in the sense of vicious or disqualified,-then there is no question about the chela being disqualified in reference to the right of inheritance referred to in Yajnavalkya, 2, 138. In other words, the custom is that just as the guru has the right, of his own will, to adopt a chela and to initiate him into the brotherhood of gosavis, so he may in a proper case declare that a chela has disqualified himself and that the bond of guru and chela has been severed between himself and his former pupil, so that the latter is in effect out of the brotherhood so far as his right to inherit the property of his former guru is concerned. The evidence referred to by my learned brother in his judgment leaves no doubt in my opinion that once a chela has been declared nalayak, or disqualified by his guru, the tie of guru and chela is effectually broken, and that the former chela is to be considered (in respect to his claim to succeed as the heir of his former guru) to be in the same position as if he had never been his chela at all. Defendant No. 1 himself, when confronted with the question, while giving evidence, had to admit this.

32. The position is very different from that contemplated in such cases as Erasha Kaikhasru v. Jerbai I.L.R. (1880) Bom. 537, to which the learned Judge refers. There a testator in nominating the person who should succeed to him, not only stated that certain persons should be his successors, but also declared that one of his daughters was to take nothing from his estate : and it was held that the declaration by the testator that the daughter was in no case to succeed him did not come in the way of her succession in the event of intestacy. The principle is that the testator has power to state who shall succeed; and for making his intention clear in this respect he may state whom he does not wish to succeed; but he has no power to change the law of intestate succession. When, therefore, the will fails to provide for certain contingencies and the general law applicable to intestate succession must come into operation, the desire of the testator that a particular individual shall not get any share of his estate cannot take effect. The case between guru and chela is entirely different. Just as by his own act he brings about a relation between himself and his chela, so by his own declaration (that a chela is nalayak) he severs that tie : after that severance the person in question is not to be considered as a chela any more. After such severance the former chela does not rank as a person entitled to succeed in case of intestacy as he does not any more come under the category of chelas. When we remember the extraordinary degree of respect that a chela is required by the law to pay to the guru, this customary interpretation of the law does not seem to treat Yajnavalkya's principle with too great latitude.

33. If I am correct in my understanding of the law, then under his will, such a severance as I have mentioned was finally made by the testator, Ramkrishnagiri, when he declared that defendant No. 1 had grievously displeased him and was not any more to be considered his chela.

34. A point was made that defendant No. 1, Ramprasadgiri, could not be disqualified by Ramkrishangiri whose will is relied upon, because defendant No. 1 was not a direct chela of the testator; but he was a chela of Tukangiri who was a chela of the chela of the testator. The answer is that the testator had authority over his great-grand-chela, defendant No. 1, in the same manner as if he (the testator) had been dealing directly with his own chela, for two reasons : (1) because at the time when the declaration was made the intermediate chelas Tukangiri and Manmahesh were dead, and (2) Ramkrishnagiri the testator was the mahant at the head of the math.

35. In my opinion, therefore, any right that defendant No. 1 may have had to succeed to Ramkrishnagiri, was entirely taken away by his being declared nalayak under the will of Ramkrishnagiri.

36. The translation of the will annexed to the probate has, after careful consideration by us, been found to be very defective. We have accordingly had the will officially translated in this Court and that translation has been made part of the record. The language in which the will is couched is Hindi with which I am not unfamiliar, though I am not acquainted with the characters in which it is written.

37. The probate translation of the will requires to be corrected, first, in that it omits to indicate that the plot of land at Manjeri known by the name Mhaskkapatty is referred to in the will as an exception to the previous general statement that the property was waqf. The word bajuz meaning 'except' is omitted from the probate translation. The omission was the cause of material misapprehension in the judgment of the High Court in Appeal No. 219 of 1921, which remanded the case for evidence of custom being taken. As originally translated it would appear as if all the property mentioned in the will were being 'assigned to Dharmanath Bova' at the time when the will was being made. But correctly translated it is clear that the will is to this effect :-

all the moveable property appertaining to the said math and temple is waqf property dedicated to Baba Dharmanath except the land situated at Manjeri Maskpati....

This excepted property is stated to have been reserved during the lifetime of the testator for his own private expenses. In this way this one piece of land is distinguished from the other property which was already waqf or consecrated. The probate translation is also defective in referring to the rendering of the expression 'mal-e-matruka.' The official translation of this Court is 'estate remaining behind.' The literal meaning of the word matruka is no doubt 'remaining behind' but it is, in such contexts as the present, used to refer to property that is subject to inheritance. Matruka is explained in Forbes's Hindustani Dictionary as 'estate goods or property of a person deceased to which his heirs are legally entitled.

38. When these two corrections are made in the translation of the will there remains little doubt that the testator considered the property in his hands to consist of two parts, one which had already been made waqf and the other which he had retained during his lifetime for his personal expenses and of which he made waqf by his will. There is no evidence to show whether this excepted property was acquired by him from his savings; but it seems to be an accretion made during his lifetime. Much argument was addressed to us to the effect that the will must be construed as a dedication of the property by way of waqf made by the testator. This argument hardly needs any refutation after the correct translation is before us, and the farkat, exhibit 349, to which our attention was called, makes it still more probable that the main portion of the property had been made waqf of long before the will. It explains why the will speaks of the property as being already dedicated except in regard to the land situated at Manjeri Maskpati.

39. Civil Applications Nos. 991 of 1930 and 106 of 1934 are dismissed with costs.

Barlee, J.

40. Cross-objections are made by respondent No. 24 who was defendant No. 23 in the lower Court. Apparently defendant No. 1 alienated some property to this defendant by a lease for ninety-nine years. The plaintiff included this property in his plaint and asked for possession. Defendant No. 23 was not then a party, but he was joined at his own request on an application in which he stated that he had spent about Rs. 7.000 to Rs, 8,000 on the repairs of the building. He took no further part in the proceedings. He filed no written statement and did not appear and in consequence a decree was made by the learned Judge against the defendant that the plaintiff was entitled to recover this property from him on the ground that the lease was executed pendente lite.

41. Mr. Lime on behalf of this defendant has contended that this was an alienation for necessity inasmuch as the property was in a ruinous condition and that his client has spent about seven to eight thousand rupees on it since 1921. We do not see, however, how we can accept this statement or statements made in the application to the Court by this defendant when he asked to be joined as a party, as evidence in the case.

42. We are, therefore, unable to help this respondent in any case. His cross-objections must, therefore, be dismissed with costs.

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