1. The plaintiff sued to obtain possession of the property mentioned in the plaint from defendant No. 1, alleging that it belonged to one Gangadas Ramdas, and after him to his disciple Ganeshdas, and that Ganeshdas made a will before his death on November 12, 1910, by which he left the entire property to the plaintiff. The plaintiff got possession and was in vahivat, but later on he appointed one Digambardas as manager while he went on pilgrimage, and on his return after eight or nine years he found defendant No. 1 in possession of the property, and hence the suit. The property in suit is property belonging to a Math. Defendant No. 1 denied the will, and said if there was any will it was illegal as being against the tenets of the Math. He also denied the execution of the will and took other objections. The first Court found that the will was proved, and valid, and gave plaintiff a decree for the property. The suit originally included moveable property and private property of the deceased Ganeshdas. In appeal the claim to that was withdrawn, but in other respects the decree of the first Court was confirmed. Defendant No. 1 makes this second appeal.
2. The present suit relates to the power of a Mahant of a Math to make a will in favour of the person whom he designates as his successor, and it is contended by the learned advocate on behalf of the appellant that such a Mahant has no power to dispose of the property by will, because it is the property of the institution and not his property. The Judge of the lower appellate Court, who was himself a Hindu, has dealt with this point in his judgment, and holds that the property vests in the Math, and that the plaintiff cannot be regarded as more than a vahivatdar. We are not really concerned in this case with what is the nature of the interest taken by the plaintiff in the property of Ganeshdas. That could only be determined in a suit by some person interested in the Math for accounts or something of the kind. The only question in this suit is whether Ganeshdas as Mahant had power to make a will by which he appointed his successor. It has been argued by the learned advocate for the appellant that the Mahant cannot do so, and ho bases his argument on the case of Vidya, Varuthi Thirtha v. Baluuumi Ayyar , and on Mulla's Hindu Law, p. 407, but all that these cases say is that the Mahant of a Math cannot alienate property belonging to the Math except for legal necessity beyond the term of his own life, and that is not at all the same question that we have before us now. The law is that as a general rule property given for the maintenance of religious worship and charities connected with it is inalienable except for the necessary purposes of the religious institution. But the question of how the inheritance to the office of Mahant and the consequent interest in the Math property is to be settled is a matter of custom in each particular case. I have not been able to find any case in which it has been laid down as an absolute proposition that the manager of a Math or the vahivatdar of a temple has not power to make a will appointing somebody as successor. It has been laid down by the Privy Council that as a matter of fact we have to be guided in these matters by custom. On reference to Mulla's Hindu Law, 6th Edition, Section 419 (3), it will be found that (p. 477) :-
There is a conflict of decisions as to whether a shebait can nominate his successor by will. It has been held by the High Court of Calcutta that he cannot, unless there be a usage justifying a nomination by will,...On the other hand it has been held by the High Court of Bombay, that a valid devise may be made of the office of shebait, provided the devisee is a person standing in the line of succession, and is not disqualified by personal unfitness' : Mancharam v. Pranshankar ILR (1882) 6 Bom. 298.
and in another place in Mulla's Hindu Law (6th Edn., Section 418) it is stated (p. 474):-
The succession, to the office of mohunt depends on the usage of each particular math. As observed by their Lordships of the Privy Council, ' the only law as to mohunts and their office, functions, and duties, is to be found in custom and practice, which is to be proved by testimony.' The custom that prevails in the majorty of cases is that the mohunt nominates his successor by appointment during his lifetime or by will.
It would appear, therefore, the question of whether the Mahant of this particular Math was entitled to make a will or not is one which depends on 'the custom of the Math, as to which no evidence has been led. The defendant in his written statement, after denying the existence of the will, said the will being against the tenets of the Math, is illegal, the plaintiff cannot sue upon it and that the plaintiff also was unfit by reason of his not living a celibate life. If we take these words to mean that the defendant was setting up a custom by which the Mahant of a Math could not make a will nominating his successor, the burden of proof was on the defendant to prove the custom which ho alleged. As no evidence has been led on that point, I must hold that it has not been proved. The learned advocate for respondent No. 1 has referred to the case of Krishnagvri v. Shridhar (1921) 24 Bom. L.R. 140. That, however, is not the case of a will, and I do not think it advances the present case very much. It was laid down in Trimbakpuri Guru Sitalpuri v. Gangalai ILR (1887) 11 Bom. 514 that a Guru in the Dekkhan has a right to nominate his successor from amongst his chelas by a written declaration. That decision is based on the authorities cited at pp. 554 and 556 of West and Buhler's Hindu Law, but that perhaps hardly applies to the case of a will. If, however, the present will be regarded as a written declaration by the Mahant nominating his successor, the case would apply. But I should prefer-to decide this appeal on this ground that the general effect of the authorities is to show that in each case the question of how the successor to the Mahant or Guru is to be selected has to be decided on the custom of the Math, and the defendant having pleaded that the making of a will was against the custom, and no evidence having been led in support of that position, I should hold that the custom is not proved, and that ordinarily speaking the presumption would be in favour of his power to nominate his successor either by a will or by a written declaration. As to the ' interest which he takes under the will, that has been discussed, as I have already said, at great length by the learned Subordinate Judge but we are not really concerned with that. I do not think that there are sufficient grounds for differing from the view which the learned Subordinate Judge with appellate powers has taken. Consequently, his decree will be confirmed, and the appeal dismissed with costs.