1. The appellant is the plaintiff, Respondent-1 is defendant-1, Respondents 2 to 6 are the legal representatives of defendant-2 and Respondent-7 is defendant 3, the Charity Commissioner. The suit is for declaration that the plaintiff is the Pattada Devaru of Muthina Kanthi Mutt situated in Bijapur District and for recovery of the properties belonging to the Mutt. Defendant-1 claims that he is himself the Pattadhikari and defendant-2 claims to be the previous Pattadhikari. The trial court held that the plaintiff is the duly appointed Pattada Devaru but that the suit is barred by the provisions of the Bombay Public Trusts Act and dismissed this suit. The lower appellate court held that the installation of the plaintiff as Pattada Devaru is invalid. It also held that the first defendant is the successor duly nominated by Sivalingeswara, the previous Pattadhikari. It agreed with the finding of the trial court that the suit is barred by the provisions of the Bombay Public Trusts Act. It accordingly confirmed the decree of the trial court.
2. In the former State of Jamkhandi there is an ancient Mutt called 'Muthina Kanthi Mutt'. It has two subordinate Mutts - one at Jamkhandi and the other at House. The Muthina Kanthi Mutt owns considerable immoveable properties at Jamkhandi, House and Janwad. There have been two Gurus of the Mutt - one known as Padadaiah who stays in the Mutt and the other known as Charanthi who moves about preaching and collects offerings and other perquisites from the devotees of the Mutt. There are five major Panchapeetas of the Veerasaiva community founded by five Acharyas. The five Acharyas are said to have founded the Veerasaiva religion. Ekoramaradhya established the Mutt at Kedarnath in the Himayalas, Panditharadhya established the Mutt at Srisaila, Renukacharya also known as Revenasiddeswara established the Mutt at Belehalli also known as Rambapuri Marulasiddeswara established the Mutt at the and Viswaradhya established the Mutt at Kasi. These are the five Pancha Panchapeetas through which the other Mutts trace their origin. The Muthina Kanthi Mutt owes allegiance to the Srisaila Peeta. Each of the five Pancha Panchapeetas has their own Gotra and Sutra. There are two kinds of Muttas, Gurushala Mutt and Virakta Mutt. There are three divisions in Gurusthala Mutts. Some have the Pattadhikari only, some have Charamurthi only and some have both Pattadhikari and Charamurthi. The Mutts can also be classified into Putravarga Mutt and Sishyavarga Mutt according to the mode of succession to the Peeta. In the Putravarga Mutt the Peeta is occupied by a member of the family of the Guru. In the Sishyavarga Mutt the successor need not necessarily be a member of the family of the Guru. The Gurus of Puthravarga Mutt must be Maheswaras or Jangamas. The Muthina Kanthi Mutt is a Putravarga Mutt owing allegiance to the Srisaila Peeta. These facts are admitted. P. W. 22 has stated in his evidence that there are two offices of Charanthi and Pattada Devaru in the suit mutt and for over hundred years different per. sons were holding the respective posts. He has also stated that the charanthi of the Mutt has got to be a member of the family of the gurus of the Muthina Kanthi Mutt and not an outsider and that P. W. 9, the charanthi, and his people live in the other half of the suit Mutt. It is also in the evidence of D. W. I in C. S. 148/1928, marked as Ex. 70, that there are two offices of Padadayya and Charanthi in the suit Mutt since ancient times, that there are two different houses in Muthina Kanthi Mutt - one of Padadayya and another of Charanthiah,
3. It is necessary to set out the previous history of the litigations between the parties. There appears to have been rivalry between the Charanthi and the persons holding the office of Padadayya for over a number of years. In the year 1857, one Ishtalingaiah was the Pattada Devaru and was succeeded by Virupakshiah in the year 1858. Virupakshaiah died in 1903 and Shankariah (defendant-2) succeeded him. He continued as Padadayya till the year 1921. One Annadanaiah was the Charanthi in the year 1858. He was succeeded by Sivaputraiah who died in the year 1890. Sivaputraiah was succeeded in 1895 by Andanaiah, a nominee and disciple of Sivaputraiah. Both Padadayya and Charanthi are required by the tenets of the faith to live a celibate life but Shankaraiah married in the year 1921 and became incompetent to hold the office of Padadayya. Andanaiah raised the contention that Shankariah had lost his right to continue as Padadayya by reason of his marriage and that the office of Padadayya became vacant. Shankaraiah had submitted an application to the Mamlatdar on 19-12-1927 stating that he had, before his marriage, nominated Shivalingaih, his brother, in the presence of the devotees of the Mutt at Jamkhandi as his successor and that on Shankaraiah's marriage, Shivalingaiah succeeded him as Padadayya and that the name of Shivalingaiah must be entered in the revenue records as Padadayya and holder of the properties which originally were in the name of Shankaraiah. Andanaiah objected to the application contended that Shivalingaih had not been validly appointed as Padadayya by Shankaraiah and that he had not acquired any rights to the properties in dispute The Mamlatdar directed the parties to move the Civil Court and to obtain a declaration of the title of Shivalingaiah to the properties. Shankaraiah and Shivalingaiah then filed the suit No. 148/28 against Andanaiah for a declaration that the Mutt property belonged to Shivalingaiah and that Shankariah had nominated him as his successor. The suit was dismissed by the trial court on the ground that the non-direction of Shivalingaiah was not proved. The appeal No. 7/32 was filed to the District Court, Jamkhandi, against that decree. The appellate court confirmed the decree of the trial court. Then, Shankariah and Shivalingaiah filed Second Appeal No. 5/34 in the High Court of Jamkhandi. The High Court dismissed the appeal but the question whether Shivalingaiah was nominated by Shankariah as his 'Mari' or successor was expressly kept open. After the dismissal of second appeal No. 5/34, Andaniah filed Suit No. 508134 against Shankariah and Shivalingaiah for a declaration of his title to the property and for possession of the same together with future mesne profits. The suit was resisted by Shankariah and Shivalingaiah contending that Shivalingaiah had been nominated by Shankariah as his successor or 'Mari' before his marriage and, therefore, Shivalingaih was entitled to the property in suit. During the pendency of this suit, Shivalingaiah was alleged to have been installed on the Gadi by certain disciples or devotees of the Mutt and a record thereof was prepared. That record bore the signatures of as many as eighty devotees. It purported to state that Shivalingaiah had been appointed as 'Mari' in the past by Shankariah according to the custom of appointing the successor to the Jamkhandi, Muthina Kanthi Mutt and that, accordingly, Shivalingaiah was made the 'Charanthadikari' according to the custom of the Mutt consistently with Veerasaiva Dharma Sutra Vidhies and therefore Shivalingaiah should confer favor on the Bhaktas and exercise both Pattadhikari and Chara authorities of the Mutt. The trial court dismissed Andanaiah's suit holding that the claim was barred by the law of limitation and an appeal was filed against that decree to the District Court. The District Court confirmed the decree of the trial Court. In second appeal, the High Court of Jamkhandi set aside the findings of the lower courts and held that the suit was not barred by the law of limitation and directed that the suit be remanded to the trial rout for hearing and disposal according to law.
4. Thereafter, Shivalingiah applied for amendment of the issue raised by the trial Court and tire issue relating to the factum of installation of Shivalingiah was raised. The trial court held that the suit properties were not the private properties of the family but properties attached to the Mutt, that Shankaraiah could not continue to exercise the rights of Padadayya after his marriage, that he could not initiate a 'Chela' after his marriage, that the installation of Shivalingiah on 23-6-1965 was not valid, and that the suit filed by Andaniah in the form in which it was filed was competent. The suit was accordingly decreed for possession, future mesne profits and costs.
5. Against the decree passed by the trial Court, two appeals were preferred to the District Court: Appeal Nos. 32 and 33/1940. The District Judge held that the property in suit was not the private property of the plaintiff or the defendants but that it was the property of the Mutt, that Shankariah lost all his rights in the suit property by reason of his marriage, but that he did not lose the right to manage the property. The District Judge held that Shivalingaiah was nominated as 'Chela' or 'Mari' by Shankariah before he married in the year 1921. He also held that Shivalingiah was proved to have been installed on the Gadi as Pattadhikaridhikari on 23-6-1965. Accordingly, he held that the Plaintiff Andanaiah was not entitled to a decree for possession as claimed by him and reversed the decree of the trial court and dismissed the suit. Against that decree, a second appeal was filed by Andanaiah in the High Court of Jamkhandi. The High Court held that Shankariah had ceased to have any right to the office of Padadayya and it also held that the property in the suit is the property of the Mutt and not the family property of Shankariah. The learned Judge then observed that the evidence relating to the nomination of Shivalingiah by Shankariah was 'doubtful evidence'. But he did not interfere with the conclusion of the District Judge on that point. In the view of the learned Judge, the evidence on the point of election was better and stronger. He held that Shivalingaiah has been proved to have been elected and installed on the Gadi in the year 1935 as alleged by him. In that view, the learned Judge confirmed the decree passed by the District Court. Against that decision a Revision Application No. 1/44 was filed before the Judicial Committee of the former Jaimkhandi State. That application was transferred to the High Court of Bombay after the merger of the Jamkhandi State in the State of Bombay.
6. Exhibit 282 is the judgment of the High Court of Bombay in Civil Application No, 2286/55 dated 15-9-1958. In that judgment it was observed that the High Court of Jamkhandi merely remarked that the evidence relied on by the District Court for recording a finding that Shivalingaiah was proved to have been nominated by Shankariah as 'Mari' was doubtful, but that the learned, Judge of the High Court did not express any opinion on the question nor did he in fact, reverse that finding. It therefore, observed that once it is held that Shivalingaiah was duly nominated as 'Mari' by Shankariah, Andanaiah could have no title to the suit property. It also observed that the question whether Shivalingiah was elected to the office of Padadayya by the devotees has not been specifically raised in 'the trial court and that the parties may be regarded as not having had the opportunity to lead evidence on that question. But it held that the suit of Andaniah must fail in view of the finding of the District Court that Shivalingiah was duly, nominated by Shankariah as his disciple, which finding bad not been set aside by the High Court of Janmkhandi. The application was accordingly dismissed.
6 (a). Admittedly, Virupakshiah was the legally installed Pattadhikari who died in the year 1903. According to the case of the defendants, he had nominated Shankariah as his successor. Shankariah was installed as Pattadhikari and acted as Pattadhikari from 1907 to 1921 when he married, before his marriage, he had nominated Shivalingiah as his successor. Shivalingiah was installed as Pattadhikari in 1925. He died in 1943 leaving behind him a well nominating the first defendant as his successor, Defendant-1 is Shivalingih's step-mother's some Defendant-1 was installed as Pattadhikari in 1955, subsequent to the filing of the present suit, Since the first defendant was nominated as successor of Shivalingiah, there was no vacancy of the office of Pattadhikari in 1944 when the plaintiff is alleged to have been installed as Pattadhikari. They denied that the plaintiff was a member of the family of the Gurus of the Mutt and contended that he was disqualified to be appointed as Pattadhikari, Both the lower courts have held that the plaintiff belongs to the family of the Pattadhikaries of the Mutt, the members of which family alone are entitled to occupy the seat of Pattadhikari. In this court, it is not urged on behalf of the defendants that the plaintiff is disqualified to be the Pattadhikari on this ground. The defendants denied the fact of the installation of the plait tiff as Pattadhikari They also alleged fiat the installation of the plaintiff was done by P. W. 9, the Charanthi of the Mutt and that the installation of a Pattadhikari must be done only by another Patted, kart and for that reason also, the installation of the plaintiff is invalid.
6(b). It is also pleaded on behalf of the defendants that defendant-2 never claimed any rights as Padadayya after his marriage in 1921. It is not the plea of the first defendant that marriage does not disqualify a person for continuing 23 Padadayya Whereas according to the plaintiff a person who is born of a Jangam father and a Banajigar mother cannot be nominated as successor and cannot become a Pattadhikari according to the defendants there is no prohibition for a person born of parents of different sub castes namely, Vani and Jangam, to become a Pattadhikari either according to Sastras or usage, It is also pleaded by defendants that Shangariah-defendant-2, was appointed as successor by Virupakshiah, and that he was the validly installed Padadayya of the suit mutt. It is further pleaded that before his marriage, Shankariah appointed the deceased Shiva Shankariah appointed the deceased Shiva Shankariah appointed the deceased Shivalingeswar and installed him as Pattadhikari in the year 1935. The plea of the defendants shows that they do not deny the existence of sub castes among Lingayats but what they deny is that a person born of a Jangam father and a Vani mother is not disqualified from a Padadayya.
6(c). The trial court held that the plaintiff is the validly appointed Pattadhikari of the suit mutt that the decree passed in Second Appeal No. 3/43 does not operate as res judicata against the Plaintiff, that there was no nomination of Shankariah as successor to the office of Pattadhikari by Virupakshiah and that Virupakshiah died without nominating his 'Mari' or disciple, that Shankariah was not installed as Pattadhikari but rightly or wrongly got possession of the properties from Virupaksiah and was performing the duties of Pattadhikari and enjoying the properties without hindrance until the Charanthi began to contest his right that Shankariah had not nominated Shivalingaiah as his successor, that the installation of Shivalingaiah as Pattadhikari was invalid since it was done by Shankariah himself who was disqualified to do so on account of the fact that he was not a celibate at that time, also on the ground that Shankaraiah was the son of Banajigar woman and was therefore disqualified to officiate at the installation ceremony; that it is not proved that the will executed by Shivalingiah was genuine and was executed when he wag of a sound disposing state of mind; but it came to the conclusion that the suit is barred by the provisions of the Bombay Public Trust Act and dismissed the suit an that account though it held in favor of the plaintiff on the other issues in the case.
6(d). The lower appellate court agreed with the findings of the trial court that the suit is barred by the provisions of the Bombay Public Trust Act, and also with the finding that the decision in S. A. S/43 does not operate as res judicata. But it held that defendant is the duly nominated Pattada Devaru and that the Plaintiff has not been duly installed as Pattada Devaru of the suit mutt. It therefore confirmed the decree of the trial court dismissing the suit.
7. In (1874) I Ind App 209 (PC) (Rajah Muttu Ramalinga Setupati v. Periyanayagum Pillai) it was observed as follows: -
'But the constitution and rules of religious brotherhoods attached to Hindu temples are by no means uniform in their character, and the important principle to be observed by the Courts is to ascertain, if that be possible, the special laws and usages governing the particular community whose affairs become the subject of litigation, and to be guided by them.
That principle was laid down by this Committee in an appeal involving the succession to the office of mount of a richly endowed mutt in Rajgunge in these terms: - 'It is to be observed that the only law as to these mohunts and their office, functions, and duties, is to be found in custom and practice, which are to be Proved by testimony.' (See (1867) 11 Moo Ind App Cases 405 (428).
It is therefore clear that the court has to determine the custom and practice prevailing in the community to which the religious institution belongs. It is the case of the plaintiffs that the custom and practice relating to succession applicable to Puthravarga mutts apply to the suit mutt. This proposition is not disputed on behalf of the defendants. The dispute between the parties is as to what constitutes the custom and practice relating to succession governing Puthravarga Mutts. According to the plaintiffs, if there is no nomination of the successor by the previous, Padadayya or Pattadhikari the surviving Charanthiswamy and the heads of the kindred Mutts are to select a deserving 'Chela' from amongst the family members and install him as Padadayya to the suit Mutt attended by all religious ceremonies of giving him Veeramaheswari Diksha and religious Sanskaras at the hands of a Guru of the same Sutra as that of the suit Mutt. What is alleged in the written statement of defendant-1 is that the Charantiswamy is not in any way concerned with the appointment of the Padadayya. His consent or the consent of Shrisaila Mutt or other Mutts is not required to be obtained, but the Padadayya can appoint by will or otherwise his successor to the Gadi of the Padadayya. It is admitted on both sides that Sastras governing Puthravarga mutts as modified by custom must govern the Principles of succession to the suit mutt also. It is not in the evidence of DW. 2 who has been examined on behalf of the defendants as a person well-versed in the sastras, or the case of the defendants according to their pleading or the evidence adduced by them, that a different custom governs the suit mutt. D. W. 2 has stated as follows: -
'If a Guru of Puthravarga Mutt dies without nominating his successor, and there is only one member (sic), themselves appoint him as the successor, and if there are several competent persons, they consult the devotees and appoint one of them as the successor. This is based on Sadachara Sangraha, Chapter 14, and Sloka 19 page 121. The sloka is extracted from Veerashaiva Acharkausthubha.'
This evidence supports the case of the plaintiff with respect to the custom prevailing in the suit mutt in case there is no nomination of the successor by the previous Pattadhikari. From the evidence of DW 2 it is clear that even according to the case of the defendants, what is laid down in the Sastras with regard to the appointment of Pattadhikari and the custom relating to Puthravarga mutts applies to the suit mutt. At page 175 of Veerasaiva Sadachara Sangraha. it is stated:
(Original in Kannada transliterated -Ed.)
Pancha mudranitanada Guru Shikhamudradi Samyutarada sinhasanadhipatigala sakshipurvaka purvokta vidhiyante upavishtanada Swagotrada vatuvige pattabheetavannu .nadabeku. Pattadhikara honduva vatuvutanna shakhe, sutra, gotra, kalasha, pravara, jate, vastra danda ivugalalli ondu kadimeyadaru pujyana guvadilla Higebahujanara sammatiyinda pattabbisaktanada guruve prapanchadalli pujyanenisuvanu Idakke virodhivagi pattadhikara hondidavanu endigu pujyanagalaranu.
At page 179 in the same book it is stated: (Original in Kannada Transliterated Ed.)
Yavado Shakheyalli hutti, matyavudo shakheya guruvinalli deekshe padedidde aadare antaha shisyanu nurujanmakku peethadhikarakke arhanagalaranu Tanner shakheyannu bittu anya shakheyavaralli deekshe hondidavanu gurupeethagalalli adhikara hondalaranu.
Hence, the plea taken by the plaintiff with regard to the custom in case there is no nomination by the previous Pattadhikari finds support from the statement in Veerasaiva Sadachara Sangraha, which according to Mr. Jagadish Shastry is the authority on the custom governing the suit mutt. Defendant-1, according to the case of the defendants, is the validly appointed successor and Padadayya, having been appointed by the previous Pattadhikari Sivalingeshwar with the consent of his Sishyas and Bhaktas. They have further pleaded as follows:
'Besides the appointment of a successor by will is a valid law and as per long standing usage and custom of the suit mutt as also of kindred mutts, so the appointment of defendant by will is also valid. The last Padadayya Shivalingeswar had the authority to appoint his successor which fact cannot be challenged.'
This allegation shows that the defendants have not specifically denied in the written statement the custom pleaded by the plaintiff in case there is no valid nomination of the successor by the previous Pattadhikari. The defendants do not deny that there are two offices of Charanthi and Pattadayya in the suit Mutt but they do not admit that the two offices are of equal and co-ordinate status. They admit that the suit Mutt is a Puthravarga Mutt, and that the sons born in the family to which the Padadayya belongs are selected and appointed as Padadayya's successors. In the plaint it is alleged that the boy eligible to become a 'Mari' or Padadayya off the suit Mutt must be less than 8 years old, be unmarried, be born only of Jangam parents and should be from amongst the family members of Puthravargas. These facts are stated in paragraph 14 of the plaint. This paragraph is referred to in paragraph 10 of the written statement. In the written statement, after stating that the contents of paragraph 14 of the plaint are admitted, what is pleaded is that a person born to the parents of sub-castes namely, Vani and Jangam are not disqualified to be chosen as a Pattadhikari, The several facts mentioned in paragraph 14 are not specifically denied. Hence, it must be deemed to have been admitted by the defendants that only persons who are celibates are eligible to become the 'Mari' or disciple or to become a Pattadhikari of the suit Mutt. It is not pleaded by the defendants that marriage does not disqualify a person from continuing as Pattadhikari but what is pleaded is that Shankariah has nominated his successor Shivalingiah before the marriage of Shankariah. It also implies that the defendants admitted that marriage disqualifies a person from continuing as Pattadhikari. This plea is taken because the defendants are aware of the fact that nomination of Shivalingiah as his successor could not be made by Shankariah after his marriage.
8. The case of the plaintiff is that Charanthiswamy and the heads of the neighboring mutts have selected him and installed him as Pattadhikari to the suit mutt with all due religious ceremonies of giving him Veera Maheswari Deeksha and religious sanskaras. The evidence is also to the same effect. DW. 1 admitted that there was the installation of the plaintiff in the suit mutt soon after the death of Sivalingeswar and that the installation went through in spite of the notice of objection issued by the witness and others. DW 6 also admitted that the plantiff's installation took place in the suit mutt and that he does not know if the Kasiswaray had come there. D. W. 8 admitted that the invitations had been issued for the plaintiff's installation and that about 5 or 6 Matadheeshas were present at the plaintiff's installation, but he does not remember if Kasi Jagadguru was present. DW. 1 has spoken to the fact that he issued the handbill, Ext. 187 regarding the proposed installation of the plaintiff and states that upon the receipt of that handbill he and 23 or 24 others had issued the notice Ext. 185 protesting against the proposed installation. Ext. 187 is in the nature of a proclamation by Charanthiswamy as 'Vyavasthapaka' relating to the installation of the plaintiff. It refers to the intention of Shankariah to put forward defendant-1 as a candidate. It also states the objections according to the Sastras principles for the proposed appointment of defendant-1 as Pattadhikari and the fact that Shri Jagadguru Shrisaila Peethadhikari has expressed the opinion that defendant-1 cannot be given Veera Maheswari Deeksha or installed as Pattadadevaru. It states that the plaintiff had been selected as the 'Vatu' and that the ceremony of giving Maheswari Deeksha would be performed on 30-1-44 and invites all the devotees to come and participate. The issue of the proclamation is spoken to by DW. 1 himself. The appointment of the plaintiff was given wide publicity in the local papers. Ext. 159 is the paper publication dated 28-2-44. It contains the article about the installation ceremony in detail which took place on 30-1-44. It also discloses that Kasi Jagadguru the head of one of the five Pancha Panchapeetas, graced the occasion and Ext. 160 is the copy of 'Samyuktha Karnataka' daily dated 12-2-44 published from Hubli. It also contains the article reporting the news of giving Maheswari Deeksha and installation of the plaintiff's Pattadhikari of the suit mutt. Ext. 177 is the copy of the Maharastra daily newspaper published from Bombay and Poona dated 17-2-1944, which also reports the installation of the plaintiff. DW. 8 has stated in his examination-in-chief that he had been invited for the Deeksha ceremony of the plaintiff, that he even attended it, but having come to know that the plaintiff would be installed as Pattadhikari, the witness said that already another person had been nominated and came away. There are protographs, which were taken at the installation ceremony of the plaintiff or immediately after the installation, Exts. 135, 136 and 137, which have been spoken to by some of the PWs. who figure in the photograph P. W. 2 has stated that the Swamis of Bilgi, Madarkhandi, Sudi and Girsagar acted as Swamiji and that the head of the Kashi mutt who had accidentally arrived at Jamkhandi on the evening of the 29th was present at the installation ceremony. He has also signed the Patta Patra, Ext. 158, which was drawn up on the occasion and has spoken to the fact that it has been signed by several Swamis and others present at that time. The lower appellate court was of the opinion that P. W. 9 is attempting to get at the properties of the suit mutt and having failed in the previous suit, he has installed Ids own nephew the plaintiff as Pattadhikari with that object in view. It also held that the Charanthi who was a party to the previous litigation wherein it was held that as Shivalingeswara, is the duly installed Pattadhikari he could not install the plaintiff. This finding is erroneous because the plaintiff is not claiming through the Charanthi. He is asserting his own right as Pattadhikari of the suit mutt by virtue of the office he holds. The Agna Patras, Exts. 150 to 157 expressed the opinions of the Swamiji of the five Panchapeetas. The Charanthi had asked for their opinion as to the validity of the installation of a person born of a Banajigar Woman as Pattadhikari. They expressed the opinion that such a person was disqualified to be installed as Pattadhikari. They therefore expressed the opinion that a proper person belonging to the family of the Gurus must be chosen and installed as Pattadhikari of the suit mutt since in their opinion, defendant-1 was neither the duly nominated successor nor fit to occupy the seat of the Pattadhikari. The lower appellate court has attached importance to the fact that not a single Matadhipathi from Jamkhandi had come and attended the installation of the plaintiff. But it is to be noticed that most of the supporters of Shankariah appear to have come from Jamkhandi. It is possible that most of the followers of Shankariah did not attend the installation ceremony of the plaintiff. But for that reason it cannot be said that the installation of the plaintiff is invalid. The lower appellate court has observed that P. W, 2 has stated that a person who is himself not installed as Pattadhikari, but it has not noticed his statement that there are a number if instances of the Chaamurthi installing the Sthira murthi, that in Ujjani Peeta, Jagadguru Marula Siddeswara Charanthi installed a Peetadhipathi. The lower appellate court held that Exhibits 150 to 157 cannot be treated as substantive evidence without examining the Swamiji has no right to install any particular person to a mutt as Pattadhikari, but the trail court has rightly relied on Exhibits 150 and 157 as evidence of the custom prevailing in the suit mutt and which governs Puthrvarga mutts like the suit mutt. The lower appellate court has observed that there is nothing to show in Ext.158, the patta Patra relating to the installation of plantiff was as Pattadhikari of the suit mutt. It is not the case of the plaintiff hat he had been nominated by the previous Pattadhikari and therefore, according to the custom of the suit mutt, the disciples of the mutt and the heads of the kindred mutts had chosen him and duly installed him as Pattadhikari according to custom. The lower appellate court has disbelieved the evidence with regard to the presence of the Mathadhipathi of the Kasi mutt at the ceremony of installation of the plantiff since he does not appear in the photograph produced and also since he has not signed the Patta Patra prepared at the that time. At the same time, the lower appellate court observed that according to the evidence of P.W.8 Kasi Mathadhipathi had come at the request of Shankariah on a special visit and not accidentally as P.W.1 wants to make it appear. The lower appellate court is of opinion that the installation of the plantiff, in order to be valid, should have been based on election by the disciplines of the mutt before he is installed as Pattadhikari but that in this case the plaintiff's father P.W.8 and his uncle P.W.9 have selected the Pattadhikari and created a document Exhibit 158 to evidence the suit installation and that this selection was at the instance of the majority of the disciples of the mutt. D.W.2 is the Principal of the Jagadguru Gangadhara Sanskrit College, Hubli. He is a Sanskrit scholar having studied in the Universities of Dacca, Madras and Banarsh and a research scholar of Veerashaiva Dharmagrantha. He has also written several books in Sankrit and Kannda relating to Veerashaivism. He ahs stated that Veerasaiva believe in 6 sthalas, 8 avarnas and 5 acharas, that they are taught by the Dharmagurus to the Bhaktas. The Gurus of Puthravarga mutt must be Maheswaras or Jangams. It is also in his evidence that at the time of Veeramaheswari Deekha five Kalashas are set up representing five Peetahs and that the rule is that there should be four Ritwijas and one Guru. The ceremony at the installation of the evidence of P.Ws. Exhibit 187 is the public notice issued prior to the installation of the plantiff. It is addressed to the devotees of the suit mutt. It states that according to the directions issued by the Pancha Peethas, the Maheswari devotees of Muthinakanthi Mutt at Jamkhandi have selected the plantiff as 'Vatu' and that it is settled that the ceremony of giving Maheswari Deeksha as well as Pattadhikar should be performed on 30-1944. All the devotees are requested to come and participate in the said ceremonial auspicious function at Jamkhandi. The notice was issued in the name of the Vyavasthapaka of Muthinakanthi Mutt. It is admitted that P.W.9 has issued the notice. It is obvious that he has issued the notice as Vyavasthapaka and he does not claim the right to nominate or appoint a Patadhikari himself. The lower appellate court had ignored the admission of the D.Ws themselves with regard to the fact of the plantiff's installation having taken place at the ceremony conducted in the premises of the suit mutt itself. Its finding that the plantiff's was not installed with due ceremonies, therefore, is not sustainable. The Patta Petra, Exhibit 158 relating to the installation of the plaintiff shows that the installation was done by the ten persons whose signatures are found the under including the heads of the mutts who were present there. Later on the signatures of the other devotees are found under a different heading showing that a large number if devotees were present. The lower appellate court has observed that the majority of the devotees of the mutt protested under Ext.185 but there is no material to show that the persons who protested against the plaintiff's proposed installation represented the majority of the devotees. It is to be seen that there has been litigation going on between the Charanthi on the one hand and Shankariah on the other hand for a number of years. It may be that the supporters of Shankairah protested against the proposed installation but there is no material to show that the majority of the disciples of the suit mutt were against the installation of the plaintiff as Pattadhikari. The finding of the lower appellate court that the majority of the devotees of the suit mutt opposed the plaintiff's installation is a finding based on no evidence to support it. The finding of the lower appellate court that in fact there was no installation of the plaintiff with the requite ceremonies cannot be supported in view of the admissions of the defendants' witnesses themselves and the evidence adduced on behalf of the plantiffs. The trail court has held that the choice to be made by the disciples must be understood to mean their approval, which may be, expressed when they assemble together at the function relating to the ceremonies and by their acceptance to install the person as their Guru. The evidence shows that quite a good number of people attended the installation ceremony of the plaintiff and the installation ceremony was held after due public notice. The installation was done openly, publicly and the plaintiff was taken in procession through the streets of Jamkhandi immediately after the installation. It also noticed that the installation had been done with the approval of the kindred institutions, the Swamijis of which were present on the occasion. It therefore rightly held that the plaintiff was duly installed as Pattadhikaridhikari of the suit mutt.
9. The question whether the installation, of the plaintiff as Pattadhikari is invalid for the reason that the Guru who presided on the occasion was the Charanthi and not a Pattadhikari is now to be considered. In Para. 15 of the plaint the custom, and usage prevailing in the suit mutt is stated as follows:
'In the case of death of previous Padadayya without appointing a successor to him to the suit mutt, the custom and usage of the mutt, in appointing and installing a Padadayya is as follows :-
That the surviving Charanthi Swami and the heads of the neighboring kindred mathas are to select a deserving Chela from amongst the family members and install him as Padadayya to the suit mutt, attended by all religious ceremonies of giving him Veera Maheswari Diksha and religious Samskaras at the hands of a Matadhikari of the same Sutra as that of the suit math. '
It is contended by defendants that the Charanthis is subordinate of the Pattadhikari and is not competent to perform the ceremonies necessary to the appointment of the superior post of Pattadhikari. The trial court rejected this contention. It held that it is disclosed from the evidence that according to the custom of the suit mutt, these two offices have been of equal co-ordinate authority one having no control over the other that both of them aye Sanyasis and both are competent to give Maheswari Deeksha. It therefore held that both the offices are occupied by person of the same stage in the evolution of the soul called Gurusthala, relying and the relevant passages in the texts relating to Veerasaiva Dharma.
10. In this court, Mr, Jagadeesha Sastry, who was allowed to supplement the arguments on behalf of the respondents at the request of Mr. V. Krishnamurthy, has stated that the statements made in Veerasalva Sadacham Sangraba with regard to the custom and usage governing Puthravarga mutts like the suit mutt, may be taken as correct and is binding on the parties to this suit. It is the translation of the text written by Naganatha after studying the ancient Vedas and Agamas and religious texts up to the 16th Century. It is stated therein that Jagadguru Panchacharyas are the founder of Veerasaivism and that the Panchapeetas were founded at Rambhapuri, Ujjini, Kedarnath, Srisaila and Kasi by Renuka or Revanasiddhacharya, Marulasiddharadhya, Ekoramaradhya, Pandithwadhya and Vishvaradhya respectively and that Veerasaivism existed even in the days of Mahabharatha. Under the heading 'Panditharadhya and Sampradaya' at page 173, it is stated that Veeramaheswaras of Puthravarga mutt choose a 'vatu' of their family, bestow Veermaheswari Diksha and then make them either Pattadhikaries or Charadhikaries. At page 182 is stated the manner in which Charapathi is to be installed, which are as follow: -
(Original in Kannada transliterated - Ed.)
Satkula Sanjetanu, satyavantanu, sarva lakshana samyutanu, shiva sidddhanta tantravannu ballavanu guru paramparayuktanu aada vatuvannu shastragnanada Guru channagi pareekshe madi allineredidda madeshwararige bhasma, tamboola, dakshinegalannu kottu avara sammatiyannu padedu aa vatuvan nu kalashodhakadinda snana madisi nuta na vastragalindalu, bangarada unguraga lindalu atanannu alankarisi peeta muntada asanadalli kudrisi pujadigalannu madisi sarvalakshanayuktagalada eradu shankha galunnu danda kamandalugalannu anugra hisi sampradayanusaravagi aa charapatige ee Kelaginante bodhe madabeku. Elai charapatlye neenu shivotkarsharupada veera shaiva Siddantavannu ella kadegu nelagolisu ninna acharavennu chennagi kapadiko. ulida charamurtigalannu santoshapadisu. Edebedade ella kadegu sanchara madu endu adaradinda Guru atanige upadesha madi ashirvadisabeku.'
At page 193, it is stated that Maheswara Brahmacharis of Gurusthala are of three kinds, namely, Patta, Chara and Nirabhari and that they are all of equal status. It is also stated that the Guru should confer the Patta on the person who is agreeable to the devotees and other Maheswaras. Nominating a successor by a will is looked upon with disfavor. It is stated that such a course adopted by Grihastas who are afraid of others should not be adopted by Virakthas who have given up all desires in this world. At pages 188 and 189 are described the qualities of a Chara Jangama. His duty is to protect the Achara Paramparya which has come down from ancient times and to preach the Veerasiva Sastra to his disciples. He is expected to confer enlightenment on his disciples some by mere sight or darshan, some on their touching his feet and some by touching them with his hands (Padasarasa or Hastha sparsa). It shows that the disciples are expected to show the same veneration towards him as they show to a Pattadhiari. Both have been described as Jangamas of equal status. DW. 2 have also stated that the disciples must respect the Charanthi to the same extent as the Pattadhikari. But he stated that Charanti is not qualified for installation. When he was asked about the installation of the head of Ujjain Mutt by a Chara Pattadhikari as mentioned in 'Siddalinga Vijaya', he stated that he does not know about it. But when pressed he admitted that Ujjain Charanthi swamy installed Balehalli Sthira Patta Jagadgufu as mentioned in 'Siddalinga Vijaya' but he tried to explain it away by saying that this does not apply to Shaka Mutts. When he was asked about the installation of Pattadhikari of Balehonnur Mutt by Charamurthy Sangana Basava swamy of Yelburgi, according to the news published in the paper Panchacharya Prabha of 24 June 1929 he stated that he did not know about it. When he was asked about the installation of the Pattada Devaru of Mannurmath a by Charapattadhyaksha Virupaksha of Hirehal matha also he stated that he has not read this news in the 'Panchacharya Prabha' of 1934. When he was shown the opinion expressed by the Jagadguru of Srisaila in the booklet 'Veerashaiva Achara Vicharagalu' to the effect that there is no distinction between Pattadhikari and Charadhikari, the witness merely stated that the opinion is not correct. The statement of the witness that the Charanthi can install the Pattadhikari of the Ujjain Peeta, but it would be invalid if a Cheranthi does so in the case of a branch mutt does not stand to reason. Some of his other answers also show that D. W. 2 is interested in supporting the defend-ants. D. W. 15 is the younger brother of Mudukiah who was the Pattada Devaru of the Hiremath situate at Hanabarrati in Belgaum District. It has five subordinate mutts. The witness has stated that the Guru of Mudukaiah was the Charanthaiah. There is no prohibition in the religious tests relied on by the parties as governing the usage and custom of the suit mutt to the installation of a Pattadhikari by a Charanthi swamy. At page 13 of Veerashaiva Sadachara Sangraha it is stated by the author in the preface that -both Charanthi and Patta dayya are of equal status. It cannot therefore be said that the status of Chakravanthi is in any way less than that of a Pattadhikari
11. D. W. 17 is the Pattadhikari of Terdal Mutt, He is also related to defendants 1 and 2. He has admitted that since his installation as Pattadhikari 30 years ago he had been inviting a Charanthi or Pattada Devaru during Shravana month every year and that he worships him during the month and gives him a send off with presents. He has also admitted that the worship includes Padapuja (worshipping his feet) and taking that Thirtha. This admission shows that there is no difference between the status of a Charanthi and a Pattadhikari and both are regarded as equal in status even by the heads of other mutts, which owe allegiance to PanchaPeetas. The Mutt of which D, W. 17 is the head belongs to the Balehalli branch whereas the suit mutt belongs to Srisalla branch. These admissions have not been noticed by the lower appellate court. The evidence in the case shows that the installation of a Pattadhikari in similar mutts is done according to custom either by a Pattadhikari or a Charanthi. Hence the installation of the plaintiff by a Charanthi is in accordance with the custom governing the suit mutt also. The finding of the lower appellate court that the installation of the plaintiff is not valid on account of the fact that P. W. 9 had no power to act as the Acharya at the ceremony of the, installation cannot therefore be supported. The installation of the plaintiff-must therefore is held to be valid.
12. According to the plaintiff, Shivalingiah was not duly nominated by Shankariah as his successor and even if the nomination is true, it is invalid for the reason that the nomination was made by Shankariah after his marriage It is also his contention that the installation of Shivalingiah as Pattadhikari was invalid, firstly, because there was no valid nomination by the previous Pattadhikari and, secondly, because the installation was done by Shankariah himself who by that time was disqualified to be a Guru on ac count of his marriage. It is the further contention of the plaintiff that Shankariah himself was disqualified from being nominated as successor to the previous Pattadhikari and from being installed, as Pattadhikari on account of the fact that he was born of a Banajigar mother though his father was a Jangam. Consequently, there is no valid nomination of defendant-1 by Shivalingaiah, since Shivalingiah himself was not a legal Pattadhikari and also be cause the will of Shivalingiah is not proved. Defendant-1 is not therefore the, valid nominee entitled to succeed to the Patta of the suit mutt. It is further urged that the finding of the lower appellate court that the plaintiff is not validly installed Pattadhikari is incorrect and that there was a vacancy in the office of Pattadhikari on the date of the installation of the plain tiff.
13. It is contended on behalf of the plaintiff that even if it is to be assumed for the sake of argument that Shankariah was the validly installed Pattadhikari of the suit mutt, there was no valid nomination by him of Shivalingiah as his successor. It is admitted that Pattadhikaries of the suit mutt are to be celibates and if a Pattadhikari gets married, he incurs disqualification to continue in the office and ceases to be the Pattadhikari. This is also admitted by D. W. 15. D. W. 13, a devotee of the suit mutt, has stated that there as no Pattadadevaru from the time of Shankariah's marriage till installation of Shivalingiah but that there was only a Maridevaru. D. W. 15, the younger brother of the Pattadayya of Hirernath, a Puthravarga mutt, states that Pattadayyas will not be married persons in that mutt or in the three mutts, which are branch mutts of the Pancha Peeta mutts maintained by him. Ext. 175 is the statement made by Shankariah before the Mamlatdar of Jamkhandi on 19-12-1927, in which he has stated that as he had become 'Prapanchik' he has been rendered useless to the suit mutt, that the name of Shivalingiah may be entered in respect of mutt lands and that the land had been entered in the name of Shankariah Guru Virupakshayya of Muthina Kanthi Mutt at the time when he was made Swamy of the suit mutt. He has signed the application as Shankariah Channabasayya Muthina Kanthi Mutt. He has stated therein that he has signed as the son of his natural father since he got married and became 'Prapanchik'. In Ext. 66, a similar application to the Mamlatdar dated 4-2-1928, Shankariah has signed in a similar way as the son of his father Channabasayya. It is clear therefore that Shankariah admitted that he was disqualified from continuing as Pattadhikari after his marriage in 1921. It is also in the admission of D. W. 17, who is the Pattadhikari of Terdal Mutt that as soon as Shankariah married he ceased to be the Pattadhikari. Even in the suit filed by Charanthi, P. W. 9, subsequent to the marriage of Shankariah, Shivalingiah and Shankariah had taken the stand that the property was the private property of the Mutt, which passed on in succession to the-family of Channabasaviah. D. W. 22 Shankariah admitted that he had given a petition to the Mamlatdar before his marriage stating that he wanted to marry and make his younger brother 'mari' or disciple and that the property may therefore be transferred to his name. This application, as can be gathered from Ext. 193, is dated 2-9-1919. It discloses that until 1919, defendant-2 Shankariah had not made any nomination for the Pattadhaiah's office. The mutation was not effected and he was asked to apply after he nominated Shivalingiah as his 'mari'. Then denfendant-2 made his next application, Ext. 179, on 19-12-1927 for effecting the change on the ground that he had nominated Shivalingiah as Pattadhikari. D. W. 22 has stated in his evidence that in answer to his application, Ext. 179, he received the endorsement to the effect that he should get a decree from the Civil Court regarding the nomination of Shivalingiah by him. He further admitted in his evidence that there is no document up to the year 1929, which makes any reference to his having nominated Shivalingiah as his successor. He was unable to state why he did not take any action to get the name of Shivalingiah entered in the Record of Rights after he was informed of the order Ext. 254 in 1921 till the date of Ext. 175, for nearly six years. Thereafter, immediately after the endorsement, Ext. 175, Shankariah filed the suit in 1928 claiming title to the property and easement rights against the Charanthi who was in occupation of the Charanthi portion of the Mutt. He has stated in his deposition in the previous suit, Ext. 266, recorded on 2-9-1930 that the Ayyathana of Shivalingiah took place in 1928. Ext. 266 reads as follows: -
'Plaintiff-2's Ayyathana was done at Athani by Basayya Hiremath and it took place 2 or 3 years back.'
In that statement he also stated that he nominated Shivalingiah 8 or 10 years before his marriage, It is admitted that Shankariah was married in 1921. But Ext. 175 discloses that there had been no nomination even by that date. D. W. 22 states in his evidence that Shivalingiah was 8 years of age when he nominated him as his successor. The extract of the birth register would show that Shivalingiah was born on 15-5-1916. Hence, the nomination would be in the, year 1924, i.e., long after the marriage of Shankariah. The only other witness who speaks to the nomination of Shivalingiah by Shankariah is D. W. 23. He states that he had been sent for at the time of the nomination of Shivalingiah and that he has witnessed it with his own eyes. But D. W. 23 has not been examined in the, earlier suits in which the matter of this nomination was hotly in contest. Ext. 146 is the statement recorded by the Mamlatdar on 23-2-1928. Shankariah has stated that he had become disqualified to the office of Pattadhikari since he had married and that the name of his younger brother Shivalingiah aged 12 years should be entered in the Record of Rights. He has stated that the appointment was made by him 6 to 7 years back. Below his statement, the statement of three other persons has been recorded. Their statement is to the effect that Shankariah had appointed his younger brother Shivalingiah as Adhikari of the. Mutt 6 or 7 years back, that at that time they had gone to the Mutt and Shankariah put sugar in the mouth of Shivalingiah and seated him an his lap, and that Shankariah stated that he was going to get himself married. They have also stated that at that time many people including Sivappa, Ingalgi and Metri were present. Ext. 182 is an extract from the death register relating to Satyappa Metri. It shows that he must have died in 1918. Hence, he could not have been present in 1921 to witness the appointment of Shivalingiah as stated in Ext. 175. Moreover, the three witnesses, whose statements have been recorded in Ext. 175 have not been examined in the previous suits nor have they been examined in this suit. Various findings have been given in the previous suits regarding the question of nomination of Shivalingiah by Sbankariah. In the suit of 1928 both the trial Court as well as the appellate court negatived the nomination of Shivalingiah by Shankariah, but the High Court in second appeal kept the question of nomination open. Thereafter, in the suit O. S. 528/34, the trial court disbelieved the nomination but the appellate court held the nomination proved though it observed that it is based on doubtful evidence. But since the lower appellate court had not set aside the finding on the question of nomination, the High Court did not interfere with the finding of the trial court, on the ground that there can be no second appeal on a finding of fact. It is under these circumstances that the trial court in the present suit came to the conclusion that the case of nomination of Shivalingiah by Shankariah set up by the defendants is, an afterthought and not true. This finding has to be upheld. The lower appellate court has not considered this question nor given its finding thereon.
14. The validity of the installation of Shivalingiah as Pattadhikari has now to be considered. The question is, when and who really installed Shivalingiah. According to the evidence adduced in this, suit, it is D. W. 17 Terdal Swamy who performed the ceremony and acted as the Acharya giving, Patta Fatra and Upadesh to Shivalingiah. If he acted as the Acharya on the occasion, one would expect that he would be the first person to sign the Patta Patra Ext. 195, which according to the defendants, was prepared at the time of the installation. But the first person who has signed the document is Shankariah himself and Shankariah has described himself as Shankariah Guru Virupakshayya Muttinakantimath. Since the English translation of Ext. 195 was, found to be incorrect, by the trial court, it relied on the Kannada translation of Ext. 195. It indicates that it is Shankariah himself who installed Shivalingiah. The document, Ext. 195, states that Shivalingiah was installed both as Chara and Pattadhikari. But it is not the case of the defendants that Shivalingiah was installed as Chara Devaru also. When the attention of D. W. 17 was drawn in cross-examination to the contents of this document, he admitted his ignorance about it. He stated that he had not read Ext. 195 till the time or his deposition nor did anybody read it to him before that time. Para 14 of the judgment Ext. 142 states that it was the case of Shankariah in that suit that he has installed Sivalingiah and passed a deed in his favor on 23-6-1935. D. W. 17 admits that he was neither cited nor examined as a witness in the previous suit. The learned judge who decided the previous suit held in Ext. 142 at page 27, that the initiation and installation of Shivalingiah as Pattadaiah was done by Shankariah and that since he was not qualified to do it, the installation of Shivalingiah was bad in law and ineffective. It shows that the question of the validity of the installation of Shivalingiah was in issue in the previous suit and was contested. It also shows that the case now sought to be made out, namely, that the installation of Shivalingiah by D. W. 17 Terdal Swamy was not pleaded in the previous suit. According to Ext. 73, Maheswari Diksha was given to Sivalingiah not by Terdal swamy but by Basaviah. Terdal Swamy did not say that he gave Maheswari Diksha to Sivalingiah. He says that he did not make any enquiry whether Maheswari Diksha was given or not but learned that it was given to Sivalingiah. Basappa referred to in Ext. 73 is the maternal uncle of Sivalingiah. It is evident from Ext. 73, the deposition of Basayya Jirali who is the maternal uncle of Sivalingiah, that he did the work of taking signatures to Ext. 195 for 2 or 3 days. It means that all the signatures contained in Ext. 195 were not taken on one and the same day. D. W. 17 is the brother-in-law of Shankariah. D. W. 17 does not figure in the photograph taken on the occasion of the installation of Sivalingiah, namely, Ext. 134. D. W. 17 stated in his evidence that he had contributed money during the Patta ceremony of Athani swamy as per Ext. 126, but he made no contribution on the occasion of the alleged installation of Shivalingiah. It is highly doubtful that D. W. 17 performed the installation of Sivalingiah. The version put forward by the defendants that D. W. 17 performed the installation ceremony appears to have been put forward in order to overcome the objection that Shankariah was incompetent to install Sivalingiah. According to the custom and practice of the suit mutt as disclosed in the evidence, the installation ceremony requires the person who performs the, function of the Acharya to put his leg on the head of the disciple ring the Abhisheka and Thirtha being sprinkled on the 'Vatu' to render him purified and fit to receive the Maheswari manthra, which is to be whispered in his ears, as part of the ceremony of initiation to the high order, of a Guru and to take up the responsibilities of a Guru. Therefore, a person fit to be a Guru alone can initiate another person as Guru.
15. D. W. 17 is a close relative of both defendant-1 and defendant-2. The nomination of Shivalingiah by defendant-2, if true, must have been known to D. W. 17. But D. W. 17 stated in his evidence that he had no knowledge of Shankariah having taken a disciple, but he stated that he was under the impression at the time of Ext. 195 that Shankariah had nominated Shivalingiah by that time as his successor. It is urged on behalf of the plaintiff that the Guru who installs the Pattadhikari must be of the same Gotra and Sutra of the Mutt. The suit mutt is the branch of Sri Saila Peeta. D. W. 17 is not of the same Gotra and Sutra since the Mutt is a branch of Balehonnoor Peeta. Therefore, it is urged that the installation of Sivalingiah by D. W. 17 even if true, is invalid. D. W. 17 stated in his evidence that he does not remember if he has installed any other person of a different Saka and Sutra. D. W. 17 admittedly belongs to a different Saka and Sutra from the suit mutt. He stated in his evidence that the installation of Sivalingiah was as Pattada Devaru and not as Charanthi. This contradicts the recital in Ext. 195 to tile effect that Sivalingiah was installed both as Charanthi as well as Pattada Devaru. In Exhibit 195 Shankariah has styled himself as if he is the Guru and successor to Virupakshaiah, the previous Pattadhikari. This is in contrast to the description adopted by him in his application made in 1928 to the Tahasildar in which be has described himself as the son of his natural father to show that he was no longer a Pattadhikari. Sivalingiah used to call himself as the son of his natural father even subsequent to the date of the alleged nomination. This circumstance also shows that the alleged nomination of Sivalingiah by Shankariah is not true. Ext. 261 is the reply statement of Sivalingiah to questions put by the plaintiff in O. S. 508/34, the suit filed by Annadanaiah P. W. 9 in the Jamkhajidi court. In answer to question No. 6, Sivalingiah stated that defendant-1 (Shankariah) together with all Veerasaiva Lingayat Maheswar devotees of Jamkhandi etc. have appointed defeadant-2 (Sivalingiah) as Muttinakanti Mathadiah on 23-6-35 with due ceremony and according to Dharmasastra and in pursuance of practice and Wahiwat and that it is clearly mentioned in Adhikar Patra to that effect. In answer to question No. 8 also he stated that defendant-1 (Shankariah) and devotees and gentlemen have appointed defendant-2 (Sivalingiah) as full Patta charadhikari by giving him Samskar. In Ex. 74 the statement of Shankariah filed in C. S. No. 508/34 he has stated as follows:-
'The public of Jamkhandi the devotees and disciples of the Math and the neighboring Pattadhikaries of this Sutra and defendant No. 1 all together have given complete Pattacharadhikar to defendant-2 on 23-6-35. For that a function has been performed unanimously on 23-6-35 according to Dharmashastra according to system and wahiwat and as per system the dinner programme, photo procession and authority deed have been performed.'
D. W. 1 is a devotee of the mutt. He has stated in his cross-examination that in 1935 Sivalingiah was installed as both Patta and Charanthiswamy. Exhibit 261 is the reply statement of Sivalingiah to the questions put by Annadamah who was the plaintiff in C. S. No. 508/34 in answer to question No. 8. He has stated as follows in that statement:
'Muthinakanti math was and is not interstate. Defendant-I before his marriage had appointed defendant No. 2 as disciple. Though defendant-2 was disciple still it was necessary that he should have Samskar with the ceremony as per Dharmashastra and as per the custom and practice of the caste. So, the defendant-1 and devotees and 'gentlemen etc., have appointed defendant-2 as full Pattacharadhikari by giving him Samskar.'
He has also stated that though defendant-2 (Sivalingiah) had been appointed as disciple still it was necessary that he should have Samskar ceremony according to the Dharma Sastra and according to the custom and practice of the caste. In answer to question No. 9, he has stated 'Defendant-1 (Shankariah) and other Pattadhikaries and many people have signed the Adhikara patra dated 23-6-35 in the Math in the presence of defendant-2 (Sivalingiah).' He has also stated 'the authorities of Patta and Chara are vested in one individual only. Plaintiff is not Charanthi.' The plaintiff in that case was P. W. 9. Shivalingiali has further stated 'defendant-2 has obtained Pattacharadhikar in pursuance of Dharmashastra, caste system and practice of the former Muttinakanthi math.' Sivalingiah was defendant-2 in that suit. In answer to question No, 10, he stated with reference to Ext. 195. 'Assuming that the signatures have been made below the Adhikarpatra day by day, still there is no restriction under law to give authority in such a manner.' These answers, in fact, show the stand taken by both Shankariah and Sivalingiah in that suit. They wanted to defeat somehow the right of P. W. 9 who claimed to be the Charanthi of the suit mutt. D. W. 22 Shankariah admitted having stated as follows in his earlier deposition, Ext. 266, in the previous suit in 1930: -
'Plaintiff-2's installation was done at Athani by Basaiah Hiremath and it took place two or three years back as mentioned in Ext. 266.'
'I do not know if in the 1934 suit I contended that I retained by right of Pavadiah and that I myself as Guru installed Sivalingiah. I had not cited Terdal Swami as my witness in that suit. I have executed Ext. 195 as Shankariah Guru Virupakshiah.'
Exhibit 185 is the notice issued to P. W. 9 Charanthi by the devotees of the suit mutt belonging to Shankariah's group. In that notice it is stated that the disciple has been recently installed as Pattadhikari to the suit mutt according to the sastras with due ceremonies and that P. W. 9 is not entitled to install the plaintiff with ceremony on 31-1-1944. But the installation of defendant-1 admittedly took place after the institution of the present suit. Ext. 188 is a public notice issued by Shankariah on 27-1-1944 addressed to the devotees of the suit mutt. It states that on 28-1-1943 it has been settled by the Pattadhikari, devotees and disciples of the mutt that defendant-1 is the Pattadhikari of the suit mutt according to the sastras and due ceremony in pursuance of the wahivat of the suit mutt and that defendant-1 is holding the patta of the suit mutt, that P. W. 9 and his brother are about to appoint the plaintiff as Padadayya on 30-1-1944 even though there is already a Padadayya in the suit mutt. It calls upon the devotees not to take part in the said sastra ceremony or consent to it and not to sign any document in that regard. The claim put forward by Shankariah and Sivalingiah in the previous suit was that Sivalingiah was installed both as Pattadhikari and Charanthi. Having found that the alleged installation of Sivalingiah both as Pattadhikari and Charanthi would be invalid and contrary to the Dharma sastras, custom and practice governing the suit mutt, the defendants now plead that Sivalingiah was installed only as Pattadhikari. These facts show that defendants do not have much regard for truth and change their stand as it suits them from time to time.
15A. In 43 Ind App 73 = (AIR 1916 PC 256) Ram Parkash Das v. Anandas, Anandas was the previous Mahant of a mutt. The Mahant was required to be by the custom of the mutt, a celibate chela. It was held that the right of selection by the Mahant must be exercised in favor of one who is competent to hold his important sacred office. A person chosen may be disqualified by reason of bodily deformity, of bodily disease such as leprosy, of disease of the mind, or of the leading of a life which is immoral or is, inconsistent with the religious vows of the brother-hood. It was held that in all such cases the nomination would be void, and that among these disqualifications stand the contracting of marriage and the begetting of children. Anandas, the reigning mahant, by a will appointed the second defendant to succeed him. Later, by a deed he resigned the office and constituted the second defendant as his successor. Thereafter, by an ekrarnama it was agreed between the uncle Anandas and his nephew the second defendant, that another nephew and brother of the second defendant should succeed the latter in the office of mahant. It was held that defendant-2 was proved to be a married man and the deeds appointing him to the office of mahant of giving him any administrative rights with regard to the mahantship are void. In the present case also, the nomination of Sivalingiah by Shankariah, even if true, as well as the installation of Sivalingiah by Shankariah must be held to be void since Shankariah had already been married in the year 1921. The lower appellate Court has not dealt with the question of nomination of Sivalingiah by Shankariah, though it was specifically dealt with by the trial court. The lower appellate court, therefore, has not considered important and material evidence in the case, and also not considered that important question which is in dispute between the parties. Though the lower appellate court reversed the finding of the trial court with regard to the validity and factum of the nomination of defendant-1 by Sivalingiah, it has not considered the reasons given by the trial court to hold that there was no such nomination, nor has it given a finding in that regard. Its finding that defendant-1 was duly nominated to the Patta of the suit mutt is therefore liable to interference in second appeal. The nomination of Sivalingiah by Sbankariah, even if true, is invalid since it could have been done only after the marriage of Shankariah. The installation of Sivalingiah is invalid also for the reason that it was, done by Shankariah acting as the Guru since he had become disqualified to be a Guru by that time on account of his marriage. The installation of Sivalingiah must therefore be held to be invalid even if, in fact, it did take place.
16. The lower appellate court has proceeded on the basis that Shankariah was treated as Pattadhikari up to 1921, that Sivalingeswar was also treated as Pattadhikad after his installation And that in view of these facts it must be assumed that the nomination of defendant-1 by Sivalingeswar is, valid. In : 2SCR911 (Rajendra Ram v. Devendra Doss), relied on by the respondents, it was held that the custom of the religious institutions must be re-established after the death of the interloper. Chetandas was held to he an interloper who was entitled to become Matadhipathi after the death of the previous Mahant according to the custom of Thirupathi Mutt. According to the custom, the senior most disciple of the previous Matadhipathi had to succeed to the Gadi. But there was also the other qualification that he must be a North Indian BTahmin. Chetandas was held to be the interloper but he functioned as Matadhipathi by argeement between the rival contenders to the office after the death of the last Mahant. Rajendradas claimed to be the senior most disciple of the last validly installed Matadhipathi. The rival contender to the office was the seniormost disciple of the interloper, Chetandas. But Rajendradas was disqualified since he did not fulfil the other condition, namely, of being a North Indian Brahmin. Hence, the seniormost disciple of Chetandas was held to be entitled to succeed to the Gadi. If Rajendradas had been a North Indian Brahmin, the Supreme Court would have upheld his claim. Hence, in the present case, if Sivalingiah is considered to be an interloper then, the nomination of defendant-1 made by him will not be valid. Defendant-1 cannot claim to succeed to the patta of the suit mutt on the basis of his nomination by the interloper, Sivalingiah. After the death of the interloper Sivalingiah, the custom governing the suit mutt must be restored according to the principle laid down in the above decision, Hence, the office of Pattadhikari is to the filled as though there was no nomination of the successor by the last validly installed Pattadhikari, namely, Virupakshiah.
16A. The trial court held that Shankariah was not qualified to be a Pattadhikari since he was born of a mother belonging to a Vani or Banajigar caste. The lower appellate court was of the view that sub-castes were not recognized among Lingayats and that therefore, Shankariah was not disqualified from becoming a Pattadhikari. But the view of the lower appellate court is contrary to the stand taken by the defendants themselves. It is not the case of the defendants that there are no sub-castes among the Lingayats. Their contention is that the person born of such marriage between a Jangam father and Banajigar mother was not disqualified from becoming a Pattadbikari. In (1940) 45 Mys HCR 311 (Muniamma v. Akkannamma) a Division Bench dissented from the rulings of the Bombay High Court holding that Lingayats were Sudras and, following the Madras and Mysore decisions, held that the parties in that case were Lingayat Vysyas. During the course of the judgment, it was observed as follows: -
'That Sivachars are Hindus and are governed by Hindu Law is not disputed. It is not also disputed that Lingayats, are a body of Hindu dissenters. Their tenets are described by Thurston in his 'Castes and Tribes of Southern India, Volume IV at page 236 as follows: -
'Their religion is a simple one. They acknowledge only one God, Siva, and reject the other two persons of the Hindu Triad. They reverence the Vedas, but disregard the later Commentaries on which the Brahmins rely. Their faith purports to be the primitive Hindu faith, 'cleared of all priestly mysticism. They deny the supremacy of Brahmans, and pretend to be free from caste distinctions, though, at the present day caste is in fact observed amongst them. They declare that there is no need for sacrifices, penances, pilgrimages or fasts. The cardinal principle of the faith is an unquestioning belief in the efficacy of the Lingam, the Image which has always been regarded as symbolical of the God Siva.'
That this is a correct summary of their creed is accepted in Raja Somasekhara Royal v. Rajah Sugutoor Immadi Mahadeva Royal Yeswantha Bahadur, ILR 53 Mad 297 AIR 1930 Mad 496.x x x
In the Mysore Census Report, part I of the year 1901 at page 553, it is stated:
'Their religion is a proselytizing one and has admitted into it converts from almost every class of Hindu society. The Lingayats like the Jains have caste distinctions among them, corresponding to the four-fold division of Brahmins, Kshatriyas, Vaisyas and Sudras, Representatives of the ancient ruling dynasties such as those of Nagara, Punganur, Hagalvadi and several others are stated to be Lingayat Kshatriyas. Mr. Rice in his Gazetteer of Mysore says that it was the State religion of the Wodeyars of Mysore from 1399 to 1610 and of the Nayaks of, Keladi, Ikkeri or Bednur from 1550 to 1763 A. D. The Nagarthas are the best representatives of the Lingayat Vaisyas while shepherds, potters, tailors, barbers, and others represent the Lingayat Sudras. We refer to these extracts, as the evidence in the case to which we shall presently refer also shows how in recent times the members of the Lingayat faith claim caste distinctions among them.
In Bombay, a long line of cases has held that Lingayats are Sudras; but, as is pointed out in Vol. IV of the 'Mysore Tribes and Castes,' there seems to be a particular class of Lingayats in the Bombay Presidency, which we do not find in Mysore. With reference to the Bombay decisions Mr. Ganapathi Iyer in his 'Hindu Lame at page 94 observes:
'It cannot, however, be said that the Lingayats as a class are Sudras as we have already stated that Brahmins have become Lingayats. If the Bombay decisions are examined it may be stated that they do not support the broad proposition that all Lingayats are Sudras by caste. Notwithstanding the theoretical non-observance of caste as above stated, the sect is divided into various Sub divisions among many of which even interdining (much less intermarriage) does not exist.
And after a discussion of the Bombay Cases, he states: It might be mentioned that the Malwas according to a judgment referred to in the foot-note to Gopal Narhar's case (1879) ILB 3 Bom 273 or as they were called Malis, would appear to rank below Sudras though according to the Hindu law the law applicable to Sudras would also be applicable to the caste below Sudras. It will thus appear incorrect to style all Lingayats as Sudras although in the case of those who were Brahmins by origin it cannot be held that the peculiar principles apply as such.
It may also be mentioned that it is mainly on the authority of this early decision, that in the later rulings the Bombay High Court held that Lingayats were Sudras.'
Nageswara Iyer J. speaking for the Bench observed as follows: -
'In the light of the decisions and the extracts we have cited above, it would be quite unsafe to bold that Lingayats are Sudras on the authority of the decisions of the Bombay High Court as the learned Munsiff has done.'
Hence, the basis of the decision of the lower appellate court with regard to this question is erroneous. However, since Sivalingiah has been held to be not the duly installed or duly nominated Pattadhikari of the suit mutt, and consequently that defendant- 1 was not the validly nominated successor to the suit mutt, it is not necessary to decide the question whether Shankariah was disqualified to be a Pattadhikari on account of his mother being a Banajigar woman. The validity of the installation of Shankariah himself is challenged on the ground that he is the son of a Banajigar mother, but even if he is to be considered to be the last validly installed Pattadhikari, since he had in fact not validly nominated Sivalingiah as his successor, Sivalingiah must be considered to be an interloper. In any case, since the installation of Sivalingiah himself has been proved to be invalid, Sivalingiah was in any case an interloper and the custom of the mutt must be restored after his death.
17. Mr. V. Krishnamurthy has urged that the suit is barred by limitation. It is urged by him that the office of Padadiah fell vacant in 1903 when Virupakshiah died. He was succeeded by Shankaraiah who held office till 1921. Thereafter, Shivalingiah was the Padadiah from 1921 to 1943 in which year he died. Therefore, Shivalingiah is alleged to have acquired the prescriptive right to the office of Padadiah and that he had a right to nominate the first defendant as his successor. The right of;any person to claim as Padadiah was therefore barred as against Shankariah and defendant-1. Shivalingiah died on 3-2-1943. Defendant-1 has been installed subsequent to the suit. The suit, having been filed on 4-2-1954, is alleged to be barred by limitation.
18. The following observations in (1901) ILR 24 Mad 219 (Annasami Pillai v. Ramakrishna Mudaliar) are relied on:
' Having regard, however, to the ground Of the decision of the judicial Committee in Rajah Vurmah v. Ravi Varmah Mutha (1877) 4 Ind App 76: ILR 1 Mad 235 (PC) it would seem, as urged by Sir V. Bhashyam Ayyangar, not unreasonable to hold that where a person, who had no right to the office of a trustee according to the rule of devolution established by the founder, acquires a title to the office by prescription, but restores it to one, who, except for the transferor's prescriptive title, could have taken the office according to the rules laid down by the founder, such transfer should be treated as an exception to the general doctrine that a trusteeship is not assignable, subject, of course, to the condition that no corrupt inducement has entered into the transaction and the interests of the trusts are not likely to be Prejudicially affected. For such a transfer would put an end to the continuance of a management inconsistent with the founder's intention and once more let in the class of persons by whom the founder contemplated the management should be carried on. We consider it, however, preferable to rest our decision in favor of the respondent with reference to this part of the case on the other ground, which was suggested on his behalf. That ground is that the respondent is a rightful trustee having been appointed by one who had acquired a valid title to the trusteeship with power to appoint a successor...'
It was urged that even if it is to he held that Shankariah was not qualified to be a Pattadaiah he acquired a right by adverse possession by exercising his right for over six years from 1903 to 1909 and that at the end of 1909 he got an indefeasible right as Pattadhikari and therefore got the right to appoint his successor Shivalingiah. He also urged that Shivalingiah held office from 1921 to 1943 in his own right, was all along in possession of the properties as Pattadhikari, therefore he also acquired the right to nominate his successor and that he did nominate the first defendant by his will Ext., 196 dated 21-8-1943. But in the present case there is no transfer of the office to a right' holder. Hence that decision is of no help to the defendants. In AIR 1954 Nag 212 (Gajanan Maharaj SaDsthan v. Ramrao Kashinath) the suit was instituted on behalf of the mutt for possession of the properties belonging to the Mutt alleging that the defendant had taken forcible possession of the properties. It was found that the defendant had taken possession of the property of the Mutt in assertion of his claim to be the exclusive manager and the suit was really for possession against the 'de facto' manager for the office of Shebait with appurtenant rights of possession and management. It was held that since the office is not hereditary, the suit is governed by Article 120 and not Article 124 of the Limitation Act. In (1871) 6 Mad HCR 301 (Tainmirazu Ramazogi v. Pantina Narsiah) the suit was filed to establish that the plaintiff had vested in him the right to the office of karnam of certain villages, from which he had been ousted by the defendant in 1857, and to recover from defendant the mirasi lands annexed to the office. The defendant denied the right of the plaintiff to the land and pleaded that up to 1857 when the plaintiff was performing the duties, he was doing so merely as his (defendant's) representative and that defendant himself was the rightful Karnam. The suit was held to be a suit brought to establish the plaintiffs claim to the office of Karnam and that the interest in immoveable property was incidental to the office of Karnam. The Article applied corresponds to Article 120. In (1903) ILR 26 Mad 113 (Kidambi Ragava Chariar v. Tirumalai Asari Nallux Ragavachariar) the plaintiff was found to have been in adverse Possession of a temple and its properties for more than six years after which he was dispossessed. He sued to recover possession as Dharmakartha basing his claim on prescription. It was held that the suit for possession of the office was governed by Article 120 and that the plaintiff by his adverse possession for more than six years had acquired title to it by prescription. It was also held that the suit was not for possession of immoveable property the right to the land being secondary to, and dependent upon, the right to the office. The decision in (1871) 6 Mad HCR 301 (Tammirazu Bamazogi v. Pantina Narasiah) was followed. In AIR 1926 Mad 1012 (Paramananda v. Radhakrishna) the plaintiff sued for a declaration that he is the lawful Mahant and for recovery of the properties belonging to the Mutt. The plaintiff alleged that the previous Mahant had nominated him as his successor and that the first defendant put himself out as the successor to the previous Mahant on the strength of the will executed by the later, the genuineness of which the plaintiff denied. It was held that the plaintiffs claim was not a claim to a here datary office and that the suit is governed by Article 120 of the Limitation Act, and was therefore barred by limitation. It was held that Article 144 was not applicable relying on the decisions in (1903) ILR 26 Mad 113 (Raghava Chariar v. T. A. N. Raghavachariar) and (1892) ILR 19 Cal 776 ( Jagannath Das v. Birbhadra Das). The succession by nomination of the previous Mahant was held to be not a hereditary succession. In AIR 1935 Mad 449 (Rajagopala v. Ramasubramania) the suit was filed in a representative capacity on behalf of the five groups of inhabitants of, the village to recover possession of the village temples and the properties stated to be their endowments. Following the decisions in (1903) ILR 26 Mad 113 (Kidambi Raghavachariar v. T. A. N. Raghavachariar) and AIR 1926 Mad 1012 (Parmananda Das Goswami v. Radhakrishna Das), it was held that Article 120 applies to suits to recover possession of an office which is not hereditary and where the properties are attached to the office whether by way of endowment or by way of emoluments, the right to possession of the properties goes with the right to the possession of the office and that if the right to sue for recovery of possession of the office is barred, the right to recover possession of the property is also barred.
19. In the above cases, the plaintiff was possessed of the right to sue but failed to sue within the period of limitation after the right accrued. The question of limitation was not urged in either of the lower courts in the present case. But it is the contention of Mr. V. Krishnamurthy that it is a question of law, which arises on admitted facts. In (Mt. Bolo v. Mt. Koklan) one Kanyalal executed a will. On a consideration of the will it was held that on the death of his son Tarachand the testator's widow became entitled to a moiety of the property left by Kanyalal and that the widow of Tarachand had no interest therein. Kanyalal died in 1899. Tarachand died in 1918 leaving behind him his widow and son. On behalf of the son of Tarachand, Tarachand's widow filed a suit in 1922 for partition and possession of the properties left by Kanyalal in equal shares. The testator's widow petitioned to be added as defendant, denying that Tarachand had any right at all and claiming under the will to be the sole owner of the half share in the property. The suit was subsequently withdrawn with liberty to file a fresh suit. It was urged that Article 120 applies to the suit in respect of the moveable properties and that when Tarachand died, a right to sue accrued to the plaintiff, the widow of the testator, and that the suit as regards the immoveable properties is therefore barred by limitation. It was held that the right of the testator's widow to the property arose on the death of Tarachand, but there was no infringement or any clear and unequivocal threat to her rights till .1922 when the suit was filed and that the suit was therefore not barred under Article 120. It was observed 'there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt the right to the property arose on the death of Tarachand. But in the circumstances of the case, their Lordships are of the opinion that there was no infringement of any or at least a clear and unequivocal threat to her rights till the year 1922 when the suit was instituted.' In : 2SCR253 (Rukhmabai v. Laxminarayan) it has been held that the right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the rights of the plaintiff asserted in the suit. Every threat by a party to such a right, however ineffective and innocuous it maybe, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit, and that whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. The decision in was referred to. (Mt. Bolo v. Mt. Koklan). In : 1SCR628 (Manikayala Rao v. Narasimhaswami) it sas held that the right to sue accrues for the purpose of Article 120 when there is accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it. In : 1970CriLJ741 (Gannon Dunkerley and Co. v. Union of India) the plaintiff filed a suit for payment for construction work carried out for the defendant at an additional rate over the stipulated rate in view of the change in circumstances in respect of the additional work done at the request of the Engineer-in-charge, who was competent to give such instructions for the work not covered by the terms of the contract. It was held that Article 120 of the Limitation Act applied to the suit, that the period of six years for suits under that article commences to run when the right to sue accrues, that there is no right to sue until there is accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. The decision in (Mt. Bolo V. Mt. Koklan) was followed.
20. In ILR 51 All 439 = (AIR 1929 PC 166) (Jaggo Bai v. Utsava Lal), the suit was brought by the plaintiff for a declaration that she was entitled to a Malikana granted by Government and to eject the respondent from that house. The properties in suit formed part of the estate of the plaintiff's father who died in 1875 and had been in possession of her mother as a widow's estate until 1914 when she died and the plaintiff became entitled as her father's heir. The defendant pleaded that the suit was barred by limitation and acquired title by adverse pos-session. The suit was filed in 1920 after the plaintiff obtained the necessary certificate under the Pensions Act, 1871. It was held by the Judicial Committee of the Privy Council that Article 120 applied to the claim so far as the Malikana was concerned and that under the Pensions Act, 1871, there is no right of action in respect of such a subject matter as the Malikana unless and until a certificate under the Act has been obtained. It was therefore held that the right to sue under Article 120 of the Limitation Act does not accrue until the plaintiff has obtained a certificate under the Pensions Act, and that the suit within six years of her obtaining the certificate is not barred by limitation.
21. The plaintiff in the present suit had no right to claim the office of the Pattadhikari or the right to possession of the suit properties until he was installed as Pattadhikari of the suit mutt. Hence, the plaintiff could not sue for a declaration of his right to the office as well as for recovery of the properties in suit before his installation as Pattadhikari. Hence, the decisions relied on by Mr. Krishnamurthy do not apply to the present case since in those cases the right to sue had accrued to the plaintiff beyond the period of limitation before the suit. The present suit is filed on 4-2-1954. P. W. 9 got possession of the suit properties on 27-1-1940 by virtue of the decree in his favor in his suit No. 508/34 as against Shankariah and Shivalingiah. The restitution application filed by Shankariah was decided by the order-dated 9-8-1950, Ext. 68, in Misc. application No. 1/1949 by the Civil Judge, Junior Division, and Jamkhandi. Possession was ordered to be given to defendant-I not as the 'Mari' or disciple of the Peeta but only as the representative of the former Pattadaiah Shivalingiah, and the possession was to be held by him until such time as he proves that he is the validly appointed Pattadaiah or until some other person comes forward and establishes his title as Padadaiah of the suit mutt. The suit is within six years from the said order, even if Ext. 68 can be construed as the date on which the right to sue accrued. Plaintiff was put in possession by P. W. 9 on 1-6-1944 by virtue of the decree in suit No. 56/54. The possession taken by defendant-I under the order Ext. 6S must be deemed to be held on behalf of the lawful Pattadhikari and hence on behalf of the plaintiff himself There is no plea by the defendants that plaintiff did not exercise the rights of I his office after his installation. It is only after suit that defendant-1 was installed to the Peeta even according to the defendants, and there was real threat to the status of plaintiff. Plaintiff must be deemed to be in possession from the date of his installation as pattadhikari even after the date o the above order, Ext. 68. The suit is therefore not barred by limitation.
22. Mr. Krishnamurthy has relied on : 2SCR74 (Mahalinga Thambilan v. Arulnandi Thambiran) in support of his contention that the nomination of defendant-1 as successor to the suit mutt is sufficient to confer the rights of Pattadhikari on defendant-1, that the nomination is irrevocable except for good cause and that the installation ceremony is unnecessary in order to clothe defendant-1 with the rights of Pattadhikari. His contention is that on his nomination by a will, and at any rate on the death of Sivalingiah, defendant-1 became the duly nominated successor clothed with all the rights of Pattadhikari and that therefore, there was no vacancy in the office on the date of installation of plaintiff as Pattadhikari. In that case it was held that unless the usage of the institution made it mandatory, religious ceremony is not necessary for a nomination and that nomination once made is irrevocable except for good causes. There was no dispute in that case that till the revocation of the will, under which defendant had nominated plaintiff as Elavarasu, the plaintiff was the Elavarasu by virtue of his nomination. The decision therefore turned on the custom prevailing in that particular institution dealt with in that case. There is no plea in the present case that mere nomination is sufficient to clothe defendant-1 with rights of Pattadhikari even though he was not installed as Pattadhikari with due ceremonies. D. W. 9, a devotee of the suit mutt admitted that it is only after Patta is conferred on him that a person is called a Pattada Devaru and before that he is called a Maridevaru. D. W. 2 has stated as follows while referring to the ceremony of installation:
'At the time of Veera Maheswari Deeksha five Kalashas are set up representing the five Peethas. The rule is that there should be four Ritwijas and one Guru, but the practice is that only one Purohit officiates for all.' In Ext. 261 Sivalingiah has admitted, in reply to question No. 8 in C. S. 508/34, that though be had been nominated by Shankariah as his disciple, it was necessary that he should have Samskar with clue ceremony according to Dbarmashastras as well as according to the custom and practice of the caste and that he was accordingly appointed by Shankariah and devotees and gentlemen. In answer to a specific question put to him Mr. Jagadeesh Sastry also conceded that a mere nomination will not entitle the person who is nominated as successor to claim the rights of a Pattadhikari, and that it is necessary according to sastras and customs prevailing in the Puthravarga intuits, including the suit mutt, that a person must be installed with due ceremonies according to sastras before he can become a Pattadhikari. In Veerasaiva Sadadhara Sangraha relied on by Mr. Sastry the details of the elaborate ceremony relating to the installation of Pattadhikari have been set out. Hence, according to the custom and practice as well as the requirements of the religious texts it is necessary that the successor to the suit mutt should not only be nominated but also duly installed with the requisite ceremonies before he becomes entitled to exercise the rights of Pattadhikari. Since defendant-1 had not been installed as Pattadhikari on the date of suit, it cannot be said that there was no vacancy in the office of Pattadhikari when the plaintiff was installed as Pattadhikari, even if the nomination of defen6ant-1 had been true and valid.
23. The lower appellate court has not considered the material evidence, regarding the validity of the nomination of Shivalingiah as well as the validity of the installation of Sivalingiah as Pattadhikari. It's finding, therefore, that there was no vacancy in the office on the date of installation of the plaintiff, as Pattadhikari cannot be sustained. Since defendant-1 was neither the validly nominated successor to the office of Pattadhikari of the suit mutt nor bad been installed as Pattadhikari already on the date of the, installation of the plaintiff has been duly installed as Pattadhikari of the suit mutt, the plaintiff has to succeed. Hence, the findings of the trial court in this regard are confirmed.
24. The appeal is therefore allowed the judgment and decree of the lower appellate court as well as the decree of the trial court are set aside and the suit is decreed with costs throughout.
25. Appeal allowed.