1. The facts which have given rise to this appeal may be stated shortly. The original owner of the property in dispute, which will be found detailed at the foot of the plaint, was one Swami Sankaranand Giri of Shankar Ashram Bhemgodah, Hardwar. Shortly before his death in 1925 he made a testamentary disposition, on 13th March 1924, of his property. On his death, his chela, Parnavanand Giri, entered into possession, under that will, of the property as owner. The latter died on 10th March 1932 without leaving any chela. The plain-tiff's case is that he is the gurubhai of Parnavanand Giri and it is on the basis of that allegation that he has laid claim to the property and assets left by the latter. The plaintiff's case further is that the defendants are in unlawful possession of the property, that defendant 2 has been giving out that he is a trustee of the property in dispute in accordance with the will of Swami Sankaranand Giri, that he has a right, according to the terms laid down in it, to nominate a gaddinashin of Parnavanand Giri and that he has, in that capacity, appointed defendant 1, Some Giri, as mahant and gad-dinashin of Parnavanand Giri. It is further alleged by the plaintiff that even if it be granted that the will which Sankaranand Giri had left, gave any authority to the trustees to make any person the owner of the property in dispute and to declare Parnavanand Giri as heir, it was not competent to defendant 2 alone to exercise that power. The case of the plaintiffs therefore, is that the alleged appointment of Some Giri by defendant 2 is without right and, therefore, ineffectual and void. Thus, shortly put, the plaintiff's case is that as a chela of their common guru, Swami Sankaranand Giri, he is entitled to the possession of the gaddi because the line of Parnavanand Giri who was the eldest' chela is extinct. His case also is that there is an unjustifiable intermeddling on the part of defendant 2, Swami Shit Dayal Giri, with the property of Sankaranand Giri. Implicit in his plaint is the denial of any trust having been created under the will which was left by Sankaranand Giri. It is part of his case that that being so, defendant 2 had no right to appoint defendant 1 as successor. Defendant 1 is merely a chela of defendant 2 and has no connection with Sankaranand Giri. He is, therefore, not entitled to possession of the property. It may be said that, according to the plaintiff his cause of action arose for the first time on 10th March 1932 when Parnavanand Giri died and' later in the month of November 1936 when the defendants refused to recognise his claim.
2. Separate written statements were filed' on behalf of defendants 1 and 2. The defence, however, taken in both the written statements is substantially the same. There is in them, in the first place, a denial of the plaintiff's relationship with Swami Sankaranand Giri. It is alleged that the plaintiff is not a disciple of Sankaranand Giri and that his allegation that he is a chela of the latter is absolutely without any foundation. Further it is the case of the defendants that the property of Sankaranand Giri and his 'gaddi' known as Shankar Ashram Bhemgodah, Hardwar, are all trust property, that the property mentioned in the plaint appertains to the 'gaddi' and that defendant 2 is the sole surviving trustee entitled to manage and supervise the property and instal a mahant. The case of defendant 2 further is that it was in exercise of his powers as trustee that he had appointed defendant 1 as mahant. It was further alleged by him that the plaintiff was in charge of a gaushala at Muzaffarnagar, had no connection with Sankaranand Giri and that his claim was, in any way, barred by time. Exactly how defendant 2 came to be a trustee is not explained in either of the written statements, though from the one filed on behalf of defendant 2 it would appear that after the death of Parnavanand Giri at first one Krishnanand Giri who was the second disciple of Sankaranand Giri was installed on the gaddi of Shankar Ashram as mahant. Krishnanand Giri's conduct was of an objectionable nature. He was in collusion with the judgment-debtors of the Ashram and was leading an immoral life. He was, therefore, removed by defendant 2 from the gaddi and the entire management was assumed by him. It is further alleged that some time after his removal Krishnanand Giri appeared on the scene and verified that he had no concern with the math and that he had been removed from the gaddi. Ultimately, defendant 1 was installed on the gaddi as mahant by defendant 2 and the defendants claim that he has all the powers relating to the management of the gaddi aforesaid, subject to the supervision of defendant 2. It was also denied that Parnavanand Giri was the owner of the property in dispute, though it is not expressly stated what interest he acquired under the will of Sankaranand Giri which is accepted as genuine by both.
3. The suit was originally instituted on 4th January 1937. After removal of certain defects, it was registered on 10th August 1937. After that it met with a chequered career, It was first decreed in the absence of the defendants on 4th January 1938 to the extent of one-fourth. This ex parte decree, however, was set aside and the suit was restored to its original number. Thereafter, the suit was once again decreed in its entirety under Order 17, Rule 3, Civil P.C., on 13th February 1939. It would appear that the suit was once again restored on condition that the defendants should deposit a sum of Rs. 70 in Court as costs to be paid to the plaintiff. The deposit having been made within the time allowed by the Court, the case was fixed for final hearing for 2nd August 1939. On that date, an adjournment was sought by the plaintiff. It was allowed by the Court on payment of Rs. 50 as costs, subject, however, to the proviso that if any portion of this sum of Rs. 50 remained unpaid till 16th August 1939, the suit would stand dismissed with costs. The order directing the payment of Rs. 50 till 16th August 1939 was not complied with. The plaintiff, however, filed an application against the order of the Court below setting aside the ex parte decree, his point of view being that the Court had erred in setting aside the earlier ex parte decree which had been passed in his favour. It would appear that in connection with that application for revision the plaintiff also applied for stay of proceedings and the stay was granted by this Court on 14th August 1939. Ultimately, however, on 24th October, 1939 the plaintiff's application in revision was dismissed by this Court and the stay order discharged. Thereafter, the case came up for hearing before the Civil Judge's Court on 10th November 1939 and then an application was made by the plaintiff praying that a sum of Rs. 50 out of the sum of Rs. 70 deposited by the defendants to the credit of the plaintiff might be paid to the defendants and that a fresh date might be fixed for the hearing of the suit. Actually an application had been presented by one of the counsel for the defendants on 7th November 1939 praying that a sum of Rs. 50 might be paid to him out of the sum of Rs. 70. It would, therefore, appear that even the defendants were or at least one of them was ready to accept the sum of Rs. 50 after 24th October 1939. On 15th November 1939, however, the defendants took up a different line and they withdrew their former application dated 7th November 1939. Their contention then was that by reason of the earlier order of 2nd August 1939 and by reason of the failure of the plaintiff to deposit the sum of Rs. 50 by 16th August 1939. the suit had automatically abated. It was further contended by them that by reason of the stay order passed by the High Court automatic dismissal must be held to have taken place on 24th October 1939 when the stay order was discharged. This contention of the defendants was accepted by the Court below and on 23rd November 1939 it held that the suit stood automatically dismissed with costs on 24th October 1939. Against this order of the learned Civil Judge there was an appeal to this Court in which the main plea taken was that the order of the Court below holding that the suit stood automatically dismissed on 24th October 1939 was not sound. This Court came to the conclusion that the order of the Court below was harsh in its operation. It allowed the appeal, set aside the Judgment and decree and sent back the case to the trial Court with direction to re-admit it to its original number and to dispose of it according to law, the defendants being entitled to take Rs. 60 out of the deposit of Rs. 70 lying to the credit of the plaintiff. The suit was ultimately dismissed by the trial Court. The learned civil Judge held that the plaintiff had proved that he was a chela of Sankaranand Giri but that defendant 2 had all rights of management, including that of putting anyone on the gaddi and removing him in case of noncompliance with the terms of the will and he further held that in exercise of those powers he did appoint Krishnanand Giri as the mahant of the gaddi, and removed him subsequently, that he has now appointed defendant 1 as the mahant and that his nomination as mahant was valid in law. The view of the learned civil Judge was that as Parnavanand Giri was not an absolute owner of the property and that as in this event defendant 2 could appoint any one to succeed to the property left by Sankaranand Giri, it was clear that the plaintiff had no claim to the property in suit.
4. The first question which we have been asked to consider is whether the finding of the learned civil Judge that the plaintiff is a chela of Swami Sankaranand Giri is correct in point of law and fact. The position as it strikes us is that it was open to the learned Counsel for the appellant to support the judgment and decree of the trial Court on the grounds other than those which found favour with the learned civil Judge. We ourselves are of the opinion that the crucial question in this case is the fact of the plaintiff's relationship with Sankaranand Giri. If he is not a chela or is not a validly appointed chela of Sankaranand Giri, he can obviously lay no claim to the property left by the latter. Admittedly, Parnavanand Giri was a chela of Sankaranand Giri. The plaintiff would be a gurubhai of Parnavanand Giri if he was a chela of Sankaranand Giri. Even on the assumption that Parnavanand Giri got an absolute estate under the will, and this is a question which we shall have to consider a little later in our judgment, the plaintiff would have no right or title to the property if he was not a chela of Sankaranand Giri. It would not, therefore, be open to him, in the event of his failing to prove his chelaship, to bring a suit relating to this property.
5. We propose, therefore, to direct first our attention to the central question that has been argued before us at some length as to whether the plaintiff, Swami Gangeshwaranand Giri, was or was not a chela of Sankaranand Giri. The learned civil Judge did not examine the question, 'what constitutes a chela.' Certainly the case on this issue was not properly handled by either party to the suit and there is no discussion in the judgment of the learned civil Judge of the question whether on the facts proved the plaintiff could or could not be held to be a validly appointed chela under the Hindu law.
6. The Hindu Dharma, as understood, in times prior to the appearance of Buddha, casts a duty on every Brahman to accept for instruction pupils. During the period of their pupilage, it was incumbent on these pupils to go out asking for alms for their subsistence and for that of their teachers. They used to do this in order to complete their studies and thus discharge a debt which they owed to their ancestors to the Rishis and to the Devas. In the social order visualised by Manu, the ascetio was a man advanced in years who had renounced the world and was seeking death. Manu also recognised, according to Mr. Ghose in his learned work on the Principles of Hindu Law, another class, namely, that of the perpetual student (vide G.C. Ghose's Principles of Hindu Law, vol. I, Edn. 3, p. 909). It was, according to that learned writer, by a combination of these two that the class of Sannyasis which we know now and which would have been repudiated with scorn by Manu came into existence. Prior to the advent of the great Sankaracharya, there used to be 'maths' or monasteries where it used to be customary for a 'rishi,' 'guru' or teacher to draw to himself a number of disciples to whom he imparted spiritual instruction. In fact, these monasteries were places which enable people to live the life of what might be called a sort of religious family. There is evidence to show that, generally speaking, 'rishis' used to congregate together in some ' sheltered spot in a forest which used to be visited by people in quest of knowledge, religious truth and spiritual enlightenment. These sheltered institutions were the first models on which subsequently colleges and monasteries came to be established. The advent of Buddhism imparted a new life to these institutions. They became centres where Buddhist monks congregated to preach and propagate the noble and morally uplifting doctrines of the Buddha. For people who desired to escape the turmoils and the troubles of worldly life, these monasteries offered a welcome refuge. Peasant and prince alike flocked to them. In particular, they became places which were sought after by oppressed and distressed souls. For within their sheltered walls, people discovered a peace which they had been unable to get in the outer world. Again, it is a well established fact that it was Buddha who for the first time in India, so far as we know, founded regular establishments for monks and nuns. The reason was obvious. It was impossible for Buddhism to exist without what Mr. Ghose calls (see Ghose's in his Principles of Hindu Law Edn. 3, p. 89) the three gems, Budhha, the Dharma or the law of Buddha and the Sangha, i.e., congregation of monks who observed the law in its purity. Buddha realised that it was the Sangha alone which could, on his death, keep alive the creed that he had given to the men and women of the world. This position continued till the advent of the great Sankaracharya who drove out Buddhism from the land of its birth and became the founder of the 'adwaitya' or the severely monistic school of Hindu Philosophy. Sankaracharya himself was an ascetic and he believed that it was only an order of ascetics devoted to the pursuit of knowledge and capable of propagating it who would be able to meet the challenge which Buddhism had thrown out. Just as Buddhists had founded monasteries for propagating their faith, so also Sankara established orders of monks for reviving faith in the old Hindu religion to which he had given a severely monistic character. Thus it is he who may be described as the founder of the order of Sannyaeis. They used to be called by various names. The heads of these institutions used to be called 'Mahants' or 'Acharyas.' Thus, it was after successfully banishing Buddhism from this country that Sankara established some 'maths' for the purpose of maintaining, strengthening and spreading the religious philosophy which has given its distinctive cast to Hinduism. In its original and narrow sense the term 'math' signifies as is pointed out by the learned Judges who decided the case of Giyana Sambandha Pan-dara Sannadhi v. Kandasami Tambiran reported in 10 Mad. 875 at p. 386, the residence of an ascetic, sannyasi or pardesi. As to the influence exerted by these 'maths' over the thought and lives of people in their neighbourhood, there can be no doubt. It can be said of them that they were great centres of Sanskrit and religious learning. Undeniably they helped in the spread of the dharma taught by Sankara. The original conception of that great philosopher was that the ascetics who presided over them should be men of vast learning and genuine piety, for he realised that it is only such men who could act as religious preceptors. They were held in great reverence both by prince and peasant and the history of their development shows that large presents, including grants of land, were made to them from time to time by people in a position to give charity on a large scale.
7. Jenkins C.J. in Babajirao v. Laxmandas reported in, 28 Bom. 215 at p. 223, defines the true notion of a 'math' in the following terms:
A math, like an idol, is in Hindu Law a judicial persona capable of acquiring, holding and vindicating legal rights, though of necessity it can only act in relation to those rights through the medium of some human agency.
8. We have referred to the origin of the institution of ascetics in order to supply the background against which this case has to be viewed. The fundamental question in this case is whether the plaintiff was the chela of Sankaranand Giri or not. The first matter which has, therefore, to be considered is whether the plain-tiff was, in point of fact, ever taken as a chela by Sankaranand Giri for it is by virtue of his kinship to Parnavanand Giri, the last holder of the estate, as gurubhai that he claims the right of succession to it. The second point which has got to be ascertained is the nature of the ceremonies which were performed at the time of his initiation and their effect on his status. The proposition which we deduce from the authorities, to which we shall invite attention a little later, is that certain ceremonies, which we shall detail hereafter, are essential for the purpose of creating the relationship of a chela and guru. In the absence of any proof that no ceremonies took place or in the face of evidence which negatives the possibility of their having taken place, a person cannot be regarded as a validly accepted chela.
9. We shall now proceed to consider the first point, namely whether the plaintiff was, in point of fact, ever accepted as a chela by Sankaranand Giri. A few facts may be mentioned in order to. indicate how the plaintiff has come to make the present claim. A will, which we shall consider later, was made by Sankaranand Giri on 13th March 1924. It referred to an earlier will which he had made at Allahabad on 24th March 1924, (sic) in favour of his disciple, Bhagwanand Giri and it also expressly cancelled it. It is a register-ed document, registration having taken place on 17th March 1924. On 4th September 1924, Sankaranand Giri made another will by way of a codicil to the will of 13th March 1924, removing Bhagwanand Giri, who had been appointed by him as one of the trustees. We are not directly concerned with that will at this stage. Sankaranand Giri died on 15th May 1925. At the time of his death, Parnavanand Giri was about 12 years old, He had in the will provided for the guardianship of his property, as we shall show a little later. Parnavanand Giri attained majority in 1930 and defendant 2, Swami Shib Dayal, Giri, who was acting as the manager of the property, handed over charge of the property plus Rs. 10,000 to him. On 10th March 1932, Parnavanand Giri died. On his death, one Krishnanand Giri, who was a disciple of Sankaranand Giri was installed on the gaddi by Sawmi Shib Dayal Giri, defendant 2. Admittedly the present plaintiff was the mukhtar-e-am of Krishnanand Giri. Krishnanand Giri's life appears to have been an undesirable one. The assets which had come into his possession consisted of movable properties, the math itself and some mortgages and promissory notes by various debtors in favour of the math. It became necessary to institute suits against the debtors of the math. They were instituted for their realisation after the appointment of Krishnanand Giri in his name. For some reason or another, Krishnanand Giri left the ashram in February or March 1932. Suits went on pending and finally an application was made by Shib Dayal Giri to be substituted as a plaintiff in place of Krishnanand Giri under the provisions of Order 22, Rule 10, Civil P.C. It was held by this Court in the case which came up before it that Shib Dayal Giri had not appointed himself as a mahant and that he could not, therefore, be substituted for Krishnanand Giri. Thereafter an application was made on behalf of Some Giri claiming that he had been appointed mahant of the gaddi on 30th September 1936. The application of Some Giri was allowed (see judgment of the Commercial Sub-Judge, 13t class, Delhi, dated 1st February 1943). It will be noted that on 21st January 1935, Krishnanand reappeared and agreed to his removal. Some Giri was appointed mahant on 18th May 1936, and thereafter his name was substituted in all the suits which had been instituted against the debtors. The suit out of which the present appeal arises was filed by the plaintiff on 4th January 1937.
10. We have given the history leading up to the institution of the present suit as one of the defences is that it is the judgment-debtors of the ashram who have set up the plaintiff after having made attempts by way of various sorts of proceedings to misappropriate the property left by Sankaranand Giri. The recitals of the facts which we have stated above also disclose that though the plaintiff had become entitled to the property left by Parnavanand Giri in 1932 and though defendant 2, Shib Dayal Giri, according to him, had no right in the first instance to instal Krishnanand Giri, the plaintiff did not institute the present suit till after the disappearance of Krishnanand Giri whose attorney he admittedly was. This is important from our point of view, as throwing light on the bona fide character of the claim.
11. The plaintiff is a Gujar by caste and resides in village Gordhanpur, district Muzaffarnagar and is almost illiterate. His visits to the ashram were few and far between. He was at Hardwar when Parnavanand Giri died in 1932. At the time of the death of Sankaranand Giri, he was at Gandhanpur where he was managing a gaushala, which, it is alleged, had been established by the former. According to his statement, be came to know of the death of Parnavanand Giri 5 or 6 years after his death. He stated that he was 39 years when he was made a chela, though at the time of his first contact with Sankaranand Giri ha was only 18 or 19 years old. It is important to note that at the time that he was made a chela, Sankaranand Giri had admittedly 4 or 5 chelas. Where was the need for adding one more chela, particularly as the person said to be selected was illiterate? Sankaranand appears to have been a man who attached importance to learning and it is strange that he should have thought of an illiterate person as suitable for his chelaship. (After discussing the oral and documentary evidence on the point of chelaship the judgment proceeds as follows:)
12. It may well be the fact that what happened has been more or less correctly stated by the plaintiff himself on his (cross-examination in the description that he has given of the ceremonies which marked his initiation as a chela. We produce below this part of his evidence:
First I was shaved and then I took a bath. My choti was then out and then I again took a bath. Mala was then offered to me and one bead of Rudraksh was tied round my neck, Gurumantra was whispered in my ears. The mantra given at the time of initiation of chela is called Gurumantra. It has no other name. My guru was well up in Sanskrit and was a scholar of the language. He offered me coloured dress and besmeared my forehead with ashes and gave me direction and distributed the sweets to persons present. My guru gave me bowl (kamandalu). Some mahants of Hardwar were present then. Mahant Puran Nath of Puramath Gaddi....
13. Mr. Jotendra Nath Bhattacharya in his learned book on Hindu Castes and Sects, 1896 Edition, p. 382 gives the following description of the ceremonies which are essential for a person qualifying himself to be a Sanyasi:
When a man duly qualified desires to be a Sanyasi, the proper course for him is to apply to a Guru or superior of the sect, and to go through a ceremony in the course of which he has to put off his sacred thread, if he has any, and to shave off the tuft of hair which every orthodox Hindu keeps at the central part of his head. The Guru whispers into the ears of the neophyte the words Namah Sivaya or Om Namah Sivaya, and a Sanskrit couplet, the purport of which is as follows: '0' thou wise man; please contemplate yourself and myself as identical with the Divine essenee, and roam about without pride or affection according to your inclination. The formula which the neophyte has to recite, at time of saluting the Guru, is still more curious. Its purport is as follows:
Salutation to you and salutation to me. Salutation again to both you and my ownself. Thou art thou, and I am identical with the great soul pervading the Universe. Therefore I salute thee.At the conclusion of these ceremonies, the neophyte receives a new name with one of the following surnames: 1. Giri. 2, Puri, 3, Bharti. 4. Ban. 5. Aranya, 6. Parvata, 7. Sagara.
The neophyte is then enjoined to go through a course of probation during which he has to visit some places of pilgrimage, according to the directions of his spiritual superior, and to conform also to the routine prescribed by him for his daily prayers.
When the period of apprenticeship is completed, then the following ceremonies have to be gone through:
1. Ceremonies for pleasing the gods, the saints, and the ancestors of the neophyte.
2. His Sradha or rites performable after his death.
3. The taking up of the sacred thread for the purpose of again abandoning it.
14. In Gossain Ramdhan Puri v. Gossain Dalmir Puri 14 C.W.N. 191 at p. 203 it was observed:
Every aspirant for entrance into the order of sanyasis has to pass through a period of probation. Upon his first arrival at the monastery his habits are closely watched for some days, and enquiries are made into his caste, for the sanyasis admit into their order ordinarily members of the twice-born classes and very rarely take members of the fourth class. If the novice is .i approved, his head is shaved, his name is changed and upon the performance of this preliminary ceremony he is regarded as a probationer for entrance into the order. The final ceremony, however, which is called the Biraja Home ceremony, is not performed for many months i and sometimes for many years. During this period of apprenticeship it is open to the chela to return to his natural family, but after the performance of the final ceremony his connection with the world is deemed to ( have been finally severed. This is amply borne out from .: the valuable note of Mr. Warden on the Customs of Gossains printed as an appendix to Steel's 'Law and Custom of Hindu Castes.' This note was prepared in 1825 upon information gathered from several thousands of Gossains of the first rank, who had assembled at Trimbuk near the source of Godaveri on a religious , festival, and the statements contained in it have always ' been treated as of great authority. In para. 27 Mr. Warden states that the head of the candidate is first shaved, when he immediately becomes a Gossain in a state of probation; and that after he has remained so for a year or two and made himself familiar with the ' usages of the order, the ceremony of Biraja Home is celebrated, when he becomes a perfect Gossain, In ' para. 28 it is further stated that daring the nevitiate of the candidate his parents are at liberty to withdraw him, but that, after the solemnization of the Biraja Soma, he is irrevocably attached to the Gossain sect and as much alienated from his family by birth as if he had never belonged to it. Now it is stated by the witnesses on the side of the defendant that it is not usual to whisper the mulmantra into the ears of the novice at the time of the first initiation, when it is still uncerain whether he will or will not return to the enjoyments of worldly life. That some mantras, however, may be recited on this occasion is stated by some of the authorities. Among these it will suffice to refer to the work of Dr. Jogendra Nath Bhattacharjee on 'Hindu Caste and Sects,' at p. 382 of which it is stated that after the shaving ceremony, the guru whispers into the ears of the neophyte the words namah sivaya and the latter r'ecites the formula and takes a new name. In the same work, however, it is expressly stated that the neophyte has to go through a course of probation, and that after the completion of the period of apprenticeship, elaborate ceremonies have to be performed, the effect of which is to cut off completely the connection of the sanyasi with his natural family and the enjoyments of wordly life. On the evidence, therefore, we hold that the plaintiff was, as alleged by him, taken as an apprentice chela by Manraj in 1892, but that no such ceremonies were performed on the occasion as were necessary to make him a complete chela.
15. On the question as to whether the Birja Home ceremony is essential to entitle a chela to claim by inheritance the estate of his guru, Mokkerji and Carnduff, JJ. expressed themselves in this language:
As we have previously explained, the Biraja Home indicates the final and irrevocable renunciation of worldly life by the chela. During the period of probation it is open to the chela to renounce the life of the monastery and to return to his family, but after the performance of the Biraja Home, reversion to secular life is an impossibility. Prima facie, therefore, the Biraja Home is indicative of complete status of chela, and till such status has been attained it is unlikely that a chela would be deemed qualified to take by inheritance the estate of his spiritual preceptor. That this is the custom is established by a large mass of unimpeachable evidence.
16. According to their view,
The Biraja Home ceremony is necessary to make; a valid chela; at any rate, it is essential to entitle the chela to claim by inheritance the estate of his guru.
I may refer to the cases of Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 10 Mad. 375 at pages 378 and 379; and Rangachariar v. Yegna Dikshatur 13 Mad. 524 at pages 826 and 543, as also establishing the proposition which was laid down in Gossain Ramdhan Puri v. Gossain Dalmir Puri 14 C.W.N. 191, referred to by me.
17. I may also refer to Manu, Book VI, Verse 33, Vishnu, Chap. 96, Verse l, Baudhayan Kanda 17 and Apararka's Commentary on Yajnavalkya, Book III, Verses 55, 56. We are indebted for these references to the judgment, reported in Gossain Ramdhan Puri v. Gossain Dalmir Puri 14 C.W.N. 191, referred to by me.
18. The view that I take is that the rules regarding the initiation ceremonies for chelaship are mandatory and not merely directory. If, then, there was a custom which did not require in the particular sect to which the plaintiff belonged the Biraja Home ceremony, it was for him to set up such a custom and prove it by reliable evidence. Even on the assumption that the plaintiff was in a loose sense a chela, I am not satisfied that he was such a chela as would be entitled to succeed to the property of a Yati. I cannot look upon the rule that the Biraja Home ceremony should be performed as merely directory and not mandatory for sanyas involves a complete break with the world. According to the concepts of Hindu law, every Hindu has to discharge his duty to the Gods, to the Sishis and to ancestors. It is for this reason that Mr. Bhattacharya has emphasised that after the completion of the period of apprenticeship, certain ceremonies have to be performed. In any case, we attach importance to the performance by a person taking sanyas of his own shradh or rites which are performable after his death Sanyas implies death so far as this world is concerned. It is well known that in the case of sannyasi the ordinary shradhs are not performed. There is no evidence in this case, according to the plaintiff's evidence itself, that he perform-ed the shradh or the rites performable after his death. The statements of witnesses should have mentioned the ceremonies which were performed at that time. The belated statement of the plaintiff that he is a chela coupled with the version that he has undergone all the ceremonies that were performed at the time when he is supposed to have been initiated as one leaves it very much open to question whether the ceremonies performed were of a probationary or final character and whether he was in fact a chela or was being only loosely described as one. No distinction has been made between these two sets of ceremonies. It was contended that, in any case, the admission of Sankaranand Giri embodied in the panchayatnama shifts the burden of proving that the plaintiff was not validly accepted as a chela to the defendants. We have given reasons why we think that the panchayatnama has to be regarded with some suspicion. Apart from this, the panchayatnama, as we have shown above, amounts to nothing more than this that those who were executing it thought that he was a duly constituted chela of Shankaranand Giri. We can attach no importance to the sale-deed. It was open to the plain-tiff to produce evidence of other leading mahants who were supposed to be present at the time of the initiation ceremony. He himself mentioned some of them in his cross-examination. He says that Mahant Puran Nath of Puramath Gaddi, Mahant Anand Prakash, Mahant Keshwanand of Juna Akhara were present on that occasion, We do not think that, the evidence produced by the plaintiff is sufficient to establish the factum of his chelaship.
19. The result is that we have come to the conclusion that the finding of the learned Civil Judge that the plaintiff was a chela of Swami Sankaranand Giri is not sustainable either in fact or in law. We accordingly hold that it has not been proved that the plaintiff was accepted as a chela by Swami Sankaranand Giri on the assumption that he was accepted as a probationary chela; it was for the plaintiff to show that he was confirmed as one by the performance of the ceremonies which are essential for enabling a chela to inherit the property of a Yati.
20. This finding alone should have been sufficient to dispose of the appeal; but having regard to the fact that questions connected with the will have been argued before us at some length, we consider it necessary to give our conclusions in regard to them also.
21. We now come to the will of 13th March 1924. It is a document of 11 paras and in order to make our interpretation of it intelligible we reproduce it below;
I, Swami Shankarnand Giri Ji Maharaj disciple of Swami Bholanand Giri Ji Maharaj alias Swami Narain Giri Ji Maharaj, caste Sanyasi, resident of Bhimgodah, Shankar Ashram near Hardwar, pargana Jwalapur, tahsil Roorkee, district Saharanpur, do declare as follows:
As I am Sanyasi, as I have movable and immovable property and cash which are self-acquired property and the world is transitory and there is no certainty of life, I have hereby by way of foresight, of my own accord, while in a sound state of body and mind, without the coercion, compulsion and instigation on the part of any one else made the following arrangement of my property given below:
(1) Having cancelled my former will made on 24th March 1924, (sic) at Allahabad in favour of my disciple, Bhagwana Nand Giri deceased, I now make this last will in favour of my disciple. As long as I am alive, I shall be the absolute owner of my entire property, movable and immovable and cash etc. in every way and I have and shall have all proprietary rights in respect thereof.
(2) After the death of me the executant, my disciple, i.e. Mahant Shesh Parnavanand Giri aforesaid shall by all means, be the owner in the possession of all the property movable and immovable and cash, detailed below, which I have at present or shall acquire in future.
(3) My disciple Paranavanand Giri aforesaid shall not have power at any time to mortgage, sell or make gift of the immovable property, nor shall his disciple or grand disciple and others have right generation after generation to transfer the immovable property by means of sale or gift.
(4) After my death if my disciple Parnavanand Giri aforesaid who is at present minor and is of 12 years and who reads in a school does not attain majority all the four Sadhu Mahatma namely (1) Swami Shib Dayal Giri Ji disciple of Swami Sheo Narain Giri Ji caste Sanyasi resident of Hardwar aforesaid, (2) Sadhu Sardha Ram alias Sardanand resident of Chhoete Yuya(?) Ram, tahsil Maghwan, district Ludhiana, (3) Swami Mahadeva (?) Nand Giri Ji disciple of Bholanand Giri Ji alias Swami Narain Giri Ji aforesaid resident of Hardwar, mohalla Vaishu Tirth and (4) Swami Bhagwati (?) Nand Giri Ji my disciple resident of Bhimgodah, Shankar Ashram near Hardwar shall make management of the property and Math as trustees and as guardians of the minor aforesaid and shall also maintain, educate and look after him, in every way till the time he attains majority.
(5) Sannyasi Pathshala shall be opened in my house situate in Bhimgodah, Shankar Ashram, specified below and Sanskrit and religious education shall be imparted to at least 5 Sannyasi, Mahant, Brahmchari and Bhagoley Bastarwala student whose board and lodging shall be arranged from the income of Math.
(6) My disciple Parnavanand Giri and the trustees aforesaid shall always have power generation after generation to spend the income derived annually from the property and Math on at least 5 students Sannyasi, Brahmchari Pathshala as well as in connection with the salary of the teachers and servants of the Pathshala.
(7) If some disciple or grand disciple etc, of my disciple Parnavanand Giri aforesaid is a minor the trustees aforesaid, shall have right to manage and look after the property and Math in every way and they shall also have powers to look after the minor and to give Sanskrit and religious education to him.
(8) If out of the trustees aforesaid, one or two die the remaining trustees shall be authorised to appoint Ms or their disciples as trustee or trustees in his or their places. If from among the disciples of the trustees deceased no one is found competent, the remaining trustees, aforesaid, shall have power to take one or two learned Mahatmas Sannyasis from among the Dashnam bhikh according to necessity and appoint him or them as trustee or trustees.
(9) If I die during the period of minority of my disciple Parnavanand Giri, the trustees aforesaid shall have power to do anything they think proper relating to the performance of the ceremonies of bhikh Dashnam.
(10) If my disciple Parnavanand Giri dies and does not leave behind him any disciple the trustees aforesaid shall have power to instal some learned sannyasi dashnami Sadhu on the gaddi in place of Parnavanand Giri and all the conditions laid down in this will shall fee binding even on him and the trustees, aforesaid, shall make supervision of him.
(11) My disciple or grand disciple shall have no right generation after generation either to marry or to use some intoxicant or to deviate from the right path. If he commits breach of the terms of this will, the trustee aforesaid shall have right to remove him from the gaddi to instal some other learned sannyasi on the gaddi and math who will also remain under their supervision and guardianship and it will be binding on him to abide by the terms of this will.
After my death my disciple Parnavanand Giri and the trustees, aforesaid, shall be entitled to make realisation of the amount lent by me and shall be liable for payment of the amount borrowed by me....
22. It was modified by the will of 4th September 1924 only to this extent that by that codicil Swami Sankaranand declared that Bhagwatnand Giri who is mentioned as one of the trustees 'shall have no right of any sort to my property, nor shall he have any right of management.'
23. In construing a will what the Court has to do is to gather the intention of the testator. 'The Hindu law, no less than English law, points to the intention', observed their Lordships of the Judicial Committee of the Privy Council in Soorajmoney v. Deenobundoo Mullick 6 M.I.A. 526 at p. 551, as the element by which we are to be guided in determining the effect of a testamentary disposition, nor is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator's wishes but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the case those circumstances no doubt must be regarded. Importance has to be attached to all parts of the will, and in the language of Farran C.J. in Damodardas Tapidas v. Dayabhai Tapidas 21 Bom. 1 at p. 19, the Court
ought to adopt that construction of the words assuming them to be susceptible of two meanings which will give some effect to them rather than that which will give none.
24. Attention may also be invited to the following observation of their Lordships of the Judicial Committee of the Privy Council in Venkata Narasimha v. Parthasarathy 37 Mad. 199 at pp. 221-22, which are as follows:
As an aid and solely as an aid to arriving at a right construction of a particular 'will and to ascertain the meaning of the language used by the particular testator, a Court is entitled and bound to bear in mind the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense and his social and cultural environment, In other words, the Court is entitled to put itself into the testator's arm-chair.
25. On this question I may also be permitted to refer to the observations of their Lordships of the Judicial Committee of the Privy Council in Lalit Mohan Singh Roy v. Chukkun Lal Roy 24 Cal. 834 I quote them below:
There are two cardinal principles in the construction of wills, deeds and other documents. The first is that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention. The second i3, to use Lord Denham's language, that technical words or words of known legal import must have their legal effect even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical terms in their proper sense.
26. It is a well-established principle of a will that each document has to be construed with reference to the language used in it and not with reference to the language employed in the documents. Reference to cases where principles for the construction of the wills have been laid down are no doubt helpful up to a point, but it is from the language of the will itself that we must primarily gather the intention of the testator.
27. I have stated the considerations that have to be borne in mind in construing a will. Before considering the various provisions of the will in dispute, I may be permitted to refer to what I would call the 'surrounding circumstances' in this case. There is some evidence that Sankaranand Giri was a learned man. Certainly, he was a, man who was interested in the promotion of the theological knowledge. He was a Hindu ascetic of the Daswami sect and it may be assumed that his mental make up was not different from that of an ordinary ascetic of that class. He had some disciples, one of them had died and another had disappointed him. He appears to have been the founder of the Shankar Ashram and its welfare must have been dear to his heart. This Ashram had a gaddi attached to it and it may well be that one of the objects which motivated him in executing the will was to provide for the management and continuance of the gaddi he had established. All this may be granted, but the relevant question, however, is whether and to what extent he has given expression to his wishes in a manner which can be legally effective.
28. The view was pressed before us by learned Counsel for the respondents that the dominant intention of the testator was to make an arrangement which was of an 'indivisible mature.' If this view is accepted, then it is confended that the position is that though the will is divided into various paragraphs for the sake of convenience, these clauses are all intended to give effect to one arrangement and one arrangement only. Every testator when he executes a testamentary device has an arrangement which he regards in his own mind as indivisible. To say, therefore, that the testator had an arrangement in mind is to assert nothing more than this that he had, like every other testator, a plan to which it was his desire to give effect by the testamentary device he was executing. We have, therefore, perforce to read the various paragraphs of this will and to find out from them if we can, his intention, giving, if it is possible to do so, a meaning to all, and reconciling their various parts' to the extent that such reconciliation is possible. We have to decide, 'in other words, the nature of the estate that the testator created and whether some of the clauses were not repugnant to it or created estates unknown to the law by which he was governed.
29. Bearing these principles in mind, I shall now rapidly consider the various clauses of the will. Clause l merely means that the testator, as has been pointed out before, was making a testamentary device and not effecting any transfer inter vivos.
30. The effect of para. 2 of the will is to give to Mahant Shesh Parnavanand Giri an absolute estate over the property, movable and immovable, to be left by him.
31. By Clause 3, however, he seeks to cut down the absolute estate which he had given to Parnavanand Giri by placing limitations upon his power to mortgage, sell or make a gift of the immovable property : see Raghunath Prasad Singh and Anr. v. Deputy Commissioner, Partabgarh A.I.R. (16) 1929 P.C. 283. In this clause he goes even further and denies the right to his (Parnavanand Giri's) disciple or grand-disciple and others generation after generation to transfer the immovable property by means of Bale or gift.
32. If the two clauses are read together; it can be argued that what Sankaranand Giri did was to create a succession of life estates which offend the rules against perpetuity. It is well-settled that a Hindu can create a life estate or successive life estates or any other estate for a limited term, provided the donee is a person capable of taking under the deed : see Mulla's Hindu Law, Edn. 10, page 464. Further, it is a well-established principle of law that inheritance is regulated by rules laid down by the State. Public policy plays a part in determining these rules. It follows, as a matter of consequence, that a private individual who endeavours by gift or will to circumvent the law of inheritance by devising a new form of it is assuming to legislate and that the gift must fail and the inheritance must take effect as the law directs : see Mulla's Hindu Law, p. 464. The principle that the rule against perpetuities does not apply to religious endowments has no meaning in the context of this will as I do not find any dedication of property in the principal device clauses to any public, religious, or charitable purpose. From the mere fact that Parnavanand Giri is described as a shishya, I cannot jump to the conclusion that the gift was to the math, that only as gaddinashin he was to look after the ashram and its property, subject to the control of a board of trustees set up by the founder. Reading the two clauses together, I am driven to the conclusion that, if any coherence is to be given to them, Clause 2 must be held to have conferred an absolute estate on Parnavanand Giri and Clause 3, therefore, must be held to be void both for repugnancy to Clause 2 and to the general Hindu law.
33. In Clause 4 the testator makes an arrangement for the management of the property and the math by providing for his minor disciple a board of trustees and guardians who shall maintain, educate and look after him in every way till he attains majority. Emphasis has been laid upon the word 'trustee' as indicative of an intention to create a trust of the property bequeathed to Parnavanand Giri. Looking at the clause by itself, I am unable to see any such intention. The notion of a trust is that it vests the ownership of property annexed to the trust in the trustee or trustees. The trustee is the legal owner of the property. A 'trust' according to the Trusts Act, 1882,
is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.
It is clear, therefore, that a trust is in effect a gift of property or an interest in property to a person or institution by or through the intervention of a trustee. The law, as it exists in India under the Indian Trusts Act, does not recognise an equitable ownership in the beneficiary as the English law does. But though it is so, it will be found that for all practical purposes there is little or no difference between a beneficiary under the English law and a beneficiary under the Indian Trusts Act so far as other subsistence of their rights are concerned. Apart from all this, for the creation of a trust the conditions laid down by Section 6, Indian Trusts Act are as follows:
Subjeot to the provisions of Section 8 a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary and (d) the trust-property and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.
34. Applying the tests laid down for the creation of a trust, can it be said that there is any clause in this will which vests the property in the trustees as owners for the benefit of the institution, called the math? I am unable to discover any such clause. Though one of the words used in Clause 4 is descriptive of the members of the board he was appointing a trustee, it merely creates guardians of the person and property of the minor, Parnavanand Giri, for the management of his property and the math. It does not vest any ownership in the trustee. I cannot read in Clauses 5,6, 7, 8,9, 10 and 11 or in any other clause any vesting of the property in the trustees for the benefit of the math, gaddinashin or any other institution. The vesting clauses in this will are paras, 2 and 5. On a plain reading of para. 2, the meaning is that Sankaranand Giri was giving to Parnavanand Giri an absolute estate, i.e., an estate of inheritance. Paragraph 3 of the will seeks to cut down the absolute estate given. The restrictions, it seeks to impose, are repugnant to the interest previously created and, in any case, by the second portion of that clause, the testator has attempted to create successive life estates which it was not permissible for him under the Hindu law to do. It is, therefore, in my opinion, not possible, notwithstanding the reference to trustees, the gaddinashin, the math and the power of appointment in some of the clauses of the will, to give the will any other meaning than that the interest given to Parnavanand Giri was an absolute estate.
35. Clause 6 directs the opening of a Sanyasi Pathshala in the house situate in Bhimgodah Shankar Ashram to impart Sanskrit and religious education to at least 'five sanyasi, Mahant, Brahmchari and Bhagoley Bastarwala students whose board and lodging shall be arranged from the income of the math. It is argued-and this proposition does not seem to have been seriously contested in the grounds of appeal filed by the appellant-that it was open to the testator to create a charge upon the property even if the will conferred an absolute estate upon Parnavanand Giri. It is argued that this clause would be valid as it is one which creates a charge upon the property and all that it lays down is that the absolute owner takes the property subject to a charge, i.e., even if the property was sold or disposed of, a right which the absolute owner possesses, the charge would continue. It is to be noted that the bequest is not in favour of a Pathshala in existence. No sum which has to be spent on it is specified. It may be difficult to enforce it as it is not in favour of any existing Pathshala. It may be argued that there is a general intention of charity disclosed in this clause. The question that would arise when it is sought to be enforced is as to who will be the five students entitled to enforce it.
36. Clauses 6, 7 and 8 are all invalid as if it is held that the estate created by Sankaranand Giri was an absolute one, the creation of trustees for the management of an estate absolutely given is something which is repugnant to it.
37. Clause 9 gives the power to the trustees to do anything they think proper relating to the performance of the ceremonies in connection, with the testator's death during the minority of his disciple, Parnavanand Giri.
38. Clause 10 is the most important clause as it gives to the so-called trustees the power to instal some learned sanyasi on the gaddi in place of Parnavanand Giri. It further lays down that the conditions laid down in the will shall be binding on the person so appointed and the trustees shall continue to supervise it.
39. Clause 11 is a forfeiture clause. It lays down that his disciple or grand-disciple shall neither have any right to marry or to use some intoxicant or to deviate from the right path. In case of a breach of the terms of the will, the trustees aforesaid shall have the right to remove him from the gaddi and instal some other learned sanyasi who would also remain under their supervision and guardianship.
40. I have analysed the various provisions of the will and it is now necessary to state my conclusions in regard to it. It is undoubtedly a difficult document to construe. I cannot accept the view that what has been done by the testator is not to make Parnavanand Giri an absolute owner but a gaddinashin of a newly created math, who in that capacity would exercise control over the Ashram and its property, subject to the supervision of the board of trustees and that he and successive gaddinashins would have no right to transfer the property which was to be preserved to provide funds for the expenses of the Pathshala which was to be established. I cannot ignore Clauses 3 and 4 which are device clauses in this will. On a plain reading of them, they give, in my opinion, an absolute interest to Parnavanand Giri. It is not the fault of the Court that the testator failed to express what, it is urged, was his real intention. In cases where clear and unambiguous dispositive words have been used, it is not for the Court to control or qualify their effect by any presumed or general expression of intention.
41. The result of this discussion is that I find myself in disagreement with the learned Civil Judge in regard to his finding as regards the nature of the estate created by the will. We were referred to a case, Soma Giri v. Ram Ratan Giri and Ors. reported in : AIR1941All387 , where this will came up for consideration before this Court. That case did not decide the nature of the interest which was created by this will. It did not interpret this will. In that case it was taken for granted that the will had created a trust and it was decided on that basis. The point involved in this case, i.e., the interpretation of the will was not in issue in that case. I am, therefore, driven to the conclusion that Parnavanand Giri acquired an absolute estate under this will This, as I have said before, is directly in opposition to the view taken of this will by the learned Civil Judge.
42. Before we part with this case, we desire to point out that in a case of this importance it was not desirable for the learned Civil Judge to refer to witnesses not by their names but by their numbers. It is important that Judges should in their judgments be careful in regard their references. We regret that this was not borne in mind by the learned Civil Judge.
43. For the reasons I have given above, the appeal must fail. It is accordingly dismissed with costs.
44. I agree with my learned brother that Gangeshwara Nand, the plaintiff, has entirely failed to substantiate his claim that he is the chela of Swami Shankranand Giri. Tie trial Judge was unduly influenced by the two documents on the record, viz., the panchyatnama, which purports to have been executed on 10th March 1921, and the sale deed, dated 10th November 1925. He failed to notice that the panchyatnama was a highly suspicious document, which could have been prepared at any time, and that the name of Janki Das, who was called to prove it, had been interpolated and it was doubtful whether he had actually attested it. He also failed to notice that the person who had executed the sale-deed had no special means of knowledge about the plaintiff's chelaship and that the recital in the deed was apparently based on the plaintiff's own statement. The trial Judge did not scrutinise the oral evidence properly; and seems to have looked at it in the light of the opinion which he had formed on the basis of the two documents.
45. In view of our finding that the plaintiff has failed to prove that he is the chela of Swami Shankranand Giri or the gurubhai of Parnwa Nand Giri, the question whether under the will Parnwa Nand Giri got an absolute estate or only acquired the rights of a mahant or gad-dinashin loses its importance. But, as the question was argued before us at some length, I would like to state briefly my own interpretation of the will, dated 13th March 1924, executed by Swami Shankaranand Giri. As observed by my learned brother, in construing a will we have to gather the intention of the testator from the context of the document which has to be viewed in the light of the surrounding circumstances and importance must be attached to all parts of the will. He has further observed that where words are susceptible of several interpretations we are to adopt that which will give effect to every expression in the context in preference to one that would reduce some of those expressions to silence. These principles have to be borne in mind, more particularly in a case like the pre-sent, where the will sets out an 'arrangement.'
46. What were the surrounding circumstances in the present case? The testator Swami Shankaranand Giri had established an 'Ashram' known as 'Shankar Ashram' at Bhimgoda, Hardwar. In the 'Ashram' there was a gaddi. The Swami wanted to lay down as to who should be installed on the gaddi after his death and in what circumstances the gaddinashin should be removed and who should appoint a new gaddinashin in case of removal. The fact that there was a gaddi can admit of no doubt. In suit No. 127/48 of 1942/1941 instituted in the Court of the Commercial Subordinate Judge, First Class, at Delhi by Swami Shib Gayal Giri and Mahant Som Giri against Krishnanand Giri and the present plaintiff, Gangeshwari Nand, the latter had asserted that as a gurbhai of Parnwa Nand Giri he was 'entitled to be the gaddinashin of Shankra Ashram.' The plain-tiff described himself as 'Sanyasi gaddinashin and mahant of Shankar Ashram' in a sale deed executed by him on 30th October 1944. There is a reference to the 'Gaddi' as well as the 'Ashram' in the will in question, and two other documents, executed by Swami Shib Dayal Gir on 2nd July 1934 and 18th May 1936 (exs. d and E).
47. The Swami was the head of the 'Ashram' and was able to acquire property. As a sanyasi he did not require property for his personal use or benefit. Apparently, therefore, he acquired the property for the 'Ashram'. Himself a learned sanyasi, he was anxious to see other sanyasis receive Sanskrit and religious education, He desired to establish a Pathshala in the 'Ashram' for this purpose. The chela in whose favour he had previously executed a will having died, he appears to have selected Parnwanand Giri, the minor chela, to succeed him. He was naturally anxious to secure the position of Parnwanand Giri to preserve the property; to constitute a board of 'trustees' to perform certain duties cast upon them; to make the 'Ashram' a religious and educational centre; and to provide that learned and pious nihang sanyasis should always sit on the gaddi. Having these objects in view he executed the will.
48. There should be no difficulty in construing the will, in the light of the circumstances mentioned above. The testator stated in the will that he was making the 'following arrangement and that 'arrangement' has to be considered as a whole. The will has, no doubt, been divided into different clauses; but that does not matter at all. Let us now see what is that 'arrangement'.
49. In Clause (1) the testator has stated that he would remain the absolute owner of the property during his life-time. Under the next clause Parnwanand Giri is made the owner of the property, namely the 'Ashram' and the property appertaining thereto. But, in the subsequent clauses he goes on to explain the nature of the estate which Parnwanand Giri was to hold. In Clause (8) not only Parnwanand Giri but those who were to succeed him were prohibited from transferring the property in any Manner. Obviously he did not intend to create successive life-estates, but merely wanted to protect the property from being transferred by the gaddinashins. Under cls.(4), (7) and (9) a board of 'trustees' was constituted to look after the property during the minority of Parnwanand Giri and any other gaddinashin who might be a minor. In Clause (5) it was provided that a Pathshala for imparting Sanskrit and religious education should be established in the 'Ashram' The next Clause (6) makes a provision that the income derived annually from the property bequeathed was to be utilised in meeting the expenses of the Pathshala. Then there is Clause (8) which provides for the appointment of a new trustee in case any trustee died or resigned. In Clause do), we find a provision for the appointment of a gaddinashin, in case Parnwanand Giri died without making any chela. The last Clause (11) authorised the trustees to remove a gaddinashin in case he married or was found to have deviated from the right path.
50. If we take all these clauses into consideration, it is not possible to say that an absolute estate was conferred upon Parnwanand Giri. He was to be a gaddinashin and as such to exercise control over the 'Ashram' and its property subject to the control of the board of 'trustees'. He clearly indicated that the gaddinashin should have no right to transfer the property, which should be preserved to provide funds for the expenses of the Pathshala, which was to be established.
51. Much stress was laid on the fact that the 'trustees' were not trustees in the legal sense of the term, inasmuch as they were not made the legal owners of the property. The 'trustees' were empowered to look after the property during the minority of Parnwanand Giri and other minor gaddinashins; to see that the income derived annually from the property was spent over the Pathshala and to appoint or remove a gaddinashin, in case it ever became necessary to do so. They could even remove Parnwanand Giri in case he married or was found to have deviated from the right path. In this view of the matter, I am not prepared to hold that an absolute right was conferred upon Parnwanand Giri.
52. Therefore, I would also dismiss this appeal with costs.
53. The appeal is dismissed with costs.