A.K. Kirty, J.
1. Suit No. 469 of 1951 was filed by the plaintiff-respondent on 21-8-1951 against respondents 2 to 5 inter alia, for the ejectment of the said defendant-respondents from house No. C-27/ 33 Mohallah Jagatgani, Varanasi. It was pleaded that Avodhesh Narain, defendant No. 1 had taken the house on rent at Rs. 15/- per month from Swami Atmavivekanand, the deceased Guru of the plaintiff. Defendants 2 to 4 were alleged to have been ,put in possession of the house illegally by defendant No. 1. The suit was contested by the defendants, who denied the tenancy and, inter alia, pleaded that they were in occupation of the house as chelas of Swami Atmavivekanand in their own right by virtue of the licence granted to them by the said Swamiji. The plaintiff's right to sue was denied and it was alleged that he was neither chela of the Swamiji nor his successor. It was alleged that on the death of Swami Atmavivankanand his natural son and disciple. Shri Krishna became the owner of the house. In the circumstances, the plaintiff got his plaint amended and impleaded Shri Krishna as defendant No. 5, The suit was also converted into a regular suit for possession.
2. According to the averments in the plaint. Swami Sarupanand. Guru of Swami Atmavivenkanand, came to Banaras some time in or about 1925 and started preaching and propagating the tenets and precepts of 'Sant Mat' of which he was himself an adherent and follower. The said Swamiji stayed in the building known as 'Bangla Kuti' situate at Garwaehat, Varanasi. Subsequently the said 'Bangla Kuti' and other buildings and land appurtenant of adjacent thereto became a math of which Swami Sarupanand was initially the mahant. Thereafter Swami Atmavivenkanand, the chief disciple of Swami Sarupanand became the mahant and, on the demise of the latter, the plaintiff, who was his chief disciple, became the mahant having been nominated to be the successor by his said Guru and also having been recognised and acknowledged as the mahant at a congregation of the followers of the Sant Mat and the mahants of several other maths or religious institutions. It is not necessary to mention the details of the other averments in the plaint, nor is itnecessary to mention in detail the various pleas raised in the written statements filed by the defendants. It will be sufficient, however, to mention that Shri Krishna, defendant No. 5, who has filed the instant appeal, was the principal, contesting defendant. He denied the existence of the math as pleaded by the plaintiff and asserted that the house in suit, in any case, was not math property. He further pleaded that the plaintiff being a Sudra was legally incompetent to become a Sanyasi and that the plaintiff was not the mahant of the alleged Garwaghat math. The said defendant claimed that after the death of Swami Atmavivekanand he became the owner of the house in suit by inheritence, as also of the properties alleged by the plaintiff to belong to Garwaghat Math. All these properties, according to defendant No. 5, were secular and personal properties of his father Baikunth Singh, who was also known as Swami Atmavivenkanand.
3. In the trial court the issues, as finally framed, were 17 in number. Out of these issues, mention in particular may be made of the following:--
1. Whether the plaintiff is the owner of the premises in suit?
8. Whether the plaintiff was nominated as a Mahant and given Chader in accordance with the custom? Is there any custom as alleged by the plaintiff?
12. Was Swami Atmavivakanand A Sanyasi and had he ceased to be a Grihast?
13. Is the plaintiff Sudra and not entitled to become Sanyasi according to Hindu Law?
14. Is the plaintiff chela of Swami Atmavivekanand and entitled to succeed to properties left by him in preference to his son Shri Krishna?
15. Is the house in suit a Math property?
17. Is Kamlasan Singh, a necessary party?
4. Issue No. 17 above, which was not pressed at the trial, was raised on the plea of defendant No. 5 that his father Baikunth Singh had also left another son Kamlasan Singlh. On the other issues noted above the trial court recorded finding in favour of the plaintiff and decreed the suit for possession and for damages at the rate of Rs. 15/- per month from the date of the institution of the suit till delivery of possession. The material findings recorded by the trial court were as follows:--
1. Swami Sarupanand was a Sanyasi.
2. Swami Atmavivekanand was initiated into ascetic order and was a Sanyasi.
3. The plaintiff himself was a sanyasi and under the custom and usage of the religious fraternity to which he belonged even a Sudra could become a Sanyasi.
4. The property at Garwaghat was Math property of which Swami Atmavivekanand was the duly installed Mahant as per custom and he was and remained in possession of the Math, properties as Mahant till his death.
5. Swami Atmavivekanand in his lifetime had nominated the plaintiff who was his chief disciple, to be his successor; and the next Mahant.
6. After the death of Swami Atmavivekanand the plaintiff was installed as Mahant of the Math as claimed by him.
7. In any event, the plaintiff was the de facto Mahant and entitled as such to recover the Math properties.
8. The house in suit was Math property and the plaintiff was entitled to sue for its recovery as owner.
9. The plaintiff was entitled to succeed to the property of Swami Atmavivekanand, that is, the Math properties, in preference to Purvashram son of Swami Atmavivekanand.
5. Some of the above-noted findings have been confirmed by the lower appellate court, while some of them have been reversed. The court below, however, has maintained the trial court's decree.
6. According to the court below three important points arose for determination:--
(1) Whether Swami Atmavivekanand was a Sanyasi and whether there existed any Math known by the name 'Math Garwaghat', and, if so, whether Swami Atmavivekanand was the Mahant of this Math?
(2) Whether the plaintiff is a Sanyasi and could be initiated into Sanyasi. and, if he is a Sanyasi, whether he was installed as a Mahant of the Math according to the custom and usage of the religious order concerned; and
(3) Whether the disputed house was the secular property of Swami Atmavivekanand or was it Math property and, in any case, who is the successor of Swami Atmavivekanand?
7. The learned Judge agreed with the finding of the trial court that Swami Atmavivekanand and his Guru Sarupanand were Sanyasis. The learned Judge, however, held that the said two Sanyasi were not Hindu Sanyasis, inasmuch as it had not been proved that they had performed any of the necessary rites which are prerequisites for entering the fourth ashram i.e. 'Sanyas Ashram'. Similarly, the learned Judge held that the plaintiff was also not a Hindu Sanyasi. The learned Judge further held that the plaintiff being a Sudra was not entitled to become a Sanyasi and that even though a Sudra renounces the world and becomes a Sanyasi he cannot be a Hindu Sanyasi and succession in his case will not begoverned by Hindu Law applicable to Sanyasis. The learned Judge further observed that 'Sant Mat' which was propagated by Swami Sarupanand and Swami Atmavivekanand could also not be said to conform to the strict Hindu religion. The learned Judge, however, observed that even though Swami Sarupanand, Swami Atmavivekanand and the plaintiff were not Hindu Sanyasis, succession would be governed by the custom in the particular sect or fraternity.
8. On the second point the learned Judge found that there was no math in existence nor was there mahant. He further 'held that the offerings made to Swami Atmavivekanand and the properties acquired by him out of such offerings were his personal properties and that the disputed house could be treated only as secular property and not the property of Garwaghat math, as alleged by the plaintiff. I may mention here that according to both the parties the house in suit was acquired by Swami Atmavivekanand from out of the offerings made to him by the devotees.
9. On the third point the learned Judge observed that in view of the finding that there was no math in existence it was not necessary to enter into the question as regards devolution of math properties. The learned Judge, however, considered how devolution of the property of a Sanyasi is to take place. In this connection he observed as follows:--
'There may be no doubt about the principle that the property of a Sanyasi can never devolve on his natural heir i.e. the sons etc. Hence no question of defendant No. 5 succeeding to the property of Swami Atmavivekanand arises. Defendant No. 5 being the son of Swami Atmavivekanand will not inherit his property acquired by him as a Sanyasi'.
10. Having thus excluded the claim of defendant No. 5 to succeed to the property of Swami Atmavivekanand, the learned Judge proceeded to consider whether the plaintiff could succeed to the property of the said Swamiji as his disciple or not, because the question whether the plaintiff had a right to sue or not would depend on the finding on the said question. The learned Judge observed that if a Sudra could become a Sanyasi in a particular order and could be recognised as a Sanyasi, then he could also be entitled to succeed to the properties of his Guru; and, for this purpose, it will only have to be found out whether the plaintiff had been recognised as the successor to Swami Atmavivekanand by the fraternity and had also been nominated by the said Swamiji as his successor. The learned Judge further observed that the fact that a disciple only succeeded to the properties of the Guru in the 'SantSampradaya' was further proved by the fact that after the death of Swami Sarupanand Swami Atmavivekanand succeeded to the properties left by Swami Sarupanand.
11. In the result, the court below while reversing some of the findings of the trial court upheld the decree. The instant appeal has been filed by defendant No. 5 only, who was also sole appellant in the court below.
12. A perusal of the judgment of the court below would show that some of the findings recorded by it are not quite consistent with certain other findings arrived at or certain observations made by it.
13. From the facts and circumstances, mentioned above, it would be clear that the findings recorded by the lower appellate court cannot be treated to be pure findings of fact, the correctness of which is not liable to be questioned in second appeal. Most of the findings necessarily involve consideration of the legal position vis-a-vis the various points of dispute between the parties. The findings, therefore, at any rate relate to mixed questions of law and fact both.
14. Initially, the learned counsel for the appellant submitted that the lower appellate court having recorded findings on crucial points in favour of the appellant, committed a clear error both of law and procedure in decreeing the suit on the basis of some sort of a custom evolved by the learned Judge himself and not pleaded by the plaintiff. It was also urged that even assuming that in the plaint there was some averment in regard to the alleged custom, legal proof of such custom, in any event, was completely wanting.
15. In support of the decree, the learned counsel for the plaintiff-respondent, on the other hand, questioned the correctness of the adverse findings of the lower appellate court and submitted that those findings were given upon a misconception in regard to the correct legal position about Maths, Mahants. Sanyasis and succession to Sanyasis even under the Hindu law as it obtained at the time of the filing of the suit and during the relevant period prior to it. It was further urged that the custom mentioned in the judgment of the lower appellate court was neither Invented nor propounded by the learned Judge himself as contended by the learned counsel for the appellant, but necessary foundation of the existence of such custom had been laid by the plaintiff in his plaint and that legal evidence to prove the custom had also been adduced. It was, therefore, submitted that even assuming that the findings recorded by the lower appellate court did suffer from any error of law, the ultimatedecree passed by the court below cannot be held to be contrary to law or unwarranted in the circumstances of the case.
16. In the course of his argument, learned counsel for the defendant appellant urged that the trial court had wrongly and without any legal justification rejected the defendant's application for permission to adduce further evidence in rebuttal of the evidence which the plaintiff had been permitted to adduce even, after be had closed his evidence. It was was also urged that even though specific grounds in regard to this matter had been taken (vide grounds Nos. 16 and 17) and an application under Order XLI, Rule 27 of the Code of Civil Procedure had been filed in the lower appellate court, the defendant appellant was wrongly denied opportunity of producing evidence to rebut the plaintiff's evidence. This, according to the learned counsel, has caused substantial prejudice to the appellant.
17. From the record, the factual position, as alleged on behalf of the appellant, is amply established. It was, however, contended on behalf of the plaintiff-respondent that even if the documents complained of be wholly excluded from consideration, the remaining evidence and material on the record would be sufficient for giving findings in plaintiffs' favour. It was further submitted that if the argument of the appellant were to be accepted, the result would be a remand of the suit itself to the trial court which, after a lapse of about 20 years, would not be at all desirable. The learned counsel for the plaintiff-respondent also made a statement that he would have no objection at all if the documents complained of by the appellant were excluded from consideration. In the circumstances, it became necessary for me to consider whether the appellant should be given an opportunity to adduce evidence in rebuttal or whether the case should be heard and decided on the basis of the evidence and material on the record, after excluding the documents complained of by the appellant. After giving my anxious consideration to the matter. I am of opinion that the course suggested by the plaintiff-respondent should be accepted. Most of the evidence on the record was placed before me by the learned counsel for the parties in support of or in connection with their respective submissions, and I found that for the decision of the case the documents complained of were not really necessary and can be completely excluded. The controversy therefore is not very material.
18. The first question which falls for decision is whether there came into being a math at Garwaghat known by the name of Garwaghat Math or otherwise. In order to arrive at a decisionon this question an examination of the relevant law on the subject would be necessary. In support of their respective contentions, learned counsel for the parties mainly relied on material passages from B. K. Mukherjea's 'the Hindu law of Religious and Charitable Trusts' and from P. S. Ganapathi Iyer's Book. 'The law Relating to Hindu and Mohemadan Endowments'. The learned counsel also attempted to fortify their respective submissions by placing reliance on a number of rulings, wherein this topic had arisen for consideration, or wherein observations bearing on the question had been made.
19. The word 'math' in ordinary language signifies an abode or residence of ascetics. In legal parlance, it connotes a monastic institution presided over by a superior and established for the use and benefit of ascetics belonging to a particular order who generally are disciples or co-disciples of the superior. (See Mukherjea's Book, 2nd Edition p. 293). According to Ganapathi Iyer, the term 'Mutt' in its original and narrow sense signifies the residence of an ascetic, or a Sanyasi or Paradesi. (This pasage has been culled out from the judgment in G. S. Pandara Sannidhi v. Kandasami Tambiran, (1887) ILR 10 Mad 375, where it has also been stated at pages 385. 386 that if an ascetic or hermit is a Brahman he is called a Yati or Sanniyasi; if a Surda he is called a Paradesi). It is primarily a building or set of buildings in which Hindu religious mendicants reside under a superior (Mahant). Though a place of worship is not a necessary part of a math, one is always found which is primarily intended for the inmates but in which public may be admitted. (See at p. 239 of Iyer's Book). In Golap Chandra Sarkar Shastri's Commentary on the Hindu Law (Eighth Edition) at Page 661, a math has been stated to mean a place for the residence of ascetics and their pupils and the like. At page 658 of the same book, 'however, it has been stated that the term 'Math' means a monastry or a residential college or a college attached to a temple or an asylum for the poor and the ascetics or a shelter for travellers or a combination of all these or some of them. According to Mulla, maths are religious foundations the object of which is generally the promotion of religious knowledge and the imparting of spiritual instruction to the disciples and followers of the math. They are institutions conducive to spiritual welfare. (Mulla's Hindu Law. 13th edn. p. 581).
20. The term 'Math' has not fully retained its original meaning nor its original character or significance. Maths as such, points out Mukherjea, were unknown in the Vedic Ages. It was Sankaracharya who in the 8th centuary set up Hindu maths or monasteries based on the pattern of Buddhist maths or monasteries. From a mere abode of ascestics, maths gradually became theological institutions serving mainly as seats of preaching and propagating religious tenets, doctrines and precepts of Hindu spiritual and religious leaders, or of practising and performing ceremonies and rites enjoined or recommended by them. The origin and incidents of maths were broadly summarized in Sammantha Pandara v. Sellappa Chetti, (1878-80) ILR 2 Mad 175 and 179) as follows:--
'The origin of mattams is ordinarily as follows:-- A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mysteries of the order, and instructs in its religious tenets. Such of these disciples as intend to become religious teachers, renounce their connection with their family and all claims to the family wealth, and. as it were, affiliate themselves to the spiritual teacher whose school they have entered. Pious persons endow the schools with property which is vested in the preceptor for the time being, and a home for the school is erected and a mattam constituted. The property of the mattam does not descend to the disciples or elders in common; the preceptor, the head of the institution, selects among the affiliated disciples him whom he deems the most competent, and in his own lifetime installs the disciple so selected as his successor, not un-commonly with some ceremonies. After the death of the preceptor the disciple so chosen is installed in the gaddi, and takes by succession the property which has been held by 'his predecessor. The property is in fact attached to the ............ office andpasses by inheritance to no one who does not fill the office. It is in a certain sense trust property; it is devoted to the maintenance of the establishment, but the superior has large dominion over it, and is not accountable for its management for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution'.
The Madras High Court In G.S. Pandara Sannidhi's case. (1887) ILR 10 Mad 375 again dealt with the question of origin and growth of maths in detail in paragraphs 5, 6 and 7 of the judgment. The same subject came up for consideration and discussion in Vidyapurna Tirtha Swami v. Vidhyanidhi Tirtha Swami, (1904) ILR 27 Mad 435 and in Kailasam Pillai v. Nataraja Thambiran, (1910) ILR 33 Mad 265 (FB). The matter was considered by several other High Courtsalso, but it is not necessary to refer to those cases since there are pronouncements of the Privy Council on the subject.
21. In Ram Prakash Das v. Anand Das. 14 All LJ 621 = (AIR 1916 PC 256) the Privy Council described the nature of maths and the circumstances under which they come into existence thus:--
'An asthal, commonly known In Northern India as a muth, is an institution of a monastic nature. It is established for the service of a particular cult, the instruction in its tenets, and the observance of its rites. The followers of the cult and disciples in the institution are known as chelas; the chelas are of two classes -- celibate and non-celibate. .........the mahant is the head of the institution. He sits upon the gaddi; he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual rites; he maintains the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself'.
Further on their Lordships observed:--
'It is, however, the rule that this property is held by the mahant as its owner, and the succession to him in such property follows with the succession to the office. The nature of the ownership is, as has been said, an ownership in trust for the muth or institution itself, and it must not be forgotten that although large administrative powers are undoubtedly vested in the reigning mahant, this trust does exist and that it must be respected'.
In the case before their Lordships the dispute was between two rival claimants to the office of Mahant of an asthal known as Patepore Asthal, In that asthal there were bairagi or celibate cheals and grihast or householder chelas. By the custom of the Math only a bairagi or religious chela could become the Mahant. 'Upon the death or abdication he (the Mahant),' it was observed, 'is succeeded by one of the bairagi chelas'. It was further observed that these bairagi chelas were celibates; or if they had ever been married they must have renounced their wives and families and conformed to the practice of the Math prior to their initiation as bairagi chelas. It was pointed out that this practice is ascetic and involves a separation from all worldly wealth and ties, and a self-dedication to the services and rites of the asthal.
22. In Basudeo Roy v. Jugal Kishwar Das, 16 All LJ 601 = (AIR 1918 PC 37) while dealing with the question of Maths and their incidents, the Privy Council adverted to its earlier decision in the case of Ram Prakash Das, AIR 1916PS 256 (supra) and in fact cited therefrom parts of the passages which have been quoted above in this judgment. In Kalanka Devi Sansthan v. Maharashtra Revenue Tribunal, Nagpur, AIR 1970 SC 439 it was stated that the distinction between a manager or a shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do not vest in the manager or the shebait. It is the deity or the Sansthan which owns and holds the property. It is only the possession and the management which vest in the manager.
23. From the foregoing paragraphs it will be sufficiently clear that a math is an institutional sanctum presided over by a superior who combines in himself the dual offices of being the religious or spiritual head of the particular cult or religious fraternity and of the manager of the secular properties of the institution of the math. In the instant case, to my mind, the evidence on record sufficiently establishes that a math came to be established at Garwaghat Varanasi and the building known as 'Shanti Kuti' and certain other buildings constituted an endowment to the Math itself. This is clear from the depositions of two out of the three owners of the properties who subsequently executed formal deeds of gift, though in the name of Swaml Sarupanand and Swami Atmavivekanand. This would, however, in my opinion make no material difference. It is settled law that Maths are juridical persons capable of owning and holding property. In Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar. 20 All LJ 497 = (AIR 1922 PC 123) the Privy Council observed as follows:--
'It is also to be remembered that a 'trust' in the sense in which the expression is used in English law is unknown in the Hindu system, pure and simple. ............ Hindu piety found expressionin gift deeds to ............ religious institutions of every kind and for all purposes considered meritorious in the Hindu social and religious system; to Brahmins, Goswamis, Sanyasis etc. When the gift was to a holy person it carried with it in terms or by usage and custom certain obligations. Under the Hindu Law the image of a deity of the Hindu pantheon is, as has been aptly called, a 'juristic entity', vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are recorded as possessing the same 'juristic' capacity, and gifts are made to them eo nomine'.
I have, therefore, no hesitation in holding, in agreement with the finding of the trial court, that there had come into existence a Math at Garwaghat,Varanasi, of which Swami Sarupanand was the Mahant. Here I may also mention that from the evidence on record it appears that 'Sant Mat' is not of very recent origin. Although the evidence is somewhat scanty on the point, yet it sufficiently indicates that this 'Math' has had numerous followers in Punjab and some other parts of India since more than a century. In a sense, therefore. Swami Sarupanand himself did not for the first time evolve any new religious order. Here it may also be mentioned that defendants other than the appellant did not seriously dispute the plaintiff's allegation in regard to the Math in question and the allegation that Swami Sarupanand and thereafter Swami Atmavivekanand were its Mahants.
24. It was, however, argued that a math as such cannot come into existence unless a dedication has been made of property which is to be owned by the math and which is to provide the seat of religious learning, discourses and practices of the particular order concerned. It was submitted that in the instant case there was no such dedication as may be legally recognised for the purpose of holding that a math had come into existence and that the property mentioned by the plaintiff in his plaint, apart from, the house which is directly the subject-matter of the suit, belonged to that math.
Under the Hindu Law, in case of dedication of property to an idol it is not necessary that dedication must be made in writing. Dedication can be made by an open, unreserved and unconditional expression of the decision to impart ownership in the property in the idol to which dedication is being made. There may be certain formalities attached to dedication of property either to an idol or to a math, but, it seems to me, what were considered to be the indispensable formalities, the performance of which could not be dispensed with for making a Sankalp and Utsarga at one time, have lost much of their rigour with the passage of time. What has to be decided in every case, to my mind. Is whether the facts, evidence and material circumstances of a case clearly establish that the property which is said to be math property has in reality been dedicated to the math, even though some of the formalities, considered to be absolutely essential once have not been proved to have been actually performed. The absence of proof of performance of such formalities, to my mind, by itself cannot and should not be treated to be a valid ground for holding that there has been no dedication even though the surrounding circumstances, the conduct of the persons concerned and the uses to which it was put unmistakably show that the property in question has at all material times been treated and dealt with as belonging to the math itself and not to any individual.
This, in my opinion, should specially be so in a case where the person or persons who had once owned the property themselves do not claim or assert any ownership but on the contrary come forward, as they have done in the instant case, to give evidence stating on oath that in fact the property had been given by him or them for the purpose of a math or religious institution being set up. The instant case, in my opinion, is one in which from the acts and conduct of the donee, the donors and the various followers and adherents of the religious teachings and precepts of Swami Sarupanand and Swami Atmavivekanand it is amply proved that the property at all relevant times was used as math for the purposes of the math, I have, therefore, no hesitation in holding that the property at Garwaghat. Varanasi alleged by the plaintiff to be math property was in fact and in law math property. It is immaterial that it was not so described in any particular document nor was any mutation effected in the name of the math in the records of the Municipality of Varnasai. In my opinion the entry of the name of Swamy Atmavivekanand in the Municipal records was merely in his capacity as a Mahant of the math which owned the property, that is, the Mahant was its ostensible owner and manager, the real owner being the math itself.
25. Alternatively, it was submitted that even if the land and buildings at Garwaghat, Varanasi were held to be math-property, the house in suit was the personal property of Swami Atmavivekanand, succession to which would be governed by personal law and the property would be inherited by his personal heirs. Therefore, the plaintiff had no legal right to obtain any decree for possession over the house. It was urged that even though the house in question was acquired by Swami Atmavivekanand by the utilisation of the offerings made to him by his devotees, the house still would be his personal property, even if he had become a Sanyasi.
26. Swami Atmavivenkanand before becoming a follower of the Sant Mat was a Grihast with a family. From the evidence on the record it transpires that he became a devotee and a disciple of Swami Sarupanand and severed all connections, with his family. In course of time he was held in high esteem by the followers of the Sant Mat at Varanasi and other places and large offerings were made to him by the devotees. Swami Sarupanand had nominated him to be his successor and after his death Swami Atmavivekanand did assume the office of Mahant of the math. There is no evidence from which it can be reasonably inferred that he treated or set apart the offerings either in their entirety or some portion thereof as belonging to him personally. On the contrary the evidence on record and the circumstances show that there was a complete blending of such offerings with the funds of the Math and used for its purposes. There is also no reliable evidence to establish that the offerings which were made to him were made not for the purposes of the spiritual order or the fraternity but for his personal aggrandizement. Indeed, when a person renounces his family connections and takes to asceticism it would be difficult to hold that he would thereafter start amassing wealth and property for this personal benefits or for the benefit of his family with which he had severed his connection. Unless specifically proved to the contrary, under such circumstances it must be held that the offerings made, to such a person were not offerings made to him personally for his personal benefit but had been made for the benefit of the math or the religious institution itself. In such a case, to my mind, the natural heirs of the persons concerned could have no claim to the property which the person came by in his capacity as the religious or spiritual leader. The house in suit must be held to be an accretion to the Math.
27. There was considerable controversy as to whether the plaintiff being a Sudra could or could not be initiated into Sanyasam. A faint attempt was made on behalf of the plaintiff to show that he was not a Sudra, but belonged to the community of 'Yadubanshi Chhatrya'. I do not propose to enter into this question. I will proceed on the assumption that the plaintiff is a Sudra.
28. The disqualification, if any, of a Sudra to enter into an order of Sanyasam or asceticism did not survive with the passage of time. This is clear from the fact that Sudra Maths came to be established in several places in India. This would have been impossible if the very orthodox and conservative inhibitions prevailed under which a Sudra was debarred from entering into the order of Sanyasam. From a perusal of Mukherjea's book referred to above and other books on the subject it will be clear that In the Vedic Ages Sanyasam as such was unknown. It is also dear that maths were also unknown. The asceticism recognised by Vedas and other religious texts was for those who adopted the life of mendicants. They were debarred from acquiring or holding property other than the barest minimum necessary for their sustenance. Therefore when maths came to be established presided over by a superior or Mahant, the law itself underwent a radical change, because althoughin most of the maths only Sanyasis were deemed to be qualified to hold the office of Mahant, the mahants were recognised as having in a large measure dominion and control over the math properties and the income therefrom. This position would be wholly inconsistent with the rigorous life of a Sanyasi prescribed by ancient Hindu texts.
29. In Golapchandra Sarkar Sastri's Hindu Law (Eighth Edition) it has been observed at page 113 as follows:--
'Twice-born and Sudras-- The Smritis, which have thrust into prominence this system, divide men into two large classes, namely, the Sudras and the Twice-born. The study of the sacred literature forms the principle of this distinction. They ordain that by birth all men are alike to Sudras, and the second birth depends on the study of the sacred literature'.
Again at page 184 of the same book is to be found the following passage:--
'According to the Smritis, every man is by birth a Sudra; it is by learning the sacred literature, that a man becomes twice-born. The privilege of studying the sacred literature is, no doubt, denied to the Sudras as well as to the females of the so-called twice-born classes. But the status of being twice-born depends on the acquisition of knowledge of the sacred literature. Manu ordains that a twice-born man shall abide with the preceptor, and study the Vedas for thirty-six years or a half or a quarter of that period or until knowledge of the same is acquired'.
The consequence of omitting to do the same, according to Manu, is that a twice-born man, who without studying the Vedas, applies diligent attention to anything else, soon falls even when living, together with his descendants, to the condition of a Sudra, The learned author has observed that the majority of the so-called twice-born classes have accordingly become long since reduced to the position of Sudras by reason of neglecting the study of the Vedas from generation to generation. The learned author proceeds further to observe thus:--
'There are, no doubt, some modern fabrications called Upa-puranas, and concocted for the purpose of avoiding the foregoing evil consequence propounded by the Smritis--which may say that the study of the Vedas for a long time is a practice which is to be eschewed in the Kali age and accordingly the farce of the Vedic study for a day or two is now made when the upanayana ceremony is nominally performed, and fittingly called investiture with the sacred cord though it really meant commencement of the study of the Vedas, the literal import being taking (a boy and handing him over) to (a teacher of the Vedic literature). But these spurious books forged and thrust into prominence by the Pandits of the Mahometan period for the benefit of the unlearned members of their class, cannot be regarded as any authority by a British Court of Justice. The Purans and specially Upa-puranas are no authority in law'.
30. It will be thus seen that originally every person was deemed to be born a Sudra and that it was by virtue of intensive study of Vedas that a person attained the status of a twice-born person With the passage of time running into thousands of years, it is evident that the original hall-marks for classification of Sudras and twice-born people gradually disappeared and degenerated into the rigid caste system based on birth. My attempt here is only to show that according to our sacred texts it is not possible to hold that a man by the sheer accident of being born as a Sudra would remain permanently disabled or disqualified from entering into the order of Sanyasam. Assuming that such a disqualification attached to a Sudra by birth for many centuries before the attainment of freedom by our country in 1947, it would, in my opinion, be taking a retrograde step to give judicial sanction to the continuance of such disqualification or disability which had been imposed by Pandits of the Mohemadan or even pre-mohemmadan period. In the existing society it would almost be impossible to find a single individual out of a million who, according to the strictest formulation or tests prescribed by the Vedas or Smritis, can be accepted as a Brahmin.
I have already mentioned above that from a reading of several commentaries and a number of reported decisions it appeared to me that the order of Sanyasam as such did not obtain in the Vedic ages. If thereafter a new order of Sanyasam as such was developed and recognised, a departure evidently had been made from the four-ashrams prescribed and recommended in the Vedic age. I have also mentioned that maths as such came to be established by Sankaracharya and by other religious and spiritual leaders thereafter. In this respect also, therefore, there was a considerable departure from the Vedic precepts or ideals. It seems to me that all this was possible because the original sacred texts of the Hindus contain potentialities and genes for conception, evolution or adoption of new but homogeneous ideas, tenets or cults. For this reason I dare say that the fold of Hinduism is wide and elastic enough to embrace and incorporate therein new ideas and orders which are not wholly repugnant to the basic or fundamental concepts and ideologies of Hinduism. I would add here that, in my opinion, having regard to the various provisionscontained in Part III of the Constitution, to wit Articles 14, 15, 19(1)(f), 23, 25, 26, 28, 29 and 30, it would be idle to say that the disqualifications or disabilities, attached or deemed to be attached to a person by virtue of his birth in the particular caste e.g. Sudra, continues or can continue.
I may refer to the decision of the Supreme Court in Ishwardeo Narain Singh v. Smt. Kanta Devi. AIR 1954 SC 280 in which Articles 19(1)(f). 25 and 26 were held to apply to a Mahant and his rights, both secular and religious. To my mind, the changed and changing society accepted that even a Sudra could be a Sanyasi and by virtue of his spiritual or religious attainment held in universal esteem by Hindus, By way of example I may mention that Swami Viyekanand (Narendra Nath Dutta) who being a Kayastha, according to the decision of the Calcutta High Court in Raj Commar. v Bissessur, ILR 10 Cal 688 and Asita v. Nirode, 20 Cal WN 901 = (AIR 1917 Cal 292), was a Sudra, was initiated into the order of Sanyasam by no less a person than Paramhans Ram Krishna and nominated as his chief disciple. It would be preposterous to say, in my opinion, that Swami Vivekanand having been born as a Sudra Was inherently disqualified from entering the order Sanyasam. It is not necessary to discuss this matter further.
To sum up, my opinion is that even though as a result of custom, usage or practice or of sacramental precept Sudras might have been considered to be incapable of entering into the order of Sanyasam at one time, such disqualification ceased to exist long ago and can no longer be held to exist now. The submission of the appellant, therefore, that the plaintiff being a Sudra was legally incompetent to enter the order of Sanyasam or to become mahant cannot be accepted.
31. In Dharmapuram v. Virapandiyam, (1899) ILR 22 Mad 302; Somasundaram v. Vaithilinga, ILR 40 Mad 848 at p. 849 = (AIR 1918 Mad 794 (2); Harish v. Atir, (1913) ILR 40 Cal 545) Narsinhdas v. Khanderao, AIR 1922 Bom 295: Lochan v. Adhar. 35 Ind Cas 630 (AIR 1917 Cal 231); and in certain cases it has been held that a Sudra cannot be a Sanyasi. In the face of these rulings it might not have been permissible for me to take the view which I have expressed above; but, in my opinion, the authoritative force or the persuasive value of such rulings no longer subsists. To my mind, the discriminatory ban on or bar against Sudras, even if enjoined by Hindu Law, stands abrogated by virtue of the constitutional mandates embodied in Part III of our Constitution: I also rely on the maxim Vox populi est vox Dep in support of my view. On this topic, a passage from Golapchandra Sastri's book (supra) may also be aptly quoted. The learned author observed (at page 662) as follows:--
'It has been held that a Sudra cannot become a Sanyasi or ascetic. This is undoubtedly the doctrine propounded in the Smritis. But the learned Judges have not taken into consideration the modern usages introduced by the Vaishnava and the Tantrika and other systems according to which a Sudra and even a non-Hindu such as Mohomedan may become a Hindu Sanyasi. There are many religious sects of ascetics among whom caste distinction is unknown, who accordingly initiate and admit sudras into their brotherhood if otherwise qualified. In esoteric Hinduism also, caste is individualistic not hereditary, it being determined by qualification and not by birth. The highest virtue taught by the Hindu religion is that a man should regard other persons and beings as his own self reproduced in them as the same Supreme Soul pervades them all'.
32. The question next falling for consideration is whether the plaintiff and his two predecessors were not Hindu Sanyasis and, therefore, were not competent to assume or hold the office of Mahant The finding of the court below on this point is in appellant's favour, the reason given therefor being that the plaintiff failed to prove that he or his predecessors had performed Arma Sradh, and uttered Pravesh Mantra as mandatorily prescribed by Hindu Law. The factual part of the finding, viz. the performance of the Sradh and the utterance of the Mantra, is binding in second appeal, but the conclusion drawn therefrom is one of law. I have generally considered the legal aspect of the matter earlier in my judgment and expressed views on a broader hypothesis which might appear to militate against judicial pronouncements which are binding on me. I have done so not in a spirit of defiance or impudence. My purpose was merely to indicate that the exigencies of the times and of the society sometimes demand, even from the judiciary, new unconventional and uninhibited approach to problems arising from impact of radical changes in the outlook of the people and the impact of changing standards or values in all important spheres of human activity. A Judge is very often helpless under such circumstances. He can interpret and expound the law and apply it as so interpreted and expounded judicially. It is not, however, given to him to make laws nor can he accede to a pressing or popular demand by resorting to a ruse under the garb of his role as interpreter of the law. But, if ever and when, an appropriate occasion arises, a Judgeshould not, in my opinion, hesitate to cast away old and rusted moorings and venture into new, and may be troubled, waters of interpretation of laws to find out whether the particular law in question is so certain or inflexible as to be incapable of being adapted to meet the demands of the changed or changing society. He must exercise utmost caution and restraint; if he finds this can be done within the ambit of his jurisdiction, function and duty as a Judge he must go ahead, else he must leave it to the legislature or to the competent court if confronted with judicial precedents binding on him.
33. In the instant case, after a review of the rulings noted below I do not find any insuperable difficulty in holding that the plaintiff and his two predecessors were not legally incompetent to hold the office of the Mahant of the Math in question: (1) Ramdhan Puri v. Dalmir Puri. (19101 14 Cal WN 191; (2) Gouri v. Niadar. 18 Cal WN 59 = (AIR 1914 Cal 228); (3) Kandol Row v. Swamulavaru. 33 Mad LJ 63 = (AIR 1918 Mad 402); (4) Goshain Shao Ghulam Puri v. Shiam Lal Bhagat, AIR 1928 All 257; (5) Baldeo Prasad v. Arya Priti Nidhi Sabha, AIR 1930 All 643; (6) Brahmadeo v. Ramanand, AIR 1933 Pat 70 and (7) Jagar Nath Gir v. Sher Bahadur Singh. AIR 1935 All 329.
A reading of the judgments in the above--noted cases will show that the various observations therein in regard to performance of Atma Sradh and other rites (Prajapathiyesthi Viraja homam etc.) and the utterance of Pravesh Mantra etc. were made with reference to particular sects or categories of Sanyasis claiming to belong to a particular religious order or class of such order, or with reference to 'Sanatan'. i.e. orthodox, Hindu Dharma. It is true that on cursory reading it would appear as if the observations formulate indispensible legal requirements of the Hindu law universally applicable to every (Hindu) ordained Sanyasi, but, upon, a careful analysis I have found that that is not so. The law as stated therein is generally or usually, but not invariably, applicable. In the absence of any proof that the followers of the Sant Math or the tenets of that Math required of its Mahant that he must necessarily belong to the twice-born class of Hindu and be a Sanyasi who has been ordained as such strictly in accordance with all the rites and ceremonies mentioned in the aforesaid cases, I am not prepared to hold that Swami Sarupanand and Swami Atmavivekanand were legally incompetent to be Mahants of the Math or that the plaintiff is a person disqualified from assuming and holding that office. They did not inflict themselves on the religious fraternity concerned nor had been foisted intoMahantship against the will or in spite of the disapproval of its members. In my opinion, therefore, the plaintiff as held by the courts below. was entitled in his capacity as the Mahant of the Math to institute the suit for recovery of possession of the house in suit, which was rightly held by the trial court to appertain to the Math.
34. Even if there be any room for doubt as to whether the plaintiff validly assumed and held the office of the Mahant of the Math, though I have none, I fully endorse the finding of the trial court that he in any event as the de facto Mahant was entitled to sue for the recovery of the property. This aspect of the matter appears to have escaped the notice of the lower appellate court.
35. In view of all that has been stated hereinabove, the submissions made on behalf of the appellant about custom or usage are not of much importance. Even if the plaint suffered from omission of necessary averments or lack of particulars, the appellant cannot be permitted to make capital out of it. The issues upon which the parties went to trial fully and adequately covered all the material points and the parties were fully conscious of the same. In regard to paucity of evidence, it is evident that there could not be a large number of instances Inasmuch as Swami Sarupanand was the first Mahant, who was succeeded by his nominated disciple Swami Atmavivekanand and the latter nominated his Chela, the plaintiff, as the next Mahant. Since the followers of the Sant Mat adopted a practice in accord with the prevailing custom and usage generally obtaining in various other Maths, it was not necessary to prove such custom or usage independently by adducing evidence of numerous instances. In Raghubhushana v. Vidiavaridhi, 34 Ind Cas 875 = (AIR 1917 Mad 809), the two learned Judges of the Madras High Court observed (at P, 8821 as follows:--
'Ordinarily no doubt, the Court requires proof of at least more than one instance in which the alleged customary right has been exercised; but there is no hard and fast rule to that effect. The usage or custom set up is not in antagonism to or in variance of any general rule of Hindu Law ............... In such a case the court would not insist upon such strict proof as when a custom or usage is set up in derogation of the general law'.
I respectfully agree. The court below did not commit any legal error in giving the finding it did on this point.
36. In the result the appeal fails and is dismissed with costs.