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Avasarala Kondal Row and anr. Vs. Iswara Sanyasi Swamulavaru Alias Avasarala Kamarazu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1918Mad402; (1917)33MLJ63
AppellantAvasarala Kondal Row and anr.
Respondentiswara Sanyasi Swamulavaru Alias Avasarala Kamarazu and ors.
Cases ReferredGouri Sanker v. Naider
Excerpt:
.....as to the acts to be done and the ceremonies to be performed by a brahmana before he can become a sanyasi, as to the effect of that status on legal rights, as to the possibility of a reversion from or change of that status, and as to how far british indian courts are bound or entitled to recognise any such limited or inferior civil status; , besides the well-known four castes, a fifth caste comprising all other beings, that sanyasam according to vedic rites does not exist (sic) and that all the above five castes can become avadhutha sanyasis according to the saiva ritual. in an interesting passage in pollock and maitland's 'history of english law 'the learned authors describing the status of a monk say, a monk or nun cannot acquire or have any proprietary rights. in the eye of..........the postulant for sanyasam after learning the duties of a sanyasi should first perform his death ceremonies,--this however is by some not considered necessary,--and the eight sradhas the last of which is his own sradha; he must then distribute his wealth to his sons and brahmins reserving enough for the homam (sacrifice in the fire) to be subsequently performed. then he has to perform prajapathyeshti or agneshti and finally viraja homam. these are sacrifices in fire and are purificatory ceremonies. at the end of ceremonies the postulant has no property at all for even the sacrificial vessels if they are of wood must be burnt in the fire and if they are of metal must be given to the priest. after these are done he takes leave of his sons, and standing in water takes some water in.....
Judgment:

Srinivasa Aiyangar, J.

1. This is an appeal by the plaintiffs against the decree of the Subordinate Judge of Coca-nada dismissing their suit to recover possession of the immoveable properties belonging to the 1st defendant, from him and his alienees. There are 2 plaintiffs, but as the 2nd is only an assignee from the 1st and as it is the right of the first plaintiff that is in question in the suit, I shall hereafter refer to the 1st plaintiff as the plaintiff. The claim is as the universal legatee, heir and successor of a living person the 1st defendant. According to the plaintiff the first defendant his uncle, made his will on the 20th December 1905 at Benares by which he bequeathed all his immoveable properties--they are the suit properties--to the plaintiff, constituted him his heir and successor, and a few days after, became a Sanyasi or entered the fourth asrama prescribed by the sastras, became dead to the world and its concerns, and the plaintiff therefore became the owner of his properties as if the 1st defendant had died on the day he became Sanyasi. This remarkable claim--for this is the first instance to my knowledge of a claim to recover possession from a 'living person of his properties as his heir or legatee which involves the fiction of civil death--requires to be made out in the clearest possible manner. The plaintiff and the first defendant are Telugu Brahmins of the Godavari District and belong to the sect called Golakonda Vyaparies who though they wear namams and follow some of the practices of Sri Vaishnavas, in several other matters apparently follow the practices of Smarthas. Several interesting questions were argued at the hearing of this appeal, as to the acts to be done and the ceremonies to be performed by a Brahmana before he can become a Sanyasi, as to the effect of that status on legal rights, as to the possibility of a reversion from or change of that status, and as to how far British Indian Courts are bound or entitled to recognise any such limited or inferior civil status; but in the view I take of the facts it is scarcely necessary to decide most of the questions so argued.

2. It must be remembered that there are a large number of sects with their peculiar rites, mode of initiation and practices who though in a general sense may be termed ascetics cannot come under the category of those who have entered the fourth order (asrama) in the ideal of life prescribed for the Brahmana by the Dharma Sastras. For example, in a passage cited in Sarkar Sastri's Hindu Law from Maha Nirvana Tantra, it is said that in this Kali age there are five castes (varnas) i.e., besides the well-known four castes, a fifth caste comprising all other beings, that Sanyasam according to Vedic rites does not exist (sic) and that all the above five castes can become avadhutha Sanyasis according to the Saiva ritual. As regards ascetics of this class, it is impossible to apply the special texts in the Smritis or to hold that they are divested of their property or become incapable of holding any or that the special rules of inheritance prescribed for Vanaprastas (hermits) Yathis (ascetics) and Brahmacharies (perpetual students) govern succession to their property on their death. It has been held in this Court that as a Sudra cannot become a Yathi or Sanyasi according to the Smrithis or the Dharma Sastras, his property on his death devolves on his natural heirs, though there can be no doubt that a Sudra is ordained as an ascetic according to the Saiva Agamas. So also in Bengal the rule of inheritance applicable to Yathis is not applied to Bairagis who apparently may be of any caste. In Mr. Oman's book on 'Ascetics etc.,' and Dr. Bhattacharya's book on ' Hindu Castes and Tribes ' are described a considerable number of orders of ascetics who are not governed by the rules prescribed in Smritis or by Nibandakars whom for convenience I may call heretical sects; and so far as they are concerned, in the absence of any special custom, there is no reason to treat them as of inferior status for the purposes of Civil Law. Unless therefore the plaintiff proves that the 1st defendant became a Sanyasi according to the orthodox rites and ceremonies--I shall show later on that it is essential for such a Sanyasam that there should be an actual gift or an actual relinquishment or abandonment of all worldly possessions--the plaintiff cannot succeed, even though he may be able to prove that the 1st defendant wore coloured clothes or shaved his head or acquired certain external symbols of Sanyasam; for some or all of these are adopted also by the heretical sects.

[Then His Lordship after discussing the evidence proceeds as follows.]

3. Assuming however that that evidence is true and the witnesses accurately describe what they saw, yet the evidence appears To be insufficient to prove that the 1st defendant entered the holy order of Sanyaais by the performance of the necessary rites and ceremonies prescribed by the Sastras; in particular there is no evidence that the 1st defendant pronounced the Praisha Mantram which is absolutely essential for an orthodox Sanyasam. The ideal ascetic is he who having passed from order to order, having paid the three debts (that to the Rishis, to the Pithris and to the Devas) in the evening of his life tired of the world gives up everything and determines on passing the remainder of his days in holy meditation calmly awaiting his release. (Manu, Ch. VI, v. 33 to 37 and 45. Jabala Sruti cited in Apararka's commentary on Yajnavalkya and Yajnavalkya, Ch. III, v. 57). The essence of such Sanyasam as the word itself imports, is the relinquishment of all property and worldly concerns even of the desire for them. In the Taithireya Upanishad, it is said 'not by works, not by sons, not by wealth, but by relinquishing these some obtained immortality.' 'Getting out of the desire for sons, for wealth, and the world, a Brahmin goes into mendicant state. ' (Bikshacharyam charanti) Vajasayena Brahmanam cited in Parasara Madhaviyam, Bombay Sanskrit Series, Vol. 48, page 152. The rituals to be followed by a person desirous of becoming a Sanyasi are indicated in the Smritis and are set out in detail in the works of the commentators and text book writers (Manu, Ch. VI, verses 38, 39, 41, 43; Baudhayana II. 10, 17; Parasara Madhaviyam, pages 146 to 178; Dharma Sindhu, pages 363 to 370, Bombay Edition).

4. The postulant for Sanyasam after learning the duties of a Sanyasi should first perform his death ceremonies,--this however is by some not considered necessary,--and the eight sradhas the last of which is his own sradha; he must then distribute his wealth to his sons and brahmins reserving enough for the homam (sacrifice in the fire) to be subsequently performed. Then he has to perform Prajapathyeshti or Agneshti and finally Viraja Homam. These are sacrifices in fire and are purificatory ceremonies. At the end of ceremonies the postulant has no property at all for even the sacrificial vessels if they are of wood must be burnt in the fire and if they are of metal must be given to the priest. After these are done he takes leave of his sons, and standing in water takes some water in his hand and drops it saying that he has given up desire for sons, wealth, world and everything (Sarva Thyagam). He makes a vow that he will not injure any living being. Finally there is the uttering of the ' Praisha Mahtram,' The literal meaning of the. Mantram is 'have been given up by me' (Sanyastham maya). The mantram is to be pronounced low three times, and loud twice and till the mantram is pronounced the man does not become a Sanyasi. The above is common to all Sanyasams, but there is a difference of opinion as to the discarding of the sacred thread, as to the shaving of the tuft and as to the number of sticks in the staff. This is due to certain doctrinal differences which it is unnecessary to deal with for the present purpose beyond saying this; that the discarding of the holy thread which implies the giving up of all the duties prescribed not merely for the order (Ashrama), but also for the caste (varna) including the obligatory Sandhyavandanam, is proper only to the highest kind of Sanyasi, Paramahamsa. It is said in the statement of the 11th defendant, that the 1st defendant became a Paramahamsa, but if he did, he should not have resided in a house or in a village; he can enter a village only in the evening for begging for his meals. It is to be observed that the essential feature of Sanyasam is the actually relinquishment of all property and an actual abandonment of all worldly concerns, down to even a desire for them; and it is said in the most emphatic terms that a person adopting Sanyasam, without this abandonment of all desires (vairagyam) goes to fearful narakam (Dharma Sindhu, page 364). It is clear that in this case the first defendant did not abandon or relinquish his property and had no intention of doing so; and there is no evidence that he pronounced the ' Praisha Mantram' without which he cannot become a Sanyasi. The learned Subordinate Judge thinks that without relinquishing his property, a man may become a Sanyasi, but the Sanyasam would be useless; and from the verse of Yajnavalkya which prescribes a rule of inheritance for an ascetic's property, infers that a Sanyasi may possess property. Perhaps it is a question of words, but it appears to me that to speak of a Sanyasi retaining his property is a contradiction in terms. The rule as to inheritance is explained by the commentators as applying to the staff, water pot, and sandals of a Sanyasi, which alone is permitted to him (Manu, Ch. VI, verse 41 'Pavitropakitiah'). The learned Judge is not right in thinking that an ascetic can make a hoard of things for a day, a month, or six months or a year; for that can be done only by a Vanaprastha or Hermit. On the other hand it is said in a verse cited in Parasara Madhaviyam (page 184) that a Sanyasi should not even procure an extra staff for future use. Similarly in Gouri Sanker v. Naider 18 C.W.N. 59 it appears to have been held that without actually relinquishing or abandoning his property a man cannot become a Sanyasi.

5. If however the first defendant became a Sanyasi, his heirs would take his property and probably his legatee even during his life-time. In an interesting passage in Pollock and Maitland's ' History of English Law ' the learned authors describing the status of a monk say, ' A monk or nun cannot acquire or have any proprietary rights. When a man becomes 'professed in religion,' his heir at once inherits from him any land that he has, and, if he has made a will it takes effect at once as though he were dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend, he is overlooked as though he were no longer in the land of the living; the inheritance misses him and passes to some more distant relative. The rule is not that what descends to him belongs to the house of which he is an inmate; nothing descends to him for he is already dead. In the eye of Ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights on the separate enjoyment of any wealth, committed about as bad an offence as he could commit.' Except that the Smriti writers and commentators had no conception of a will, the above passage accurately represents the status of a Sanyasi under the Hindu Law. It does not seem to be necessary that there should be an actual transfer to, or a relinquishment in favour of any particular person, but one about to become a Sanyasi may simply abandon his property in which case the law will vest it in his heirs. In the Dayabhaga in the very beginning where the author discusses the meaning of the word 'Daya' and origin of right to property, he points out that not merely by gift, but by death, Sanyasam, etc., the right of the previous owner is lost, and that of the successor begins. The same principle is applied in fixing the time for partition. The author explains that the phrase ' the death of the father ' does not necessarily mean actual death, but includes Sdnyasam, etc. (Stoke's Hindu Law Books, Daya Bhaga, Ch. 1, placitum 4 and 31. The Sanskrit word translated as ' retirement' is 'Pravrajita'). ' See also 2 Colebrooke's Digest, p. 197. This appears also to be the opinion of text writers (Strange, pages 164, 185; Trevelyan, p. 100;. Mayne, p. 828; Vyavasta Chandrika, p. 20). It is however unnecessary to pursue this matter further as I have come to the conclusion that the first defendant did not enter the fourth order as prescribed in the Dharma sastras; nor is it necessary to decide any other questions. The appeal must be dismissed with costs.

Abdur Rahim, J.

6. I agree.


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