Seshagiri Aiyar, J.
1. In this case, a subsidiary question, out of all proportion to the point involved in the Civil Miscellaneous Appeal has arisen for decision. The suit out of which the Civil Miscellaneous Second Appeal has arisen was brought by Vishnu the then head of a mutt to evict a tenant. The amount of compensation payable to the tenant on eviction was the subject matter of the appeal. Vishnu died after he preferred the appeal. Rival claimants to the headship of the mutt which possesses extensive properties have presented petitions to this Court to be added as legal representatives of the deceased plaintiff. These petitions were referred to the District Judge for report. It has been pointed out to us that a report or a finding of the District Judge is not contemplated by Order XXII, Rule 5 of the Code of Civil Procedure. There is force in this contention. The rule requires the Court to which the petitions are presented to decide the question. Although it is anomalous that we should exercise the functions of a Trial Judge on a matter of this description, the language of the rule gives us no option in the matter. At the same time, it is clear that the Code does not compel us to record evidence ourselves. Under Section 107, Clause (1) (d), it is open to us to direct the lower Court to take evidence and to submit the same to us The learned Vakils who appeared on both sides agreed that the evidence taken by the learned District Judge might be acted upon in this light. I shall, therefore, proceed to give my decision on that evidence, without taking into account the findings of fact at which the learned Judge has arrived.
2. Before proceeding further, I shall dispose of the objections taken to the admissibility of evidence recorded by the District Judge, and to the reception of documents tendered in this Court. As regards the latter, Mr. Rangachariar sought to put in a certified copy of what purports to be a judgment of a District Munsif in support of his contention that a sanyasin ordained by a junior swami can attain the headship of the mutt in dispute. No affidavit has been filed before us to explain why the copy was not tendered earlier, whether the judgment was set aside on appeal, and whether any reasonable attempt was made to procure it earlier. Even in this Court, no notice of an application to file it in evidence was given to the other side. The copy of the judgment is in Malayalam and no translation was appended to it. We have no hesitation in rejecting this document.
3. Both Mr. Rangachariar and Mr. Ramachandra Aiyar relied on portions of the answers obtained to interrogations served in the case. They are apparently admissible as against the party answering them under Order XI, Rule 22. The answers are given on oath (vide Appendix C, form III of the Code of Civil Procedure). Although great caution should be exercised in using them as evidence, as pointed out by the Master of the Rolls in Nash v. Layton (1911) 2 Ch. 71, they are clearly admissible under the Code. As regards the answers to interrogatories in Original Suit No. 14 of 1901, on the file of the Court of the Subordinate Judge of Palghat it was doubted in Queen-Empress v. Ramchandra Govind Harshe 19 B. s 749 whether under Section 33 of the Evidence Act, the fact that cross-interrogatories were administered would satisfy the requirement that the opposite party 'had the right and opportunity to cross-examine.' We think it safe to admit these interrogatories also in evidence. But these answers are open to the objection that they are not ante litem motam. In Original Suit No. 14 of 1901, on the file of the Court of the Subordinate Judge of Palghat the question whether a junior can ordain was one of the facts in issue. That is also the question in this suit. The answers elicited show that while all the heads of the mutt who were interrogated were against any ordination by a junior, the junior swamis were in favour of such right. These answers were, therefore, given on a question which was the subject of active controversy at the time. Mr. Ramachandra Aiyar suggested that the words 'before any controversy as to such right, custom or matter had arisen,' only referred to the dispute in the suit. This is clearly opposed to the decision in the Burkley Peerage case (3). The section does not speak of the specific controversy in the suit. We must, therefore, hold that Exhibits IV, V and VI are not of any evidentiary value. Then as regards Exhibits V and W and other documents sought to be relied upon by Mr. Rangachariar, we have the statement of Mr. Ramachandra Aiyar who conducted the case before the District Judge that although they appear as Exhibits in the case, they were filed on the understanding that proof of the execution would be given at a later stage of the case. This statement is uncontradicted and we accept it. There is no proof, in the records, of their execution. We must, therefore, reject them. The practice of exhibiting documents before they are proved should not be encouraged.
4. We shall now proceed to deal with the facts of the case. The mutt in question along with three others is said to have been founded about 1200 years ago by Sri Sureswara Acharya Swamigal, one of the direct disciples of the great Sankaracharya. Two of the mutts are in Cochin, one in Travancore and the fourth in British India. The mutts have large endowments. Our attention has not been drawn to any inter-connection between the mutts, and the position that they are mutts having similar usages as to the succession of the headship was not conceded. The mutt in dispute is known as the Naduvilai Mutt. For the purpose of determining which of the rival claimants is entitled to succeed to the headship, it is not necessary to go beyond the times of Subramania Swamigal. He died in 1891. He ordained two Sanyasis, Teikat Swami and Vishnu Swami. Teikat succeeded Subramania and died in 1894. Vishnu then became the head of the mutt He died in Jane 1915. Teikat, daring his lifetime, ordained one Pazhedath Swami as a sanyasi. This Pazhedath, who never attained to the headship of the mutt, ordained Pallipat, one of the rival claimants in this case, in 1904. Vishnu, who, as we said before, was then the head of the mutt, ordained Kappiyur Swami in the year 1906. This is the other claimant. The question is which of these two claimants is entitled to succeed Vishnu. The points requiring consideration in arriving at a decision are:
A. Whether during the life-time of the head of the mutt, a junior can ordain a sanyasi so as to make him a member of the mutt?
B. Whether, such an ordination, if it can be given, should be with the consent of the head?
C. Whether in this case such a consent was obtained?
5. It is common ground that succession to headship in this mutt depends upon the number of Chathur Masyams which a sanyasin had gone through. The chathur masyam, as its name implies, is a ceremony which lasts four months. It is traceable to times when sanyasin were directed to live the lives of bikshus, moving from place to place in their endeavour to keep the grihastas to their true acharams and in enlightening them in the paths of virtue. An exception was made to this rule. For four months commencing with August, India has its monsoons. During this period the sanyasins were permitted to remain continuously in a particular place. The formula regulating chathur masyams is explained by Rishi Atri thus: The sanyasins addressing the people of the village says: 'There is difficulty in moving about owing to rains. The paths are infested by beasts and reptiles. Even God Vishnu is said to have taken rest from August to November. I shall also, in the interest of the grihastas, remain in this place during these four months.' Then the grihastas answer: 'Please remain here. We are highly honoured by this condescension. We shall try to serve you to the best of our ability.' Thus the fixing of the seniority of a sanyasin by his chathur masyas only amounts to finding oat the number of years during which he has had the Asramam. The Smritis enjoin that sanyasins should render obeisance to those who have a larger number of chathur masyams to their credit.
6. All these injunctions relate to the period when mutts were unknown. But the mendicant sanyasin has outgrown the Shastras. The personal sanctity of the sanyasin, the parity of life and the sublimity of his teachings gathered round him the rich grihastas. These latter made offerings to the sanyasin freely and generously. We have no doubt that these offerings were accepted by the holy men with a view to enable them to conduct worship of God, to minister to the wants of the lay disciples who resorted to them and to bring up a sufficient number of sanyasins to continue the traditions of the Guru. To my mind, there is no doubt that while the devotees imposed no conditions and did hot expect any accounting for the offerings they made, the offerings were accepted by the Guru not with a view to satisfy any personal want, but to meet the expenses necessitated by people resorting to him. These presents were sometimes in the shape of money, but often in the shape of landed property. It is in this way that mutts have come to possess property. Sir T. Muthuswami Aiyar in that monumental judgment of his in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 3 Ind. Dec. 1015 has traced the origin and history of such endowments. It is, therefore, unnecessary to discuss the matter any further.
7. The same process seems to have been gone through with reference to the mutt with which we are dealing. But unlike the East Coast mutts, the rule of succession seems to have been based entirely upon the injunctions contained in the Smritis, that is to say, the title to headship does not depend upon nomination by the ruling head, nor on selection by the disciples, but solely upon the length of the period during which a person has been a sanyasin. The West Coast mutts base their rule of succession upon ordinances which never contemplated the founding of mutts. It is typical of Malabar that this intense conservatism about succession should prevail there.
8. The difficulty arises in reconciling this conservative rule with the suggested democratic principle that the sanyasin who has the largest chathur masyams to his credit need not have been ordained by the head of the mutt. In other words, the claim put forward by Mr. Rangachariar's client amounts to saying that a person ordained by any sanyasin of the mutt even against the wishes of the head is entitled to succeed, provided he has had his sanyasin for a longer period than others. If the usage of the institution points to this rule of succession, we are bound to give effect to it, however unusual it may be. Their Lordships of the Judicial Committee have laid down in unmistakeable terms that it is usage that govern succession in these institutions. Ram Parkask Das v. Anand Das 33 Ind. Cas. 583.
9. I shall now proceed to examine the evidence to see whether this usage has been made out. The first witness gives some general evidence. He says that any one can give sanyasam; and the moment that any body is ordained by a sanyasi of the mutt, he becomes attached to the mutt. He speaks of the four mutts,as sister mutts. In cross-examination, he admitted that the usual practice in the mutt is for the Moothaswami (the head) to give sanyasan. As regards the one instance, he referred to, he stated that he had no personal knowledge about it. He also referred to proper and improper refusals by the head as entitling the junior to give sanyasam. This evidence is not of much practical value in deciding this case.
10. The evidence of the second witness is of a different kind. He is the head of the Tekke Mutt situated in close proximity to the Naduvilai Mutt. He gives one specific instance of a sanyasin who had been ordained by a junior attaining to the headship of the mutt. In cross-examination, it was elicited that the head of the mutt was present and consented to this ordination. One can conceive of a case where, a junior from his personal experience regards an aspirant for sanyasi-ship as a desirable acquisition to the mutt. The senior might know nothing about him. In such a case, the senior might permit the junior to ordain the noviciate. There can be no objection to such a course. This is apparently what happened in the instance spoken of by the witness. In cross-examination, the witness candidly admitted that he had no knowledge whether the practice of the junior ordaining a sanyasin prevailed in the Naduvilai Mutt.
11. Plaintiff's witness No. 3 is another important witness. He spoke to nine instances in which juniors had given sanyasam. When analysed, they come to this: of four of these ordinations, he bad no personal knowledge. His evidence is not inconsistent with the theory that the concent of the then heads of the mutt might have been obtained for these sanyasams, if they in fact took place. He then referred to his own sanyasam. He first said that at the time of the sanyasam, the consent of the Moothaswami was not obtained. He qualified it by saying that the Moothaswamiar subsequently gave his consent. Thus in his own case, the sanyasams had the approval of the head of the mutt. He next referred to the sanyasams given by himself to four people. None of these people have attained to the Mootha Sthanam. Non constat, that their right to headship will not be contested. It is thus seen from an examination of his evidence, that he is not able to depose to a single instance where a person ordained by a junior without the consent, subsequent or previous, of the Moothaswami has been recognised as entitling the person to become the head of the mutt. He also said that his experience was confined to the affairs of his own mutt. Plaintiff's 4th witness, who is a very rich jenmi, gives no tangible evidence. He says that he attended no ordination himself. The one instance he referred to was elicited to have been with the approval of the head of the mutt. Plaintiff's 5th witness does not give evidence on this question.
12. Plaintiff's 6th witness, another rich jenmi, says that the junior before giving sanyasam must obtain the consent of the Moothaswami. He speaks to other circumstances which all be referred to later on. The other witnesses giveno specific evidence on this question.
13. Some documents were relied on. Exhibit G is the most important of them.It speaks of 'yathis who may in future be created by us both as our successors.' It is not a necessary inference from this statement that both the Mootha and the junior can indiscriminately ordain. It is consistent with the junior ordaining with the consent of the senior. Exhibit C is an attempt by a neighbouring head of the mutt to interfere with the affairs of the Naduvilai Mutt.
14. We are not satisfied from the evidence above set out that the custom set up by the Pallipat Swami has been proved.
15. Mr. Rangachariar relied upon a number of circumstances to show that his client was recognised as having a status in the mutt. One class of evidence related to the alleged receipt of maintenance from the mutt. There is the evidence of plaintiff's witness No. 7 that he paid maintenance to Pallipat Swami, having received the same from the head Kariastan of the mutt. No account book kept in the mutt has been produced to support this statement. It has to be remembered that in 1903 Pazhedath suedto remove Vishnu from the Mootha Sthanam. It was at this time that Pallipat was ordained by Pazhedath. Polpakara who was ordained by Pazhedath became co-plaintiff. One witness, naively put it that this ordination was made with a view to the litigation being continued in case anything should happen to Pazhedath. Vishnu questioned the right of Palpakara to be joined as co-plaintiff. Eventually it was agreed that the right of Pallipat to be regarded as belonging to the mutt need not be decided in the suit. It is hardly likely under the circumstances that maintenance, as of right was given by Vishnu to Pallipat. It may be that some allowance was given to him, seeing that he was inducted into sanyasam by a swami of the mutt; but I am not satisfied that any legal right was recognised.
16. The next circumstance relied on was the possession of some of the images of the mutt. When the headship is in dispute, it is no wonder that the subordinates joined one party or the other, and gave them possession of the sacred things of the mutt.
17. We are clear that the evidence regarding the obeisance rendered by Kappiyur Swamiar to Pallipat Swamiar is not reliable. Defendant's witness No. 3 denies it, although plaintiff's witness No. 7 asserts it. It is hardly likely that such a thing would have taken place.
18. Some stress was laid upon an alleged recognition by the Travancore Government. In the important Vishnu temple in that kingdom, the ceremony of Puspanyali is performed by a swami of the Nudavilai Mutt. It was conceded by plaintiff's witness No. 6 that it is not always the head of the mutt that the Travancore Durbar recognised as being entitled to this honour.
19. As regards the Cochin Land Acquisition case, it is enough to say that it was concerned with a paltry sum of Rs. 20, and the right of Pallipat was apparently recognised by a subordinate official, after disputes had arisen.
20. Our conclusion is that the applicant (Pallipat Swamiyar) has failed to establish that by the usage of the mutt a junior swami of the mutt can give sanyasam to a person which would enable him to become member of the mutt. It may be that with the express, implied or subsequent consent of the head of the mutt, the sanyasam may be recognised as conferring the right. Even that has not been proved in this case.
21. It follows that the general practice spoken to by plaintiff's witnesses Nos. 1 and 6 should prevail, namely that it is by the ordination by the head of the mutt that a sanyasin can become a member of that mutt. That is the practice which obtains in the East Coast in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 4 Camp. 417. No reasons have been shown why such a practice which is in consonance with justice should not be applied to mutts in the West Coast.
22. We must, therefore, hold that the Pallipat Swamiyar is not entitled to come in as the legal representative of the deceased Vishnu Swami and that Kappiyur Swami who was admittedly ordained by Vishnu should be brought in the place of the latter.
23. As the enquiry has been necessitated by the prevalence of inconsistent practices in the mutt, we think this is a fit case in which the costs of both the applicants could be directed to be paid out of the mutt estate.
24. I concur.