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Sadananda Pyne Vs. Harinam Sha and anr. - Court Judgment

LegalCrystal Citation
Decided On
Case NumberA.F.O.D. No. 170 of 1948
Reported inAIR1950Cal179
ActsSuccession Act, 1925 - Sections 263, 283 and 283(1); ;Hindu Law
AppellantSadananda Pyne
RespondentHarinam Sha and anr.
Appellant AdvocateHiralal Chakravarty and ;Shyamadas Bhattacharjya, Advs.
Respondent AdvocateApurba Dhan Mukherji and ;Chandra Narayan Laik, Advs.
DispositionAppeal allowed
Cases ReferredJugdanund v. Kesubnund
- das gupta, j.1. the principal question for decision in this appeal is whether the dikshaguru of a hindu not being the person who invested him with the sacred thread is his heir, on failure of other heirs. the appeal is against the decision of a probate court, allowing an application for revocation of a probate that bad been granted of a will of one manmatha nath mandal, who will be later referred to simply as manmatha. manmatha died in july 1933, leaving his widow manada bala dassi hereinafter referred to as manada. manada died in 1945. disputes arose over properties left by manmatha, after the death of manada, between purchasers from pachkari bhuian who sold as a guardian of gokul said to have been adopted by manmatha and the purchaser from janaki nath chakravarti who claimed to be.....

Das Gupta, J.

1. The principal question for decision in this appeal is whether the Dikshaguru of a Hindu not being the person who invested him with the sacred thread is his heir, on failure of other heirs. The appeal is against the decision of a Probate Court, allowing an application for revocation of a probate that bad been granted of a will of one Manmatha Nath Mandal, who will be later referred to simply as Manmatha. Manmatha died in July 1933, leaving his widow Manada Bala Dassi hereinafter referred to as Manada. Manada died in 1945. Disputes arose over properties left by Manmatha, after the death of Manada, between purchasers from Pachkari Bhuian who sold as a guardian of Gokul said to have been adopted by Manmatha and the purchaser from Janaki Nath Chakravarti who claimed to be Manmatha's heir on the death of Manada, on the ground that he was Manmatha's 'Dikshaguru'. On 23rd August 1945, Panchkari Bhuian applied for Probate of a will said to have been left by Manmatha. He stated therein that there was no other heir of the deceased except Gokul Chandra Mandal, who had been taken in adoption by Manmatha. No special citation was, therefore, issued, and Probate was granted in November 1945, On the last May 1946, Harinam Sha filed an application for revocation of Probate. He stated therein that the will was a forged document, that the story of adoption of Gokul was false, that Manmatha had died leaving Manada as his heir, and on Manada's death, as no blood relations who would be heirs according to Hindu law existed, Manmatha's Dikshaguru Janaki Nath Chakravarty (who will be hereinafter referred to as Janaki) succeeded to Manmatha's estate as his heir, but this fact was fraudulently concealed in the application for probate, and probate was obtained without any citation being issued on Janaki. It was stated that Harinam had purchased the properties of Manmatha from Janaki by registered Kobala on 2lst June 1945. The main contentions of Panchkari Bhuian, in reply to this application were that the will was genuine, that Gokul was really the adopted son of Manmatha, and that Janaki was not Dikshaguru of Manmatha. These contentions were adopted by Sadananda Pyne, who was added as a party. At the trial, the dispute centred round the question of law, whether a Dikshaguru is the heir of a Hindu, on failure of nearer heirs. The first question that was raised was whether Harinam Sha, as purchaser from Janaki, had locus standi to apply for revocation of probate, the other question was whether non-mention of Janaki as an heir was a 'just cause for revocation of the Probate.' The decision of both these questions turned on the question whether Janaki would be Manmatha's heir, on failure of nearer heirs. The learned trial Court held that Janaki was an heir; under the Hindu law, and allowed the application for revocation.

2. Before entering into the question whether Janaki, as Dikshaguru, is an heir under the Hindu law, it is necessary to consider the contention of Mr. Apurbadhan Mukherji the learned advocate for the respondent that Harinam Sha, has locus standi to apply for revocation for probate, even if Janaki is not an heir, and so Harinam has not acquired any interest in the property by his purchase from Janaki. Mr. Mukherji contends that the mere fact that Harinam was in actual possession of the property gives him an interest in the property, which gives him a locus standi. If Janaki was not Manmatha's heir, Harinam has acquired no interest by his purchase from Janaki and Harinam's possession is merely a trespasser's possession. Does possession as a trespasser amount to an interest which gives the locus standi to apply for revocation of probate Clearly not. In order to have the locus standi to apply for revocation of probate, a person must have an interest in the estate of the deceased, supposing he had died intestate. Thus, the creditor of a son who would have been heir on intestacy, has locus standi to apply for revocation of probate. But a person who has merely the possession of a trespasser, has no interest in the estate of the deceased. He has an interest against--the estate of the deceased. Whether the estate descends to the heir on intestacy, or the legatee on the will, can have no legal effect on the trespasser's possession. If he remains in possession for the statutory period of twelve years, he will acquire a lawful title--which will be good against the legatee no less than against the heir on--intestacy. It is clear to me that a trespasser has no interest in the estate of the deceased. He has therefore no locus standi to file an application for (revocation of ?) probate.

3. Mr. Mukherji relied for his proposition that a trespasser has locus standi to file an application for probate on the dictum in Mortimer's Probate and Practice, which was accepted by Mukherjee J. in Haripada Saha v. Ghanesyam Saha, 49 C. W. N. 713, that any interest is sufficient to gives locus standi. There can be no doubt whatsoever that both Mortimer and Mukherji J. are thinking of some interest in law--some legal title, however remote or however slight--when they say 'any interest is sufficient . . . .' A trespasser has no interest in law; if he may be said to have a 'possessing interest' it has to be remembered that the possession being without title, this interest is against 'law'.

4. I have not the least hesitation in rejecting Mr. Mukherji's proposition that a trespasser's possession gives him locus standi to file an application for revocation for probate.

5. In order to succeed in the application for revocation, Harinam Sha bas therefore to establish that Janaki would be Manmatha's heir, on failure of other heirs. That Janaki was Manmatha's 'Dikshaguru' is not disputed now, nor that this Diksha was Tantrik Diksha. It is also not disputed that according to Dayabhag, the 'Acharyya' is a Hindu's heir, on failure of blood relations who are heirs. Jagnabalkya does not mention 'Acharyya' as an heir; but Manu does. Jimutbahan accepts Manu's text, and includes Acharyya in his list of heirs. In fact, he combines Manu's dictum 'Acharyya Sishya eb ba' and Jagnabalkya's 'Sishyah Sabrahma-charinan' and states as the law that on failure of Sapindas, Sakulya and Samanodakas, an Acharyya inherits--on failure of Acharyya a Sishya inherits--and on failure of Sishya, a Sabrahmachari inherits.

6. Jimutbahana himself does not say whom he means by the word 'Acharyya'. He is con-tent to quote Manu's text as the authority of his statement of the law that an Acharyya inherits. Srikrishna Tarkalankar, who flourished more than two hundred years ago, does however in his commentary on the Dayabhag, offer an explanation of the word 'Acharyya' as used by Jimutbahan here. He explains the word as 'the teacher of the Vedas'. In his synopsis on the Dayabhag which he calls Daykram Sangraha, Srikrishna when mentioning Acharyya as the heir, takes pains to cite a verse (from Jagnabalkya) to explain who Acharyya is and says 'Upaniya Dedadvedamsa Acharyya Udahratatha'. It is abundantly clear therefore that Srikrishna had no doubt in his own mind as ' to what 'Acharyya' meant in Dayabhag. He was clearly of opinion that Jimutbahan, was using this word to mean the Brahmin who gives the sacred thread, and then teaches the Vedas. To him clearly Acharyya did not include Dikshaguru ; or 'religious preceptors' in general.

7. It is well to remember in this connection that tantrism was not less prevalent in Srikrishna's time than now; and there can be no doubt that 'Dikshagurus' were well known to Sri-krishna's time. His interpretation of 'Acharyya' to mean only the Brahmin who gives the sacred thread, and then teaches the Vedas, must therefore be taken to exclude 'Dikshaguru' from the list of a Hindu's heirs.

8. Mr. Mukherji has drawn our attention to Sir William Jone's translation and Colebrooke's translation of 'Acharyya' as used in Dayabhag, as 'Religious preceptor', and has asked us to accept the view of these learned translators in preference to Srikrishna's. I have the highest regard for the scholarship and erudition of Sir William Jones, and Colebrooke ; but if it is a question of preference between those English scholars and Srikrishna, I have no hesitation in saying that I would prefer Srikrishna's authority. It is important to mention that neither Sir William Jones, nor Colebrooke has given any reasons for interpreting Acharyya as a generic term, meaning all kinds of religious preceptors, in preference to Srikrishna's interpretation of it as meaning a specific class of religious preceptors viz., the preceptor, who gives the sacred thread, and then teaches the Vedas.

9. In The Collector of Madura v. Moottoo Ramalinga, 12 M. I. A. 397 : (1 Beng. L. Rule 1 P. C.), the Privy Council observed that the duty of a Judge administering Hindu law is not so much to inquire whether the doctrine is fairly deducible from the earliest authorities, as to ascertain whether it is one that has been received by the particular school of Hindu law, which prevails in the district in which the case arises, with which he has to deal and whether such doctrine has been sanctioned by usage; as by the Hindu system of law, clear proof of usage will outweigh the written opinion of text writers. In the present case, there is no evidence of any dispute between usage and the opinion of the text writers. It is reasonable to think that Srikrishna's interpretation is based on his own experience of usage ; but whether or not that is so, it is I think proper, to examine Manu's own writings for finding what kind of religious preceptor, he had in his mind, when he laid down that an Acharyya would be an heir.

10. In Sloka 140, chap. II of his Samhita, Manu gives the following definition of an Acharyya:

Upauiya tu yah Sishyam Vedamadhyapayod-dvijah

Sakalpam Sarakshyacha tamacharyyam prachakshate

It has been argued by Mr. Mukherji that Manu is not giving his own definition of Acharyya ; but is stating what others think the Acharyya to be. There can be no doubt however that Manu is quoting with approval this definition of Acharyya even if we agree that this is not a definition starting with Manu. Quite apart from this Sloka, however, a study of the second chapter of Manu, (which deals with Brahmacharyasram) brings before the mind's eye a clear picture of the 'Acharyya' as Manu saw him. The ceremony of Upanayan was indeed the most important event in a Hindu's life ; for it was this, which gave him his second birth. In the Upanayan ceremony itself, certain verses of the Vedas were taught by the Brahmins who invested the young Hindu with the sacred thread ; it was with this ceremony that he entered upon the Brahmacharyasram. Immediately after the Upanayan, the Hindu had to take up his residence in the house of this very Brahmin, and receive education in Vedas as well as other matters from him. Manu has sometimes used the words Guru and sometimes the word Acharyya in dealing with the Upanayan ceremony, and the system of studies thereafter ; but he has used either of these words to mean that one Brahmin who invested the Hindu with sacred thread, and then became his teacher. There was no vagueness in Manu's mind as to who this person was. He was not thinking of a number of functionaries, any of whom could be an Acharyya; he was thinking of one and one person only.

11. Mention may be made only of the following verses :

145. Upadhyayan Dasacharyya Acharyyanam Satam Pita. [The 'Acharyya' is ten times more venerable than an Upadhay; the father a hundred times more than the Acharyya.]

148. Acharyyastasya Yajatim Bidhibadvedaparagah Utpadayati Sabitrya Sasatya sajaramara. [But that birth which the Acharyya acquainted with the whole Veda, in accordance with the law procures for him through the Savitri is real, exempt from age and death.]

170. Tara Yadbrahmajanmasya Maunjibandhana-chihritam Tatrasya Mata Sabitri Pita tvacharyya uchyyate. [Among those three, the birth which is symbolized by the investiture with the girdle of munja grass is his birth for the sake of the Vedas, they declare that in that birth Savitri (verse) in his mother and the Acharyya his father.]

171. Vedapradanadacharyam Pitaram parichakshate Nahyasmin Yujyate karma Kinchidamamamjibandhanat. [They call the Acharyya father because he gives the Veda; for nobody can perform a sacred lite before the investiture with the girdle of Munja grass.]

226. Acharyyo Brahmano Murtih Pita Murtih Prajapateh. [The Acharyya is the image of Brahmin, the father the image of Prajapati.]

The verses 148, 170 and 171 are specially helpful in understanding whom Manu had in mind, when he used the word Acharyya.

12. The text on which Jimutbahana's rule that an Acharyya is an heir on the failure of blood relations, is Sloka 187 in Ch. IX Manu. The commentators of Manu do not try to explain 'Acharyya' as occurring in this Sloka. The reason of this may very well be, that in an earlier part of Manu Ch. v. 80, where the word occurs, they have already given their explanations. The Sloka runs thus:

Triratramachurshaucham Acharyye samsthite sati Tasya putre cha patincha Dibaratramiti sthitih. [They declare that when the Acharyya has died, the impurity lasts three days; if the Acharyya's son or wife is dead, it lasts a day and a night; that is a settled rule.]

13. In Medhatithi's commentary on this Sloka, we find 'Acharyya Upaneta tashmin samsthite': Sarvaganarayan, another common. tutor, says 'Acharyya Upaniyadhyapake' Raghabananda says ''Acharyya upanetan'.

14. We find thus that in this very important Sloka as regards Asaucha, where it is of very great practical importance to know which person is meant by Acharyya the commentators agree in saying that it means the person who gives the upanayan. When later on, Acharyya is enumerated as an heir, and the commentators do not trouble to explain the word, it is reasonable to conclude that according to them the word had the same connotation as in oh. v, where they had explained it.

15. My conclusion on a study of Manu and his commentators therefore is that Acharyya in Sl. 187, Ch. IX means the person who gives upanayan and nobody else.

16. It is useful to turn at this stage to the Jagnavalkya-Samhita and the Mitakshara, to discover what meaning Jagnavalka and Vignaneswara attached to this word. Verse 34 Achacadbyaya contains Jagnavalkya'a definition of the Acharyya.

'Sa gururjah Kriyahkritra Vedamatmai prajachhati Upaniya dadadvedam Acharyyah Sa udahrtah' [He is called the Guru who after performing the ceremonies ma the child from before his birth gives him the Vedas; and he is called the Acharyya, who having performed upanayan gives him the Vedas.]

17. Vijnaneswara's commentary on this runs thus:

'He who performing all the rites according to rule beginning with the Garbhadhana ceremony, and ending with the upanayan teaches the Vedas to him the Brahmachari is called a Guru; He again who only performing upanayan teaches the Vedas ia an Acharyya.

18. When Jimutvahana (who according to the generally accepted view flourished after Vij-naswar) wrote the Dayabhaga, he was aware of these definitions of the word 'Acharyya' by Jagnavalka and Vijnaneswara's commentary on the same.

19. If Jimutvahana had thought fit to extend the connotation of this word, we would have been bound to accept that extended connotation. But Jimutbahana does not do so; he simply quotes Harm's text and accepts it adding to the list of heirs--'Sabrahmachari.' The only possible conclusion is that Jimutbahana was not prepared to extend the connotation of the word Acharyya, and he meant this word to connote the same person as Manu had meant the person who gives upanayan.

20. In Manu's time, the task of the person who gave Upanayan did not cease there. It was rather merely the beginning of his task, for it was he who taught him the Vedas, and other subjects as well. In present-day India, the person who gives the upanayan ends his task there. The Upauayan ceremony itself requires him to teach a few verses of the Vedas; but, that is all. In fact, the system of learning Vedas as a part of one's education no longer exists, and even if any person wants to study the Vedas, he does not ordinarily study it with the Brahmin who gave him the Upanayan.

21. Two opposite theories have been sought to be built on this undisputed fact that in modern India, the person who gives the Upanayan does not thereafter take the boy as his 'student' for teaching Vedas and other subjects.

22. Mr. Hiralal Chakravarti, arguing for the appellant, propounded the theory that the law that an Acharyya would be an heir, was an integral part of the system of education under which the student used to live in the house of the teacher, and as this system has disappeared, the law that an Acharyya would be an heir should no longer be considered good law. He drew our attention to the observation of their Lordships of the Privy Council in Ramchandra v. Vina-yak, (41 I. A. 290 : A. I. R. (1) 1914 P. C. 1) :

'It was urged that it is hardly likely Vijnaneswara would give a right of inheritance to a spiritual preceptor or Guru before Kinsman, however remotely connected. This argument appears to ignore the peculiar and intimate relationship which their Lordships understand exists in the Hindu system between the pupil and the Guru who has to initiate him into the mysteries of the Vedic laws and rites, and under whose roof he has to pass many years of his life. It is easy to suppose that in such circumstances the mystical relationship between a spiritual preceptor and a pupil should be regarded as creating a far closer tie than remote relationship of blood.'

23. These observations, intended as they were to meet the argument that a religious preceptor could not possibly have been included as an heir, if certain blood relations were excluded from heirship, may at most be said to express their Lordships' view as regards some of the reasons which made the author of the Mitakshara include a religious preceptor as an heir. They do not in my opinion justify a conclusion that their Lordships considered the rule of inheritance in favour of a religious preceptor dependant in any way on the institution of the student, living at the house of his teacher, to be initiated into Vedic laws and rites.

24. Assuming, however, that at the time, the law was made, the ground for the same was this intimate relation which the teacher in those days had with the student, it by no meaua follows that once the ground had disappeared, the law also disappears. If and when the ground on which a law is enacted, ceases to exist, it is the province of the proper legislative authority to consider the matter of repealing the same; but the Courts cannot arrogate to themselves the functions of the legislature. We have no right to repeal a law, because what appears to us to be the reasons for which the law was enacted no longer exist. Even assuming, therefore, though not accepting, the theory that the rule that an Acharyya would be heir, first became law, because he had certain, intimate relations with the pupil. I am of opinion that this rule of inheritance continues to be good law, even though such relations no longer exist.

25. Mr. Aputbadhan Mukherji has on the other hand put forward the theory that while the Acharyya continues to be an heir under the Hindu law, this word now connotes the Dikshaguru. His argument is that the person who, in these days, gives the sacred thread, does not answer the description of an Acharyya, because he does not teach the Vedas, and that the person who gives Tantrik Diksha, has really taken the place of the person who in Manu's time gave Upanayan and taught the Vedas.

26. Mr. Mukherji has in a very learned discourse, tried to convince us that the Tantrik system is really based on the Vedas, so that the Guru who initiates a man into the Tantrik system by giving Diksha, is really giving him Vedic education. I do not think it necessary for the purpose of this case to reach a conclusion on Mr. Mukherji's proposition that the Tantrik system is based on the Vedas, for I do not see that the truth of this proposition can justify the further conclusion that the person who initiates a man into the Tantrik system by giving him a Diksha, becomes this man's heir. In the first place, I am clearly of opinion that though the person who gives the Upanayan in modern times may not possess all the characteristics of an 'Acharyya' -- inasmuch as he no longer teaches the Vedas -- he retains still the principal characteristics and is the Acharyya, who inherits on failure of blood relations. Mr. Mukherji drew our attention to Medhatithi's commentary on Manu's definition on Acharyya in 81, 140, Ch. 11, where Medhatithi says that if one person gives the sacred thread, and another teaches the Vedas, neither can be called the Acharyya. It is to be noticed however, that Medhatithi himself does not stick to this strict and literal interpretation of the word Acharyya. For, commenting on Sl. 80 of oh. v. Medhatithi himself uses the word Upaneta, i. e., the person who gives the sacred thread, to explain the word Acharyya. It is remembered also that the Sabitri, the communication of which is the essential part of the Upanayan ceremony has had been said to be the essence of the Vedas.

27. Even in present-day India, therefore, the person who gives the Upanayan, does teach at least some important part of the Veda. It would be against all known canons of justice, to treat him, as not entitled to inherit as Acharyya, be-cause he does not teach all the Vedas.

28. In the second place, supposing that the person who gives the sacred thread is not entitled to inherit in present-day India, I can see no reason why another person who does not give the sacred thread, but initiates into the Tantrik system by giving Diksha, can be held to be the 'Acharyya,' in the list of heirs. Supposing Mr. Mukherji is correct in saying that the Tantras are based on the Vedas, ft still remains true that the Tantras are not the Vedas, -- just as Buddhism which, is based on Hinduism, is certainly not the same as Hinduism. It is absolutely clear that the Dikshaguru who initiates a person into the Tantrik system of worship by giving Dikeha does not as such, teach any of the Vedas. He does not, therefore, possess either of the two characteristics of the Acharyya that Manu knew the giving of the sacred thread, and the giving of the Vedas.

29. Mr. Mukherji also argued that the Dikshaguru in present day India has taken the place of the Acharyya of the days of yore, -- for it is the Dikshaguru who gives religious education now as the Acharyya did in the days of Manu, and should be allowed to inherit as the Acharyya. The fact that the Dikshaguru is the person who gives serious religious education may be a very good reason, for which he should be an heir. But it is the legislature alone, who cart make new law making an heir. We must resist the temptation to change the law, under cover of interpretation of law. If as judges, we use our power to interpret law, to alter laws which we may not like, and to make new laws which we think, should be made, that would be a corrupt use of our power. We have to observe constant vigilance against such corrupt use of power by ourselves. I refuse, therefore, to consider the question whether the Dikshaguru ought to be made an heir.

30. Mr. Mukherji's next argument is that as the word Acharyya has been used in old treatises in a wider sense than to mean the per-son who gave the Upanayan and thus taught the Vedas, it would be wrong to put this limited interpretation on the word as used, by Jimutbahana, in the Dayabhaga. Mr. Mukherji referred first to two passages in the Vishnupuran which show that Vasistha was being called 'Acharyya' and also as 'Kulaguru.' This, in my judgment, does not show the use of Acharyya to mean anybody than the person who gave the sacred thread. We find in fact Valmiki himself using the word Acharyya as well as the word Guru for--Vasistha, in more than one part of the Ramayan. Thus, in 111 Canto of the Ayodhyakanda, Vasistha describes himself as an Acharyya :

'Parushasya hi jatasya bhavanti gurubastriyah Acharyyaschib Kakutstha pita mata cha raghab Pita hyeenam janayati purusham puruahasbarva Pragnam dadati acharyystashmat as gururuchayate Sa hi to pituracharyyastab ehaib parantap.'

The Ramayana itself shows however, that Vasistha, as the Purohit of the family, gave Rama and his brothers Upanayan and taught them the Vedas.

31. That the word Acharyya was used in old times to include persons other than the person who gave Upanayan is, however, clear from the fact that in the Mahabharat both Kripa and Drona are called Acharyya of the Kaurava and the Pandavas. Sayana, the great commentator of the Vedas, is generally referred to as Sayanacharyya.

32. As regards more modern times Mr. Mukherji has drawn our attention to a passage in Raghunandan's Dikshatattwa where Raghunandan in quoting from another treatise called Mantratantra Samhita a verse in which Acharyya is clearly used to denote a Dikshaguru.

33. Mention may be made in this connection of the Savdakalpadrum--a lexicon compiled by Sanskrit Scholars in Bengal in the last century --according to which 'Acharyya' means the teacher of Vedas and also the commentator on Vedic Mantras; and Wilson's 'Glossary of Judicial and Revenue laws', where we find the following interpretation of the word Acharyya :

'A religious teacher; properly the Brahman who instructs the religious student of the two next castes the Kshatriya and the Vaisya--as well as the Brahman, in the Veda. In modern use, it is applied to any religious instructor, and to any Brahman and religious mendicant professing to be qualified to give spiritual instruction. In the south of India it specially denotes the head of a religious society--the Mahant of Hindustan and the Panda and head priest of a temple. Among the Marathas, it was given to Brahmans employed by respectable families as Cooks. In the Tamil provinces, it is assumed by carpenters and other artisans.'

34. Quite clearly, therefore, uses of the word 'Acharyya' in other senses than the Brahmin who gives the sacred thread and teaches Veda were not unknown in ancient India, and are common in modern India. Our task in this case is not however to investigate the many meanings the word Acharyya may have had, but to as-certain what sense it has in the list of heirs, as propounded by Manu, and accepted by Jimutbahan. For this, we have to turn to other passages of Manu's Samhita, and the notes of his commentators. These I have already mentioned, and they show in my opinion that to Manu, an Acharyya was the person who gave the Upanayan and taught the Veda, and as I have already stated Jimutvahana should be considered to have used the word in the same sense as Manu.

35. Mr. Mukherji drew our attention to the fact that the Privy Council in Giridhari Lal v. The Bengal Government, 12 M. I. A. 448 : (1 Beng. L.r. 44 P.c.), while making a reference to the text in Mitakshara, renders the word Acharyya by 'preceptor'.

36. I find no justification for reading into this an expression of their Lordship's opinion that 'Acharyya' in the list of heirs, means spiritual preceptors' in general. Not only were their Lordships not considering in that case, the question with which we are now concerned; they were not even remotely concerned with the meaning of the word Acharyya in Jimutbahan's list of heirs. If it were justifiable, to make from the mere fact that the judgment contains a translation of the text in which Acharyya has been translated by the word 'preceptor', the deduction that in their Lordships' considered view, Acharyya in the list of heirs means 'spiritual preceptor', in general, it would be even more justifiable to deduce from the passage in Ramchandra v. Vinayak, 41 I. A. 290 : (A.I.R. (1) 1914 P. C. 1) quoted above, that the Privy Council held there that the 'spiritual preceptor' in the list of heirs is that person in whose house the man lives as a pupil and who initiates him into the mysteries of the Vedas.

37. In my judgment, neither of these Privy Council decisions, can reasonably be used for any light on the question which is now for consideration.

38. Nor can I find any assistance from the decision in Sambasiva v. Secy, of State, 44 Mad. 704 : (A. I. R. (8) 1921 Mad. 537), on which reliance was placed by the learned trial Court. That was a case where the Crown claimed the property of a Sudra ascetic, as escheated, on failure of heirs, and the defendant claimed to be an heir, as a 'Sishya'. The main contention on behalf of the Crown was that the rule of law making Sishya an heir, had become obsolete. The High Court rejected this contention, and held that the defendant was entitled to inherit as a Sishya. It was not disputed there that the defendant was the Sishya of the deceased. This decision can clearly be of no assistance for our present purpose.

39. Nor can I derive any assistance from this Court's decision in Jugdanund v. Kesubnund, 1864 W. B. 146.

40. It was held that the priest may, in certain circumstances, inherit. It is well-known that the family priest is very often the person who gives Upanayan. On my interpretation of the word 'Acharyya' as the Brahmin who gives Upanayan, the priest will be an heir, when he gives Upanayan. As this decision does not say in what circumstances a priest may inherit, it is of no assistance to us.

41. One consequence of interpretation of Acharyya as the Brahmin who gives the Upanayan is that a Sudra who cannot have Upanayan cannot have an Acharyya in his list of heirs. As the rules of inheritance in the Dayabhaga are for all the four castes--Brahman, Kshatriya, Vaisya and Sudra--we should certainly try to interpret the rules in such a manner as to make them operative in the case of all the castes. But, for this, we have no right to put a meaning on a word, where it is clear that Jimutbahana did not use in that sense.

42. My conclusion is that the rule that an Acharyya of a Hindu governed by the Dayabhag system will inherit on the failure of the blood relations who are heirs is not obsolete in present-day India; that in these days, the person who gives the Upanayan will inherit as Acharyya, and a Dikshaguru not being the person who gives Upanayan, or any other preceptor--whether spiritual preceptor or not--will not inherit.

43. Consequently, I hold that Janaki was not Manmatha's heir, and thus, no interest was acquired by Harinam Sha by his purchase from Janaki. Harinam Sha had, therefore, no locus standi, to apply for revocation of probate.

44. I would therefore allow this appeal, with costs, set aside the judgment and decree of the trial Court, and dismiss the application for revocation of probate, The hearing fee is assessed at three gold mohurs.

Guha, J.

I agree.

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