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GossaIn Ramdhan Puri Raj Kumar Thakur and Two ors. Vs. GossaIn Dalmir Puri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.385
AppellantGossaIn Ramdhan Puri Raj Kumar Thakur and Two ors.
RespondentGossaIn Dalmir Puri
Cases Referred and Giyana Sambandha Pandora Sannadhi v. Kandasami Tambira
Excerpt:
maintenance and champerty - agreement to carry on litigation not per so opposed to public policy--extortionate and unconscionable agreement--question between assignor and assignee--covenant prohibiting assignor to compromise, valid,--suspicion, court not to proceed upon--benami, presumption in favour of--dasnami grossains--custom of inheritance--chela--initiation--biraja home--age of discretion--auspicious day--performance of birajn home essential to claim by inheritance the estate of guru--rule of succession by nomination or election--custom of lapse, how to be proved. - 1. the subject-matter of the litigation which has given rise to this appeal, is the estate of manraj puri, a dasnami gossain of the monastery of budhauli in the district of gya, who died on the 16th june 1897, possessed of considerable movable and immovable properties. immediately upon his death, disputes broke out as to the right of succession to these. the defendant, who is the head of the monastery at budhauli, took possession of all the properties left by manraj, while one hetlal puri, as well as the plain tiff ramdhan puri, set up a claim to the properties as chelas entitled to succeed by law and custom. the first stage of the struggle for possession of the properties was represented by a criminal case under section 107, cr. p. c., which was instituted by a petition presented on the.....
Judgment:

1. The subject-matter of the litigation which has given rise to this appeal, is the estate of Manraj Puri, a Dasnami Gossain of the monastery of Budhauli in the District of Gya, who died on the 16th June 1897, possessed of considerable movable and immovable properties. Immediately upon his death, disputes broke out as to the right of succession to these. The defendant, who is the head of the monastery at Budhauli, took possession of all the properties left by Manraj, while one Hetlal Puri, as well as the plain tiff Ramdhan Puri, set up a claim to the properties as chelas entitled to succeed by law and custom. The first stage of the struggle for possession of the properties was represented by a criminal case under Section 107, Cr. P. C., which was instituted by a petition presented on the 16th July, 1897. On the 2nd August 1897, the Sub-divisional Magistrate delivered judgment with the result that he discharged the respondent Dalmir Puri and made the rule absolute against Hetlal Puri directing him to execute a bond, and to find sureties to keep the peace for one year. On the 19th August 1897, Hetlal Puri presented an application for letters of administration to the estate of Manraj Puri. At one stage of the proceedings thus initiated, one Mander Lal was appointed administrator pendente lite, but subsequently on the 13th September 1897, Dalmir himself was appointed administrator during the pendency of the proceedings. On the 21st September 1897, the application of Hetlal for letters of administration was refused. Hetlal then appealed to this Court, and on the 5th January 1900, the older of the District Judge was set aside, and the case was remitted to him for retrial. On the 30th April, 1900, the District Judge after a careful examination of the evidence in the case, came to the conclusion that Hetlal was not the validity appointed chela of Mauraj and refused the application. As Dalmir had himself put in an application for a certificate under the Succession Certificate Act, the District Judge observed that there was no difficulty as to the collection of the outstanding debts. Meanwhile Ramdhan, the present appellant, applied to intervene in the proceedings for letters of administration. The District Judge held that he had no locus standi in the matter and refused his application. Hetlal subsequently appealed to this Court against the order of dismissal of his application for letters of administration by the District Judge, and Ramdhan also applied to this Court to set aside the order of refusal of the District Judge to make him a party to the proceedings. A Divisional Bench of this Court on the 20th July 1900, dismissed the appeal of Hetlal on the ground that he had failed to establish that he had been validly taken as a chela by Manraj, and that what was described as the Biraja Home had been performed in his case: The application of Ramdhan was at the same time dismissed on the ground that, as the appeal of Hetlal had failed on the merits, there were no pending proceedings to which Ramdhan might claim to be made a party. Subsequently, on the 19th May 1900, the District Judge made an order for the issue of a Succession Certificate to the present respondent-Dalmir Puri, inspite of the objection of Ramdhan, who claimed to be entitled to the certificate as the chela of Manraj. Ramdhan then made an infructuous attempt to have this order reviewed, his application for the re-opening of the proceedings being dismissed by the District Judge on the 22nd February 1901. The claims of Hetlal and Ramdhan in the usual preliminary proceedings under the Criminal Procedure Code, the Probate Act and the Succession Certificate Act having thus proved ineffectual, Dalmir continued to be in possession of the entire estate of Manraj which he had seized immediately upon the death of the latter. On the 29th February 1904, Ramdhan executed two deeds, one in favour of Madhusudan Singh, the second plaintiff in this suit, and another in favour of Doman Singh, the third plaintiff. Under each of these two deeds, the terms of which we shall examine later, Ramdhan purported to convey to the transferee a one-fourth share of what he alleged to be his interest in the estate of Manraj. The consideration for each conveyance was Rs. 45,000 out of which the sum of Rs. 2,000 was paid in cash to the transferor and the balance of Rs. 43,000 was retained by the transferee to enable him to carry on litigation for the recovery of the estate of Manraj out of the hands of Dalmir. The effect of these two conveyances was that the plaintiff retained one-half of his alleged right by inheritance in the estate of Manraj and the remaining half was vested equally in the two transferees. On the 5th March 1904, the three plaintiffs commenced the litigation out of which the present appeal arises for declaration of their title to the estate of Manraj and for recovery of possession of the properties, movable and immovable, together with mesne profits. The defendant resisted the claim on the following amongst other grounds, which need not be referred to. He questioned the validity of the transfers to the second and third plaintiffs, on the ground that the second plaintiff was the benamidar of the heirs of one Lokenath Singh and the third plaintiff the benamidar of one Takonarain Puri, the mohant of the monastery at Mandra. He further contended (hat the transfers were without consideration and were in the nature of champerty and made for the purpose of spoil and litigation. He also alleged that, in so far as the claim, related to properties other than immovable, it was barred by limitation. On the merits he asserted that the first plaintiff Ramdhan was merely a nominal chela of Manraj, that the. essential ceremonies necessary to constitute a sanyasi and entitle a chela to claim by inheritance the properties of his guru, had never been performed, and that, in any event, according to well established custom and usage upon the death of Manraj, the properties left by him had passed not to any possible chela of his, but to the monastery at Budhauli, of which Manraj was a subordinate gossain and the defendant Dalmir was the spiritual head. Upon these pleadings the Subordinate Judge framed nineteen issues which exhaustively raised every possible question in controversy between the parties. After a prolonged trial, which, extended over fifty-four days, and upon an examination of the voluminous evidence in the case, the Subordinate Judge dismissed the suit on the 17th April 1906. He held, so far as the second plaintiff was concerned, that he had been proved to be the person beneficially interested under the conveyance from the first plaintiff. He farther held as regards the third plaintiff that he was the benamidar for mohant Tokenarain of Mandra and was consequently not entitled to maintain the action in respect of the one-fourth share transferred by the conveyance executed nominally for his benefit. As regards the properties other than immovable and other than the debts collected by Dalmir, he held that the claim was barred by limitation. As regards the first plaintiff he held that he had been taken as a chela by Manraj, but that he was not entitled to succeed to his estate by inheritance under the law and custom applicable, inasmuch as the ceremonies essential to make a valid chela of a sanyasi had not been performed in his case. As regards the custom set up by the defendants, that upon the death of a gossain his estate is not taken by his chela, but passes to the monastery, the Subordinate Judge did not came to any definite conclusion. The plaintiff appealed to this Court on the 2nd July 1906. During the pendency of the appeal on the 2nd December 1906, the first plaintiff made an application to this Court, in which he alleged that the second and third plaintiffs had not properly managed the litigation, that he himself had upon subsequent enquiry into the custom and usage of the monastery ascertained that the doctrine of lapse alleged by the defendant was true, and that consequently he has come to the conclusion that his claim was unfounded and ought not to be further pressed. He prayed accordingly that the appeal might be dismissed and the judgment of the Court below,, affirmed. This application was resisted by the other plaintiff, who denied the allegation that they had not deligently prosecuted the litigation and contended that the first plaintiff had no right by a fraudulent compromise with the defendant to prejudice the rights they had acquired for valuable consideration under the conveyances executed in their favour. The Division Beach to which this application was presented directed that it should be considered at the time of the hearing of the appeal and this has accordingly been done.

2. On behalf of the first plaintiff, who is the first appellant, it has been argued that the entire appeal ought to be dismissed upon a true construction of the conveyances of the 29th February 1904, which it has been urged, gives the first plaintiff exclusive authority to enter into a compromise with the defendant so as to bind thereby the other plaintiffs. This position has been controverted by the other plaintiffs, on whose behalf it has been argued that the appeal may be dismissed in respect to the half-share of the estate claimed by Ramdhan, but that it must be heard and determined on the merits so far as the other half-share is concerned. On the merits of the appeal it has not been disputed that the decision of the Subordinate Judge upon the question of limitation with regard to properties other than immovable properties and other than the debts realised by Dalmir is well-founded. But as regards the immovable properties it has been urged that his decision is erroneous upon the question of the title of the first plaintiff to succeed by inheritance. The learned Counsel for the appellant has in fact contended that upon the evidence of custom it is plainly established that the first plaintiff was the chela of Manraj, that, whether his initiation was perfected by the performance of biraja home or not, he was entitled to take by inheritance the estate of his guru, that as a matter of fact he was not merely the nominal chela of Manraj, but was his fully initiated disciple and that all the essential ceremonies were performed, both at the initial and in the final stages. The learned Counsel has further contended that the custom of lapse set up by the defendant has not been proved by the evidence. He has further argued that the third plaintiff is beneficially interested under the conveyance executed in his favour on the 29th February 1904, and is not the benamidar of the mohant of Mandra. In answer to this argument it has been contended on behalf of the respondent that the third plaintiff is the benamidar of Tokenarain, that the second and the third plaintiffs are both champertors who ought not to be allowed to prosecute this litigation after the first plaintiff has retired therefrom, that they have derived no title under their conveyances as he had none to convey because in his case there was no proper initiation ceremony, and, that in any event his initiation into the order was not perfected by the performance, of biraja home, which is essential to constitute the relationship of guru and chela and to entitle the latter to take by in heritance the estate of the former. It has also been suggested that the evidence is sufficient to establish the custom of lapse as alleged by the defendant in his written statement. These points were argued before us at considerable length, and since the close of the arguments we have minutely examined the whole of the evidence on the record. We shall now state our conclusion upon the various questions raised in the appeal.

3. The first question which calls for decision is whether, in spite of the withdrawal of the first plaintiff from the appeal, it is competent to the other plaintiffs-appellants to proceed thereunder in respect of their shares in the disputed properties. The answer to this question must depend upon the true construction of the two conveyances executed by Ramdhan in favour of Madhusudan and Do-man on the 29th February 1904. It was suggested on behalf of the first plaintiff that under these conveyances he was entitled to effect the compromise so as to prejudice the rights of his transferees. In our opinion there is no foundation for this contention. The contingency which has happened was contemplated by the parties. The conveyances expressly recite that it will not be competent to the transferor to confess judgment in favour of the defendant or to enter into any compromise with him, or to abandon or withdraw the claim in respect of the whole or any part of the subject-matter of any suit instituted for the recovery of the properties of Manraj. This is followed by the covenant that if, Ramdhan entered into such a compromise in contravention of the terms of the deed, the transferees would be entitled to prosecute the suits and might also recover damages resulting from the action of the first plaintiff. In the face of an agreement like this it is difficult to appreciate how it can be seriously maintained that it was open to the first plaintiff to enter into a settlement with the defendant, so as to make it impossible for the second and third plaintiffs to enforce any rights acquired by their purchases. That an agreement of this nature for the protection of the purchasers is valid in law is clear from the decision of their Lordships of the Judicial Committee in Lal Achalram v. Raja Kazim Husain 32 I.A. 113 : 27 A. 271 : 9 C.W.N. 477 : 15 M L.J. I97 : 8 O.C. 155. There one Ardowan, who claimed to be entitled to a taluk in Oudh, transferred his half-share in the property to Raja Kazim Husain. The suit was then jointly brought by the transferor and the transferee for recovery of the property, but during the pendency of the action Ardowan withdrew from the suit on a petition of compromise. The transferee Kazim Hosain was then allowed to continue the suit on the ground that there was a valid transfer in presenti of a moiety of the estate to him which gave him a good title on the basis of which it was competent for him to sue. We must consequently hold that the only effect of the petition of the first plaintiff presented to this Court on the 2nd December 1906, is that the appeal in respect of his share must be dismissed. But this does not in any way affect the title of the other plaintiffs, who are consequently entitled to have the appeal heard on the merits so far as their claim to a-half share of the estate of Manraj is concerned. The second question which calls for decision on the appeal is whether the second and third plaintiffs are entitled to maintain the action, or whether as champertors their suit is liable to be dismissed. It has been contended on behalf of the respondent that although the English law of Champerty and Maintenance is not in force in this country, yet the transactions under which the second and third plaintiffs claimed to have derived title to the estate of Manraj are of such a character that no Court of Justice ought to assist them in the enforcement of their rights. The validity of the contention of the respondent must be determined with reference to the principles laid down by their Lordships of the Judicial Committee in a long series of decisions. In the case of Fischer v. Kamala Nicker 8 M.I.A. 170, at p. 187 : 3 W.R. (P.C.) 33 Sir John Coleridge observed that the champerty or maintenance to be open to objection must have the qualities attributed to it by the English law, that is, it must be something against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral and to the constitution of which a bad motive in the same sense is necessary. To determine this, it is necessary, therefore, to look at the substance of the transaction and not merely the language of the instrument. Again in Chedambara Chetty v. Renga Krishna Muthu Vira Puchaiya Naicker 1 I.A. 241 at p. 264 : 22 W.R. 148 : 1 B.L.R. 509. Sir James Colvile stated that although the English law of champerty had not been extended to India, the test that would be applied is-whether the transaction is merely the acquisition of her interest in the subject of litigation bona, fide entered into or whether it is an unfair or illegitimate transaction got up for the purpose merely of spoil or litigation, disturbing the peace of families and carried on for a corrupt or improper motive. It was further laid down that : 'it would be contrary to every sound principle of justice and policy to permit a person who had acquired an irregular interest in a suit and a power which cannot be safely conceded to any speculator to make his power of preventing a family arrangement so: just and proper the means of extorting large, sums of money from the person whose title has been unjustly challenged.' The same question was elaborately examined in Ram Coomar Coondoo v. Chunder Canto Mookerjee 4 I.A. 23 : 2 C. 233 where Sir M. Smith reviewed the earlier decisions on the subject and came to the conclusion that, although the English law of Maintenance and Champerty had not been introduced into India, contracts of this character might, under certain circumstances, be held invalid as against public policy. It was -pointed out that a fair agreement to supply funds to carry on a suit in consideration of having a share in the property, if recovered, ought not to be regarded as per se opposed to public policy for cases may be easily supposed in which it would be, in furtherance of right and justice, necessary to resist oppression that a suitor who had a just title to property and no means except the property itself should be assisted in this manner. But agreements of this kind ought to be carefully watched and when found to be extortionate and unconscionable so as to be inequitable or to be made not with the bona fide object of assisting a claim believed to be just and of, obtaining a reasonable recompense therefor, but for improper objects, as for the purpose of gambling in litigation or of injuring or oppressing others by encouraging unrighteous suits so as to be contrary to public policy-effect ought not to be given to them. To the same effect are the decisions of their Lordships in Raghunath v. Nil Kanth 20 I.A. 112 : 20 C. 843 and Baja Mokham Singh v. Raja Rup Singh 20 I.A. 127 : 15 A. 352. In both these cases the question of the validity of an agreement of the description now before us arose as between the transferee and the transfer. In the first of these cases it was found by the Court of Appeal below that the value of the property agreed to be transferred was much in excess of the amount spent in litigation for the recovery thereof. A decree was consequently made, not for the specific performance of the agreement which was found extortionate and inequitable, but only for payment of compensation to cover the legitimate expenses incurred in the litigation. This view was affirmed by the Judicial Committee. In the second case, it was found that the consideration for the transfer was considerably less than the true value of the property dealt with. The transferor who succeeded in the litigation with the aid of the champertor declined to give him either the property convoyed or damages sufficient to cover the costs of the litigation. The Court of Appeal below held that the chanipertor was entitled to a decree for the amount of money actually advanced with interest thereon, but not to the reward actually stipulated for, which in the circumstances was excessive and unconscionable. This view was affirmed by the Judicial Committee. The question arose again in the case of Lala Achalram v. Kazim Husain 32 I.A. 113 : 27 A. 271 : 9 C.W.N. 477 : 15 M L.J. 197 : 8 O.C. 155 to which we have already referred. In that case the claimant to the estate transferred a moiety share to the champertor ostensibly for a sum of a lakh and a-half rupees. In the conveyance he acknowledged receipt of one lakh; the balance of rupees fifty thousand, it was decided, was to remain on deposit with the champertor to be expended in prosecuting a proposed suit and in paying a monthly stipend to the transferor and his mukhlear. The title upon which the litigation was commenced was established by the evidence. The transferor, however, compromised the matter and withdrew from the suit which was carried on in respect of the half share of the estate by the champertor alone. The person in possession resisted the claim of the champertor on the ground, amongst others, that the consideration recited in the conveyance was untrue and that a substantial portion of it still remained unpaid. This objection was overruled. The Judicial Committee held that, though the consideration had not been paid to the transferor as recited in the conveyance, and although, therefore, the transferor might have a grievance against the champertor, the champertor was entitled to succeed. It was observed that, apart from the untrue recital in the sale-deed, there was no fraud in the transaction. Without his assistance the transferor could not have prosecuted his claim. There was nothing extortionate or unreasonable in the terms of the bargain; there was no gambling in litigation; there was nothing contrary to public policy. The transaction was, in essence, a present transfer by the person ultimately found to be the true owner of a a-half share of his interest in the estate, which vested in the transferee a good title and made it competent for him to sue. Substantially the same view was affirmed by the Judicial Committee in Bhagabat Doyal v. Debt Dayal 35 L.A. 48 : 35 C. 420 : 12 C.W.N. 393 : 10 Bom. L.R. 230 : 7 C.L.J. 335 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bom.L.R. 49. In that case the purchase money was fixed at Rs. 52,600 of which only Rs. 600 was paid down and the balance was payable only on the event of the vendee's success in recovering the property in suit. The transferor and the transferee jointly sued to recover possession. On behalf of the person in possession an objection was taken that the transfers were inoperative in law as they were champertous and contrary to public policy. This contention was upheld by this Court, but overruled by the Judicial Committee. Their Lordships referred to the case of Lala Achalram v. Kazim Hosain 32 I.A. 113 : 27 A. 271 : 9 C.W.N. 477 : 15 M L.J. I97 : 8 O.C. 155 and held that the transaction was not contrary to public policy and not void on that ground. As regards the further objection that the transaction was an unfair and unconscionable bargain for an inadequate price, their Lordships. held that that was entirely a question between the assignor and the assignee and that it was consequently unnecessary to consider what the decision ought to have been in a litigation between the assignor and the assignee in which the former might seek to repudiate the assignment. Their Lordships held that the attack upon the title of the champertor on the ground that the transaction was opposed to public policy and was an unconscionable bargain could not be supported.

4. Let us now in the light of these principles test the validity of the transactions under which the second and third plaintiffs found their title. The total value of the estate of Manraj, the subject-matter of the present litigation, is approximately two lakhs of rupees. The value of a one fourth share of the estate may, therefore, be taken to be Rs. 50,000. The consideration for each of the conveyances was stated to be Rs. 45,000. It cannot be suggested, therefore, that the transfer was for a grossly inadequate price so as to stamp the transaction as an unfair and unconscionable bargain. No doubt only a small portion of the purchase-money, namely Its. 2,000 in the case of each conveyance, is stated to have been paid to the transferor in cash. Bat that by itself would not be sufficient to invalidate the transaction. The only element of unfairness in the transaction apparently was the covenant in the conveyances that if half the actual expenses of litigation exceeded Its. 43,000 each of the purchasers would have to make up the deficit; but that if half of such expenses fell short of Rs. 43,000 each of the transferees would be entitled to appropriate the balance as reward for his exertion and management of the litigation. This no doubt stamps the transaction as a speculative bargain; but having regard to the decision of their Lordships of the Judicial Committee in Kunwar Ram Lal v. Nilkanth 20 I.A. 112 : 20 C. 843 and Rajah Mokham Singh v. Raja Rup Singh 20 I.A. 127 : 15 A. 352 we cannot hold that the bargains were against public policy and consequently void. It is conceivable that, if the question arose between the assignor and the assignee as to the validity of such a covenant in the conveyance, the transferee might find it extremely difficult to maintain the propriety and legality of such a condition, and he might find himself obliged either to content himself with the sums actually advanced and retransfer the property to the assignor, or to retain that property and refund to the assignor the unexpended balance of the consideration for the conveyance. That, however, is a question which, in the view taken by the Judicial Committee, can arise only between the assignor and the assignee. The assignor has, ever since the execution of the conveyances and throughout the litigation in the Court of first instance, affirmed the transfers, and even in his application to this Court for dismissal of the appeal, he does not challenge the propriety of the transaction. In the words of their Lordships of the Judicial Committee in Lal Achalram v. Raja Kazim Husain 32 I.A. 113 : 27 A. 271 : 9 C.W.N. 477 : 15 M L.J. I97 : 8 O.C. 155 'it is not enough for the defendant to make out that the sale-deed in voidable; he must show that it was absolutely void. But now the defendant has this further difficulty that, according to the petition of compromise the transferor has nothing to complain of, for he had nothing to sell.' The result, therefore, upon this part of the case is that the conveyances upon which the second and third plaintiffs founded their title must be upheld; and they must be treated as effecting a present transfer by Ramdhan of one moiety of his interest in the estate and giving title to the transferees on which it was competent for them to sue.

5. The third point which requires decision in the appeal, is whether the third plaintiff is the person beneficially interested under the conveyance nominally executed in his favour on the 29th February 1904; or merely the benamidar of Mohunt Tokenarain of Mandra. The learned Subordinate Judge has upheld the contention of the defendant that the third plaintiff is a mere benamidar and is not competent to sue in respect of the share alleged to have been purchased by him. There can be no question that the burden of proof of the allegation of benami lies upon the defendant, and- he seeks to discharge the onus by a reliance upon those circumstances, namely, first, the long standing enmity between himself and the mohant of Mandra.; secondly, near relationship between the mohant of Mandra and the third plaintiff, Doman Singh; and thirdly, the apparent want of means of the third plaintiff, rendering it impossible for a man of his position to take the risk of a costly and protracted litigation. As regards the first of these grounds, we are in agreement with the Subordinate Judge that there has been a long standing dispute between the mohant of Mandra and the mohant of Budhauli. It is indisputable upon the evidence that the head of each of these monasteries has during many years past endeavoured his best to get the other into trouble and involve him in litigation. They have in fact been on unfriendly terms to such an extent that the defendant Dalmir did not attend the bhandara ceremony at Mandra by Grambhier Puri, and the latter did not attend the bhandara ceremony at Budhauli held by Dalmir. 'We may take it, therefore, as sufficiently made out in the evidence that mohaut Tokenarain of Mandra would avail himself of any opportunity to get Dalmir involved in litigation, if he found it possible. As regards the second--ground, the defendant states in his evidence that the third plaintiff has married a cousin of mohant Tokenarain in his natural family; but the relationship between Tokenarain and Doman cannot be said to be proved, because the defendant admits in his cross-examination that his information that Doman is the brother-in-law of Toke Narain is merely heresay. As regards the third ground, namely, the apparent want of means of Doman Singh, Joyram Puri deposes that he is not a man of substance, and. that he has cultivated hinds which yield about 400 maunds of grain in a year and other properties which bring him a rental of about Its. 350 a year. But this very witness admits in cross-examination that he has no direct knowledge of the circumstances of Doman. At the best, therefore, it may be said that Doman is a man of comparatively limited means and probably not in a position to undertake an expensive litigation of this character. In addition to these three circumstances it must be observed and this is the strongest point in support of the allegation of benami that, although Doman was asserted to be the benamidar of Tokenarain, neither Doman nor Tokenarain came into the witness box to deny the truth of the allegation. The question, how-over, still remains whether all this evidence is sufficient' to justify the Court in holding that Doman has been proved to be the benamidar of Toke Narain. It may be conceded that there are good grounds for grave suspicion that Doman Singh is possibly not the real litigant, and that he has perhaps been set up by someone interested to get the defendant into trouble. As pointed out, however, by their Lordships of the Judicial Committee in Sraeman Chundar Day v. Gopal Ghunder Chuckerhnlty 11 M.I.A. 28 : 7 W.R. (P.C.) 10 and in Moonsice Buzloor Ruhim v. Shumsheroonnissa Begam 11 M.I.A. 551 : 8 W.R. (P.C.) 3 the Court must not proceed upon suspicion only and must not make any presumption against apparent ownership. In our opinion the evidence in this case falls short of what is required to establish the allegation of benami set up by the defendant. We are, therefore, unable to dismiss the claim of the third plaintiff on the ground that he has been proved to be a benamidar and not the person beneficially interested in the conveyance executed in his favour.

6. The fourth point which requires decision in this appeal, is whether the first plaintiff Ramdhan was the chela of Manraj of such a description as to be entitled to claim by inheritance the estate of his guru according to the custom of the sect of sanyasis to which he belonged. This is the fundamental question in the case and has to be regarded from more than one point of view. The first matter, to be considered is whether Ramdhan was taken as a chela by Manraj. According to Ramdhan himself he was born on the 8th December 1882; he was brought by his father into the monastery about five or six months before October 1892, apparently in a time of some distress, he was initiated on the 7th October 1892, and his biraja home ceremony was performed on the 20th October 1893. So far as the first initiation ceremony is concerned, the parties are agreed that Ramdhan was taken as a chela by Manraj; but they differ upon two fundamental points. For in the first place, while according to the plaintiff, he became a full chela upon performance of the initiation ceremony, according to the defendant, the effect of such performance was merely to make him a probationer. In the second place, according to the case made by the plaintiff in the present litigation, elaborate ceremonies were performed on the occasion of his initiation, while, according to the defendant, the ceremonies were of the simplest character and did not comprise the teaching of the Mulmantra, without which: no person can attain the rank of a sanyasi. In so far as the factum of initiation is concerned, the parties are agreed that it did take place, and it is not necessary for us to refer to the evidence in detail upon this part of the case. Upon the other part of the case as to the precise ceremonies which were observed at the time of initiation and their effect upon the status of Ramdhan, the matter requires close examination. It is worthy of note that the case as now sought to be made on behalf of the first plaintiff is fundamentally different from what he stated on the 29th July 1897, when he was examined as a witness in the criminal proceedings between Hetlal Puri and the defendant Dalmir. On that occasion, in answer to a question put by the pleader for Dalmir he stated explicitly that he had been taken as a chela without any ceremony and that none had been performed. He added that there had been no ceremony up till then, that no rites are performed when a chela is made, but five or six months later the biraja home is performed in Aswin on the Dassehra, day and that no other ceremony is necessary. This statement presents a striking contrast to the detailed enumeration of the ceremonies which are alleged by him to have taken place on the occasion of his initiation. He now asserts that not only was his head shaved, his body bathed in water, new clothes given and a new name bestowed, but that mantras were recited; ho was besmeared with sacred ashes and the sacred Sanyas mantras were whispered into his ears by his guru. In order to support these allegations he has called witnesses who have been disbelieved by the Subordinate Judge, and, in our opinion, upon substantial grounds. He offers no explanation as to why in 1897 he stated that no ceremonies had been performed, whereas nine years later he remembered in detail the ceremonies which had been observed on the occasion. In the next place, the more important witnesses ho calls are undoubtedly untrustworthy. These are mohant Gurushai and Hulash Narain, as to both of whom it is extremely doubtful whether they were actually present when the initiation took place. The connection of Gurushai with the Budhaule Math had ceased so far back as in 1889 after the decision of the Judicial Committee in the case brought by him against Magniram Marwari and others, 17 C. 347, and he does not appear to have visited the place again till 1904, when Dalmir performed the bhandara ceremony. According to the plaintiff, no invitation had been issued, and it is unexplained how Gurushai, as well as Hulash Narain, who lived in distant places, came by chance just in time to witness the initiation ceremony of Ramdhan by Manraj. It is further worthy 'of note that, according to Hulash Narain, of all gossains present at the time when Ramdhan was taken as the chela, he and Gurushai are the only two persons alive. Not much reliance can be placed on the deposition of Karu Pandey, who according to his own testimony and upon the evidence of Hulash Narain, was not actually present, but merely observed all the ceremonies from a distance when he was performing the worship of some idol. On the other hand, there is a large body of evidence on the side of the defendant, including the testimony of Dalmir himself, that Ramdhan was taken as a chela, that the ordinary ceremonies of the shaving of the head, bathing of the body, wearing of new clothes and the taking of a new name were performed, but that mantras were not recited at the time of the performance of these ceremonies nor were mulmantras whispered into the ears of the intending disciple. We are not prepared to disbelieve this mass of evidence on the side of the defendant, which is strikingly supported by the statements of the plaintiff made in 1897 that no special ceremonies were performed on the occasion of the latter's initiation. We may further observe that there is a considerable body of evidence to show that, as a rule, the mantras are not whispered into the ears of the novice at the time of his first initiation, and that this practice is based upon eminently practical reasons. Every aspirant for entrance into the order of the sanyasis has to pass through a period of probation. Upon his first arrival at the monastery his habits and character are closely watched for some days, and enquiries are made into his caste, for the sanyasis admit into their order ordinarily members of the twice-born classes and very rarely take members of the fourth class. If the novice is approved, his head is shaved, his name is changed and upon the performance of this preliminary ceremony he is regarded as a probationer for entrance into the order. The final ceremony, however, which is called the biraja home ceremony, is not performed for many months, and sometimes for many years. During this period of apprenticeship it is open to the chela to return to his natural family, but after the performance of the final ceremony his connection with the world is deemed to have been finally severed. This is amply borne out from the valuable note of Mr. Warden on the customs of gossains printed as an appendix to Steel's Law and Custom of Hindu Castes.' This note was prepared in 1825 upon information gathered from several thousands of gossains of the first rank, who had assembled at Trimbuk near the source of the Godavari on a religious festival, and the statements contained in it have always been treated as of great authority. In paragraph 27 Mr. Warden states that the head of the candidate is first shaved, when he immediately becomes a gossain in a state of probation, and that, after he has remained so for a year or two and made himself familiar with the usages of the order, the ceremony of biraja home is celebrated, when he becomes a perfect gossain. In paragraph 28 it is further stated that during the noviciate of the candidate his parents are at liberty to withdraw him, but that, after the solemnization of the biraja home, he is irrevocably attached to the gossain sect and as much alienated from his family by birth as if he had never belonged to it. Now it is stated by the witnesses on the side of the defendant that it is not usual to whisper the mulmantra into the ears of the novice at the time of the first initiaton, when it is still uncertain whether he will or will not return to the enjoyments of worldly life. That some mantras, however, may be recited on this occasion is stated by some of the authorities. Among these it will suffice to refer to the work of Dr. Jogendra Nath Bhattacharji on 'Hindu Castes and Sects,' at page 382 of which it is stated that after the shaving ceremony, the guru whispers into the ears of the neophyte the words Narnah sivayah and the latter recites the forumla and takes a new name. In the same work, however, it is expressly stated that the neophyte has to go through a course of probation, and that, after the completion of the period of apprenticeship, elaborate ceremonies have to be performed, the effect of which is to cut off completely the connection of the sanyasi with his natural family and enjoyments of worldly life. On the evidence, therefore, we hold that the plaintiff was, as alleged by him, taken as an apprentice chela by Manraj in 1892, but that no such ceremonies were performed on the occasion as were necessary to make him a complete chela.

7. The second matter which requires consideration is whether the biraja home ceremony of Ramdhan was performed by Manraj. According to the first plaintiff such ceremony was performed in a cow house attached to the Budhauli monastery on the 20th October 1893, which corresponds with what is known as the Bijoy Dassami Day, that is, the last day of the Dassehra festival in Aswin 1301. It is strenuously assorted on the other hand on behalf of Dalmir that the story is a myth, and that the biraja, homo ceremony was not and could not have been, performed at the time, it is alleged to have taken place. It is further alleged that up to the present it has not taken place at all. In support of his case the plaintiff relies upon his own oath as also the testimony of four witnesses; Gurushai, Titaripuri, Kara Pandey, and Nand Kisore Puri. The defendant, on the other hand, has examined himself and six witnesses who all assert that, at the time alleged, they were in the monastery and that no such ceremony was performed. The whole question is which of these conflicting stories is to be believed. As regards the plaintiff himself, it must be admitted that he throws considerable discredit on his story by omitting to mention the performance of what must be deemed an essential part of the ceremonial. If he is to be believed, he did not offer pindah to himself nor did he devour the burnt betelnut with a betelleaf, nor was the tuft of his hair burnt and mixed with clarified butter. The evidence of the gossain witnesses on both sides show that these are ceremonies of great importance and, if the biraja home was performed, it is impossible to believe that these could have been omitted. The question is, not what the effect of an accidental omission of one out of many ceremonies would be, but rather whether it is at all probable that Manraj who was a man of great ability and circumspection, should have performed the biraja home ceremony and omitted the essential details, specially the performance of the sradh of one's self, which as pointed out in Manga Chariar v. Yegna Dikshatur 13 M. 524 (538) is indicative of the fact that the probationer has suffered civil death and determined his secular status prior to his final entrance into the order of the sanyasis. In our opinion the evidence of the plaintiff tends, as the Subordinate Judge points out, to show that the biraja home was not performed in his case, and the story which he repeats is merely a description of what he had witnessed in connection with the performance of the biraja home of other persons. It may further be observed that the plaintiff mentioned several persons as having been, though uninvited, present on the occasion; of these Monohar Puri and Baijnath Pande were admittedly not examined. Moreover, if the other witnesses, to whose evidence we shall presently refer, are reliable, they give a different list of persons as present. Gurushai asserts that the ceremony, was performed in the presence of himself, Tilai Puri and Monohar Puri as also Gobind Puri and Latu Puri, who have not been examined and whose presence is not mentioned by the plaintiff himself. These witnesses do not allude to the presence of Nand Kisore, the mohant of Saksora, who assorts that he was present. As we have previously stated Gurushai cannot be treated as a reliable witness, his assertion that he was present at the time of the first initiation ceremony on the 7th October 1892, being open to grave doubt. In our opinion his story that ho was also present whenthe final biraja home ceremony was performed on the 20th October 1893 is equally open to doubt. No invitation had been sent to him, and there is reason to believe that he had no connection with the Budhauli monastery after he lost the case against Magniram Marwari. It is certainly a matter of adverse comment that he should, without invitation, be present by chance on the day of the initiatory as well as on that of the final ceremony of Ramdhan. It is also worthy of note, that Latu Puri, who is alleged by Gurushai to have been present on the occasion of the biraja home, had died many years before suit, according to the defendants, some fifteen years before, that is, in or about 1889, and, according to the evidence of Karu Pandey a witness for the plaintiff, some 12 or 13 years before, that is, in or about 1891. Titai Puri, who is also one of the gossains of the Mandra Math asserts that the biraja home ceremony was performed in his presence. He cannot account for his presence at the Budhauli monastery, on that particular day. Admittedly he received no invitation, and that particular day was one of special importance and sanctity, on which he would, in ordinary course, be present at his own monastery. If he is to be believed, he came to Budhauli most opportunely and by the merest accident and left the very next day. He makes statements in his deposition which are unquestionably false; for instance, that Tokenarain was not the defendant in the Baruna case, and that Tokenarain and the defendant Dalmir are on good terms. It is also indisputable that in making these statements he has contradicted his previous deposition in 1903. We think that the Subordinate Judge is justified in his comment that neither Gurushai nor Titai Puri was present at the time when the biraja home ceremony is alleged to have been performed. The evidence of Karu Pandey is equally unreliable. He could not and did not take part in the actual ceremony, but he asserts that he officiated in offering the pinda. If he is to be believed, Ramdhan offered the pinda to himself, which Ramdhan denies. And he makes other statements which are unquestionably false, such as that Hetlal had no concern with Manraj but was a chela of Tularam Puri. He also. therefore, cannot be trusted. Nund Kishore Puri, the mohant of the Saksora Math, also asserts that he was present at the time of the performance of the ceremony. His monastery is at a distance of 36 miles, the whole of which has to be travelled on foot. He had received no invitation, and, if he is to be credited, he likewise came by the merest accident to the Budhauli monastery on a day on which he would, in the ordinary course of events, be present in his own monastery. He has apparently witnessed the biraja home ceremony of Ramdhan alone, and yet he cannot remember whether it was performed before or after he gave evidence before the District Judge; although it must have taken place in 1893, whereas he was examined in 1901. He cannot remember when the biraja home ceremony was performed in his own case or in the case of his chelas. Yet he professes to remember accurately the time and details of the ceremony in the case of Ramdhan. It is further worthy of note that he, like Gurushai and Titai Puri, had previously sided with the monastery at Mandra against the defendant Dalmir. Upon an examination, therefore, of the evidence on the side of the plaintiff the conclusion of, the Subordinate Judge appears to be well-founded that the evidence is untrustworthy and does not satisfactorily prove that the biraja home ceremony was performed. This evidence, weak and unreliable as it is, is contradicted by a large mass of evidence on the side of the defendant. The defendant and six other persons who were undoubtedly present in the Budhauli monastery in October 1893, assert that the alleged ceremony is a myth. Dalmir himself deposes that, if such a ceremony had taken place, his permission as that of the spiritual head of the monastery would unquestionably have been obtained. He asserts that he was neither informed nor invited to give his consent and this is supported by a statement of the plaintiff, to the effect that the latter cannot remember whether or not Dalmir was present at the time of the alleged ceremony. There are, however, six other persons closely connected with the monastery, people apparently of considerable respectability, who come forward and say that the ceremony did not take place. No doubt, it may be said that tin's is a case of oath against oath; but there are important circumstances which in our opinion, confirm the story of the defendant. The defendant asserts, and his assertion is supported by respectable witnesses-that the biraja home ceremony is not performed till the probationer attains the age of discretion. Different witnesses give different limits of age, but there is a general consensus of testimony that' sixteen years is treated as the minimum. It is not necessary to hold that the biraja home ceremony cannot be performed if the chela is under sixteen years of age; but unquestionably the rule is that the chela must have reached years of discretion so as to be able to realize for himself the full significance of the final act of renunciation of the world. If the story of the plaintiff is true, he was at the time about eleven years of age. It is extremely unlikely that a man of the position and attainments of Manraj would think of performing the biraja home ceremony in the case of a boy of eleven years of ago, when, without doubt, the performance of the ceremony might have, been delayed without any disadvantage. One of the learned vakils for the appellant invited our attention to the Sankar Digbijoy which purports to contain an account of the history and career of the groat Sankaracharya, the founder of the Dasnami sect of sanyasis (Wilson on the Religion of the Hindoos, Vol. I, 197). Whether this work can be treated as authentic and authoritative has been a matter of controversy amongst scholars, but even if the statements contained therein are accepted as reliable, they do not help the appellant. The book recites that Sankaracharya finished his studies of the Vedas and adopted the life of a sanyasi in his eighth year (Poona Edition, p. 140, verse 1, and p. 163, verse 59). The book further recites that he died in his thirty-second year after having composed his great Commentaries on the U panishadas and Vedantas, the study of which has furnished occupation for a lifetime to generations of students. Even if all these statements were assumed to be facts, they would only show that in the case of Sankaracharya he attained not merely discretion but maturity of intellect in his infancy and before ho became a sanyasi. His case, therefore, cannot be treated as an authority for what was or might have been done, in the case of an ordinary man. On the whole, therefore, the assertion that the biraja home ceremony of the plaintiff was performed before he completed his eleventh year is extremely unlikely. Reference may in this connection be made to the case of Mahanth Ramji Dass v. Lachhu Dass 7 C.W.N. 145 where this Court refused to believe that the biraja home ceremony would have been performed in the case of one who had not attained the age of discretion. There is another circumstance which also discredits the story of the plaintiff. According to him the ceremony was performed in October, 1893, and the last day of the Dassehra festival is the day on which the biraja home ceremony is always performed. The defendant asserts on the other hand that the biraja home is never performed in October, and that the proper time for its performance is spring, after the winter and before the summer solstice. The evidence makes it quite clear that the second part of the assertion of the plaintiff, namely, that the biraja home ceremony is invariably performed on the last day of the Dassehra festival is unquestionably false. Dalmir asserts that the biraja home in his own case took place in April on the Akshyay Tritia day. Another witness, Jagmohun Puri, states that in his case it was performed on the Shivaratri day in February. It is further unlikely that the biraja home ceremony should be reserved for performance on only one day in the year. It is more likely that it should be allowed to be performed on specially auspicious days. On the other hand there is some evidence to show that the spring is the appropriate time for the performance of a ceremony like this. Reference may be made to the Dharma Sindhu (Bombay Edition, 339) and the Nirnoy Sindhu (p. 513) which are works of high authority on Hindu ritual, to show that the uttaryan that is the time when the sun proceeds from south of the equator towards the north, is the appropriate time for the performance of a ceremony of this description. If so, it is again unlikely that a man of the position and attainment of Manraj should, without any reason, perform the ceremony at a season of the year, which was not quite appropriate. As regards the age of the plaintiff, therefore, and the time of performance of the biraja home ceremony, it is clear that they both tend to throw doubt upon the truth of his story. These two circumstances, as also the facts that at the time of the alleged ceremony Dalmir was not invited, his permission was not taken, no invitations were issued, the Acharya guru Seochurn, whose duty it was to officiate at the ceremony, was not present and according to the plaintiff himself, certain ceremonies were omitted which are deemed essential, the cumulative effect of all these is to descredit the story that the biraja home ceremony was performed in the case of the plaintiff.

8. The next matter calling for consideration is the question whether the performance of the biraja home ceremony is essential to entitle a chela to claim by inheritance the estate of his guru. As we have previously explained the biraja home, indicates the final and irrevocable renunciation of wordly life by the chela. During the period of probation it is open to the chela to renounce the life of the monastery and to return to his family, but after the performance of the biraja home reversion to secular life is an impossibility. Prima facie, therefore, the biraja home is indicative of complete status of chela, and till such status has been attained it is unlikely that a chela would be deemed qualified to take by inheritance the estate of his spirtual preceptor. That this is the custom is established by a large mass of unimpeachable evidence. The very circumstance also that on behalf of the plaintiff strenuous effort was made to prove that his biraja home ceremony had been performed tends to indicate that he also regarded it as essential for the establishment of the right of inheritance. Gurusahai Nund to whose evidence we have previously referred, was constrained to admit that the biraja home is necessary for a sanyasi and that, if it is not performed in the case of a chela, he does not become a valid chela. Hulash Narain also describes it as essential. Titai Puri, on the other hand, did not consider it necessary. Not much importance can be attached to the statements of Karu Pandey, who does not belong to the order of sanyasis. Another witness Hiekeyram considered it necessary, but not essentially necessary. Other witnesses give different opinions; some treat it as necessary which others do not. On the side of the defendant a large number of witnesses testify to its necessity. Ramanand Swamy and Haris Chandra Gir, who are apparently men of considerable learning and sanctity, as well as Rameswar Puri and Hardeo of whom the former belongs to the monastery at Deokhund, while the latter occupies position of Acharya guru of the sanyasis of Boudh Gaya declare that the ceremony is essential. They are supported by Ramprasad, Anunt Puri, Rameswar Puri and Ramnath Puri, all of whom belong to the monastery at Budhauli. Some of these are old men, apparently noted for their piety and respectability; and it is difficult to understand why they should all have combined to set up an absolutely false and unfounded case of custom in relation to succession amongst their order. It was suggested that no reliance ought to be placed upon the testimony of some of these witnesses who belong to monasteries other than the one at Budhauli, and it was urged that it was conceivable that the custom might vary in different monasteries. But it appears from the evidence of Ramanand Swamy that the rules of Dasnami sanyasis are uniform amongst the followers of Sankarcharya, and this is borne out to some extent by the notes of Mr. Warden, to which reference has already been made. In paragraph 27 of this report it is stated that the chela becomes a perfect gossaim only when the biraja home has been celebrated upon completion of the term of probation. The learned Counsel for the plaintiff suggested that, although this might be the strict rule and the biraja home might give a superior status to a chela, yet it was not essential for the purpose of succession, and that at any rate it was probable that during the last three-quarters of a century since Mr. Warden's report was drawn up, the practice amongst the members of the order has grown lax. He invited our attention to some instances in which it was stated that the property had been inherited by chelas although their biraia home ceremony had not been performed. It was asserted that Tilakdhari, Raghunath, Biswanath, Indernarain and Deopuri succeeded without the performance of any such ceremony. In the case of Biswanath, however, it is clear that he succeeded under a title by nomination, and as regards Deopuri, it is clear that he succeeded under a deed. The other three are closely connected with the mohant of Mandra, who is undoubtedly at the root of this litigation, and it would not be safe to place reliance upon their testimony. At any rate, their evidence is weakened by the circumstance that in the case of a good many witnesses cited by the plaintiff, for instance, Gurusahai, Hulash Narain Tetaipuri, Joy Mohan, Nand Kisore and Ram Dyal, upon their own testimony they succeeded to the estate of their respective gurus only after the performance of the biraja home ceremony. On the other hand, there is a mass of evidence on the side of the defendant to the effect that the performance of the biraja home ceremony is necessary to entitle a chela to the estate of his preceptor by succession. No valid reason has been assigned why this evidence should be discarded. Besides the custom which these witnesses assort and seek to establish is on the face of it reasonable and probable. We are not unmindful of the fact that in a passage in the Nirnoy Sindhu (p. 513) it is stated that some regard the performance of biraja home as essential. But, so far as this particular sect of sanyasis is concerned, the evidence of custom to the effect that the performance of the biraja home ceremony is essential, is of a weighty character, and the custom in question is certainly consistent with what is described in Manu, book VI, verse 33 (25 S.B.E. 205), Bishnu, Chapter 96, verse l (7 S.B.E. 279), Bandhavan kanda 17 (14 S.B.E. 273) and Apararka's Commentary on Yajna Valkya, Book III, verses 55-56 (Poona Edition 948). The same view is also supported by statements in the Sanyaspadhyati, one version of which was produced by the defendant but various editions of which appear to be current; whatever difference in detail there may be in these versions they appear to agree in this particular that the biraja home is assumed to be essential. On the whole, therefore, we must affirm the view taken by the Subordinate Judge that the biraja home ceremony is necessary to make a valid chela at any rate, it is essential to entitle the chela to claim by inheritance the estate of his guru. This view is also supported by judicial decisions in which the question of succession has been considered in relation to other maths Amongst these reference may be made to the cases of Ramji Dass v. Lachhu Bass 7 C.W.N. 145; Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 10 M. 375 and Ranga Chariar v. Yegna 13 M. 524 (538). These cases pointedly bring out the distinction between the period of probation and the final entrance into the order of sanyasis. They further show that for the purpose of complete initiation a mere nomination by the guru is not sufficient, but initiation in the root mantra is an essential requisite. As according to the view we take, the toot the mantra is whispered into the ears of the chela at the time of the performance of the biraja home ceremony, it is clear that a chela who has merely become a probationer and whose, biraja home has not been performed, has not attained the status of a valid sanyasi and is consequently not entitled to take by inheritance the estate of his guru.

9. The next matter which requires consideration is whether in spite of the fact that the biraja home of the first plaintiff has not been performed, he is entitled to succeed to the estate of Manraj. The learned vakil for the appellant invited our attention to a passage from the Mitakshara (chapter II, Section 8, paragraph 14) to the following effect:The heirs to the property of a hermit, of an ascetic, and of professed students are in order the preceptor, a virtuous pupil and a spiritual brother and associate in holiness.' On the basis of this proposition it was argued that the plaintiff took by inheritance the estate of Manraj as his virtuous pupil. It is clear, however, from paragraph 4 of the same chapter and section of the Mitakshara, that the rule thus laid down has no application to the circumstances of the present case, for a virtuous pupil takes the property of a yati or ascetic, and a virtuous pupil is one who is assiduous in the study of the theology, in retaining the holy science and in practising its ordinances. Now, Manraj was manifestly not a yati or ascetic whose duties are described in verses 56 to 65 of book. III of the Institutes of Yajna Valkya (Mandalik Edition, 250), nor can the first plaintiff be by any stretch of language described as a virtuous pupil or student of theology or a yati. It is clear, therefore, that the passage from the Mitakshara upon which reliance is placed, is of no assistance to the appellant. We may add that it was contended by the learned vakil for the respondent that the plaintiff would not be entitled to claim by inheritance the property of Manraj because, it was suggested, the chela of a sanyasi could succeed to the estate of his guru only if he had been nominated as his heir or had been installed as the successor by a congregation of sanyasis. No doubt the ordinary rule is as laid down in the cases of Nirunjun Barthee v. Padarudh Birthee S.D.A.N.W.V. 1864 : Vol. I p. 512 and Madho Das v. Kamta Das 1 A. 539 that amongst the sanyasis generally no chela has a right as such to succeed to the property of his deceased guru; his right of succession depends upon his nomination by the deceased in his lifetime as his successor, which nomination is generally confirmed by the mahants of the order when assembled together to perform the funeral obsequies of the deceased. When a guru does not nominate his successor from among his chelas, such successor is elected and installed by the mohunts and principal persons of the sect in the neighbourhood upon the occasion of the funeral obsequies of the deceased. To the same effect are the decisions in Juggunnath Paul v. Bidianund Dutt 10 W.R. 172 and Chhajju Gir v. Diiran 29 A. 109. The rule of succession by nomination or election is, however, not of universal, application as appears from a note of Mr. Colebrooke to the case of Gunes Gir v. Ammo Gir (1807) I.S.D.A. 218 at p. 220 and Shaina Char an Sirhar's Vyabastha Chandrika (Vol. 1, page 545). In some cases, according to the custom of the sanyasi sect, a guru is succeeded in his rights and possessions by his principal chela even though he has not been nominated as successor and there has not been a formal election and installation by an assembly of mohante; but apparently an election or recognition by members of the sect is necessary. It is clear, therefore, that the plaintiff is not entitled to succeed to the estate of Manraj.

10. The last point which requires consideration is as to the custom of lapse set up by the defendant. The defendant alleged in his written statement, and gave a mass of evidence to prove his assertion, that, no matter whether a sanyasi of his sect does or does not leave a valid chela, upon the death of the sanyasi his estate lapses to monastery of which he was a member. There appears to have been a great deal of controversy in the Court below as to whether the monastery at Budhauli was subordinate to the monastery at Mandra, and whether their customs in this respect are identical. It is not necessary in the view 'we take of the rights of the first plaintiff to express any opinion upon this question. Hut we may indicate briefly that upon the evidence the monastery at Budbaali does appear to have been an offshoot of the monastery at Mandra, and that Ganpat Puri, who was the great-grand chela of Ajodhya Swami, one of the mohants of the Mandra monastery, founded the monastery at Budhauli. It is clear, however, that for many years past the branch has claimed independence of the original institution, and that there has been a considerable amount of rivalry and ill-feeling between the spiritual heads of the two institutions. It may further be conceded that prima fade the founder of the branch monastery carried with him the customs of the monastery in which he was originally brought up. But it is well-settled, as pointed out by this Court in the case of Prayad Das v. Mohunth Kirparam 8 C.L.J. 499 upon the authority of the earlier decisions in Kashi Bashi Ramlingaswamee v. Chitumbernath 20 W.R. 217 and Giyana Sambandha Pandora Sannadhi v. Kandasami Tambira 10 M. 375 that there is no fixed rule which regulates the relation between superior and subordinate maths, for even if a math is subordinate to another it must be governed by its own rules of management. The decision and the question of lapse must, therefore, primarily depend upon the custom, if any, which may have-grown up in the monastery at Budhauli, though some assistance may be derived from the evidence of custom in the parent monastery or in any other neighbouring monastery occupied by members of the, Dasnami sect. So far as the Budhauli monastery is concerned, it is difficult to say that there have been any instances which conclusively prove the alleged custom of lapse. The monastery is itself a little over half a century old and its founder died about 1851. A large body of evidence, however, has been adduced to prove that the custom of lapse obtains in other maths. The difficulty of dealing with this evidence arises from two circumstances. In the first place, although specific instances arc alleged in which the property of a deceased sanyasi has been taken by the spiritual head of the monastery to which he belonged, it is not conclusively shown that ho left any valid chela whose biraja home ceremony had been performed and who was competent to take the estate by inheritance. In the second place, in some of the other instances produced to show that the monastery did take by lapse it is not satisfactorily proved whether the deceased lived as a member of the monastery or whether, though a member of the order, he lived outside the monastery and was by custom allowed to hold separate property which might pass by inheritance to a valid chela. in order to establish the custom of lapse it would be necessary for the defendant to prove not merely that in some instances the property had passed to the spiritual head of the monastery, but also that this took place in the presence of a chela who would otherwise be competent to take by inheritance. For instance, if there was no chela at all or if there was chela who was a mere probationer and whose biraja home ceremony had not been performed, the property of the deceased might very well be taken by the spiritual head of the monastery. To illustrate the difficulty of following evidence of this character it is sufficient for our present purpose to refer to one typical instance. As regards one sanyasi, Jam Narain, it was asserted that his chela Radhe Giri got his assets although he subsequently left the math. The biraja home of this chela does not appear to have been performed, and the truth appears to be that on that ground he was excluded from succession. Such evidence is obviously of no assistance. Again to take an instance on the other side, upon the death of a sanyasi by name Kesho, his chela Meghulal was allowed to inherit his assets, and this was relied upon to negative the alleged custom. On examination of the evidence it transpired that Kesho lived outside the math in Ghoramba, which was in reality a subordinate math of Budhauli. The rule of succession in such a case might well be different from what it is in the case of a sanyasi who resided in the monastery as a member and died there. After a careful analysis of the whole evidence upon this point which is set out in detail in the judgment of the Subordinate Judge, the impression left upon our minds is that well authenticated instances of lapse in spite of the presence of a chela of the deceased qualified to take by inheritance are too few in number and of too recent a date to enable the Court to hold that the custom of lapse has been satisfactorily established. As we have already stated, mere assertion of cases of lapse are of no use unless it is conclusively shown in each case that the superior of the monastery took the estate of the deceased by lapse in spite of the presence of chela who, but for the custom of lapse, would be entitled to succeed.

11. The result, therefore, is that the plaintiffs appellants have failed to prove that upon the death of Manraj his estate was taken by inheritance by the first plaintiff. The decree made by the Subordinate Judge is substantially right on the merits and must be affirmed. The appeal of the first plaintiff will, therefore, be dismissed without costs and the appeal of the other plaintiffs will, also, be dismissed with costs.


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