Respondent Mathura Ahir alias Swami Harswanand, the
Mahant of Garwaghat Math filed a suit for declaration of
title to and possession of house No. C/27/33 situate in
Mohalla Jagatgunj, Varanasi, for arrears of rent and mesne
profits in respect thereof. The said property was purchased
by his Guru Atma Vivekanand Paramahans (ne Baikunth Singh)
from out of the income of the Math i.e. the offerings
(Bhent) made by the devotees. The appellant who was
impleaded as defendant 5 to avoid further litigation claimed
that this property acquired by his late father Baikunth
Singh alias Swami Atma Vivekanand, after he became a Guru
and out of Math funds devolved upon him the natural son and
disciple. Since the claim went in favour of the respondent
Mahant the appellant came in appeal by special leave to this
Court. The original plaintiff died during the pendency of
the appeal.
The contentions of the appellant were: (i) the
plaintiff Mathura Ahir being a Sudra could not be ordained
to a religious order and become a Sanyast or yati and
therefore installed a mahant of the Garwaghat Math,
according to the tenets of the Sant Math Sampradaya, (ii) In
the absence of proof of the performance of Atma Sradh and
the recitation of Pravesh Mantram, neither the plaintiff nor
his two predecessors Swami Sarupanand and Swami Atma
Vivekanand could be regarded as Hindu Sanyasi; and (iii) the
first respondent Harsawanand the original plaintiff having
died during the pendency of the appeal, the appeal abated in
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its entirety.
Dismissing the appeal, the Court
^
HELD: 1. A math is an institutional sanctum presided
over by a superior who combines in himself the dual office
of being the religious or spiritual head of the particular
cult or religious fraternity and of the manager of the
secular properties of the institution of the Math. [671 D-E]
The property belonging to a Math is in fact attached to
the office of the mahant, and passed by inheritance to no
one who does not fill the office. The
661
Head of a Math, as such, is not a trustee in the sense in
which that term is generally understood, but in legal
contemplation he has an estate for life in its permanent
endowments and an absolute property in the income derived
from the offerings of his followers, subject only to the
burden of maintaining the institution. [671 A-B]
In the instant case, the evidence on record
sufficiently establishes that a Math came to be established
at Garwaghat and the building known as "Bangla Kuti" and
certain other buildings including the house in suit
constituted the endowment of the math itself. [671 E-F]
Sammantha Pandara v. Sellappa Chetti (1879) ILR 2 Mad.
175; Gyanasambhandan Pandara Sannadhi v. Kandaswami Tambiram
(1887) ILR 10 Mad. 375; Vidya Purna Thirthaswami v.
Vidyanidhi Thirtha Swami (1904) ILR 27 Mad. 435; Ram Prakash
Das v. Anand Das (1915-16) 43 I.A. 73 (PC); Vidya Vanthi
Thirtha v. Baluswami Iyer (1920-21) 48 I.A. 302; referred
to.
2. The math at Garwaghat belongs to the ’Sant Mat’
Sampradaya, which is a religious order and the suit property
is Math property. Though the Math at Garwaghat established
by Swami Sarupanand was of recent origin, the religious
order denominated as ’Sant Math’ has had large following in
Punjab and some other parts of India since more than a
century. In a sense, therefore, Swami Sarupanand himself did
not for the first time evolve any new religious order. [672
E, 673 F-G]
The institution was really built up by Swami Atma
Vivekanand, who was held in great veneration by the
followers of the sect. He preached the tenets of ’Sant Mat’
and had a large following. His ’Sant Mat’ fraternity
comprised of thousands of Girhastha and Virakta disciples
who made large Offerings. Such offerings in cash or kind or
in the shape of immovable property which were endowed to the
Math. Swami Atma Vivekanand was the Mahant of the Garwaghat
Math. The two houses at Varanasi including the suit house
were purchased by Swami Atma Vivekanand from out of the
offering (Bhent) made by his disciples. [675A-D]
3. Succession to Mahantship of a Math or religious
institution is regulated by custom or usage of the
particular institution, except where a rule of succession is
laid down by the founder himself who created the endowment.
[675 G-H]
Genda Puri v. Chatar Puri, [1886] 13 I.A.100 @ 105;
Sital Das v. Sant Ram, A.I.R. 1954 SC 606; Mahalinga
Thambiran v. La Sri Kasivasi, [1974] 2 SCR 74; followed.
4. The succession to the office of the Mahant according
to Sant Sampradaya is by nomination, i.e. from Guru to
Chela, the Guru initiates the chela after performing the
necessary ceremonies. The person initiated as a Chela adopts
the life of a sanyasi and is pledged to lead a life of
celibacy and religious mendicancy. The sitting Mahant hands
over the management of the Math to one of his virtuous
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Chelas fittest to succeed when he nominates and when he
wishes to install as Mahant after him in his place. He makes
clear this desire to the members of his Sampradaya, and also
authorises the nominated chela to give Bhesh Dikshwa. After
the death of the Mahant, the Bhesh and Sampradaya give
Chadar Mahanti of the math to the said disciple at the time
of the Bhandara. [672 A-C]
662
5. Asceticism in India has been under the definite and
strong sanction of religion. In the doctrine of the four
asramas, asceticism was made an integral part of the
orthodox Hindu life, and it became the duty of every Hindu,
as advanced age overtook him, homeless and a wanderer to
chasten himself from earthly ties, and of realizing union
with Brahman. And a religious motive was thus supplied for
that which in itself was a welcome release from
responsibility, care and the minute requirements of an
elaborate social code. In due course, with the advancement
of knowledge, the shackles of the caste system were broken
through and the privileges and powers of the ascetic life
were extended to Sudras and in due recognition of their
status, they were treated as Hindu Sanyasis. At the present
time, there is no distinction or barrier; any one may become
an ascetic, and the vows are not necessarily life long. Some
sects, however, still restrict membership to Brahmans, or at
least to men of the three higher castes. [681 E-H, 682 G-H]
6. One who enters into a religious order severs his
connection with the members of his natural family. He is
accordingly excluded from inheritance. Entrance to a
religious order is tantamount to civil death so as to cause
a complete severance of his connection with his relations,
as well as with his property. Neither he nor his natural
relatives can succeed to each other’s properties. [676 A-B]
Any property which may be subsequently acquired by
persons adopting religious orders passes to their religious
relations. The persons who are excluded on this ground came
under three heads; the Vanaprastha or hermit; the Sanyasi or
Yati, or ascetic and the Brahmachari or perpetual religious
student. In order to bring a person under these heads, it is
necessary to show an absolute abandonment by him of all
secular property, and a complete and final withdrawal from
earthly affairs. The mere fact that a person calls himself a
Byragi or religious mendicant, or indeed that he is such,
does not of itself disentitle him to succeed to property.
Nor does any Sudra come under this disqualification, unless
by usage. This civil death does not prevent the person who
enters into an order from acquiring and holding private
property which will devolve, not of course upon his natural
relations, but according to special rules of inheritance.
But it would be otherwise if there is no civil death in the
eye of the law, but only the holding by a man of certain
religious opinions or professions. The after-acquired
property passes on his death not to his natural but to his
spiritual heirs. [676 A-E, 683 A-B]
Dharmapuram v. Vivapandiyan, [1899] I.L.R. 22 Mad. 202,
Harish Chandra v. Alia Mahamed, [1913] I.L.R. 40 Cal. 545,
explained.
7. The ’Sant Mat’ sampradaya is a religious
denomination i.e. a sub sect of one of the Dasnami sects
founded by the Great Sankracharya. Sankara was an ascetic
and founded schools of ascetics. Sankara established four
Maths or seats of religion at four ends of India-the
Sringeri Math on the Sringeri Hills in the South, the Sharda
Math at Dwarka in the West, the Jyotir Math at Badrikashram
in the North, and the Govardhan Math at Puri in the east.
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The monks ordained by Sankara and his disciples were called
Sanyasis. Each Math has a sanyasi at its head who bears the
title of Sankaracharya in general. Sankara is said to have
four disciples who were all brahmans, from whom the
663
ten divisions of the order-hence named as the ten-named or
’dasnami Dandis’ originated. They are: Thirtha, shrine;
Ashrama, order; Vana, wood; Aranya, Forest or desert;
Saraswati and Bharati, the goddesses of learning and speech;
Puri, City; Giri and Parvata, a hill; and Sagara, the ocean.
[683 C-G]
Dandis or staff bearers occupy a place of pre-eminence.
They worship Lord Siva in his form Bhairava; the ’Terrible’
and profess to adhere Nirguna and Niranjana, the deity
devoid of attribute or passion. A sub section of this order
are the Dandi, Dasnamis or Dandi of ten names, so called
from their assuming one of the names of Sankara’s four
disciples and six of their pupils. [658 B-C]
The Dandis keep themselves very distinct from the rest
of the community. They are Brahmans, and receive disciples
only from the Brahmans. They lead a very austere life. They
do not touch fire or metal or vessels made of any sort of
metal. It is equally impossible also for them to handle
money. They shave their hair and beard. They wear one long
unsewn reddish cloth, thrown about the person. [686 A-B]
There are but three and part of a further ascetic
class, or those called Tirtha, Asrama, Saraswati and Bharati
who are still really regarded as Sankara’s disciples. The
rest i.e. the remaining six and a half of the Dasnamis who
are considered as having fallen from the purity of practice
necessary to the Dandis, are still, in general religious
characters usually denominated and are Atits. These are the
Atits or A’Dandis viz. the Vanas, Aranytas, Puris, Giris,
Parvata, Sagaras and half the Bharatia, reputed to have
fallen to some extent from orthodoxy, but are still looked
upon as religious avatars. Unlike the Dandis, the Atits do
not carry the shaft i.e. a Trishul. They differ from the
former also in their use of clothing money and ornaments,
their methods of preparing food and their admission of
members from any order of Hindus. Some of them lead an
ascetic life, while others mix freely in the world, carry on
trade and acquire property. Most of them are celibate but
some of them marry and are often known as Samyogi or
Gharbari Atits. They are collected in Maths and monastries.
They wear ochre coloured garments, and carry a rosary of
rudraksha seeds sacred to Lord Siva. Their religious
theories (when they have any) are based on the advaita
Vedanta of their founder Sankaracharya. [686 H, 687 A-D]
There is also a sub division of the Puri division of
the Dasanami Sect. They have tenets much in common, based on
the central idea that the Supreme diety is incomprehensible
or ’unseeable’. They denounce idolatory. This more or less
conforms to the tenets of the ’Sant Mat’ Sect. [678 D-E]
The followers of the ’Sant Mat’ treat the Guru as the
incarnation of God. They have no faith in inanimate idols
installed in temples nor do they worship them in their cult.
There are no caste restrictions and any one can be admitted
into the Sant Mat fraternity. According to the custom and
usage of the Sant Mat Sampradaya, the initiation of a chela
by the Guru results in complete renunciation of the world
and he ceases to have all connection with his previous
Ashramas before becoming a Sanyasi. For becoming a sanyasi
it is not necessary that he should be of a particular
Varnashram previously, i.e. even a Sudra can become a
Sanyasi. [671 G-H, 672 E]
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8. Though according to the orthodox Smriti writers a
Sudra cannot legitimately enter into a religious order and
although the strict view does not
664
sanction or tolerate ascetic life of the Sudras, the
existing practice all over India is quite contrary to such
orthodox view. In cases, therefore, where a Sudra can enter
into a religious order in the same way as in the case of the
twice-born classes, such usage should be given effect to.
[670E-F]
9. In order to prove that a person has adopted the life
of a Sanyasi, it must be shown that he has actually
relinquished and abandoned all worldly possessions and
relinquished all desire for them or that such ceremonies are
performed which indicate the severance of his natural family
and his secular life. It must also be proved in case of
orthodox sanyasis, that necessary ceremonies have been
performed such as Pindadana or Birajahoma or
Prajapathiyesthi without which the renunciation will not be
complete. [687 G-H]
Amongst Dasnamis, a ceremony called the Bijla Homa i.e.
the Biraja Homa has been considered essential. The
recitation of the Pravesha Mantram or the renunciation
formula is of course indispensable. [688 A]
In the instant case: (a) there is overwhelming evidence
in proof of the fact that the requisite ceremonies of Biraj
homa or Prajapathiyesthi were performed in case of Swami
Sarupanand and Swami Atma Vivekanand. If the
Prajapathiyesthi or Biraj Homa ceremonies were performed
then it must necessarily give rise to the irresistable
inference that Swami Atma Vivekanand must have performed his
Atma Sradh before he was initiated as a chela; (b) The
appellant was precluded from contending that his father
Baikunth Singh was not a Hindu Sanyasi in view of his
express admission in the plaint filed in an earlier suit.
The burden of proof shifted upon him to disprove it; (c)
Swami Harsewanand (Mathura Ahir) was the validly initiated
chela of Swami Atma Vivekanand and upon his demise was duly
installed as the Mahant of ’Garwaghat Math’ according to the
tenets of ’Sant Mat’ Sampradaya. [689 G, H, 693 C-D]
10. The question whether a suit abates in its entirety
or not upon the death of the plaintiff must necessarily
depend upon the nature of the suit. This is not a class of
case to which the maxim, actio personalis moritur cum
persona applies. [694 C-D]
11. According to Hindu jurisprudence, a religious
institution such as a math is created as a jurisdic entity
with a legal personality capable of holding and acquiring
property. It therefore follows that the suit instituted by
the mahant for the time being, on its behalf, is properly
constituted and cannot abate under the provisions of Order
22 of the Code of Civil Procedure on the death of the mahant
pending the decision of the suit or appeal, as the real
party to the institution is the institution. The ownership
is in the institution or the idol. From its very nature a
math or an idol can act and assert its rights only through
human agency known as a mahant or shebait or dharmakarta or
sometimes known as trustee. It follows that merely because
the mahant for the time being dies and is succeeded by
another mahant, the suit does not abate. [695 B-C, E]
Ram Swarup Das v. Rameshwar Das v. ILR 29 Pat. 989,
over-ruled.
12. The general rule is that all rights of action and
all demands whatsoever existing in favour of or against a
person at the time of his death survive to or against his
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legal representative within the meaning of s. 2(11) of
C.P.C. [699 A,F]
Muhamed Hussain v. Khushalo, ILR 9 All. 131; approved.
665
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1802 of
1971.
Appeal by Special Leave from the Judgment and Order
dated 2-11-1971 of the Allahabad High Court in S.A. No. 768
of 1964.
Y. S. Chitale, Lalji Sahai Srivastava, B. P. Singh and
Mukul Mudgal for the Appellant.
R. K. Garg, S. P. Singh and Sudama Ojha for Respondent
No. 1.
S. T. Desai and Uma Datta for Respondent No. 3.
S. C. Patil for Respondent No. 2
M. Veerappa for Respondent No. 4.
The Judgment of the Court was delivered by
SEN J.-This is an appeal by special leave from a
judgment and decree of the Allahabad High Court dated
November 2, 1971 in a suit for declaration of title to, and
possession of house No. C-27/33 situate in Mohalla
Jagatganj, Varanasi for arrears of rent and mesne profits in
respect thereof.
The principal point in controversy between the parties
in this appeal is, whether the plaintiff, Mathura Ahir,
being a Sudra could not be ordained to a religious Order and
become a Sanyasi or Yati and, therefore, installed as a
Mahant of the Garwaghat Math according to the tenets of the
’Sant Mat’ Sampradaya. A subsidiary question arises as to
whether in the absence of proof of the performance of Atma
Sradh and the recitation of Pravesh Mantra neither the
plaintiff nor his two predecessors Swami Sarupanand and
Swami Atmavivekanand could be regarded as Hindu sanyasis. It
also raises a further question namely whether the first
respondent, Harsewanand, the original plaintiff having died
during the pendency of the appeal, the appeal abates in its
entirety.
The facts of the case are set forth with utmost
particularity in the judgment of the High Court. It will,
therefore, not be inconvenient to deal with them as briefly
as possible. The history of the Garwhaghat Math is as
follows: In 1925, Swami Sarupanand Paramhans, disciple of
Swami Advaitanand, a Hindu ascetic belonging to the ’Sant
Mat’ sect, came from the North-Western Provinces, and took
his abode at Garwaghat, Mouza Ramna Malhija, in the vicinity
of Varanasi City. He was a religious preceptor of great
learning and from his hermitage preached the tenets and
precepts of the ’Sant Mat’ and soon had a large following.
He was treated with great veneration and some of his
devotees by a registered gift deed dated March
666
18, 1935 endowed the land and building, which he named as
’Bangla Kuti’. Subsequently the said Bangla Kuti and other
lands and buildings appurtenant and adjacent thereto came to
be known as the Garwaghat Math of which Swami Sarupanand was
initially the mahant. He paid a visit to village Khuruhja
for a couple of days and Baikunth Singh, father of defendant
No. 5, Sri Krishna Singh, the appellant, was greatly
influenced by his preachings and left for Varanasi for good.
In due course, Baikunth Singh was initiated as chela by
Swami Sarupanand who named him as Atmavivekanand. Swami
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Atmavivekanand Paramhans was the chief disciple of Swami
Sarupanand and was given full rights of initiation and Bhesh
by his Guru. Swami Sarupanand took his samadhi at Meerut in
1936 and after his death, according to his wishes, his Bhesh
and Sampradya gave Swami Atmavivekanand Chadar Mahanti of
Garwaghat Math and made him the mahant. Swami Atmavivekanand
also had a large following and his ’Sant Mat’ fraternity
which comprised of thousands of Grihastha and Virakta
disciples made large offerings and gifted extensive
properties to him as their religious or spiritual leader.
In 1937, Swami Atmavivekanand initiated the plaintiff
Mathura Ahir as his chela and named him as Harsewanand
according to the custom and usage of the ’Sant Mat’ sect.
During his lifetime, he purchased the two properties viz.,
house No. C-27/33, situate in Mohalla Jagatganj and house
No. C-4/83, situate in Mohalla Sarai Gobardhan in the city
of Varanasi by registered sale deeds dated December 3, and
December 22, 1942 from out of the income of the math i.e.,
the offerings (Bhent) made by the devotees and formed the
properties of the math. Swami Atmavivekanand died at
Varanasi on August, 23, 1949. A Bhandara was held on October
3, 1949 and according to the wishes of Swami Atmavivekanand,
the mahantas and sanyasis of the Bhesh and Sampardaya gave
the Chadar Mahanti to the plaintiff and installed him as the
mahant of the math in place of Swami Atmavivekanand on
October 4, 1949 in accordance with the custom and usage of
the Sampradaya. The mahants and sanyasis of the ’Sant Mat’
Bhesh who had assembled for the Bhandara also executed a
document to that effect acknowledging him to be the mahant.
The plaintiff having been installed as the mahant, the
entire property of the Garwaghat Math along with the two
houses in the city of Varanasi, devolved upon him as
successor to Swami Atmavivekanand.
On August 21, 1951 the plaintiff-respondent No. 1,
Harsewanand, brought the suit, out of which this appeal
arises, in the court of the City Munsif, Varanasi for
ejectment of respondents Nos. 2 to 5 from
667
house No. C-27/33, situate in Mohalla Jagatganj, Varanasi.
It was pleaded that respondent No. 2, Avadesh Narain,
defendant No. 1, had taken the house on rent from Swami
Atmavivekanand, the late mahant. It was alleged that he had
unlawfully sub-let the premises to the respondents Nos. 3 to
5, who were defendants Nos. 2 to 4. The suit was contested
by these respondents who denied the tenancy and inter alia
pleaded that they were in occupation of the house as chelas
of Swami Atmavivekanand in their own right by virtue of the
licence granted to them by him. They denied the plaintiff’s
title as well as right to sue alleging that he was neither a
chela of Swami Atmavivekanand nor his successor. It was also
alleged that the house in suit was the personal property of
Swami Atmavivekanand and, therefore, on his death his
natural son and disciple, Sri Krishna Singh, the appellant
became the owner thereof. The suit which was originally
framed by the plaintiff-respondent No. 1, Harsewanand, as a
suit between a landlord and tenant had, therefore, to be
converted into a suit for possession based on title by
impleading the appellant, Sri Krishna Singh as defendant No.
5.
It is not necessary to mention in detail the other
averments in the plaint, nor is it necessary to mention the
various pleas raised in the written statement filed by the
defendants. It will be sufficient, however, to mention that
the appellant Sri Krishna Singh in his written statement
denied the existence of the math as pleaded by the plaintiff
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and asserted that the house in it, in any case, was not math
property. He further pleaded that the plaintiff Mathura Ahir
being a Sudra, was legally incompetent to become a sanyasi,
and that the plaintiff was not the mahant of the Garwaghat
Math. He further claimed that after the death of Swami
Atmavivekanand, he became the owner of the house in suit by
inheritance, as also of the properties alleged by the
plaintiff to belong to Garwaghat Math. All these properties,
according to the appellant, were secular and personal
properties of his father Baikunth Singh, who was also known
as Swami Atmavivekanand.
In the trial, the issues, as finally framed by the
learned Munsif were seventeen in number. Of these, the
following are relevant: (1) Whether the plaintiff is the
owner of the premises in suit? (8) Whether the plaintiff was
nominated as a mahant and given Chadar in accordance with
the custom? Is there any custom as alleged by the plaintiff?
(12) Was Swami Atmavivekanand a sanyasi and had he ceased to
be a Grihasti? (13) Is the plaintiff a Sudra and not
entitled to become sanyasi according to Hindu law? (14) Is
the
668
plaintiff chela of Swami Atmavivekanand and entitled to
succeed to properties left by him in preference to his son
Sri Krishna? (15) Is the house in suit a Math property?
It appears that the case came up for hearing before the
learned Munsif on October 5, 1953 when the plaintiff’s
counsel accompanied by his parocar made oral pleadings under
O. 10, r. 1 of the Code of Civil Procedure to the effect:
"The ’Sant Mat’ Sampradaya is one of the Dasnami
sanyasis founded by the great Sankaracharya, and is
governed by Naranjini Math Akhara."
The learned Munsif found each and every of these issues
in favour of the plaintiff and accordingly decreed the suit.
x x x x x x x x x
On appeal the III Addl. Civil Judge, Varanasi by his
judgment dated January 14, 1964 reversed some of the
aforesaid findings while maintaining the rest.
From the judgment of the Addl. Civil Judge, the
appellant alone preferred an appeal to the High Court which
by its judgment dated November 2, 1971 on a careful
marshalling of the entire evidence, in the light of well-
settled principles, agreeing with the learned Munsif, set
aside the findings of the learned Civil Judge and decreed
the plaintiff’s suit in its entirety.
A learned Single Judge, Kirty J., in the course of his
judgment observed that the evidence on record sufficiently
established that there had come into existence a math at
Garwaghat, of which Swami Atmavivekanand was the mahant. He
referred to the overwhelming evidence led by the plaintiff
showing that the building known as ’Shanti Kuti’ and certain
other buildings constituted an endowment to the math itself,
which was a monastic institution presided over by the
mahant. He further held that the house in dispute was not
the personal property of Swami Atmavivekanand but formed an
accretion to the math as it had been acquired by him from
out of the offerings (Bhent) made by the disciples to him as
their religious or spiritual leader for the purposes of the
spiritual order of the fraternity and, therefore, the
natural heirs of Swami Atmavivekanand could have no claim to
the property, which must descend to the plaintiff as a
successor to him.
x x x x x x x x
On the question whether the plaintiff and his two
predecessors, Swami Atmavivekanand and Swami Sarupanand were
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not legally com-
669
petent to hold office of the mahant of the math in question,
the learned Single Judge observed:
"The finding of the court below on this point is
in appellant’s favour, the reason given therefor being
that the plaintiff failed to prove that he or his
predecessors had performed Atma Sradh and uttered
Pravesh Mantra as mandatorily prescribed by Hindu law.
The factual part of the finding, viz., the performance
of the Sradh and the utterance of the Mantra, is
binding in second appeal, but the conclusion drawn
therefrom is one of law."
After referring to the authorities on the subject, he
observes:
"A reading of the judgments in the above-noted
cases will show that the various observations therein
in regard to performance of Atma Sradh and other rites
(Prajapathiyesthi Viraja Homam etc.) and the utterance
of Pravesh Mantra etc. were made with reference to
particular sects or categories of sanyasis claiming to
belong to a particular religious order or class of such
order, or with reference to "Sanatan", i.e., orthodox,
Hindu Dharma. It is true that on cursory reading it
would appear as if the observations formulate
indispensable legal requirements of the Hindu law
universally applicable to every (Hindu) ordained
sanyasi, but, upon a careful analysis I have found that
that is not so. The law as stated therein is generally
or usually, but not invariably, applicable."
In conclusion, he observes:
"In the absence of any proof that the followers of
Sant Math or the tenets of that Math required of its
Mahant that he must necessarily belong to the twice-
born class of Hindus and be a Sanyasi in accordance
with all the rites and ceremonies mentioned in the
aforesaid cases, I am not prepared to hold that Swami
Sarupanand and Swami Atmavivekanand were legally
incompetent to be Mahants of the Math or that the
plaintiff is a person disqualified from assuming and
holding that office."
He accordingly held that the plaintiff and his predecessors,
Swami Sarupanand and Swami Atmavivekanand were not legally
incompetent to be the mahants of the math. They did not
inflict themselves on the religious fraternity of Sant Mat
Sampradaya nor had they been foisted into the office of
mahant against the will or in spite of the disapproval of
the religious fraternity. In any event, even if the
670
plaintiff was disqualified being a Sudra, he was entitled to
sue as the de facto mahant.
During the pendency of the appeal, the respondent-
plaintiff Mahant Harsewanand having died, respondent No. 1,
Mahant Harshankranand was brought on record as an heir and
legal representative.
It would be convenient, at the outset, to deal with the
view expressed by the High Court that the strict rule
enjoined by the Smriti writers as a result of which Sudras
were considered to be incapable of entering the order of
yati or sanyasi, has ceased to be valid because of the
fundamental rights guaranteed under Part III of the
Constitution. In our opinion, the learned Judge failed to
appreciate that Part III of the Constitution does not touch
upon the personal laws of the parties. In applying the
personal laws of the parties, he could not introduce his own
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concepts of modern times but should have enforced the law as
derived from recognised and authoritative sources of Hindu
law, i.e., Smritis and commentaries referred to, as
interpreted in the judgments of various High Courts, except
where such law is altered by any usage or custom or is
modified or abrogated by statute.
On the main, in agreement with the High Court, we are
inclined to take the view that though according to the
orthodox Smriti writers a Sudra cannot legitimately enter
into a religious Order and although the strict view does not
sanction or tolerate ascetic life of the Sudras, it cannot
be denied that the existing practice all over India is quite
contrary to such orthodox view. In cases, therefore, where
the usage is established, according to which a Sudra can
enter into a religious order in the same way as in the case
of the twice born classes, such usage should be given effect
to.
The first question, therefore, to consider here is:
Whether there was a math in existence at Garwaghat, and if
so, whether the house in suit was an accretion to the math?
Math means a place for the residence of ascetics and their
pupils, and the like. Since the time of Sankaracharya, who
established Hindu maths, these maths developed into
institutions devoted to the teaching of different systems of
Hindu religious philosophy, presided over by ascetics, who
were held in great reverence as religious preceptors, and
princes and noblemen endowed these institutions with large
grants of property. Dr. Bijan Kumar Mukherjea in his Tagore
Law Lectures on the Hindu Law of Religious and Charitable
Trusts, 4th ed., p. 321, succinctly states:
"’Math’ in ordinary language signifies an abode or
residence of ascetics. In legal parlance it connotes a
monastic institution presided over by a superior and
established for the use and benefit of ascetics
671
belonging to a particular order who generally are disciples
or co-disciples of the superior."
x x x x x
The property belonging to a math is in fact attached to
the office of the mahant, and passed by inheritance to no
one who does not fill the office. The head of a math, as
such, is not a trustee in the sense in which that term is
generally understood, but in legal contemplation he has an
estate for life in its permanent endowments and an absolute
property in the income derived from the offerings of his
followers, subject only to the burden of maintaining the
institution. He is bound to spend a large part of the income
derived from the offerings of his followers on charitable or
religious objects. The words ’the burden of maintaining the
institution’ must be understood to include the maintenance
of the math, the support of its head and his disciples and
the performance of religious and other charities in
connection with it, in accordance with usage. See: Semmantha
Pandara v. Sellappa Chetty [1879] ILR 2 Mad. 175 Giyana
Sambandha Pandara Sannadhi v. Kandasami Tambiran (1887) ILR
10 Mad 375; Vidya Purna Tirtha Swami v. Vidyanidhi Tirtha
Swamy (1904) ILR 27 Mad 435; Ram Prakash Das v. Anand Das
(1916) 43 I.A. 73 (PC), Vidya Varuthi Thirtha v. Babuswamy
Iyer (1920-21) 48 I.A. 302; Kailasam Pillai v. Nataji
Thambiran (1910) ILR 33 Mad, 265.
From the principles, it will be sufficiently clear that
a math is an institutional sanctum presided over by a
superior who combines in himself the dual office of being
the religious or spiritual head of the particular cult or
religious fraternity, and of the manager of the secular
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properties of the institution of the math. In the instant
case, the evidence on record sufficiently establishes that a
math came to be established at Garwaghat and the building
known as ’Bangla Kuti’ and certain other buildings,
including the house in suit constituted the endowment of the
math itself.
From a review of the general mass of evidence the High
Court, agreeing with the learned Munsif, held that the
followers of the ’Sant Mat’ fraternity are members of a
religious order. The long line of witnesses who were all
disciples of Swami Sarupanand and/or Swami Atmavivekanand
have clearly established that it is a religious institution
of monastic nature. It is established for the service of the
’Sant Mat’ cult, the instruction in its tenets and
observance of its rites. The Swamiji who is the Guru is the
Mahant, the spiritual and religious leader of the
fraternity.
According to the custom and usage of the ’Sant Mat’
Sampradaya, as pleaded by the plaintiff, the initiation of a
chela by the Guru results in complete renunciation of the
world, and he ceases to have all con-
672
nection with his previous Ashramas before becoming a
sanyasi. For becoming a sanyasi it is not necessary that he
should be of a particular Varnashram previously, i.e., even
a Sudra can become a sanyasi. The succession to the office
of the Mahant is by nomination, i.e., from Guru to chela,
the Guru initiates the chela after performing the necessary
ceremonies. The person initiated as a chela adopts the life
of a sanyasi and is pledged to lead a life of celibacy and
religious mendicancy. The sitting mahant hands over the
management of the math to one of his virtuous chelas fittest
to succeed whom he nominates and whom he wishes to install
as mahant after him in his place. He makes clear this desire
to the members of his Sampradaya, and also authorises the
nominated chela to give Bhesh Dikshawa. After the death of
the mahant, the Bhesh and Sampradaya give Chadar Mahanti of
the math to the said disciple at the time of the Bhandara.
The Courts below have concurrently found that the
custom or usage, so pleaded has been established. They
further found that the plaintiff Mathura Ahir was initiated
as a chela by Swami Atmavivekanand and nominated to be his
successor. They have also found that at the Bhandara held
after Swami Atmavivekanand’s death, the plaintiff was
installed as the Mahant of Garwaghat Math by the Mahants and
Sanyasis belonging to the ’Sant Mat’ Sampradaya, according
to the wishes of Swami Atmavivekanand Paramhans.
From the evidence on record, there can be no doubt that
the math at Garwaghat belongs to the ’Sant Mat’ Sampradaya,
which is a religious Order. No doubt, the plaintiff
Harsewanand, P.W. 15, asserts:
"Followers of any religion can become a sanyasi in
our cult. The practice of becoming sanyasi has been
prevalent since Satyuga. Man’s life is divided into
three Ashramas. (Again said): there are four Ashramas
viz., Brahmacharya, Grihastha, Vanaprastha and Sanyas.
Varnas are three, Dashnami Sanyasis came into existence
after Shankaracharya. They are Puri, Giri, Bharti,
Vana, Tirtha, Aranya, Parvat, Sagar and Saraswati. I am
failing to recollect the name of one of them. The
Sanyasis of Sant Mat are not Dashnami Sanyasis.
Swarupanandji my Guru or I are not Dashnamis, but all
these cults are related with Sant Math. I know
Niranjani and Nirvani Akharas. They belong to Dashnami
Sanyasis and Sant Mat Sanyasis. We have connections
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with Nirvani and Niranjani Maths. Some customs of the
Maths of those Akharas are observed by us also."
(Emphasis supplied)
673
This is, however, contrary to what he had stated in his oral
pleadings under O.10, r. 1 of the Code of Civil Procedure.
The fact that the ’Sant Mat’ Sampradaya is one of the
Dashnami sects cannot be doubted.
There is unimpeachable testimony of Swami
Viveksukhanand, who along with Swami Atmavivekanand and
others was initiated as a chela by Swami Sarupanand on the
same day, at the same time. During his cross-examination,
this witness states:
"Sri Swarupanandji was Sadhu of Sant Sanyas
Sampradai. Sant Sanyas Sampradai has been obtaining
from ancient time. This Sampradai is of those ten
Sampradai which were founded by Swami Shankracharji.
This (Sampradai) out of the Das-nam is Purinama. There
is no branch in Purinama (Sampradai).....Niranjani and
Nirvani Akharas are the Akharas of Giri Sampradai. If a
Sanyasi of Giri, Puri, Bharti, or of any Das Nam
Sampradai abandons sanyas and re-enters into the
Grahast Ashram he is called a Gosain. The rules for
making disciples in Giri and Puri Sampradai for making
chief disciples, and appointing successor are also one
and the same. The rules, rituals and the ceremonies
which are performed at the time of installation to
gaddi in both these Sampradai are also one and the
same. There is no difference in Giri and Puri
Sampradai. The rules, practices, rituals and customs
followed at the time of installation to gaddi in all
the ten sampradaiyas founded by Swami Shankracharyaji
are one and the same.’
(Emphasis supplied)
Though the math at Garwaghat established by Swami Sarupanand
was of recent origin, the High Court observes that the
religious order denominated as ’Sant Mat’ has had large
following in Punjab and some other parts of India since more
than a century. In a sense, therefore, Swami Sarupanand
himself did not for the first time evolve any new religious
order.
As regards the origin of the Math, it observed:
"I have, therefore, no hesitation in holding, in
agreement with the finding of the trial court, that
there had come into existence a Math at Garwaghat,
Varanasi of which Swami Sarupanand was the Mahant. Here
I may also mention that from the evidence on record it
appears that ’Sant Mat’ is not of very recent origin.
Although the evidence is somewhat scanty on the point,
yet it sufficiently indicates that this Math
674
has had numerous followers in Punjab and some other
parts of India since more than a century. In a sense,
therefore, Swami Sarupanand himself did not for the
first time evolve any new religious order. Here it may
also be mentioned that defendants other than the
appellant did not seriously dispute the plaintiff’s
allegation in regard to the Math in question and the
allegation that Swami Sarupanand and thereafter Swami
Atmavivekanand were its Mahants."
Referring to the nature of the property, it said:
"Swami Atmavivekanand before becoming a follower
of the Sant Mat was a Grihasth with a family. From the
evidence on the record it transpires that he became a
devotee and a disciple of Swami Sarupanand and severed
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all connections with his family. In course of time he
was held in high esteem by the followers of the Sant
Mat at Varanasi and other places and large offerings
were made to him by the devotees. Swami Sarupanand had
nominated him to be his successor and after his death
Swami Atmavivekanand did assume the office of Mahant of
the math. There is no evidence from which it can be
reasonably inferred that he treated or set apart the
offerings either in their entirety or some portion
thereof as belonging to him personally. On the contrary
the evidence on record and the circumstances show that
there was a complete blending of such offerings with
the funds of the math and used for its purposes. There
is also no reliable evidence to establish that the
offerings which were made to him were made not for the
purposes of the spiritual order or the fraternity but
for his personal aggrandizement. Indeed, when a person
renounces his family connections and takes to ascetism
it would be difficult to hold that he would thereafter
start amassing wealth and property for his personal
benefit or for the benefit of his family with which he
had severed his connection. Unless specifically proved
to the contrary, under such circumstances it must be
held that the offerings made to such a person were not
offerings made to him personally for his personal
benefit but had been made for the benefit of the math
or the religious institution itself. In such a case, to
my mind, the natural heirs of the person concerned
could have no claim to the property which the person
came by in his capacity as the religious or spiritual
leader. The house in suit must be held to be an
accretion to the Math."
675
All this is borne out by the testimony of plaintiff’s
witnesses. The institution was really built up by Swami
Atmavivekanand, who was held in great veneration by the
followers of the sect. He preached the tenets of ’Sant Mat’
and had a large following. His ’Sant Mat’ fraternity
comprised of thousands of Grihastha and Virakta disciples
who made large offerings. All the witnesses speak of such
offerings in cash or kind or in the shape of immovable
property which were endowed to the math. There are a number
of documents showing the endowment by the disciples of their
properties to the math, wherein they have described
themselves as ’disciples of Swami Atmavivekanand’ and he is
described therein as ’Mahant of the Garwaghat Math’. Even
Avadesh Narain, a Judicial Magistrate, D.W. 1, who practised
as a lawyer at Varanasi before he was appointed as a
Judicial Officer, admits that Swami Atmavivekanand had a
large number of disciples in Uttar Pradesh and Bihar, and
that the property of ’Bangla Kuti’ might be worth lakhs of
rupees. The two houses at Varanasi, including the suit
house, were purchased by Swami Atmavivekanand from out of
the offerings (Bhent) made by his disciples. We have,
therefore, no hesitation in upholding the finding of the
High Court as regards the existence of a math at Garwaghat
and the suit property being the math property.
We may now deal with the main questions on which the
decision of the appeal must turn. It has been argued that
according to the Smritis a Sudra cannot be a sanyasi and,
therefore, the plaintiff could not enter the Order of a yati
or sanyasi. It has further been argued that there is no
evidence on record in proof of the fact that the plaintiff
and his two predecessors Swami Sarupanand and Swami
Atmavivekanand had performed Atma Sradh or recited Pravesh
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Mantra and, therefore, they cannot be regarded as Hindu
sanyasis. It, therefore, becomes necessary to trace the
origin of Hindu sanyasis belonging to the Dasnami sects
founded by the great Sankaracharya, of which the ’Sant Mat’
Sampradaya appears to be a religious denomination i.e., a
sub-sect. The first question is, whether a Brahman alone can
become a sanyasi among Dasnamis? The second question is,
what are the essential ceremonies prerequisite for the
initiation of a Dasnami sanyasi? The third question is, what
is the mode of succession to the office a mahant of a math
or Asthal belonging to any of the Dasnami sects? It will be
convenient to take up the last point first.
The law is well settled that succession to mahantship
of a math or religious institution is regulated by custom or
usage of the particular institution, except where a rule of
succession is laid down by the founder himself who created
the endowment: vide Genda Puri v. Chatar Puri [1886] I.A.
100 @ 105, Sital Das v. Sant Ram A.I.R.
676
1954 SC 606; Mahalingam Thambiren v. La Sri Kasivasi [1974]
2 S.C.R. 74.
x x x x x
x x x x x
One who enters into a religious order severs his
connection with the members of his natural family. He is
accordingly excluded from inheritance. Entrance to a
religious order, is tantamount to civil death so as to cause
a complete severance of his connection with his relations,
as well as with his property. Neither he nor his natural
relatives can succeed to each other’s properties. Any
property which may be subsequently acquired by persons
adopting religious orders passes to their religious
relations. The persons who are excluded on this ground come
under three heads, the Vanaprastha or hermit; the Sanyasi or
Yati, or ascetic, and the Brahmachari, or perpetual
religious student. In order to bring a person under these
heads it is necessary to show an absolute abandonment by him
of all secular property, and a complete and final withdrawal
from earthly affairs. The mere fact that a persons calls
himself a Byragi, or religious mendicant, or indeed that he
is such, does not of itself disentitle him to succeed to
property. Nor does any Sudra come under this
disqualification, unless by usage. This civil death does not
prevent the person who enters into an order from acquiring
and holding private property which will devolve, not of
course upon his natural relations, but according to special
rules of inheritance. But it would be otherwise if there is
no civil death in the eye of the law, but only the holding
by a man of certain religious opinions or professions(1).
Special rules are propounded for succession to the
property of a hermit, of an ascetic, and of a processed
student. Yajnavalkya states a special rule of succession in
regard to the wealth of ascetics and the like: "The heirs
who take the wealth of a Vanaprastha (a hermit), of a Yati
(an ascetic) and a Brahmacharin (a student) are in their
order, the preceptor, the virtuous pupil, and one who is
supposed brother and belonging to the same order". The
Mitakshara explains thus(2): "A spiritual brother belonging
to the same hermitage (dharmabhratrekatirthi) takes the
goods of the hermit (vanaprastha). A virtuous pupil
(sacchishya) takes the property of a yati (as ascetic). The
preceptor (acharya) is heir to the Brahmachari (professed
student). But on failure of these, any one belonging to the
same order or hermitage takes the property; even though sons
and other natural heirs exist."
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The property that is referred to is explained in
Mitakshara and in the Viramitrodaya as consisting of
clothes, books and other requisite
677
articles. Practically, however, such cases seldom arise.
When a hermit or ascetic holds any appreciable extent of
property, he generally holds it as the head of some math or
as the manager of some religious or charitable endowment,
and succession to such property is regulated by the special
custom of the foundation.
Succession to the office of the Mahant or Mathadhipathi
or Pandara Sannadhi is to be regulated by the custom of the
particular institution. Even where the Mahant has the power
to appoint his successor, it is the custom in the various
Maths that such appointments should be confirmed or
recognised by the members of the religious fraternity to
which the deceased belonged.
According to the text of Yajnavalkya referred to above,
the property of a life-long student goes to his preceptor,
that of a hermit or Vanaprastha goes to his religious
brother and that of a sanyasi or Yati goes to his virtuous
disciple. The principle, so far as it affects maths, is
shortly this, viz., ’a virtuous pupil takes the property’.
The particular mode in which the virtuous pupil, that is,
not merely a chela, or a shishya, fittest to succeed, is
ascertained or selected is a matter either of express
direction on the part of the founder or of custom in the
case of each foundation. There are instances of maths in
which the mahantship descends from Guru to chela i.e., the
existing mahant alone appoints his successor, but the
general rule is that the maths of the same sect in a
district, or maths having a common origin, are associated
together-the mahants of these acknowledging one of their
member as a head who is for some reason pre-eminent; and on
the occasion of the death of one, the others assemble to
elect a successor out of the chelas or disciples of the
deceased, if possible-or if there be none of them qualified
then from the chelas of another mahant.(1)
According to the Dharmasastras, in the strict legal
sense, a Sudra cannot become a sanyasi or ascetic.
Mahamopadhya Dr. P. V. Kane in ’History of Dharmasastra’,
Vol. 2, Pt. 1, p. 163, observes:
"As the sudra could not be initiated into Vedic
study, the only asrama out of the four that he was
entitled to was that of the householder. In the
Anusasanaparva (165. 10) we read ’I am a sudra and so I
have no right to resort to the four asramas’. In the
Santiparva (63. 12-14) it is said, ’in the case of a
sudra who performs service (of the higher classes), who
has done his duty, who has raised offspring, who has
only a short span of life left or is reduced to the
10th stage (i.e. is above 90 years of age), the fruits
of all
678
asramas are laid down (as obtained by him) except of
the fourth’. Medhatithi on Manu, VI. 97 explains these
words as meaning that the sudra by serving brahmanas
and procreating offspring as a householder acquires the
merit of all asramas except moksa which is the reward
of the proper observance of the duties of the fourth
asrama."
Although the orthodox view does not sanction or
tolerate ascetic life of the Sudras, the existing practice
all over India is quite contrary to such orthodox views. In
Mukherjea’s Hindu Law of Religious and Charitable Trusts,
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4th ed., p. 328, it is said:
".... the practice of establishing Maths which
began with Brahmin ascetics gradually spread to the
Sudras and in course of time it was adopted by
dissenting religious sects like the Jains, Kabir
Panthis, Nanak Panthis, Jangamus and others though they
do not believe in the authority of the Vedas or in the
tenets of orthodox Hindu religion."
At page 338, it is observed:
"..... according to orthodox Smriti writers, a
Sudra cannot legitimately enter into a religious order.
Consequently, the texts of Hindu Law relating to
exclusion from inheritance applicable to a yati or a
sannyasi do not, in terms, apply to Sudra ascetics. On
this view, it has been held in a series of cases that a
Sudra ascetic is not incapable of inheriting the
property of his natural relations under the ordinary
law of inheritance. Although orthodox view does not
sanction or tolerate ascetic life of the Sudras, it
cannot be denied that the existing practice all over
India is quite contrary to such orthodox views. In
cases, therefore, where the usage is established,
according to which the property of a Sudra ascetic
devolves in the same way as the property of the
ascetics of the twice born classes, such usages should
be given effect to."
(Emphasis supplied)
In the words of the Privy Council in Collector of
Madura v. Moottoo Ramalinga(1), ’under the Hindu system of
law, clear proof of usage will outweigh the written text of
the law’.
Golapchandra Sarkar Sastri in his Hindu Law, 8th ed.,
at pp. 65356, in a passage based on translation of slokas
from Maha-Nirvana Tantra, observes that in Kali Yug, with
numerous sects having their
679
peculiar rites for being ordained to a religious order,
there are five castes (varnas), i.e., a fifth caste
comprising of all other beings. He further observes that
sanyasam according to Vedic rites does not exit and that all
the five castes can become Avadhutha Sanyasis:
"... in the advanced state of the Kali age, the
Brahmanas and the other (four) castes are all entitled
to these two orders of life. The Brahman, the
Kshatriya, the Vaisya, the Sudra, and the general body
of human beings, these five are entitled to be
initiated as Sannyasis or ascetics according to Tantric
system."
The orthodox rule laid down in the Mitakshara that only
the Brahman can enter the fourth Asram of life and are
eligible to become sanyasis, has therefore, been commented
upon by Golapchandra Sarkar Sastri at p. 662:
"It has been held that a Sudra cannot become a
sannyasi or ascetic. This is undoubtedly the doctrine
propounded in the Smritis. But the learned Judges have
not taken into consideration the modern usages
introduced by the Vaishnava and Tantrika and other
systems according to which a Sudra and even a non-Hindu
such as Mohamedan may become a Hindu sannyasi. There
are many religious sects of ascetics among whom caste
distinction is unknown, who accordingly initiate and
admit Sudras into their brotherhood if otherwise
qualified. In esoteric Hinduism also, caste is
individualistic not hereditary, it being determined by
qualification and not by birth. The highest virtue
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taught by the Hindu religion is that a man should
regard other persons and beings as his own self
reproduced in them, as the same Supreme Soul pervades
them all." (Emphasis supplied)
Here the question arises as to what classes of Hindus
should be denominated as Sudras. It is undoubted that there
were originally four classes: (1) the Brahmanas, (2) the
Kshatriyas, (3) the Vaishyas, and (4) the Sudras. The first
three were the regenerate, or twice-born, classes; the
latter, the servile class. The three regenerate classes
exist, it is true; but it often becomes difficult to
distinguish a Sudra from one of the regenerate classes. It
is pointed out by Golapchandra Sarkar Sastri at p. 113:
"The Smritis, which have thrust into prominence
this system, divide men into two large classes namely,
the Sudras
680
and the Twice-born. The study of the sacred literature
forms the principle of this distinction. They ordain
that by birth all men are alike to Sudras, and the
second birth depends on the study of the sacred
literature. Thus Sankha, one of the compilers of the
Dharma-Shastras, declares "Brahmanas (by birth) are,
however, regarded by the wise to be equal to Sudras
until they are born in the Veda (i.e., learn the sacred
literature), but after that (i.e., this second birth)
they are deemed twice-born".
Passages to the same effect are found in most of
the codes, according to which the recognition of the
title of the Twice-born to superiority over the Sudras,
depends upon acquisition of the knowledge of the
Vedas."
The learned author then goes on to say at p. 184:
"According to the Smritis, every man is by birth a
sudra; it is by learning the sacred literature, that a
man becomes twice-born. The privilege of studying the
sacred literature is, no doubt, denied to the sudras as
well as to the females of the so-called twice-born
classes. But the status of being twice-born depends on
the acquisition of knowledge of the sacred literature.
Manu ordains that a twice-born man shall abide with the
preceptor, and study the Vedas for thirty-six years or
half or a quarter of that period, or until knowledge of
the same is acquired."
The consequence of omitting to do the same, according to
Manu, is that a twice-born man, who without studying the
Vedas, applies diligent attention to anything else, soon
falls even when living together with his descendants, to the
condition of a Sudra. The learned author has observed that
the majority of the so-called twice-born classes have
accordingly become long since reduced to the position of
Sudras by reason of neglecting the study of the Vedas from
generation to generation.
The learned Single Judge accordingly observes:
"It will thus be seen that originally every person
was deemed to be born a Sudra and that it was by virtue
of intensive study of Vedas that a person attained the
status of a twice-born person. With the passage of time
running into thousands of years, it is evident that the
original hall-marks for classification of Sudras and
twice-born people gradually disappeared and degenerated
into the rigid caste system based on birth."
681
As Dr. Mukherjea observes, the disciples of Sankara
were all Brahmans and originally, according to the rule laid
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down in Sanyas Grahan Paddhati, the authorship of which is
imputed to Sankara himself, only the twice-born people can
become sanyasis of the Dasnami orders. As the four stages of
life have, in the Vedas, been prescribed only for the twice-
born, no Sudra can, strictly speaking, become an ascetic,
and that is the view entertained by the Smriti writers.(1).
According to the Mitakshara, only the Brahmans can
enter the fourth Asram of life and are eligible to become
sanyasis; and this view is supported by certain passages
from Manu where ’Pravrajya’, i.e. exit from the house, has
been spoken of or prescribed for the Brahmans alone, and a
text of the Sruiti which says "the Brahmans should become
ascetics". According to Nirnaya Sindhu, which has been
quoted in West and Buhler’s Digest of Hindu Law(2), a
Kshatriya and a Vaishya can also enter into an order of
sanyasis.
Upon a view of all these authorities, it was held by
the Madras High Court in Dharampuram v. Virapandiyan(3) and
the Calcutta High Court in Harish Chandra v. Atir
Mahamed(4), that a Sudra can not become a sanyasi under
Hindu Law, and consequently the devolution of property of a
Sudra who purported to renounce the world and become an
ascetic would be governed by the ordinary law of
inheritance.
Asceticism in India, perhaps more than in any other
country, has been under the definite and strong sanction of
religion. In the doctrine of the four asramas, asceticism
was made an integral part of the orthodox Hindu life, and it
became the duty of every Hindu, as advanced age overtook him
homeless and a wanderer to chasten himself with austerities.
Formally this was to be done for the sake of detaching
himself from earthly ties, and of realizing union with
Brahman. And a religious motive was thus supplied for that
which in itself was a welcome release from responsibility,
care, and the minute requirements of an elaborate social
code. In due course, with the advancement of knowledge, the
shackles of the caste system were broken through and the
privileges and powers of the ascetic life were extended to
Sudras.
682
Hindu asceticism represented, further, a revolt from,
or at least a protest against, the tyranny of caste. In its
origin probably remote from Brahmanism, and conveying the
ordinary idea that bodily pain was profitable for the
advancement and purification of the spirit, the ascetic life
became, in association with Hinduism and under the
prescriptive sanction of Hindu law itself, a refuge from the
burden of caste rules and ostracisms.(1)
In Encyclopaedia of Religion and Ethics, Ed. by James
Hastings, Vol. II, p. 91, it is observed:
"....In the first instance apparently, the right
and privilege of asceticism, according to Hindu custom
or law, belonged to Brahmans alone; it was then
extended to all the twice-born, and finally all
restrictions were removed, and admission into the ranks
of the ascetics was accorded to men of every position
and degree."
This is based on the following passage from the Ramayana,
Uttara Kanda, 74.9ff., quoted in J. Muir’s Original Sanskrit
Text, i.119f:
"Formerly in the krta age Brahmans alone practised
tapas; none who was not a Brahman did so in that
enlightened age.... then came the treta age,.... in
which the Ksatriyas were born, distinguished still by
their former tapas ..... Those Brahmanas and Ksatriyas
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who lived in the treta practised tapas, and the rest of
mankind obedience..... In the dvapara age tapas entered
into the Vaisyas. Thus in the course of three ages it
entered into three castes; and in the three ages
righteousness (dharma) was established in three castes.
But the Sudra does not attain to righteousness through
the (three) ages.. such observance will belong to the
future race of Sudras in the kali age, but is
unrighteous in the extreme if practised by that caste
in the dvapara." (Manu: i. 86)
It is, therefore, evident that with reluctance the right to
ascetic life was extended to Sudras and in due recognition
of their status, they were treated as Hindu sanyasis. At the
present time, there is no distinction or barrier; any one
may become an ascetic, and the vows are not necessarily
lifelong. Some sects, however, still restrict membership to
Brahmanas, or at least to men of the three higher castes.
The principle laid down by the Madras High Court in
Dharmapuram v. Virapandiyan (supra) and the Calcutta High
Court in
683
Harish Chandra v. Atir Mahamed (supra) regulating the mode
of devolution of property of a Sudras who becomes an ascetic
is, however, not applicable to after-acquired property of a
Hindu sanyasi. As has been said above, when a layman becomes
an ascetic, his connection with his natural family and
existing property rights are extinguished. If he acquires
any property subsequent to his becoming an ascetic, such
property passes on his death not to his natural but to his
spiritual heirs.
It would be convenient next to deal with the question,
firstly, as to whether in the ’Sant Mat’ Sampradaya which
being a sect of the Dasnamis, a Sudra cannot enter the order
of a yati or a sanyasi; and secondly, whether performance of
Atma Sradh and the recitation of Pravesh Mantra are
ceremonies essential for the initiation of a chela in the
’Sant Mat’ fraternity. That depends on whether the matter
falls to be governed by the Smritis or is regulated by the
custom or usage of the ’Sant Mat’ Sampradaya which was one
of the Dasnami sects.
About the eighth century A.D., Sankaracharya, the
greatest Hindu scholar and philosopher of modern India,
defeated the Buddhists in argument and re-established
Hinduism as the dominant religion of India. Sankara was an
ascetic and founded schools of ascetics. Hindu scholars and
philosophers like Mandana Misra, attempted to prove against
him that such ascetism was against the law of the Hindus.
But all opposition was overborne by the commanding influence
of Sankara, who established four maths or seats of religion
at four ends of India-the Sringeri Math on the Sringeri
Hills in the south, the Sharda Math at Dwarka in the west,
the Jyotir Math at Badrikashram in the north, and the
Govardhan Math at Puri in the east and Mandana himself
became a Sanyasi disciple under the name of Sureswara. The
monks ordained by Sankara and his disciples were called
Sanyasis. Each of the maths has a sanyasi at its head two
bears the title of Sankaracharya in general. Sankara is said
to have four principal disciples who were all Brahmans, from
whom the ten divisions of the Order-hence named the ’ten-
named’ or ’Dasnami Dandis’ originated. These are: Tirtha,
’shrine’; Ashrama, ’order’; Vana, ’wood’; Aranya, ’forest’,
’desert’, Saraswati and Bharti, ’the goddesses of learning
and speech’; Puri, ’city’; Giri and Parvata, ’a hill’; and
Sagra, ’the ocean’.
The orthodox Hindu recognises no other sanyasis.(1)
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Kabir and Nanka also established monasteries on the lines of
Sankara. Chaitanya, the pure, the subtle mystic of Naidia,
the greatest exponent and exam-
684
ple of Bhakti, originally belonged to one of Sankara’s
orders, namely Bharati, though he violently repudiated
Sankara’s pantheism, and his followers founded the class of
ascetics known as Byragis, who too have their
establishments. But it is the schools of Sanyasis founded by
Sankara that are now predominant and are the wealthiest, and
it is of them that we should speak first.
Sankara founded his monastic system on the lines of the
Buddhistic Sangharamas, which were found existing at the
time. The rules of the Hindu and the Buddhistic
institutions, so far as the internal management was
concerned, were very similar. The Sangharama had a superior
under whose management the establishment was and so had all
the Maths of Sankara, the superiors of which were called
Mahants and Acharyas, etc. The superior of a Math had the
control of all the property, for he was the Guru whose power
no one could question, and the nomination of his successor
ordinarily lay with him. As a rule, the best and most
erudite among the disciples, upon whom the choice of the
congregation would naturally fall, was nominated and there
was rarely any contention. In course of time, however, as
the wealth of the Maths increased and worldliness and all
the vices of an idle luxurious life took the place of stern
austerity and scholarship above that of all Buddhists and
other schismatics, by which Sankara intended the Sanyasis,
specially, the superiors, should be distinguished, worldly
ideas became the ruling ideas of the establishments.
In imitation of the Maths of Sankara, the followers of
Ramanuja also founded Maths reaching the Vishishtadwaita
system in various parts of India. The followers of
Madhvacharya, the chief exponent of the Dwaita system, also
founded Maths, the chief among whom are the well-known eight
Maths at Udipi. Similarly, there are Maths of the followers
of Ramanund and Nimbacharya among the orthodox and of Nanak
and Kabir among schismatics. There are also many Maths
founded by lesser teachers. All the strictly orthodox Maths
are Maths of the three regenerate classes. But the followers
of Chaitanya in Bengal and of a teacher named Shankara in
Assam have Maths or Akharas in which Sudras are admitted. It
is, however, only in Madras that the Shaivas have Sudra
Maths. The Tantras allow Sudras to become Sanyasis and
probably, these are based on the Tantras. The Sudra Maths of
Dharmapuram and Tiruvaduthorai are the chief among the Sudra
Maths of the Saiva Siddhantam School: Sammantha Pandara v.
Sellappa Chetti,(1) G. S. Pandara Sannadhi v. Kandaswami
Tam-
685
biran(1), Vidyapurna Tirthaswami v. Vidhyanidhi
Tirthaswami(2), and Kailasam Pillai v. Nataraja
Thambiran(2).
The most respectable members of this Order of Hindu
ascetics known as Saiva Gosains are the spiritual
descendants of Sankaracharya, the very incarnation of the
strictest Brahmanism. Saiva Gosains fell into two classes-
monks known as Mathadhari as contrasted with Gharbari, or
laymen. The true Dandi should, in accordance with the
precepts of Manu Laws (VI. 41ff) live alone near to, but not
within a city.
Of Saiva mendicants and ascetic orders, Dandis or
staff-bearers, occupy a place of pre-eminence. They worship
Lord Siva in his form of Bhairava, the ’Terrible’ and
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profess to adore Nirguna and Niranjana, the deity devoid of
attribute or passion. A sub-section of this Order are the
Dandi Dasnamis or Dandi of ten-names, so-called from their
assuming one of the names of Sankara’s four disciples and
six of their pupils. (4 & 5)
It is customary to consider the two religious orders of
Dandis and Dasnamis as forming but one division. The
classification is not, in every instance, correct but the
practices of the two are, in many instances, blended and
both denominations are accurately applicable to the same
individual(6).
The Dandis, properly so-called, are the legitimate
representatives of the fourth Asrama, or mendicant life,
into which the Hindu, according to the instructions of his
inspired legislators, is to enter, after passing through the
previous stages of student, householder and hermit.
Adopting, as a general guide, the rules laid down in the
original works, the Dandi is distinguished (5 & 6) by
carrying a small Dand, or wand, with several processes or
projections from it, and a piece of cloth dyed with red
ochre in which the Brahmanical cord is supposed to be
enshrined, attached to it. They develop within themselves a
complete detachment from the things of enjoyment either of
this world or the next. Many Brahmans, even Pandits, or
learned
686
Brahmans, come to them for instruction, which they impart
freely, without the smallest recompense. All classes of the
community pay them the great honour, even worship them(1).
The Dandis keep themselves very distinct from the rest
of the community. They are Brahmans, and receive disciples
only from the Brahmans. They lead a very austere life. They
do not touch fire or metal, or vessels made of any sort of
metal. It is equally impossible also for them to handle
money. They shave their hair and beard. They wear one long
unsewn reddish cloth, thrown about the person. Although they
are on principle penniless, yet they do not beg. Their
dependence on the kindness and care of others is thus of the
most absolute character. Yet they are not reduced to
distress or even to want; they are fed by the Brahmans, and
the Gosains, another class of devotees. They sleep on the
ground, and once or twice in the day go round to collect
food and alms, for which they must not ask, but contentedly
receive what is given. According to the stated rule, they
must not approach a house to beg until the regular meal-time
is passed; what remains over is the portion of the
mendicant.
A Dandi should live alone, and near to, but not within
a city; but this rule is rarely observed, and in general the
Dandis are found in cities collected like other mendicants
in maths. The Dandi has no particular time or mode of
worship, but spends his time in meditation, or in practices
corresponding to those of Yoga, and in the study of the
Vedanta works, especially according to the precepts of the
great Sankaracharya. As the preceptor was an incarnation of
Lord Siva, the Dandis reverence that deity; and his
incarnations, in preference to the other members of the
Triad, whence they are included amongst his votarics.
Prof. Wilson in his ’Hindu Religions’ observes:
"Any Hindu of the first three classes may become
Sannyasi or Dandi, or in these degenerate days, a Hindu
of any caste may adopt the life and emblems of this
order." (Emphasis supplied)
The Dasnami Dandis, who are regarded as the descendents of
the original members of the fraternity, are said to refer
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their origin to Sankaracharya.
There are but three, and part of a fourth ascetic
class, or those called Tiratha or Indra, Asrama, Saraswati
and Bharati who are still
687
regarded as really Sankara’s Dandis. The rest, i.e. the
remaining six and a half of the Dasnamis are considered as
having fallen from the purity of practice necessary to the
Dandis, are still, in general religious characters, and are
usually denominated Atits. These are the Atits or A’Dandis
viz., the Vanas, Aranyas, Puris, Giris, Parvatas, Sagaras
and half the Bharatis, reputed to have fallen to some extent
from orthodoxy, but are still looked upon as religious
avtars. The main distinction between the Dandis and the
Atits is that the latter does not carry the staff i.e. a
trishul. They differ from the former also in their use of
clothing, money, and ornaments, their methods of preparing
food, and their admission of members from any order of
Hindus. Some of them lead an ascetic life, while others mix
freely in the world, carry on trade and acquire property.
Most of them are celibate, but some of them marry and are
often known as samyogi or gharbari Atits. They are often
collected in maths or monasteries. They wear ochre-coloured
garments and carry a rosary of rudraksa seeds sacred to Lord
Siva. Their religious theories when they have any) are based
on the advaita Vedants of their founder Sankaracharya(1).
There is also a sub-division of the Puri division of
the Dasnarni sect. They have tenets much in common, based on
the central idea that the Supreme Deity is incomprehensible
or, as they say, ’unseeable’. They denounce idolatory. This
more or less conforms to the tenets of the ’Sant Mat’ sect.
It is proved by the evidence on record that followers of
this sect treat the Guru as the incarnation of God. They
have no faith in inanimate idols installed in temples nor do
they worship them in their cult. There are no caste
restrictions and anyone can be admitted into the Sant Mat
fraternity.
That takes us to the next question as to whether in the
absence of proof of the performance of Atma Sradh and
recitation of Pravesh Mantra neither the plaintiff nor his
two predecessors Swami Sarupanand and Swami Atmavivekanand
could be regarded as a Hindu sanyasi.
In order to prove that a person has adopted the life of
a sanyasi, it must be shown that he has actually
relinquished and abandoned all worldly possessions and
relinquished all desire for them or that such ceremonies are
performed which indicate the severance of his natural family
and his secular life. It must also be proved, in case of
orthodox sanyasis, that necessary ceremonies have been
performed, such as Pindadana or Birajahoma or
Projapathiyesthi without which II the renunciation will not
be complete.
688
Among Dasnamis, a ceremony called the Bijja Homa i.e.,
the Biraja Homa has been considered essential. The
recitation of the Presha Mantram or the renunciation formula
is of course indispensable and has been considered essential
by the different High Courts. According to Manu giving up of
all wordly property is essential.
In Sherring’s ’Hindu Tribes and Castes’, pp. 256-67,
the ceremonies prescribed for the initiation of a Dasnami
sanyasi are stated thus :
"The ceremony observed at the creation of a Gosain is
as follows: The candidate is generally a boy, but may
be an adult. At the Shiva-ratri festival (in honour of
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Shiva) water brought from a tank, in which an image of
the god has been deposited, is applied to the head of
the novitiate, which is thereupon shaved. The guru, or
spiritual guide, whispers to the disciple a mantra or
sacred text. In honour of the event all the Gosains in
the neighborhood assemble together, and give their new
member their blessing; and a sweetmeat called laddu,
made very large is distributed amongst them. The
novitiate is now regarded as a Gosain, but he does not
become a perfect one until the Vijaya Hom has been
performed, at which a Gosain, famous for religion and
learning gives him the original mantra of Shiva. The
ceremony generally occupies three days in Banaras. On
the first day, the Gosain is again shaved, leaving a
tuft on the top of the head call d in Hindi Chundi, but
in Sanskrit, Shikha. For that day he is considered to
be a Brahman, and is obliged to beg at a few houses. On
the second day, he is held to be a Bramhachari, and
wears coloured garments, and also the janeo or sacred
cord. On the third day, the janeo is taken from him,
and the Chundi is cut off. The Mantra of Shiva is made
known to him, and also the Rudri Gayatri (not the usual
one daily pronounced by Brahmans). He is now a full
Gosain or Wan-parast, is removed from other persons,
and abandons the secular world. Henceforth he is bound
to observe all the tenets of the Gosains."
In Gossain Ramdhan Puri & Ors. v. Gossain Dalmir
Puri(1) Mookerjee and Carnduff JJ., observed at p. 203:
"Every aspirant for entrance into the order of sanyasis
has to pass through a period of probation. Upon his
first arrival at the monastery his habits and character
are closely
689
watched for some days, and enquiries are made into his
A 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 Homa 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."
In support of these observations, the learned Judges relied
on the note of Warden on the customs of Gossains printed as
an appendix to steel‘s ‘Law and Custom of Hindu castes’.
As regards Swami Sarupanand, the learned Munsif rightly
observes that ’it would be unjust to place an unreasonable
burden on the plaintiff for leading direct evidence of his
initiation, as Swami Sarupanand came to Varanasi from
distant land and long ago. The truth has to be discerned out
of circumstantial evidence and other materiaI on record.’
That evidence clearly shows that Swami Sarupanand was
acknowledged by his numerous followers to be the head of the
’Sant Mat’ fraternity. That Swami Sarupanand paid the debt
of nature in 1936 at Meerut and that his Smadhi is situate
there is not disputed. The oral evidence lead by the
plaintiff in proof of the fact that after the death of
Swami, his Bhandara took place at Meerut as well as at Gar-
vaghat is irrebuttable. It is common knowledge that sanyasis
are not cremated but are buried, or their bodies consigned
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to some river, and that after their demise a Bhandara takes
place. Defendants Nos. 1 to 4 admitted in their written
statement that Swami Sarupanand was a ’Paramhans’ and that a
Bhandara had taken place after his death. The prefixes
’Swami’ and ’Paramhans’ are used for sanyasis and not for
men of the world.
In the case of Swami Atmavivekanand there is
overwhelming evidence in proof of the fact that the
requisite ceremonies of Birajahoma or Prajapathiyesthi were
performed. Swami Vivekasukhanand, who was initiated as a
chela along with Swami Atmavivekanand and others speaks of
the performance of BriJahoma and Prajapathiyesthi at the
time of their taking sanyas and states:
"I attend satsang. I know Swami Sarupa Nandji. He was a
Sanyasi. I am in Sanyas Ashram. I became Sanyasi
690
about 28-29 years ago. Four other persons had also
taken Sanyas on one and the same day. I had taken
Sanyas. Their names are Swami Atma Vivekanandji, Swami
Aju niya Nandaji, Swami Abheda Nandji and Swami Purna
Shabda Nandji. Swami Atma Viveka Nandji had also taken
Sanyas on that very day. Praja Prashit.. and Virja Hom
Ceremonies were performed at the time of my taking
sanyas. Our heads were shaven from before that. our
Gurudeo had taken the choote. The sacred threads were
burnt in the fire. Our white clothes were removed, and
in its place we were directed to put on the clothes of
the ochre colour. Guru Maharaj had whispered the Guru
Mantra into our ears. Hom (Samigri) were sent from the
Mandleshwar of Benaras, and Birja Hom was got per
formed with it. We were at that time relieved off, from
all the bondages of Grahast Ashram. These very cere-
monies were performed at the time, when Swami Atma
Viveka Nandji took the Sanyas." (Emphasis supplied)
It is necessary to mention that though this witness was
examined at length, there is no question put as to the
performance of Atma Sradh. This is somewhat significant
because this question was put to only one of the plaintiff’s
witnesses, Mahesh Dutt Shukla, PW 13 and he replied that
according to the tenets of the ’Sant Mat’ it is not
necessary to perform Atma Sradh for becoming a sanyasi.
The evidence of the plaintiff’s witnesses show that the
Biraja Homa ceremony is of great importance, and if the
Biraja Homa was performed by Swami Atmavivekanand at the
time of his initiation, it is not at all probable that Swami
Sarupanand and Swami Atmavivekanand, who were men of great
ability and circumspection, should have performed Biraja
Homa ceremony and omitted the essential details, especially
the performance of the Sradh of one’s self, that is, Atma
Sradh by Swami Atmavivekanand. If the Prajapathiyesthi or
Biraja Homa ceremonies were performed, then it must
necessarily give rise to the irresistible inference that
Swami Atmavivekanand must have performed his Atma Sradh
before he was initiated as a chela.
We are clearly of the opinion that the appellant Sri
Krishna Singh, impleaded as defendant No. 5, was precluded
from contending that his father Baikunth Singh, who on his
initiation by Swami Sarupanand was baptised as Swami
Atmavivekanand, was not a Hindu sanyasi. On May 29, 1949 he
along with his brother brought a suit for partition, being
suit No. 389 of 1949 in the Court of Judicial officer,
691
Chandauli, against the other members of their family. It was
alleged in the plaint:
"That the father of the plaintiffs has been a plan
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of religious bent of mind. For that reason he having
left the property of his share in the spurdgi and
possession of his sons, plaintiffs Nos. 2 and 3, more
than twenty years ago, left residing here and went
away. Thereafter he became a sanyasi." Since then,
plaintiffs Nos. 1, 2 and 3 have been in possession and
occupation of the same as of right and also by way of
inheritance.
"That on account of the renunciation made by the
father of the plaintiffs, the plaintiffs have become
the principal tenant according to law and they have
been in possession and occupation of their share up to
this day."
(Emphasis supplied)
In the aforesaid suit, the appellant Sri Krishna Singh
appeared as D, PW 1 and in his deposition, Ext. 101, he
stated on oath .
"The land in dispute is under my tenancy. The name
of my father stands entered in our share. My father
died two months ago. After his becoming a Sadhu he
adopted the name of Atmavivekanand. He has taken
sanyas. He used to live at Gadwadhar Bangla Kuti."
(Emphasis supplied)
In para 6 of his written statement, the appellant while
denying that Swami Sarupanand founded any math at Garwaghat
averred:
"Sri Swami Swarupa Nandji was the Guru of Sri
Baikunth Singh, alias Sri Swami Atma Viveka Nandji,
hence having regard to his old age and also with a view
of honouring him, his name has been entered in gift
deed, dated 8-3-1935. In fact on the basis of the
aforesaid deed of gift, Sri Baikunth Singh alias Sri
Swami Atma Viveka Nandji acquired the property and has
been in exclusive possession thereof."
In para 7 he states:
"Sri Baikunth Singh, alias Sri Swami Atma Viveka
Nandji was a Grahast. He was Chhattri Hindu by caste.
He never took Sanyas nor did he denounce the world. The
real fact is that when Sri Swarupa Nandji, who was the
resident of Punjab, arrived at the house of Sri
Baikunth Singh, aforesaid, situate in Mauza Khuruhja
Pargana Majhuwar,
692
District Banaras, Sri Baikunth Singh was impressed by
him, and under his influence became religious minded.
He called himself as Swami Atma Viveka Nandji. He
believed only in the worship and Bhakte of his Guru. He
considered his Guru as God. He used to impart this very
teaching to his disciples, and devotees. He never
renounced the Grahast Ashram. No body ever gave him
Chadar Mahanthi. He never became the Mahanth of any
Math. Sri Sarupa Nandji was also not the Dasnami. He
never took Sanyas."
That appears to be a case set up to defeat the plaintiff’s
claim. When he was confronted with his admission in the
plaint filed in the suit for partition, he disavowed
knowledge of the fact of his father Baikunth Singh having
become a sanyasi. This was nothing but a time serving
statement.
In Chandra Kunwar v. Chaudhri Narpat Singh,(1) the
Judicial Committee of the Privy Council observed:
"The proof of this admission shifts the burden,
because, as against the party making it, as Baron Parke
says in Slatterie v. Pooley: "What a party himself
admits to be true may reasonably be presumed to be so."
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No doubt, in case such as this, where the defendant is
not party to the deeds and there is therefore no
estoppel, the party making the admission may give
evidence to rebut this presumption but unless and until
that is satisfactorily done, the fact admitted must be
taken to be established."
It follows that admission of the fact that his father
Baikunth Singh had become a sanyasi, shifted the burden on
the appellant to disprove that he was Hindu sanyasi.
There is direct oral evidence of the plaintiff
Harsewanand and of his witnesses PWs 2 to 5, 7 to 10, 14 and
particularly that of Swami Viveksukhanand taken on
commission, about the plaintiff’s initiation into the
ascetic order. All these witnesses have amply proved that
the particular ceremonies including Prajapathiyesthi and
Biraja Homa required in the ’Sant Mat’ fraternity were
performed when the plain tiff was made a sanyasi. It is
amply proved by PWs 1 to 10 and 13 to 15 that Swami
Atmavivekanand had not only initiated him as his chela but
also nominated him to be the mahant and that after his death
and in accordance with his wishes, he was given Chader
Mahanti on the occasion of the Bhandara of Swami
Atmavivekanand.
693
The document Ext. 100, prepared by the ’Sant Mat’ fraternity
on this A occasion and the photograph Ext. 121, taken lends
assurance to the testimony of these witnesses that the
plaintiff Harsewanand was installed as the mahant of the
math in accordance with the express desire of Swami
Atmavivekanand.
The learned Civil Judge in his judgment observes: ’The
fact of Harsewanand being a sanyasi remains undoubted’. His
finding that he was not a Hindu sanyasi was based upon the
view that under Hindu law mere ’renunciation’ of the world
is not sufficient. Hence, he holds that a Sudra who
renounced the world and became sanyasi cannot be said to be
a Hindu sanyasi, as according to the Hindu Sastras no Sudra
can become a sanyasi. The underlying fallacy lies in his
over-looking that the question had to be determined not
according to the orthodox view, but according to the usage
or custom of the particular sect or fraternity. It is
needless to stress that a religious denomination or
institution enjoys complete autonomy in the matter of laying
down the rites and ceremonies which are essential. We must
accordingly hold that the plaintiff was the validly
initiated 1) chela of Swami Atmavivekanand and upon his
demise was duly installed as the mahant of Garwaghat Math
according to the tenets of his ’Sant Mat’ Sampradaya.
There remains the question whether due to the death of
the 15 plaintiff Harsewanand during the pendency of the
appeal the suit brought by him abates in its entirety.
It is argued that the original plaintiff, Mathura Ahir,
having filed the suit primarily to establish his personal
right to the office of mahant which entitled him to
possession of the property in suit, the suit abated on his
death. The cause of action on which the suit was instituted,
it is urged, was personal to the plaintiff, and in order to
establish that he had been duly and properly initiated as a
sanyasi and installed as a mahant, he had to plead and
establish all the necessary facts regarding his capacity to
become a sanyasi, his nomination by his Guru. and his
ultimate election or nomination by the ’Sant Mat’
Sampradaya. The submission is that these were facts special
to the original plaintiff, and he having died, respondent
No. 1, Harshankaranand cannot claim any relie unless and
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until he also establishes all these facts in regard to his
claim to mahantship. The original cause of action, it is
said, has vanished with the death of the plaintiff and the
respondent No. 1, Harshankaranand had necessarily II to
plead and establish a new set of facts. In substance, he
could not prosecute the cause of action as originally framed
and he could
694
not succeed without materially altering the pleadings and
substituting another cause of action, which could very well
form the subject matter of a separate suit.
It is argued that the nomination of a person as a
mahant invests him with a ’status’ and, therefore, capacity
to succeed to the office of mahant is an incident of that
status. It is said that the claim to mahantship is,
therefore, a personal right which does not survive the
plaintiff; any suit claiming such a status must abate on the
death of the plaintiff. Alternatively, the submission is
that if the Court came to the conclusion that the plaintiff
had sued in his capacity as a de facto mahant, it is obvious
that the cause of action would be personal to him and would
certainly not survive the plaintiff. In that event, the , J
suit must of necessity abate as a right claimed on the basis
of de facto ownership cannot survive the plaintiff.
x x x x x
The question whether a suit abates in its entirety or
not upon the death of the plaintiff must necessarily depend
on the nature of the suit. This is not a class of case to
which the maxim, actio personalis moritur cum persona
applies. The suit that the plaintiff Harsewanand brought was
for possession of the suit house which belonged to Garwaghat
Math, in his capacity as the mahant. On denial of his title,
he pleaded that he was initiated as a chela by his Guru
Swami Atmavivekanand, the then mahant, in 1937 and nominated
to be his successor and accordingly upon his demise on
August 23, 1949, had been duly installed as Mahant of the
Math by the ’Sant Mat’ Sampradaya, i.e., by the Mahants and
Sanyasis of the Bhesh and given Chader Mahanti according to
the tenets of fraternity. It was alleged that according to
the tenets of this particular sect, anyone, including a
Sudra, could be a sanyasi, and further that succession to
the office of mahant was from guru to chela according to the
custom or usage prevailing in the sect. One of the issues on
which the parties went on trial was whether there was in
existence a math at Garwaghat, and if so, whether the house
in suit was an accretion thereto.
The High Court agreeing with the learned Munsif has
upheld the plaintiff’s claim. It was held that the house in
suit was acquired by Swami Atmavivekanand from out of the
offerings (Bhent) made by his disciples and, therefore, was
not his secular property, but was an accretion to the
Garwaghat Math. It has further been held that the plaintiff
Harsewanand was the validly initiated chela of Swami
Atmavivekanand and was duly installed as mahant of the math
after his death, by the ’Sant Mat’ fraternity according to
his wishes. The defendants have been held to be rank
trespassers. The decree under
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appeal crystallizes the rights of the parties. The cause of
action did A not die with the plaintiff. In the
circumstances, the respondent No. 1, Harshankaranand, who
now claims to be the mahant, has the right to contest the
appeal as representing the math, being the de facto mahant,
for preservation of its properties.
x x x x x x
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According to the Hindu jurisprudence, a religious
institution such as a math is treated as a juristic entity
with a legal personality capable of holding and acquiring
property. It therefore, follows that the suit instituted by
the mahant for the time being, on its behalf, is properly
constituted and cannot abate under the provisions of order
22 of the Code of Civil Procedure, on the death of the
mahant pending the decision of the suit or appeal, as the
real party to the suit is the institution. The ownership is
in the institution or the idol. From its very nature a math
or an idol can act and assert its rights only through human
agency known as a mahant, shebait or dharmakarta or
sometimes known as trustee.
Jenkins C.J. in Babajirao v. Laxmandas(1) defines the
true notion of a ’math’ in the following terms:
"A math, like an idol, is in Hindu Law a judicial
person capable of acquiring, holding and vindicating
legal rights, though of necessity it can only act in
relation to those rights through the medium of some
human agency."
It follows that merely because the mahant for the time being
dies and is succeeded by another mahant, the suit does not
abate.
The correctness of the decision in Ramswarup Das v.
Rameshwal Das(2) is thus open to question. It does not stand
to reason that when a suit is brought for possession by a
mahant of an asthal or Math. Or by a shebait of a debottar
property, and the defendant is adjudged to be a trespasser,
such a suit should abate with the death of the mahant or
shebait. This would imply that after a long drawn
litigation, as he-re, the new mahant or shebait has to be
relegated to a separate suit. The definition of legal
representative as contained in s.2(11) of the Code reads:
"(11) . "legal representative" means a person who
in law represents the estate of a deceased person, and
includes any person who intermeddles with the estate of
the deceased and where a party sues or is sued in a
representative character the person on whom the estate
devolves on the death of the party so suing or sued."
696
The general rule is that all rights of action and all
demands whatsoever, existing in favour of or against a
person at the time of his death survive to or against his
legal representative. In Muhammad Hussain v. Khushalo(1)
Edge C.J., while delivering the judgment of the Full Bench,
observed:
"I have always understood the law to be that in
those cases. in which an action would abate upon the
death of the plaintiff before judgment, the action
would not abate if final judgment had been obtained
before the death of the plaintiff, in which case the
benefit of the judgment would go to his legal
representative."
That, in our opinion, lays down the correct test.
In the instant case, the appellant himself has, of
course, without prejudice to his right to challenge the
right of the original plaintiff, Harsewanand, to bring the
suit, substituted the respondent No. 1, Harshankaranand, as
his heir and legal representative, while disputing his claim
that he had been appointed as the mahant, as he felt that
the appeal could not proceed without substitution of his
name. In his reply, the respondent No. 1, Harshankaranand
alleges that after the demise of mahant Harsewanand he was
duly installed as the mahant of Garwaghat Math by the ’Sant
Mat’ fraternity. He further asserts that he was in
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possession and enjoyment of the math and its properties. The
fact that he is in management and control of the math
properties is not in dispute. The issue as to whether he was
so installed or not or whether he has any right to the
office of a mahant, cannot evidently be decided in the
appeal, but nevertheless, he has a right to be substituted
in place of the deceased Mahant Harsewanand as he is a legal
representative within the meaning of s. 2(11), as he
indubitably is intermeddling with the estate. He has,
therefore, the right to come in and prosecute the appeal on
behalf of the math.
In the result, the appeal must fail and is dismissed
with costs.
S.R. Appeal dismissed
697
