Full Judgment Text
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PETITIONER:
GURCHARAN PRASAD & ORS.
Vs.
RESPONDENT:
P.KRISHNANAND GIRI & ANR. ETC.
DATE OF JUDGMENT:
13/12/1967
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
BACHAWAT, R.S.
CITATION:
1968 AIR 1032 1968 SCR (2) 600
CITATOR INFO :
R 1981 SC1878 (26)
ACT:
Hindu Law---Endowment-Mahants of math carrying on money-
lending business, acquiring and disposing of properties-
Properties how far personal-Religious head wheather can own
personal property.
HEADNOTE:
The successive Mahants of Uttar Giri Math in Benaras
acquired properties and made dispositions of properties to
their disciples who succeeded them. The incumbent of the
office of Mahant in 1904 entered into a marriage against the
custom of the brotherhood. One of his collaterals thereupon
filed a suit in which he claimed to be put in possession of
the properties of the Math, also challenging some of the
dispositions of property made by the Mahant. The defendants
contended that all the properties in question did not belong
to the Math and that the properties transferred were the
personal properties of the Mahant. The trial Court held
that the transferred properties were the personal properties
of the Mahant and his predecessors and that only 12 items of
property were endowed properties. In appeal the High Court
held that all the items of property were personal property.
In further appeal this Court held that the building in which
the brotherhood resided was certainly Math property; as to
other properties the case was remanded to the High Court for
determining whether, they were personal properties or
endowment properties. The High Court, noting this Court’s
view that at least some properties must belong to the Math,
observed : "In view of this finding of the Supreme Court the
fact that the evidence on the record does not expressly
indicate which property belonged to the, Math and which did
not. should lead to the conclusion that all the property
belongs to the Math. Property acquired by a Mahant
personally but blended with the Math property will itself
become Math property." On this view the High Court dismissed
the appeal. The defendants came to this Court.
HELD : The High Court fell into an error in holding that the
observations of this Court in the earlier appeal led to the
conclusion that all the property belonged to the Math
because the evidence on record did not expressly indicate
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which property belonged to the Math and which did not. If
such had been the intention of the learned Judges bearing
the appeal they would have clearly said so. [607 G-H]
On the facts of the case it was not possible to hold that
the Mahants blended their self-acquired and personal
property with Math property so as to make the whole partake
of the character of the latter class of property. The
Mahants had systematically pursued a money-lending business,
had transferred properties to others in recognition of the
claims of
601
the disciples or voluntarily for lawful consideration and
were describing themselves in the Tamliknamas as the
absolute owners of the property. [607 H; 609 GH]
On an examination of the evidence only 15 items of property
including main building in which the Math was situated were
Math property. About the rest of the, property it could not
be said that it was not the personal property of the Mahant.
The transfers of such property by the latter could not
therefore be challenged. [608 OC; 609 H]
The fact that the successive Mahants had renounced the world
and became sanyasis and had almost uniformly nominated the
person who was to succeed them from out of the: disciples or
disciples of disciples does not lead to the conclusion that
the properties must he treated as Math properties. [608 C]
Parama Nand v. Nihal Chand, 65 I.A. 252 and Raghbir Lala v.
Mohanmad Said, A.I.R. 1943 P.C. 7, relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 212 to 216
of 1965.
Appeals by certificates/special leave from the judgment and
decree dated September 3, 1965 of the Allahabad High Court
in First Appeals Nos. 523 of 1933, and 557 of 1930.
R. K. Garg, D. P. Singh, Anil Kumar Gupta, Shiv Pujan
Singh and K. M. K. Nair, for the appellants (In C.A. No. 212
of 1965).
Yogeshwar Prasad, E. C. Agrawala and P. C. Agrawala, for the
appellants (In C.As. Nos. 213 and 214 of 1965).
G. N. Kunzru, B.P. Singh and R. B. Datar, for the
appellant (In C. A. No. 215 of 1965), for the respondent (In
C.As. Nos. 212, 213 and 214 of 1965 and for the respondents
(In C.A. No. 216 of 1965).
C. B. Agarwala, V. K. Sanghi and K. P. Gupta, for the
appellant (In C. A. No. 216 of 1965).
The Judgment of the Court was delivered by
Mitter, J. Bounded by the river Ganges on the cast, in the
locality named Tripura Bhairvi of the temple studded city of
Benaras there stands a math popularly known as Uttam Giri’s
Math, the origin of which is lost in antiquity. For well
over a century this Math has been a sanctuary of a spiritual
brotherhood of Nihang Dasnami Sanyasis. Claim is laid that
they belong to one of the ten orders of Sanyasis founded by
the chelas of the
602
four disciples of the famous philosopher, Sankaracharya.
Starting probably without any nucleus of endowed immovable
property, the heads of the Math appear to have prospered
enormously in matters material and temporal. Successive
heads of the Math or Mahants as they were commonly known,
seem to have been more keen about the acquisition of wealth
and preservation of properties than about the furtherance of
the spiritual benefit of the brotherhood. Gifts in the
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shape of endowments seldom came their way but the Mahants
who uniformly pursued a money lending business also styled
as a banking business in some of the documents, went on
amassing wealth and property treating themselves as full
owners thereof and directing their successors almost
invariably nominated by their wills, to treat the property
in the same way as they themselves were doing but paying
scant regard to the cause of the brotherhood or the pursuit
of any charitable purposes. One Mayanand Giri became the
Mahant in 1904 and it is his acts and conduct which sparked
off this litigation nearly forty years ago. The immediate
cause of the legal proceedings was his marriage which led
the plaintiff, Purushottamanand Giri, to file the suit in
the court of the Subordinate Judge of Benaras claiming a
declaration that by his marriage, the defendant No. 1,
Mayanand Giri, had lost his right to continue as Mahant and
that the plaintiff as his nearest collateral should,
according to the custom of Nihang Dasnami Sanyasis, be put
in occupation and possession of the Math the properties
appertaining thereto. The plaintiff also challenged a
number of alienations impleading no less than forty five
persons as defendants and claiming that the transfers made
by defendant No. 1 were invalid and not binding on the
Mahant of the Math. The suit was contested not only by
Mayanand Giri but also by a number of the transferees. The
defences raised were many and various. The first defendant
pleaded inter alia that the plaintiff was not his nearest
collateral, that there did not exist a Math with the customs
and usages alleged in the plaint and that all the properties
scheduled in the plaint were not the subject matter of any
endowment.
The case of the transferees was that most of the properties
were acquired by successive Mahants starting from Chaitanya
Giri by the practice of a money lending business. It was
said that a banking firm styled as Uttam Giri Shivdutt Giri
was
603
started by his successors and it was this business which was
pursued by the Mahants that gave rise to the wealth
accumulated in the Math. The common defence of all the
transferee defendants who contested the suit was that
Mayanand Giri was the absolute .owner of the properties
alienated and that they themselves were bona fide
transferees for valuable consideration and as such the
transactions entered into with them by Mayanand Giri could
not be challenged. The suit was dismissed as against a
large number of defendants who were found to be dead at the
time of its institution or because they were not properly
brought on the record in place of the original defendants.
The Subordinate Judge after a protracted hearing came to the
conclusion that the ancient documents on the record, coupled
with the other evidence, established the existence of an
ancient Math, that the Mahants from the time of Gangot Gir
had been carrying on a money lending business, that an
ancestor of Gangot Gir by name Gomtigir had established a
Math on a humble scale, that Prem Giri, a grand disciple of
Gangot Gir, established another Math of his own, that Uttam
Gir who succeeded Prem Gir had certainly created one and
that the predecessors of the defendant, Mayanand Giri like
himself had two kinds of properties, namely, Math property
and personal property. According to the Subordinate Judge
the nucleus from which the Math in suit originated was the
personal property of Prem Gir. On the evidence he held 12
items of property mentioned in the will of Shivdutt Gir who
succeeded Prem Gir and two other items of property to be
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endowed properties. The transfers effected by Mayanand
were, according to the Subordinate Judge, beyond challenge
because they related only to his personal properties.
Two appeals were filed against the judgment and decree of
the Subordinate Judge, one by the plaintiff and the other by
Mayanand. The Allahabad High Court on appeal dismissed the
suit on the view that there was no Math at all, that there
was only a banking business and that the property was non-
religious personal property acquired by Mayanand and his
predecessors by following a banking business. A further
appeal from the Allahabad High Court was disposed of by this
Court by a judgment dated December 20, 1954. After noting
in brief the
604
conclusions of the Subordinate Judge and of the Allahabad
High Court, it was observed by this Court that "the short
and only question therefore before us is, whether or not the
existence of the math which is the foundation of the
plaintiff’s case has been satisfactorily made out." This
Court then proceeded to examine the principal ancient
documents and observed:
"All the above documents, broadly considered,
indicate definitely-
,(1) the existence of a spiritual brotherhood
affiliated to each other by ties of initiation
and succession,
(2) the existence of a mutt which is the
residence of the brotherhood as well as of the
gaddinashin thereof and which in specific
terms has been successively provided as being
inalienable,
(3) the existence of certain properties at
least from the date of death of Sheodat Gir
which were made specifically inalienable in
the hands of his successors, presumably for
the use of the spiritual brotherhood, and
(4) the existence of a number of items of
property which in terms were dedicated for
spiritual uses like Dharmashalas, feeding of
ascetcis, etc. and were designated as waqf."
This Court then considered the evidence of prior conduct of
Mayanand Giri himself and certain admissions made by him and
held "that the case of the first defendant denying the
existence of a mutt or of any properties as belonging to it
is totally false." According to this Court
"it is quite clear that what is now designated
as the mutt No. 42/90-D must have been in
existence at least from the time of Prem Gir
i.e. for over a century and that this item of
property in the hands of successors of Prem
Gir was subject to the condition of in-
alienability, expressly provided in Premgir’s
Tamliknama, and impliedly so provided in the
will of Sheodat Gir."
605
Further
"notwithstanding that there is no specific
deed of endowment, the fact that the
particular building has been continuously used
as the residence of the brotherhood, and the
seat of the head thereof in succession and the
fact that it has been specifically provided as
being inalienable constitute sufficient
evidence of dedication of this building as a
mutt."
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Examining the evidence further, both oral and documentary,
this Court was not inclined to concur with the view
expressed by the High Court that the evidence did not
"disclose the existence at any time of a religious
institution or a monastery with any attempt at religious
study or religious teaching but that it disclosed only
banking or money lending business which passed on from each
of its proprietors to his chosen successor." Great stress
was laid on the documents of 1828 and 1839-to be noted in
detail hereafter-which did not, according to this Court,
indicate that the ownership given thereby to the successors
was to be for their personal uses and that all the
transactions disclosed by these and other documents noticed
by the High Court were inter se between the members of the
brotherhood and not with outsiders. It was observed that
"The document of 1887 appears to us to clinch
the position by specifically providing that
the properties left by Sheodat Gir were not to
be alienable in the hands of the successors.
The inalienability impressed upon by these
properties by the then head of the spiritual
brotherhood can reasonably be presumed to be
only for the purpose of spiritual
brotherhood."
According to this Court these circumstances should "be
normally treated as indicative of the religious character of
the property for the use of the brotherhood."
The conclusion of this Court (as appearing at page 607 of
the paper book) was in these terms:-
"We are, therefore, satisfied that the
existence of a mutt as an institution has been
clearly made out on the evidence in this case
and that the building No. 42/ 90-D belongs to
and constitutes the mutt and that the
606
contrary view is untenable. The only
substantial question in the case is whether
and to what extent the properties in suit
belong to this mutt as an institution. The
learned trial Judge dealt with this
question and held only a few out of the large
number of items mentioned in the plaint
schedule as belonging to the mutt. The
learned Judges of the High Court did not feel
called upon to give any finding as to this in
the view that they had taken. These appeals
will, therefore, have --to go back to the High
Court for further consideration of this
question and of other questions left un-
decided."
Finally it was observed (at p. 610):
"that our judgment concludes the question as
to whether house No. 42/90-D is or is not mutt
property. The only substantial questions that
remain are as to which of the other properties
in the plaint schedule belong to the mutt and
whether such alienations as relate to mutt
properties are valid and binding on the mutt."
This Court further upheld the finding of the Subordinate
Judge in favour of a custom among the Dasnami Sanyasis of
the neighbourhood that by reason of his marriage Mayanand
had become a "Patit" and had forfeited the office of
Mahantship and the same community had elected the plaintiff
as the Mahant of the Math at Tripura Bhairavi.
On remand, the High Court examined the ancient documents
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once more and after referring to the observations of this
Court quoted above, stated that it had been definitely found
by this Court that some of the properties in suit must
belong to the Math and went on to add:
"In view of this finding of the Supreme Court
the fact that the evidence on the record does
not expressly indicate which property belonged
to the Math and which did not, should lead to
the conclusion that all the property belongs
to the Math. Property acquired by a Mahant
personally but blended with the Math property
will itself become Math property. He is com-
petent to endow his property. Blending it
with Math
607
property is an indication that he endowed it
to the Math or intended it to be Math
property."
According to the High Court:
"It was, therefore, necessary for the
defendants to establish that such and such
property was acquired .not as a Mahant but as
an individual and was also kept separate from
the Math property which the Mahant was
managing."
The High Court then went on to consider the alienations made
by the Mahants who had preceded Mayanand Giri from time to
time and was of the view:
"during this long period the brotherhood did
purchase properties but hardly transferred any
property and that this may be either as the
properties were not considered personal and
alienable or as the mahants had no occasion to
transfer property, their income being in
excess of expenditure."
The High Court examined the transactions of Mayanand Giri
challenged by the plaintiff and was not satisfied that any
enquiry had been made by the alienees about the necessity or
the purpose of the math justifying the alienations. In the
result, the High Court allowed the appeal with costs
throughout against Mayanand Giri and a number of alienees,
some of whom only have come up in appeal.
[His Lordship then examined the documentary evidence in
order to ascertain the character of the property in dispute,
and held:]
In our view, the High Court fell into an error in holding
that the observations of this Court led to the conclusion
that all the property belonged to the math because the
evidence on the record did not expressly indicate which
property belonged to the math and which did not. On the
facts of this case it is not possible to hold that the
mahants blended their self acquired and personal property
with math property so as to make the whole partake of the
character of the latter class of property. A Mahant is
undoubtedly competent to endow the property acquired by him
but merely because in the Tamilknamas he makes no dis-
608
tinction between property acquired by him personally and
property which undoubtedly formed the subject matter of a
prior endowment, the personally acquired properties cannot
be said to be math property when the evidence on record
establishes that all the mahants were holding themselves out
as absolute owners of the property and were transferring
various items of property from time To time albeit to
persons of the same brotherhood.
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On the evidence on record, we are not in a position to hold
that any of the properties other than the 15 items above
mentioned were math properties. The fact that the
predecessors-in-’ interest of Mayanand Giri had renounced
the world and became sanyasis and had almost uniformly
nominated the person who was to succeed them from out of the
disciples or disciples of disciples, does not lead to the
conclusion that the properties must be treated as math
properties. In Parama Nand v. Nihal Chand(1) the question
before the Judicial Committee of the Privy Council was
whether an Udasi could acquire private property with his own
money or by his exertions and if he did so, whether it
passed on his death to his spiritual heir including his
Chela or could be inherited by his natural relatives. There
one Narain Das had filed a suit for obtaining an
authoritative pronouncement on the character of certain
property held by him, the case of the defendants being that
Narain Das was no more than the trustee of an endowment and
could be called upon to furnish details of the nature and
purpose of the trust. The High Court at Lahore had held in
favour of the trust, the principal ground of their judgment
being that the properties had descended from Guru to Chela.
This was not accepted by the Judicial Committee and it was
observed that:
"this circumstance (the descent from Guru to
Chela) does not necessarily lead to the
conclusion that a property, when acquired by a
Mahant, loses its secular character and
partakes of a religious character."
In Raghbir Lala v. Mohammad Said(2) the plaintiffs’ case was
that the land in suit claimed by the defendants directly or
in-
(1) 65 I.A. 252.
(2) A.I.R. 1943 P.C.7.
609
directly under transfers made in 1915 and 1916 by one Jain-
andar Kirat were debutter. It was established that one
Manindar had purchased the land in the suit but there was no
evidence that having acquired the land Manindar dedicated it
to any Jain institution or religious purpose. It transpired
that he had solicited subscriptions for the erection of a
temple which was not built and that except for the actual
site of the foundations of the temple, he had used the rest
of his land for his own purposes. According to the Judicial
Committee :
"He appears to have made money by practising
astrology and medicine and by lending money-
occupations which he added to that of a
religious teacher.......... His life and
conduct may not have been in accord with his
religious professions as a Jain ascetic, but
in fact he held and managed the property which
he had bought and indeed litigated about it,
as if it were his own without any interference
or assistance by the Jain community."
The Judicial Committee held on this evidence that the
plaintiffs could not succeed on the ground of dedication by
Manindar. The Board further observed:
"No doubt if a question arises whether
particular property acquired by a given
individual was acquired on his own behalf or
on behalf of some other person or institution
with whom or with which he was connected the
circumstance that the individual so acquiring
property was a professed ascetic may have some
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importance. But it is out of question to
suppose that a man’s religious opinions or
professions can make him incapable in law of
holding property."
In our view, the observations made on the prior occasion by
this Court were only an indication that the circumstance of
succession of properties from one Mahant to another, had an
important bearing on the final conclusion as to the
character of the properties without being a decisive factor
in respect thereof. in this case, we find that the Mahants
had systematically pursued a money-lending business, that
there was little nucleus of any endowed property, that
during the course of a century and a half
L2 Sup-68-8
610
the proved endowments were hardly of any importance, that
the Mahants were transferring properties to others in
recognition of the claims of the disciples or voluntarily
for lawful consideration and were describing themselves in
the Tamliknamas as the absolute owners of the property, we
cannot but hold that the properties in their charge were
their personal properties unless it be established that any
particular. item of property was the subject matter of an
endowment or a gift for a particular charitable purpose. We
have already held that only 15 items of property including
premises No. 42/90-D were math properties. On the evidence,
we are not in a position to declare that the other
properties were not personal properties in the hands of
Mayanand Giri. It follows that the transfers of Mayanand
Giri of this class of properties must be upheld so far as
they are subject matter of the appeals before us.
G.C. Appeals
allowed.
611