PRIVY COUNCIL

(From Allahabad)

Before:-Lord Tankerton, Sir George Lowndes And Sir Binod Mitter

Privy Council Appeal No. 44 of 1929 : Allahabad Appeal No. 32 of 1927, D/d. 20.5.1930.

(Baba) Jwala Das - Appellant

Versus

Pir Sant Das and others - Respondents.

For the Appellant :- S. Hyam, Advocate.

For the Respondent :- L. DeGruyther and W. Wallach, Advocates.

Solicitors for Appellants :- Barrow Rogers and Nevill;

Solicitors for Respondents, T.L. Wilson and Co.

A. Religious And Charitable Endowments

JUDGMENT

Sir George Lowndes - -The question in this appeal is as to the right to appoint a successor to one Kan Das, the bairagi mahant of a mutt in Hardwar, who died in 1923 leaving no chela and having made no appointment to the gadi. On his death the appellant took possession of the mutt, claiming to be entitled thereto as the mahant of a neighbouring institution at Sainwal from which he asserts the Hardwar mutt was founded. The moveable property was locked up in a room by the police. The respondents then came forward with a rival claim as representing another mutt at Koh Kerana. The matter was investigated by the Sub Divisional Magistrate, who held that the appellant had made out a prima facie title to the succession, but ordered the moveables to be kept under lock and seal for a further period of six weeks to enable the respondents to take proceedings in the civil Court, failing which the property was to be made over to the appellant, who was left in possession of the immovable property valued at between two and three lakhs of rupees. The respondents thereupon filed the suit out of which this appeal arises in the Court of the Subordinate Judge of Saharanpur claiming a declaration of their title to and possession of the mutt and property, upon the allegation that respondent 1 as the Mahant of Koh Kerana had the right of appointment to Hardwar, and that he had appointed his own chela, respondent 2, as the successor of the deceased Kan Das.

2. It is admitted by counsel for the respondents that under these circumstances the burden was upon them to establish the right they claimed, and their Lordships have no doubt that this is so. Reliance was placed in the plaint upon a deed of appointment, executed in the interval between the Magistrate's order above referred to and the institution of the suit, by which a number of persons describing themselves as "mahants, santans and jogis" purported to appoint respondent 2 to the vacant gadi with the consent of respondent 1, but no reliance has been placed on this document before their Lordships. It seems, indeed, to be inconsistent with the contention to which the respondents now pin their faith, namely that the right of appointment lies solely with the Mahant of Koh Kerana.

3. It is common ground that the Hardwar gadi was established in or about the year 1818, and that the first mahant was one Ottam Das, to whom Kan Das was according to one account the third, and according to another the fourth successor. Ottam Das was the chela of Godha Das who was the chela of Pir Sukol, the then Mahant of Koh Kerana, a mutt which though itself the offshoot of another and older mutt at Tila was an institution of considerable antiquity.

4. In his preliminary examination by the trial Judge, respondent 2 admitted that if the mahant of a subordinate gadi dies without leaving a chela, the "sardar gadi" (i. e., the superior institution) has power to appoint a mahant to the subordinate gadi or to manage in himself. He also admitted that :

"if any other gadi sends its disciple and establishes an "asthan" (i. e., an institution of this nature) at any place, and the disciple dies without leaving a disciple, the mahant who sent his disciple and established the asthan shall be entitled to manage that asthan or to appoint any person thereto."

5. These statements were re-affirmed by respondent 2 in his subsequent deposition before the Court.

6. It is clear therefore that what the respondents had to prove was that the Hardwar mutt was the immediate offshoot of Koh Kerana, and the real question in the case is whether Godha Das, whose chela was the first Mahant of Hardwar, was himself a mahant at Sainwal, and so intermediate between Koh Kerana and Hardwar.

7. The respondents alleged in their plaint, and it has been their case before this Board, that Sainwal is not a gadi at all, but is merely a subordinate "kotha," i. e., the granary, or possibly the treasury of Koh Kerana. The Subordinate Judge, before whom the suit was tried, in a careful judgment, came to the conclusion that this was not established, and that there was no direct link of any kind between Koh Kerana and Hardwar. He held on the evidence that Ottam Das, the first Mahant of Hardwar, was the chela of Godha Das, the Mahant of Sainwal ; that Hardwar always remained subordinate to Sainwal, and that the right of management of Hardwar, on the Mahant of that institution dying without a chela, belonged to Sainwal. He accordingly dismissed the respondents' suit. On appeal the High Court came to the opposite conclusion and made a decree declaring the right of respondent 2 to the management of the Hardwar property and ordering possession to be given to him.

8. After perusal of the evidence recorded their Lordships have no doubt that the respondents have failed to establish that Sainwal, from which it is clear that Hardwar was founded, was merely a kotha of Koh Kerana and therefore that the necessary link between that mutt and the Hardwar mutt is not made out.

9. It has hardly been disputed before the Board that Sainwal is now, at all events, a mutt of which the appellant is the recognised mahant, and there appears to have been a regular succession in respect of the property there from Godha Das downwards. How this could be if Sainwal was merely the kotha- whatever may be the true implication of that term-of Koh Kerana, has not been explained.

10. As far back as 1864, long before the present dispute arose, Santok Das, the predecessor of Kan Das, in proceedings in the criminal Court at Saharanpur referred to Ram Das the guru and predecessor of the appellant as the "Sajada-nashin of Sainwal" (a title admittedly equivalent to gadinashin or mahant, and gave his spiritual pedigree from Godha Das. In 1875, on the death of Shanker Das of Koh Kerana, Ram Das, describing himself as "Gadinashin of Kotha Sainwal," laid claim to the Koh Kerana gadi. His claim was dismissed, but from the judgment in the case which is part of the present record, it does not appear to have been disputed that he was the then de facto Gadinashin of Sainwal, and, what is almost more suggestive still, the judgment refers to a similar claim which had been made by his guru and predecessor, Pir Ganesh Das, Gadinashin of Sainwal. In 1895 Ramdas instituted a suit against one Narotam Das in connexion with the Sainwal property. In this suit he deposed to the history of the Sainwal mutt as founded by Godha Das, and said that he had been on the gadi for 50 years. There was no suggestion in his cross-examination that Sainwal was not a mutt at all, but merely part and parcel of Koh Kerana. The Koh Kerana Mahant was not a party to this suit, but he can hardly have been ignorant of it if Ram Das was really only a subordinate official of his mutt, and the deposition is put in evidence in the present suit by the respondents. This deposition, taken in conjunction with the 1875 judgment above referred to makes it abundantly clear that Sainwal had at least claimed to be a gadi from the time of Ganesh Das some time prior to 1845 or 1846. No attempt seems to have been made by Koh Kerana to refuse or even to dispute the pretences of Sainwal, or to assert what is now claimed on their behalf that Sainwal was not and never had been anything but an integral part of Koh Kerana, and this is the more remarkable in view of the obvious hostility between the two institutions.

11. Their Lordships do not think it necessary to go further into the documentary evidence in this case or to deal with the oral evidence which is, as might be expected, contradictory and of little real weight. It is sufficient to say that counsel for the respondents has been unable to point to any evidence of direct connexion between Koh Kerana and Hardwar during the course of more than a century, whether by way of pecuniary assistance, selection or appointment of a mahant, or even consultation on the affairs of the mutt.

12. The learned Judges of the High Court before whom the appeal came founded their judgment in favour of the respondents largely upon the fact that the appellant, in his application to the Magistrate shortly after the death of Kan Dag calls the Sainwal Gadi "Gadi Sainwal Kotha Koh Kerana" and translating "kotha" as "granary" or "treasury," they regard this as an admission that Sainwal was nothing more than a part of the institution of Koh Kerana. They also rely upon the statement of Ramdas in the proceedings of 1895-96 in which he refers to Kotha Sainwal having been founded by Godha Das, as an "admission" by him to the same effect, and upon his description of himself as "Baba" Ram Das, instead of "Mahant," which they say "has some significance." Their Lordships are not impressed by this reasoning. If a statement is to be relied upon as an admission the whole statement must be taken, and in each of the cases to which the learned Judges refer it is clear that there was a definite assertion that Sainwal was a gadi, and the person making the statement the gadinashin, which is admitted to be the equivalent of mahant. It may well have been that the building in which the Sainwal Gadi was originally established was a kotha of Koh Kerana, and that the title of the gadi had its origin in this. But if the burden of proving that Koh Kerana was the immediate founder of the Hardwar mutt is upon the respondents, as it admittedly is, their Lordships cannot think that it has been discharged by inferences of this nature.

13. The learned Judges also held that :

"the very fact that Ram Das claimed to succeed to the mahantship of Koh Kerana goes to show"

that he could not have been at that time the Mahant of Sainwal, for :

"a mahant of an independent mutt could not claim to succeed to the gadi of another independent and separate mutt."

14. It is not stated upon what this dictum is founded, and no attempt has been made to support it before this Board. Nor, in their Lordships' opinion, could Sainwal be regarded as "independent" of Koh Kerana. It was founded from Koh Kerana by a chela of the Koh Kerana Mahant, and was clearly therefore subordinate to it in the sense in which this term has been used throughout the case.

15. Their Lordships do not, however, desire to criticise the judgment of the High Court in detail. For the reasons already given they think that the respondents have failed to establish the right that they have claimed in this litigation and that their suit must be dismissed. Their Lordships will therefore humbly advise His Majesty that this appeal should be allowed and that the decree of the High Courts should be set aside and that of the Subordinate Judge restored. The plaintiff respondents must pay the costs both in the High Court and before this Board.

Appeal allowed.