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Judgment
Natesan, J.—This is an appeal under the Letters Patent against a judgment of this Court in second appeal reversing the decision of the lower appellate Court and restoring that of the trial Court dismissing the suit with costs.
The suit relates to a Veera Shaiva (Lingayat) community mutt in Sukravarpet, Coimbatore called Sri Sarangaswamiar or Sivachar Mutt and the claim of the Plaintiff who is the Appellant before us is that he is the madathipathi of the said mutt and is entitled to the possession and enjoyment of the mutt, its affairs and its properties, the only two immovable properties possessed by the mutt bearing door Nos. 71 and 72 in Sukravarpet within the limits of Coimbatore. There is no dispute that the two items of properties belong to the Sivachar Mutt alias Sri Sarangaswamiar Mutt. The Plaintiff claims to be in possession of door No. 72 along with his father who is P.W. 4 in the case and in effective control of the same. Door No. 71 is admittedly in the possession of the first Defendant and third Defendant who submit that their possession is permissive under the trustees of the mutt. They deny the claim of the Plaintiff as the madathipathi of the mutt. The plaint avers that the second Defendant purports to be acting as the managing trustee of the mutt properties for the benefits of the community in derogation of the rights of Plaintiff as the head of the mutt and the principal relief the Plaintiff seeks apart from a declaration as to his status is possession of door No. 71. The suit was originally instituted against Defendants 1 to 3 as persons denying the Plaintiff''s right and also, in a representative character obtaining orders under Order I, Rule 8 of the Code of Civil Procedure, on the averment that some of the Veera Shaivites of the locality were joining hands with Defendants 1 to 3 and contending that the properties belonged to the community of Veera Shaivites. Defendants 4 to 18 got themselves impleaded as persons interested on the notice, of the application under Order I, Rule 8 of the Code of Civil Procedure. Little is seen in the evidence as to the origin of the mutt. It emerges, however, that it was founded about 350 years ago by one Siddalingaswamiar belonging to a religious sect founded by Basavanna. The Samadhi in the madam is worship, peel by the community people and besides Samadhi Puja, the madam is used, as a resting place by the Veera Shaivites and also ascetics of the community, coining to Coimbatore. Though there was a faint attempt on the part of the Defendants to plead that the institution was only a chatram, it is now established beyond doubt that this is a regular mutt and one Siddha Ramaswami Swamigal was the madathipathi of the mutt prior to 1900. It appears that this madathipathi went to Bangalore in or about 1900 where he died and had his samadhi.
The Plaintiff''s case as presented and developed in the trial Court was that the mutt in question was a Mourasi mutt and that Siddha Ramaswamigal nominated the Plaintiff''s grandfather Sarangaswamigal as his chela and that Sarangaswamigal became the madathipathi when Siddha Ramaswamigal, attained samadhi and continued as the madathipathi till his death on 6th June, 1942. The Plaintiff claims that he was nominated by Sarangaswamigal and was duly installed as madathipathi and recognized as such by other Lingayat mutts and by Sivachars of the community and by authorities. The installation into the peedam and the grant of the pattam of the mutt was stated to be on 27th February 1947 as Shembulingabetta in Kollegal taluk at the Sri Guru Ramasivayogi''s Geddigai. The trial Court found that Sarangasamigal was not the madathipathi of the suit madam and that he has not nominated the Plaintiff as his successor. It held that even if the installation of the Plaintiff as a fact was established, it was invalid and cannot clothe the Plaintiff, with the title of the madathipathi and give him the right of pattam adhikaram. In that view, the suit was dismissed. On appeal the learned Subordinate'' Judge was of the view that the failure to establish nomination by the, predecessor was not such an illegality as to vitiate the title of the Plaintiff to the madathipathiship, and that as the Plaintiff had been installed as a madathipathi, he was entitled to a declaration that he is duly installed as the madathipathi, and the consequential reliefs flowing therefrom.
In second appeal in this Court, it was contended for the Defendants and in our opinion rightly, that the lower appellate Court had granted relief on a new case not the subject of pleadings, issue or proof, namely, a case of selection, acceptance and installation as madathipathi, when the Plaintiff''s claim rested admittedly on nomination by a preceding madathipathi and the recognition of the same by due installation. It has to be observed that even if the elective, principle was applicable to the present mutt, that was not the case of the, Plaintiff and he had not established by evidence that he was actually elected to the office of the mutt. In that view this Court on second appeal restored, title decision of the trial Court dismissing the suit.
The plaint is bereft of details as to the nomination, but the record of the initiation and adoption of the Plaintiff as the madathipathi which is treated as part of the plaint refers to the nomination of the Plaintiff by Sri Sarangaswamigal, his paternal grandfather and the earlier nomination of Sarangaswamigal and his assumption of the office of the madathipathi under his predecessor Sidha Ramaswamigal. The succession to the office of a madathipathi is a matter of some importance and complexity. As observed in Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by B.K. Mukherjea at page 317:
Three things you would have to bear in mind in connection with the question of succession to the office of a Mohunt. The first is that if the granter has laid down any particular rule of law of succession that is to be given effect to. Secondly, in the absence of any grant the visage of the particular institution is to be followed and in the third place, the party who lays claim to the office of a Mohunt on the strength of any such usage must establish it affirmatively by proper legal evidence. The fact that the Defendant is a trespasser would not entitle the Plaintiff to succeed even though he be a disciple of the last Mohunt, unless he succeeds in proving the particular usage under which succession takes place in the particular institution.
It is the usage, custom or practice of the particular institution which determines as to how a successor is to be found. From the case as adumbrated in the plaint and the evidence read with the pattathikara pathram, exhibit A-1, this is a case of the institution in question being a Mourasi mutt. Mutts are classified according to the different ways in which the heads or superiors are appointed under three kinds, namely, (i) Mourasi mutt, (ii) Panchayati and (iii) Hakimi. They are described in Ganapathi Iyer''s Law of Hindu and Mahomedan Endowments, second edition at page 271 as follows:
In the first, the office of the chief Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt, who, moreover, usually nominates him as his successor.
In Mourasi Mutts, the chela succeeds : and in default of a chela the gurubhai (Chela of the same guru) succeeds ; and where there are more chelas than one, the eldest generally succeeds but a junior chela may succeed, if he be found more capable and if he be selected by the last Mohunt as his successor. In very many cases, the succession goes by nomination by the previous Mohunt. In the second class of mutts (called Panchayati) the office is elective, the presiding Mohunt being selected by an assembly of Mohunts. The mutts of the same sect in a district or mutts having a common origin are assembled together (the Mohunts of these acknowledging one of their member as a head) on the death of one of the Mohunts and the other Mohunts 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 Mohunt, and after the election, the chosen disciple is installed in the Gaddi of his predecessor with such ceremony * * * In the third class of mutts (called Hakimi), the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the mutt. Now that the ruling power has divested itself of the right to nominate by reason of Act XX of 1863 (Religious Endowments Act) the question as to the mode of appointments in such cases will have to be considered hereafter.
The entire case of the Plaintiff herein was rested on nomination by Sarangaswamigal and the Plaintiff''s installation on the Gaddi as the nominee. As observed by the learned District Munsif, the status of Sarangaswamiar to nominate a successor madathipathi was of the utmost importance in the case and if the Plaintiff failed to establish that Sarangaswamiar was a duly appointed madathipathi legally in office and, therefore, capable of nominating his successor the Plaintiff''s case had to fail, even if it be that Sarangaswamiar had been functioning as a madathipathi. As noticed in Mukherjea''s Law of Religions and Charitable Trust above referred to, at page 325:
A mere de facto Mohunt, who has no legal title to the office, is incapable of making any appointment.
Now it is the concurrent finding of the Courts below that there was absolutely no evidence of any nomination of Sarangaswamigal by Siddharamaswamigal who died in Bangalore. In fact, exhibit B-2 a record of certain proceedings of the Veera Saivites in 1928 the genuineness of which is not attacked, contains recitals that nobody had been nominated after the death of Siddharamaswamigal as madathipathi. To this Sarangaswamigal was a consenting party. In fact the learned Counsel for the Plaintiff does not before us challenge this finding of the Courts below that Sarangaswamigal was not nominated by Siddharamaswamigal nor duly installed as madathipathi of the mutt in question.
Apart from the invalidity of the nomination if there had been one even as a fact, the Courts below do not find the nomination of the Plaintiff by Sarangaswamigal. As already stated the plaint does not specifically refer to any nomination of the Plaintiff. Only the document exhibit A-1 refers to the wish of Sarangaswamigal to install the Plaintiff his grandson in the Gaddi. Sarangaswamigal died on 6th June 1942. There was no installation till 1947. While normally the installation would take place in the concerned mutt itself, the installation ceremony in this case took place at a distant place in Kollegal taluk and it is noticed by the learned District Munsif that except the parents of the Plaintiff nobody from Coimbatore diocese, using it as a convenient expression, attended the installation. Of course, there was an installation ceremony as evidenced by exhibit A-1 and exhibit A-2. Heads of several sister mutts have recognized the Plaintiff''s status as madathipathi and the Plaintiff was sent to Kollegal madam for the necessary studies. But as observed by the learned District Munsif, the mere installation of the Plaintiff on the Gaddi would not give him title if he had not been nominated and initiated, or duly installed according to the usage of the mutt in question. If the nomination which is relied upon by the Plaintiff is absent, the installation will not give him any right. The principle is thus set out at page 326 of Mukherjea''s Hindu Law of Religious and Charitable Trust:
When there was no appointment by the Mohunt, the mere fact that there was a ''Bhandara'' after his death where a particular person, whose appointment was already cancelled, was recognized as a Mohunt would not be sufficient to confer upon him the headship of the institution. The position may be different where the Mutt is Panchayati and succession depends entirely upon election by a group of Mohunts who constitute, so to say, the electoral body. In a Mourasi Mutt where the succession goes to the chela appointed by the Mohunt, no election in the strict sense of the term takes place or is necessary. Only the ascetics, who are connected with the institution and who assemble on the occasion of the installation of the nominee, ratify the appointment by taking part in the ceremony.
In as much as in this case the original appointment or nomination is invalid and the chela was not properly chosen or appointed, the installation which is merely a ratification of the appointment cannot confer on the Plaintiff the status of the Pattam Adhikari he claims.
But in the first appellate Court the learned Subordinate Judge after observing he was not relying on any nomination proceeded in the view that if there was a vacancy in the office of the madathipathi the right of selection naturally devolved upon the assembly of mohunts of the same sect and observing that in the present case there cannot be gain-saying of the fact that the Plaintiff was selected, installed and accepted as the madathipathi, upheld the Plaintiff''s claim. The learned Subordinate Judge proceeded on the surmise that before the death of Sarangaswamiar he must have brought up the Plaintiff as his disciple and a candidate for the Peedam. The learned Subordinate Judge has failed to appreciate that it is a matter for specific plea and evident and as to the further case of selection it was nobody''s case that there was a selection of the Plaintiff by any body of madathipathis according to an] established usage. The documents relied upon only referred to the installation of the Plaintiff as a nominee of the prior madathipathi. Learned Counsel contends that in the absence of a nomination, the succession should rest on the choice of mohunts of sister mutts. But we have no proof of any such usage or custom with reference to this institution. We do not have any idea as to the electoral college which has to elect and install the new mohunt when the last of the mohunt had made no nomination. The Plaintiff has laid no foundation for a claim to be the chela of the last mohunt to succeed to the office. As noticed by Mukherjea in his Tagore Law Lectures at page 318:
In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document. In other cases, again the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the life time of the last Mohunt or when the funeral ceremonies of the latter are performed.
Where the appointment is by an election as in a Panchayati mutt, it would depend upon the custom of the particular institution as to the persons competent to exercise the power of election.
Mukherjea''s Endowments, page 326:
Generally the Mohunts of the same sect in a particular locality or Mohunts having a common origin assemble on the 13th day after the death of the last Mohunt and proceed to elect his successor.
Even looking at the institution as a Panchayati mutt there is no evidence in this case as to the number and character of the mutts whose heads constitute the electoral college for selecting the madathipathi for the mutts in question. It may be that a certain number of madathipathis were present at the installation and took part in that function. But they have proceeded on the assumption of a valid nomination. We do not have any evidence as to whether the heads of institutions present at the installation of the Plaintiff even constituted a majority or a fairly sizable number of the sister madams. In Greedharee Doss v. Nundokishore Boss Mohunt (1867) 11 M.I.A. 405, 428 the Privy Council observed:
...the only law as to these mohunts and their offices, functions, and duties, is to be found in custom and practice, which is to be proved by testimony;
By customs or usages as observed in the learned treatise of Mukherjea they s are not meant any general customary law by appeal to which these questions have to be decided. They refer to the usage of the particular institution or mutt in regard to which the question arises.
In the circumstances the Plaintiff cannot sustain his title as head of the mutt on the basis of any selection and election. We see no reason to differ from the conclusion of the learned Judge Veeraswami J., that there was no legal basis for the claim of the Plaintiff to be the madathipathi.
Learned Counsel for the Plaintiff submits that he has been recognized and accepted atleast by a section of the Lingayat community and in the absence of any other rival claim to the office, his position as IT adathipathi may be recognized. We fail to see how there can be a declaration of his title as madathipathi once in law he has no such status.
In Bhagaban Bamanuj Das v. Bam Praparna Ramanu jDas ILR (1895) Cal. 843 (P.C.) there were two rival claimants to the office of a mohunt of a mourasi mutt under the customary rule of succession. The Plaintiff''s case was that he had been duly taken as a chela and appointed by the last mohunt whose title was not disputed. The Defendant who was in possession denied that the Plaintiff had ever been such a chela alleging that even if the last mohunt had attempted to take him as a chela, his act would have been invalid by reason of that mohunt having been a leper. The Defendant''s title was that he had been taken as a chela by the mohunt who preceded the last. The Defendant further pleaded that he had on the 13th day of the death of the last mohunt been installed mohunt in the presence of mohunts of other mutts with all due ceremonies. After negativing the other defences, the Privy Council observed:
What had been done after the death of the last mohant could not deprive the Plaintiff, or entitle the Defendant, there being no custom to authorized the choice of a mohant in that way.
This view of the Privy Council is enough to disentitle the Plaintiff to relief on the basis of installation and recognition by heads of sister mutts.
Learned Council submits that the affairs of the administration of the mutt would suffer in the absence of any such recognition. We see no room for any such apprehension. The Madras Hindu Religious and Charitable Endowments Act, 1959, provides for the contingency of a vacancy in the office of a trustee of a mutt. It goes without saying that the invalidity of the original installation need not stand in the way of the Plaintiff being given Pattadhikaram, according to the custom and usages of the institution if he is otherwise qualified. The fact that he had been recognized as a madathipathi by several sister mutts and a section of the Veera Shaivites the fact that he was sent to study Kannada and Veera Shaiva theology at Kollegal madam and later at K.S.I.S. Patasala belonging to the Veera Shaivas will all be matters for consideration if an election is to be held on a selection made according to the usage of the institution. As it is the Plaintiff cannot be given any relief in the suit. The contesting Defendants do not dispute the title of the institution to the properties in their possession and no question of securing the property for the institution-by a de facto mohunt arises. The appeal therefore fails and is dismissed with costs.