SRI KRISHNA SINGH v. MATHURA AHIR AND ORS (2)

Citation: [1980] 2 S.C.R. 660

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A.P. SEN

Case summary

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 agreeingi with the learned Munsif, set aside the findings of the learned Civil Judge...

Judgment text

SRI KRISHNA SINGH v. MATHURA AHIR AND ORS. • December 21, 1979 [S. MURTAZA fAZAt ALI AND A. P. SEN, JJ. J 1-lindu Law-Whether a S11dra fan l·nter the order of Yuti or Sanyasi-'Sant }. fat/1' San1pradaya, denonu'nation of Da~na1ni Sect-JVhethcr a Sudra cannot enter the order of sanyasi i11 the Sant Math and whether a Brahman alone can be a sa. •1yasi among Das11an1is-Essential ceren1onies for 1he initiation of Dasna1nis-Performance of Atn1a Sradh and reciting Pravesh Mantra Sant fl. fath ,,,. San1pradaya-Mode of succe. \. \ion a1no11g thl' Sant Math-Right ta after-acquired property of a Mahant out of Math funds, whether accrues to natural son. Abate111e11t of appf'al-Maxini of "actio personalis rnorltur cunt persona", applicability of i11 the case of suUs by Malwnt for the recoverv t. / Math property -~Order XX/I Civil Procedure Code.

Respondent M·athura Ahir alias S\vami Hars\vanand, the ~fahant of Garwa~ ghat I\Jath fil'ed a suit for decla11ation of title to and possession ot house No. C/27/33 situa. te in I\1ohalla Jagatgunj, Varanasi, for arrears of rent and nzesne profits in respect thereof. The said prop'e11y was purchased by his Guru Atma Vivekanand Paramahnns (ne Baikunth Singh) from out of the income of the ! \. lath i. e. the offerings (Bhent) made by the devotees. The appe11ant v. 'ho was impleaded oo defendant 5 to avoid further litigation cJ::1imed that this property I~ acquired by his ]ate father Baikunth Singh alias Swami Atin1 Vivekanand) after he became a Guru and out of 1\. ·Iath funds devolved upon him th'e natura. I son • and di~ciple. Since the claim went in fayour of the fi! Spondent 1\. 1ahant the appellant came in appeal by special leave to this Court. The original plaintiff di'ed during the pendency of the a. ppeal.

The contentions of the appellant were : (i) the plaintiff ~Jathura Ahir being a Sudra could not be ordained to a religious order and become a Sanyasf or yati and 1herefore inst·alled a mahfVOt of the Garwaghat Math, ~c·;ordin~ to the tenets of the Sant Math Sampradaya, (ii) tn the abseince of proof of the performance of Atn1a Sradli and the recitation of Prave~li Mantran1, neither the plaintiff nor his two predecessors Swami Sarupanand an give Bhesh Dikshwa. After the death of th'e Mahan! , the Bhe nit. This is not a class of case to which the maxim, actio personalis 1noritur cun1 persona applies. [694 C-D] 11. According to Hindu jurisprudence, a religious institution such as a math is created as a juri5dic entity with a legal personaJity capable of holding and acquiring property.

It therefore follows that the suit instituted by the mahant for th'e time being, on its behalf, is properly constituted and cannot :ibate 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 rend. 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 right~ only through human agency knov:n as a mahant or shebait or dha. rma'karta or sometimes knowri 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 D-C, El Ram Swarup Das v. Rameshwar Das, ILR 29 Pat. 989, over-ruled. 12. The general rule is that a11 rights of action and all dem. :ind~ whatsvever existing in favour of or against a person at the time of his death survive to or against his legal representative within the meaning of s. 2(11) or C. P. C.

[699 A, F] Muliamcd Hussain v. Khushalo, JLR 9 All. I31; approved. SRI KRISHNA V. MATHURA AHIR (Sen, J. ) 665 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 180~ of 1971. A 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. B 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. c 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 Mahalia Jagatganj, Varanasi for arrear~ of rent and mesne D 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 accord- E ing to the tenets of the 'Sant Mat' Sampradaya. ~ 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 plain- • tiff nor his two predecessors Swami Sarupanand and Swantl Atma- A '- vivekariand conld be regarded as Hindu sanyasis. It also raises a further question namely whether the first respondent, Harsewanand, F the original plaintiff having died during the pendency oE 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 wi! l, therefore, not be inconvenient to deal with them as briefly as possible.

The history of the G 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' H and soon had a large following. He was treated with great veneration and some of his devotees by a registered gift deed dated March A 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 Slngh, the B appellant, was greatly influenced by his preachings and left for Varanasi for good. In due course, Baiknnth Singh was initiated as chela by Swami Sarupanand who named him as Atmavivekanand. Sw~mi : Ir Atmavivekanand Paramhans was the chief disciple of Swami Sarupa- . nand and was given full rights of initiation and Bhesh by his Guru. _, Swami Sarupanand took his samadhi at Meerut in 1936 and after his 1 c 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 Grlhastha and Virakta disciples made large offerings and gifted extensive properties to him as their religious or spiritual lea ucceed whom he nominate~ and whom he wishes to install as mahant after him in his place.

He makes clear this desire to the members d his Samprndaya, and also authorises the nominated chela to give Bhesh Dikshawa. After the death of the mahant, the Bhesh and Sampradaya givo Chadar Mahanti of the math to the said disciple at the time of the Bhandara. The Courts below have concurrently found th•. t 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 Bhandam held after Swami Atmavivekanand's death, the plaintiff was installed as the Mahan! of Ganvaghat Math by th~ Mahanls! and ... Sanyasis belonging to t'he '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 p. revalent since Satyuga. Man's life is divided into three Ashramas. (Again said) : there are four Ashramas viz. , Brahmacharya, ' 6rihastha, Vanaprastha and Sanyas. Varnas are three, Dashnami Sanyasis came into existence after Shankaracharya. f They are Puri, Gi~i, Bharti, Vana, Tirtha, Aranya, Parvat, Sagar and Saraswati. I am failing to recollect the name of one of them. The fonyasis of Sam 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 with Nirvani and Nirnnjani Maths. Some customs of the Maths of those Akharas are observed by us also. " (Emphasis supplied) SRI KRISHNA v. MATHURA AHIR (Sen, I.

) 673 This is, however, contrary to what he had stated in his oral pleadings under 0. 10, r. l 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. Durinf his cross-exmination, this witness states : .. , "Sri Swarupanandji was Sadhu of Sant Sanyas Sampradai. '·" .. Sant Sanyas Samprad1i has been obtaining from ancient time. ~ I This Sampradai is of those ten Sampradai which were founded • ! by Swami Shankracharji. This (Sampradai) out of the Dasnam 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 Sampradru abandons sanyas and re-enters into the Grahast Ashram he is called a Gosain.

The rules for making disciples in Giri and Puri Sampradai arc ant and the I> same. The rules in both these Sampra th~ 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) am, however, regarded by the wise to be equal to Sudras until they are born in the Veda (i. e. , learn the sacred li'. erature), but after that (i. e. , this second birth) they are deemed twire-bom". 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 lear'ned 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. tlenied to the sudras as well as to the females of the so-called twice-born claooes. But the status of being twice-born depends on the acquisition of knowledge of the sacred literature. Manu ordains that a twice-born mall 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 aecordingly 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 petson. With the passage of time running into tholll5ands of years, it is evident that the original hall-marks for classification of Sudras and twice-bot"Q people gradually disappeared and degenerated into the rigid caste system based o'n birth. " SRI KRISHNA v. MATHURA AHIR (Sen, J. ) 681 As Dr. Mukherjea observes, the disciples of Sankara were all Brahmans and originally, according to the rule laid down in SOJlyas 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 B' ascetic, and that is the view entertained by the Smriti writers. (').

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 I 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 3 High Court in Dharampuram v. Virapandiyan ( ) and the Calcutta High Court in Barish 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 a'ny 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 lifo were extended to Sudras. (I) B. K. Mukherjea : 'The Hindn Law of Religious and Charitable Trusts' (Tagore Law Lectures). 41h ed. , pp. 324-325. (2) West Buhler, 'Hindu Law', 3rd ed. , p. 555.

(3) (1899) l. L. R. 22 Mad. 302. (4) (1913) I. L. R. 40 Cal. 545. (1980] 2 S. C. R. \ A 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 { B rules and ostracisms. (') 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 Jaw, bec Jo·nged to Brahmans alone; it was then extended to all the twice-born, and finally all restrictions wern 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 D Kanda, 74. 9ff. , qnoted 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 Brahmans wd Ksatriyas who lived in the treta E practised tapas, and the rest of mankind obedience ... In the dvapara age tapru entered into the Vaisyas. Thus in the cours'~ of three ages it entered into three castes; and in the three ages righteousness (dhanna) 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 dis'. inction or barrier; any one may become an ascetic, a'nd the vows are not necessarily :ifelong. 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 Conrt in (I) Encyclopaedia ofReligion and Ethics, Ed. by James Hastings, Vol. II,p. 91. 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 sa'. nyasi. 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 B 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 c 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 Hrndu D 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 Ma'. ndana Misra, attempted to prove against him that such ascetism was against the law of the Hindus. But E all opposition was overborne by the commandrng 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 i'r1 the north, and the Govardhan Math at Puri in the east and Mandana himself became a Sanyasi disciple nuder the name of Sureswara. The F 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 iu general. Sankara is said to have four principal disciples who were all Brahmans, from whom the ten divisions of the • Order-hence named the 'te'n-named' or 'Dasnami Dandis' originated.

These are: Tirtha, 'shrine'; Ashrama, 'order'; Vana, 'wood'; Aranya, G '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. (') Kabir and Nanka also established monasteries on the lines or Sankara. Chaitanya, the pure, the subtle mystic of Naidia, the greatest exponent and exam- H '1 ·'- (1) Dr. J. C. Ghose : 'The Principles of Hindu Law' : 3rd ed. , Vol. l, pp. 910-914. . A pie of Bhakti, originally belonged to one of Sankara's orders, namely Bharati, though he violently repudiated Sankara's pantheism, and his 1 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 Sanghaa:amas, 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 snpcriors 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 dis- • tinguished, worldly ideas became the ruling ideas of the establishments. In imiMion 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 i\faL'ls, the chief among whom are the well-known eight Maths at Udipi. Similarly, there arc 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 arc 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,(') G. S. Pandara Sannadhi v. Kandaswami Tam- (1) I. LR. 2 Mad. 175. SRI KRt"""SifNA v. MATHURA AHIR (Sen, J. ) 685 2 biran(l), Vidyapurna Tirthaswami v. Vidhyanidhi Tirt1Iasy,,ami( ), and Kailasam Pillai v. Nataraja Thambiran('). The most respectable members of this Order of Hindn 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, occnpy a place of pre-eminence. They worship Lord Siva in his form of Bhairava, the 'Terrible' and profess to adore N! rguna and Niranjana, the deity devoid of attribute or passion. A sub-section of this Order are the Dandi Dasnamis or Dandi of ten-names, s~ed from their assuming one of the names of Sankara's four disciples and six 4 of their pupils. ( & •) 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(').

The Dandis, properly so-called, are the legitimate repre~entatives 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 5 6 works, the Dandi is distinguished ( & ) by carrying a small Dand, • or wand, with several processes or projections from it, and a piece of cloth dyed with ;ed ochre in which the Brahmanical cord is sup- > posed to be enshrined, att'ached to it. They develop within themseleves a complete detachment from the things of enjoyment either of this world or the next. Many Brahmans, even Pandits, or learned (! ) l. L. R. 10 Mad. 375, (l) l. L. R. 27 Mad. 435. (3) I. L. R. 33 Mad. 265. (4) H. H. Wilson, M. A. F. R. S. : 'Hindu Religions'-The Society for the Resuscitation of Indian Literature, Calcutta, 1899. (5) H. H. Wilson, M. A. F. R. S.

: 'Religious Sects of the Hindus', Trubner & Co. , London, 1861, pp. 191-205. (6) Dr. J. N. Bhattacharjee : 'Hindu Castes and Sects' : Thacker, Spink & Co. Calcutta, 1896, pt. 2' Ch. III to V, pp. 374-387. 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('). 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 draracter.

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; wh~1t 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 votaries. F' 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 their origin to Sankaracharya. There are but three, and part of a fourth ascetic class, or those II called Tiratha or Indra, Asrama, Saraswati and Bharati who are still ... (1) M. A. Sherring : 'Hindu Tribes and Castes' : Trubner & Co. , London, Pt. III, Ch. 2, pp. 255-260. regarded as really Sankara's Dandis. The rest, i. e.

the remammg 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 ::ire often known as samyogi or gharbari Atits. They are often collected in maths or monastries.

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 1 founder Sankaracharya( ) • There is also a snb-division of the Puri division of the Dasnami , 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 cnlt. 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 Sarupa- Dand 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 rehnquished 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 secnlar life. It mnst also be proved, in case of orthodox sanyasis, that necessary ceremonies have been performed, suc:lt as Pindadana or Birajahoma or Projapathiyesthi without which the renunciation will not be complete. (I) Encyclopaedia of Religion Ethics, Ed. by James Hastings, Vol. 2, pp. 194-1 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 : Jrl "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 Shiva) water brought from a tank, in which an image of the gcd 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 neighbourhood 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 Vija'ya Hom has been performed, at which a Gosain, famous for religion and learning gives him the original mantra of Shiva. The cere- • mony generally occupies three days in Banaras. On the first day, the Gosain is again shaved, leaving a tuft on the top of the head called 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. " ln Gossain Ramdhan Puri & Ors.

v. Gossain Dalmir Puri(') 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 mona>tery his habits and character are closely (1) (1909-10) 14 CWN 191. watched for some days, and enquiries are made into his caste, for the sanyasis admit into their order ordinarily members of the twice-born classes and very rarely take members of the fourth class. If the novice is approved, his head is shaved, his name is changed and npon 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 perfomiancc 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 umeasonble 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 material 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 Blzandara took place at Meerut as well as at Garwaghat is irrebuttable. It is common knowledge that sauyasis are not cremated but arc buried, or their bodies consigned to some river, and that after their demise a Bhandara takes place. Defendants Nos. 1 to 4 admitted in their written statement that Swami Surupanand 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 about 28-29 years ago. Four other persons had also taken Sanyas Oil one and the same day. I had taken Sanyas. Their names are Swami Atma Vivekanandji, Swami Ajuniya Nandaji, Swami Abheda Nandji and Swami Purna Shabda Nandji. Swami Atma Viveka Nandji had also taken Sanyas on that very day. Praja Praslzit ...... and Virja llom Ceremonies were performed at the time of my takillg 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 Gum Mantra into our ears. Hom (Samigri) were sent for, from the Mandleshwar of Benaras, and Birja llom was got performed with it. We were at that time relieved off, from all the bondages of Grahast Ashram.

These very ceremonies 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 lloma ceremony is of great importance, and if the Biraja llama 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 ciTcumspection, should have performed Biraja lloma ceremony and omitted the essential details, especially tl1e performance of the Sradh of one's self, that is, Atma Sradh by Swami Atmavivekanand. If the Prajapathiyesthi or Biraja lloma 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 initiati'On 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, SRI KRISHNA v. MATHURA AHJR (Sen,!. ) 691 Chandauli, against the other members of their family. It was alleged in the plaint : "That the father of the plaintiffs has been a man 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 sanyasl. " 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. r "That on account of the renunciation made by the father of the plaintiffs, the plaintiffs have become the principal tenants according to kiw 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 PW 1 and in his deposition, Ext. IOI, he stated on oath: "The bud 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 h'ls taken sanyas. He ' used to lire at Gadwadhar Bang/a 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 J. 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 worlrl. The real fact is that when Sri Swarupa Nandji, who was the resi- R dent of Punjab, arrived at the house of Sri Baikunth Singh, aforesaid, situate in Mauza Khuruhja Pargana Majhnwar, A District Banaras, Sri Baikunth Singh was impressed by him, and under his influence became religious minded. He called himse1£ as Swalill 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 B 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.

Whell ·~ he was confronted with his admission in the plaint filed in the suit ! C 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,(') the Judicial Committee of the Privy Council observed : D "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. " No doubt, in a case such as this, where the defendant is not party to the deeds and there is therefore no cstoppc~ the party making E the admi&;ion may give evidence to rebut this presumption f> 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 F that he was a Hindu sanyas;. There is direct oral evidence of the plaintiff Harsewarumd and of Iris witnesses PWs 2 to 5, 7 to 10, 14 and particularly that of Swami Viveksukhanand taken on commission, about the plaintiff's initiation fulto the ascetic order. All these witnesses have amply proved that G the particular ceremonies including Prajapathiyesthi and Biraja Homa required in the 'Sant Mat' fraternity were performed when the plaintiff 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 bis death and in accordance with his wishes, he was given Chader H Mahanti on the occasion of the Blumdara of Swami Atmavivekanand. (! ) I. L. R. 29 All. 184. The document Ext.

100, prepared by the 'Sant Mat' fraternity on this • occasron 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 Himdu sanyasi was based upon the view that nnder - Hindu law mere 'renunciation' of the world is not sufficient. Hence, -~ he holds that a Sudra who renounced the world and became sanyasi oannot 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 ot 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 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 re. mains the question whether due to the death of the plaintiff Harsewanand during the pendency of the appeal the suit • 1 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 possessron 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 necessacy 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 relief unless and 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 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 (1980] 2 S. C. R.

A 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 wi~h 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 B mahantship is, th&efore, 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 c 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 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 D the suit. This is not a class of case to which the maxim, actio persona/is 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 nominat- E ed 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. I!

was alleged that according to the tenets of this particular sect, anyone, including a Sudra, could be a sanyasi, and further that F 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 suii was an accretion thereto. • G 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 II 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 • ' SRI KRISHNA v. MATHURA AHIR (Sen, J. ),, , 695 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, ha! the right to contest the appeal as representing the math, being the de facto mabant, for preservation of its properties, x x x x x x. According to the Hindu jurisprudence, a religious instituti'On 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 C' the decision of the suit or appeal, as the real party to the suit is the institution.

The owneiShip 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(') defines the true notion D· 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. " E • _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. Rameshwar 2 Das( ) is thus open to question. It does not stand to reason that ~.. when a sui!

is brought for possessi'On by a mahant of an astlza/ 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 ~hebait. This would imply that after a long drawn litigation, a" here, the new mahant or shebait has to be relegated to a separate sui·t. _The definition of legal representative as contained in • s. 2 (11) of the Code reads : • "(1 l). -"legal representative" means a person who in Jaw represents the estate of a deceased person, and'includes any - pe15on who intermeddles with the estate of the deceased and where a party sues or is sued in a representative charac- • ter the person on whom the estate devolves on the death of the party so suing or sued. " (l) I. LR. 28 Bern. 215 & 223• .. ,... (2) J,L. R. 28 Pat. 989. 7-9JSCI/80 I I .. 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(') Edge C. J. , while delivering the judgment of the Full Bench, observed: "I h:ive always understood the law to be that in those • Il cases in which an action woulrl abate upon the death of the plaintiff before •judgment, ·tb 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 hi·s -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 representati<ve, while disputing_ rJs 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 N~. l, Harshankaranand alleges that after the demise of mahant Harsewanand he was duly instilled as thei ma:hant of Garwaghat Math by the 'Sant Mat' fraternity. He further asserts that he was in 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 legaJ representative within the meaning of s. 2(11), as mi / 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 • • • ,_. - • .... __,. ) (I) ! LR 9 All. 131.