PRIVY COUNCIL

              Ram Parkash Das

              Vs.

              Anand Das and others
              P.C.A. No. 39 of 1914.

(Viscount Haldane, Lord Shaw, Sir John Edge and Mr. Ameer Ali. JJ)

              16.3.1916

              JUDGMENT

Lord Shaw J.

1.This is an appeal from a judgment and decree of the High Court of Judicature at Fort
William in Bengal, dated the 26th August, 1910, reversing a judgment and decree of
the Second Subordinate Judge of Mozufferpore, dated the 16th June, 1909.

2. The question in the appeal has reference to the office and rights of a mahant of an
asthal, known as the Patepore Asthal, in the district of Mozufferpore. There are rival
claimants to this office in the person of the plaintiff and of the defendant No. 2. The
defendant No. 1, Anand Das, was the mahant of the Patepore Asthal. By written
documents and by his acting he has, as will be afterwards found, abdicated. But in this
litigation he supports the claim of defendant No. 2, in whose favour he has granted
those deeds which will be hereafter referred to. The Asthal is one of some importance,
and is stated to have revenue of 50,000 rupees a year.

3. An asthal, commonly known in Northern India as a muth, is an institution of a
monastic nature. It is established for the service of a particular cult, the instruction in
its tenets and the observance of its rites. The followers of the cult and disciples in the
institution are known as chelas; the chelas are of two classes celibate and non-celibate.
In the asthal now being dealt with, the religious brethren were the bairagi or celibate
chelas; the lay brethren were girhast or householder chelas. The mahant must, by the
custom of the muth, be a bairagi or religious chela.

4. The mahant is the head of the institution. He sits upon the gaddi; he initiates
candidates into the mysteries of the cult; he superintends the worship of the idol and
the accustomed spiritual rites; he manages the property of the institution; he
administers its affairs; and the whole assets are vested in him as the owner thereof in
trust for the institution itself.

5. Upon his death or abdication he is succeeded by one of the bairagi chelas. These
bairagi chelas are, as stated, celibates; or if they have ever been married they must,
prior to their initiation as bairagi chelas, have renounced their wives and families and
have conformed to the practice of the muth. This practice is ascetice : it involves a
separation from all worldly wealth and ties, and a self-dedication to the services and
rites of the asthal. (See, e.g., Wilson's Religious Sects of the Hindus, pp. 51, etc.)

      "Pious persons endow the schools with property, which is vested in the preceptor
      for the time being, and a home for the school is erected and a mattam constituted
      :"
6. Sammantha Pandara v. Sellappa Chetti1.

7. It is, however, the rule that this property is held by the mahant as its owner, and the
succession to him in such property follows with the succession to the office. The
nature of the ownership is, as has been said, an ownership in trust for the muth or
institution itself, and it must not be forgotten that although large administrative powers
are undoubtedly vested in the reigning mahant, this trust does exist, and that it must
be respected.

8. The question as to who has the right to the office of mahant is one, in their
Lordships' opinion, which, according to the well-known rule in India, must depend
upon the custom and usage of the particular muth or asthal. Such questions in India
are not settled by an appeal to general customary law; the usage of the particular muth
stands as the law therefor.

9. It appears from Mahant Ramanooj Doss v. Mahant Debraj Doss2 that the muths are
-

       "of three descriptions, namely, mouroosi, punchaiti and halcimi, that in the first
       the office of chief mahant was hereditary, and devolved upon the chief disciple
       of the existing mahant who, moreover, usually nominated him as his successor;
       that in the second the office was elective, the presiding mahant being selected
       by an assembly of mahants; and that in the third the appointment of presiding
       mahant was vested in the ruling power" (presumably the civil power), "or in the
       party who endowed the temple."
10. The case cited was interesting, and the report proceeds:-
       "Mr. Money then directed the pundit of the Sudder Dewanny Adawlut to state
       what was the law of shastre in regard to the appointment of a presiding mahant
       of a muth or temple called 'mouroosi'; whether the principal disciple of the last
       mahant should succeed or whether the existing mahant was competent to
       appoint whom he pleased from among the body of his disciples?
       "The reply of the pundit was as follows : Under the circumstances stated in the
       question, the principal chela or pupil is entitled to succeed on the death of the
       presiding mahant of a mouroosi or hereditary muth. If the principal pupil be
       personally unfit to succeed, or be disqualified by any of those causes which,
       according to the shastre, are sufficient for such disqualification, then in that
       case the presiding mahant should, during his lifetime, select one properly
       qualified from among his pupils to succeed him. The person so selected will
       succeed."
11. Alongside of this report should be placed the view of Sir Charles Turner in
Sammantha Pandora v. Sellappa Chetti (Supra) to this effect -

       "The preceptor, the head of the institution, selects among the affiliated disciples
       him whom he deems the most competent, and in his own life-time instals the
       disciple so selected as his successor, not uncommonly with some ceremonies.
       After the death of the preceptor the disciple so chosen is installed in the gaddi,
       and takes by succession the property which has been held by his predecessor."
12. Their Lordships are of opinion that the language last quoted cannot be taken in any
sense as a statement of the general law of India. Any contention to that effect would
indeed not be in accordance with Sir Charles Turner's own views, he having made this
plain in the succeeding passage of his judgment :-

        "We do not, of course, mean to lay down," said he, "that the property may not
        in some cases be held on different conditions and subject to different
        incidents."
13. It, in short, may rank as one of the varieties of circumstance and tenure whose
adoption or rejection will fall to be determined by the usage and custom of the muth.

14. That this forms the controlling rule with regard to the right to the office of mahant
may now be considered as having been conclusively settled by authority. In
Greedharee Doss v. Nundokissore Doss Lord Romilly so put it, observing "that the
only law of these mahants and their offices, functions and duties is to be found in
custom and practice, which is proved by testimony." More recent authorities, such as
Rajah Muttu Ramalinga Setupati v. Perianayagum Pillai4 and Rajah Vurmah Valia v.
Ravi Vurmah Kunhi Kutty5 confirm this proposition, with the explanation which their
Lordships think it right here to repeat, given by Sir Barnes Peacock as Chief Justice of
Bengal, and cited with approval in the case last mentioned to the following effect :-

       "Numerous cases have been cited to show what was the usage, but the law to he
       laid down by this Court must be as to what is the usage of each mahantee. We
       apprehend that if a person endows a college or religious institution, the endower
       has a right to lay down the rule of succession; but when no such rule has been
       laid down, it must be proved by evidence what is the usage, in order to carry out
       the intention of the original endower. Each case must be governed by the usage
       of the particular mahantee."
15. As between the rival claimants to this mahantship the situation is as follows: The
plaintiff maintains the broad proposition that according to the custom of this muth the
succession falls to the eldest or senior (that is, earliest inducted) bairagi chela; that it
so falls as of right; and that this right of succession cannot be defeated by any deed or
deeds executed by the reigning mahant. If this be correct there is an end to the claim,
so it is maintained, of defendant No. 2.

16. Upon the other hand defendant No. 2 maintains that there is no such absolute right
of succession; that there are deeds in existence under the hand of Anand Das, the then
reigning mahant, which transfer to and vest in him, the second defendant No. 2 is now
in office under a question of succession being thus settled, defendant No. 2 is now in
office under a right which is not defensible by any right in the plaintiff as alleged
senior chela.

17. Their Lordships have considered deeds executed by predecessors of the parties in
the years 1832, 1854 and 1866 respectively. As between the propositions (i) that the
choice of the reigning mahant must prevail, and (ii) that the right of the senior bairagi
chela must prevail, their Lordships are not prepared to affirm that either proposition is
upon those deeds made out.

18. In the first place, language, apparently of selection, is used; but in the second
place, the person is in each case the senior bairagi chela for the time being. and there
is in the evidence an apparent admission of the right of the senior chela to the office.
Lastly, there is no instance given either in the documentary or oral evidence of a
senior chela having been superseded by virtue of the selection of another by the
mahant for the time being. In the view taken by their Lordships, it is unnecessary to
come in this case to a decision upon this issue.
19. For, in their Lordships' opinion, such an issue is superseded by issues of fact.
Those issues are of undoubted difficulty. They are the subject of extreme conflict
"testimony. The number and width of the topics in dispute are rare even in questions
of disputed fact coming from India. These topics may, however, be conveniently
ranged in two divisions.

20. The first question is whether defendant No. 2, the nominee of Anand Das under
the deeds now to be mentioned, is competent to be mahant of this asthal. This
competency is challenged: if the challenge be sound he cannot succeed.

21. The second question is, is the plaintiff a bairagi chela of this muth? His entire life
history, vouched by himself and others, is challenged as a tissue of falsehood. If this
challenge be sound the plaintiff cannot succeed.

22. What would happen if both of these challenges were sound or both were unsound
their Lordships need not consider, as they have come to a definite conclusion that the
one challenge succeeds and the other fails.

23. Before, however, the investigation is entered upon, it may be convenient and
proper that the following general observation should be made. Their Lordships have
had the duty, in view of the reversal of the judgment of the Subordinate Judge by the
High Court, of considering for themselves the entire body of the evidence in the case.

24. They desire to record that in their opinion the Subordinate Judge has dealt with
this complex and onerous case with much care, and that, although they differ from him
in one or two particulars, his conclusions appear to the Board to be stated with
clearness and with cogency : and they think it right also to say that there does not
appear to be any ground for the reflection made in the judgment of the High Court that
the Subordinate Judge has displayed in any portion of his judgment or has been in any
particular moved by either partiality or bias.

25. Upon the first question, the objection taken to Ram Partab Singh, the second
defendant, is that he is a married man, the father of a son and daughter, one at least of
these children having been born since he became, or is alleged to have become,
mahant.

26. This enquiry into the domestic relations of the second defendant is of course on an
issue which is fundamental. For the proposition cannot be denied that, even upon the
assumption that a right of selection did exist on the part of the mahant as among the
bairagi chelas, the nomination must fall upon one who is competent to hold his
important sacred office. For instance, the person chosen may be disqualified by reason
of bodily deformity, of bodily disease such as leprosy, of disease of the mind, or of the
leading of a life which is immoral or is inconsistent with the religious vows of the
brotherhood. In all such cases the nomination would be void.

27. Among these disqualifications stands the contracting of marriage and the begetting
of children. As already mentioned, initiation of a married man must be preceded by
the entire and permanent separation from his wife and by the giving up of all wordly
ties. On the question of marriage, which will afterwards be considered in this case, it
is no part of the respondent's case that defendant No. 2 was once married, but had
relinquished those ties. The dispute of fact to he afterwards investigated is upon the
broad question of whether he ever was, or, indeed, is now, a married man or the father
of children.

28. If this question be answered in the affirmative, disqualification attaches to that
defendant; and he can never be mahant and the deeds appointing him to that office or
giving him any administrative rights present or prospective, with regard to the
mahantship are void.

29. Was Ram Partab Singh a married man and the father of children?

30. No registers of marriages can be appealed to. The evidence given in the case is
that of the plaintiff, who attended the marriage ceremony, which he describes, of
Kishen Das, who also gave evidence to this effect; and of Sitabullah Das, the mahant
of a neighbouring asthal of Chainipara, who lent elephants and horses for the marriage
procession. There is also the evidence of other witnesses, one of whom, Ajodhya,
speaks to the defendant No. 2 having a wife, a son, and a daughter, and swears to
having seen his son some four or five years ago. There is some other evidence of a
similar description. In short, if the case stood at that point, the fact of the marriage and
of the existence of the wife and son and daughter would be beyond question.

31. Their Lordships think it necessary to advert to this further point, which is of wide
significance in regard to more than the present issue. The case for the plaintiff on this
topic, as on nearly all others, is stated in the evidence with complete particularity, a
particularity achieved in many instances in the course of an extended and meticulous
cross-examination. The date of the marriage, for instance, is given; the name of the
family into which defendant No. 2 married, and of his father-in-law, together with his
residence and the present residence of wife and children, all are frankly given. It is
further mentioned that the ceremonial of marriage was the cause of expense to Anand
Das, defendant No. 1, the then reigning mahant. Defendant No. 2, Ram Partab, was
his nephew. All expenses were entered in the books of the asthal, and this expense
would there appear. Furhermore, in a criminal case, to which reference will afterwards
be made, it is alleged that Haman Lal, who knew the circumstance, made a statement
on oath that defendant No. 2 was married. The Magistrate who tried that case stated in
his judgment that an admission of the marriage was made in the course of it. An offer
was made in the present case to produce a copy of the statement of Haman Lal, and
that was resisted.

32. Their Lordships are of opinion that the note of the admission made to the
Magistrate in the criminal case was rightly rejected as by itself evidence of the fact
recorded therein, and also that the objection of defendant No. 2 to the production of a
copy of the evidence of Haman Lal was justified in law. But the peculiarity of the case
is this : Haman Lal was in court while all this was going on; he was acting as a legal
representative of the defendants; and he was not called by them to clear up the matter,
or to deny that he made the statement alleged or to explain it. Their Lordships are not
surprised that that circumstances should have made a deep impression upon the mind
of the Subordinate Judge as to where the truth upon this issue of fact really lay.

33. The counter-case is that the whole of this story of the defendant No. 2's being a
married man and the father of two children is a pure invention. The extraordinary
circumstance is that, although places, events, and people have been named so openly
and in such detail, and although the cross-examination on behalf of the defendants has
in many instances elicited overwhelming materials for exposing the falsehoods, if they
were falsehoods, none of these materials were taken advantage of, and no such
exposure is attempted. No witnesses were brought from the village named to say that
defendant No. 2's wife and children do not live there. Her father, who had been openly
named in the plaintiff's evidence, is not cited. In short, the details elicited at great
length in cross-examination of the plaintiff for the purpose of testing his evidence are
left just as he has placed them, without the people whose names are put to him being
brought forward to contradict in any particular the statements that he has made. To this
case the answer made by defendant No. 2 is: "My father-in-law! my wife! my
children! no such persons exist," and the case is left there.

34. As to the books, they have not been produced for any period which is critical in
this case. It is admitted that the manager of the asthal, Raghunath, was responsible for
their custody and accuracy. Had they been produced the absence of entries in them
would, if the defendants' case be true have completely confounded the plaintiff's
allegations. The story which Raghunath gives as to the books is in their Lordships'
opinion, very unsatisfactory. He says that they were destroyed or taken away by one
Kamal Sahi Dewan. He assigns no possible motive for such an act; Kamal is available
as a witness, and is not called.

35. Their Lordships do not go further into the evidence upon this subject, except to say
that in face of the fact that conclusive evidence upon material particulars with regard
to this issue having been available to the defendants and not led, their Lordships are
not prepared to accept in lieu thereof general statements of belief on the part of other
witnesses to the effect that, so far as they know, the defendant No. 2 is not a married
man, and that his conduct in representing himself and acting as mahant proves that he
is not disqualified.

36. Finally, upon this head their Lordships think it right to observe that upon a
question of fact such as is now being investigated, the verdict given by the
Subordinate Judge, who had the advantage of seeing and hearing the witnesses, cannot
be lightly set aside, especially as that Judge was also presumably acquainted with the
manners and customs of the people among whom such a transaction was alleged to
have occurred. They must further remark that they see no sufficient grounds stated by
the High Court for disturbing the verdict come to; having themselves investigated the
facts, they are of opinion that the rule which applies - of attaching weight to the
opinion of the Judge of first instance - cannot with safety be departed from in the
present instance.

37. The result of this portion of the case is fatal to the claim of defendant No. 2. He
cannot be mahant.

38. He was the nephew of Anand Das, the reigning mahant, who was apparently
determined to favour him. By a will dated the 24th June, 1890, he appointed this
nephew to succeed him. By a deed dated the 14th May, 1897, he resigned the office,
and constituted the second respondent as his successor. and by an ekrarnama dated the
6th August, 1904, it was agreed between the uncle and nephew that the third
respondent, another nephew and brother of the second respondent, should succeed the
latter in the office of mahant. All these deeds, for the reason stated, are unavailing,
and must be set aside.

39. The deeds were in themselves, it may be added, of a peculiar character. The will
stated that Ram Partab Das was senior chela and inter alia was competent to "perform
the sheva of Takurji." The mahant seven years afterwards, namely in 1897, transferred
the absolute ownership of the asthal and all the properties and goods thereof to Ram
Partab, the nephew, as mahant, but with the reservation to Anand Das, the grantor, of
an annuity of 12,000 rupees per annum, and with a declaration that Ram Partab should
have -

       "no right or power to do anything without my advice and consultation with me,
       and shall keep himself under my governance and power in respect to the
       management of every form relating to the asthal;" while the closing paragraph
       declared -
       "that without my consent and sanction he shall not be competent to appoint any
       of his chelas as mahant."
40. The ekrarnama seven years later, namely, in 1904, went a step further. The effect
of this deed was that Ram Partab was to pay Anand Das -

       "any amount of money which at any time I, the first party, may require for
       personal expenses."
41. Then occurs a clause to this effect -

       "As I, the second party, generally keep unwell, therefore I, the first party, with
       consent of the second party, have permitted the third party (another nephew) to
       perform the sradh of me, the first party."
42. The meaning of this is that, whereas according to law and custom the successor in
the mahantship performs the religious rights attending the obsequies of his
predecessor, an arrangement was come to by which this was avoided, and that vital
rite was, so to speak, handed on past the second defendant and confided to his brother,
the third defendant. Whether such a transaction with regard to a mahantship in India
be competent and possible need not be determined, as in their Lordships' opinion the
whole deeds are void, in consequence of the disability by marriage of the second
defendant, Ram Partab.

43. It is not unworthy of remark, however, that the fact of the marriage of Ram Partab
and of this being known to Anand Das, might afford the only reasonable explanation
yet offered for passing over Ram Partab, seeing that the marriage of the latter would
undoubtedly have incapacitated him from performing the obsequies of his uncle.
There is no evidence that Ram Partab's state of health was such as to create any
incapacity. The inference, in short, is that the second defendant was married and the
father of children, and that his uncle Anand Das knew it. It may be mentioned that the
third defendant, it was admitted at the Bar, is dead.
44. The second question in the case is, accordingly, whether the plaintiff answers this
description and is a Bairagi chela. The deeds founded on by the defendants having
been declared invalid, and the second defendant being incompetent to hold office,
there is no dispute that the eldest or senior chela must succeed to the mahantship.

45. The plaintiff narrates the material circumstances of his life history in his own
evidence. As the Subordinate Judge observes -

       "He has been cross-examined very severely for several days, and he was asked
       questions relating to the minutest details of the asthal and its people and he has
       acquitted himself very creditably. He knows all the bairagis and servants of the
       asthal; he knows every creek and corner of the asthal building; he describes the
       room of the asthal in which he used to live. He names the mahants of other
       asthals, as well as their chelas. Hementions the bandaras he attended with the
       defendant No. 1."
46. Their Lordships agree with the Subordinate Judge that no explanation has been
given of the intimacy and unquestionable accuracy of the plaintiff with people, events,
and affairs of the asthal, except upon the footing that he was initiated as one of the
chelas thereof. (His Lordship proceeded to consider in detail the evidence on this
point). It is beyond question that after the initiation of the plaintiff, and under what
influences is not known, the defendant No. 1, Anand Das, made the resolve to attempt
to bring his nephew or nephews into the succession to the mahantship, and that he was
not deterred from this scheme even after he was aware that the defendant No. 2, Ram
Partab, was married. The plaintiff, however, stood in the way of this scheme, and if his
signature could be obtained as witness to the ekrarnama this might have gone some
way to the defeat of the plaintiff's rights.

47. Whether this story be on all points correct will never be ascertained; but this at
least is true, that in 1904, just about the time when the ekrarnama founded on the
present case was, in fact, executed, the plaintiff brought a criminal suit in respect of
the assaults committed upon him on the occasion of his expulsion from the Patepur
asthal, and the reason assigned by him for having been assaulted was the failure to
sign an ekrarnama as a witness. The plaintiff succeeded before the Magistrate, and a
conviction followed which was quashed on appeal.

48. Their Lordships do not think these proceedings to be relevant in this case. The one
important fact is that they were taken on a ground which is referable to the execution
of an ekrarnama, and they were taken by the plaintiff as a claimant to be a resident as
of right in the asthal, from which he had been expelled. It should be added that the
plaintiff's account of his expulsion includes this - that he was deprived of the
possession of his books and papers, including all the letters received by him from
Anand Das, the mahant, while he, the plaintiff, was absent receiving education at
Ajodhya. (His Lordship here dealt with oral and documentary evidence.) In reviewing
the evidence, the learned Judges of the High Court were greatly moved by the view
which they took that the story of the circumstances under which the plaintiff was
induced to attach himself to Anand Das in 1884 amounted to an allegation of
kidnapping, and that the date stated for the initiation of the plaintiff would have
clashed with a period of mourning for a relative of Anand Das. The date - it is many
years ago - may have been erroneous by two days, and there is no reason why, if the
case were false, a questionable date should have been named. The Board agrees with
the conclusion of the Subordinate Judge on the point.

49. The Subordinate Judge dealt lightly with the allegation of kidnapping, and in the
course of his judgment made the observation that

       "people of other religious denominations are now and then heard of enticing
       away minor children from custody of their lawful guardians for making them
       converts of their own faith."
50. This observation was unnecessary. But their Lordships are surprised to find that
the High Court deals with it as if it were an attack upon Christian missionaries, and
they go so far as to say that

       "supposing them to be directed against Christian missionaries, they are not
       supported by a tithe of evidence, and, so far as our experience goes, they are
       absolutely false. In introducing them into his judgment, the Subordinate Judge
       does not appear to have exhibited an impartial frame of mind in treating the
       facts of this case."
51. Upon this their Lordships deem it right to observe that they think the supposition
upon which this reflection proceeds, to be strained, and the reflection to be uncalled
for. They incline to the view that the error on these subjects may have moved the High
Court to discount improperly the true weight of the evidence, and to overlook
important elements in the case.

52. As an instance of what their Lordships mean, it may be mentioned that the
postcards are not alluded to in the judgment of the High Court, nor is the non-
production of Gobind Das as a witness, nor even of Haman Lal as a witness; while
with regard to the non-production of the books, there are speculations made as to
whether they would or would not have assisted in the solution of the problems arising
in the case, but no due weight is attached to the serious fact that evidence, which
might have concluded the case in one direction or another, and for the custody of
which the defendants are responsible, has not been brought before the Court by them.

53. But the case of the defendants, which otherwise would have rested on a denial by
themselves and been supported by nothing more substantial than negative evidence of
mahants, many of whom lived at a considerable distance from the Patepur asthal, to
the effect that they did not know that the plaintiff was a bairagi chela, or in residence
- that case is still more seriously weakened by the positive case which the defendants
put forward. That positive case is as follows, namely that the plaintiff was a bairagi
chela, but that he did not belong to Patepur asthal. He belonged, so it is said, to a sub-
asthal or sub-muth, consisting of a small house on a small plot of ground in the
neighborhood of Patepur which was a separate asthal and had for its mahant one
Baliram. This was an issue of fact; which fell to be proved by the defendants, and they
had the materials for doing so, and at first hand. Baliram had, so the argument went,
two bairagi chelas - one was the plaintiff and another was Manmohan Das. Their
Lordships must decline to accept any hearsay evidence upon this subject, and it is
sufficient to say that Baliram and Manmohan, both alive and available, are not
produced as witnesses in support of the case alleged for the defendants. It is a
somewhat striking fact that in the judgment of the High Court there is no reference
made to this important incident.

54. Their Lordships think it unnecessary to investigate further the details of the
evidence, being satisfied that upon it the conclusion come to by the Subordinate Judge
cannot be successfully challenged, and that accordingly the plaintiff has established
his position to be a bairagi chela of Patepur asthal. He is also by admission, if this be
so, the senior chela, if not the only chela, who is competent to fill the office of mahant.

55. Only one other question remains. It is this: Anand Das is still alive. The deeds
which he granted, which purported to be a transfer during his life of the mahantship to
his nephews, defendants Nos. 2 and 3, are unavailing, defendant No. 2 being
disqualified for the office, and defendant No. 3 being dead. In these circumstances,
does the mahantship not revert to Anand Das? Anand Das is a man now nearing 80
years of age. He has for years relinquished the mahantship. Since at least 1897 he has
retired from office, and has made over to defendant No. 2 all his duties together with
the properties of the asthal. He has had a mutation of names effected in the Collector's
Register in respect of the villages belonging to the muth. He has thus abdicated all his
functions, and, as he admits, his position is no more than that of any other worshipper.
The mahant, in their Lordships' opinion, is not only a spiritual preceptor, but also a
trustee in respect of the asthal over which he presides. His installation of defendant
No. 2 on the gaddi, and his own retirement from the mahantship, would thus appear to
have created a vacancy in the office.

56. But a more serious difficulty also arises from the fact that their Lordships cannot
acquit defendant No. 1 of having been a party to deeds, and especially to the
ekrarnama of 1904, which were of a nature inconsistent with his duty and position as
guardian of this religious institution. To confer the mahantship upon a relation who
was a married man and the father of children, was to consent to a violation in the
person of the highest and most responsible officer, namely, the mahant, of those vows
and practices of asceticism and celibacy which it was his duty as a trustee to maintain
and protect. In these circumstances, their Lordships must accept the abdication which
occurred as a governing fact in the case.

57. Further, it is not alleged that the senior chela, on whom even according to the
defendants' case the succession would devolve in the absence of an appointment, is
disqualified by any just cause from holding the office vacated by the old mahant. In
these circumstances, their Lordships think that the plaintiff is entitled to the
declaration made in his favour by the Subordinate Judge.

58. Their Lordships will humbly advise His Majesty that the appeal ought to be
allowed, the decree of the High Court set aside with costs, and the decree of the
Subordinate. Judge restored.

59. The respondents will pay the costs of the appeal.

Appeal allowed.

Cases Referred.

   1. [1878-1880] 2 Mad. 175
   2. [1839] 6 S.D.A. (Beng.) 262
   3. [1866-67] 11 M.I.A. 405 : 8 W.R. 25 : 2 Suther. 86 : 2 Sar. 306 (P.C.).
   4. [1874] 1 I.A. 209 : 3 Sar. 844 (P.C.)
   5. [1876-78] 1 Mad. 235 : 4 I.A. 76 : 3 Sar. 687 (P.C.),