VIDYAPURNA THIRTHA SWAMI, MINOR, BY NEXT FRIEND VYASACHARYA Vs. VIDYANIDHI TIRTHA SWAMI (DIED), A LUNATIC ADJUDGED TO BE SO UNDER ACT XXXV OF 1858

JUDGEMENT

(1.) The plaint mentioned mutts, Bhandarkare in South Canara and Bhimasetu in Mysore Territory, are two ancient mutts presided over by Swamis or ascetic heads of the Madhwa persuasion. The case of the plaintiff--a minor--is that the two mutts are dwandva or interdependent mutts, the Swami of each being entitled to appoint to the other, in the event of the Swami of either dying without having appointed and leaving a successor, or a vacancy otherwise occurring; that; he was appointed as the head of Bhandarkare Mutt by the present Swami of Bhimasetu Mutt on the death of one Vidyasamudra, who had been ordained and appointed by the 1 defendant the deceased Swami of Bhandarkare Mutt as his junior before he (the 1 defendant) became and was, on inquisition under Act XXXV of 1858, found to be a lunatic.

(2.) The argument on the plaintiff's behalf in the appeal was that the 1st defendant as Swami was in the position of a trustee, that on his becoming a lunatic he ceased to be the head of the mutt and that Vidyasamudra being dead at the date of the plaintiff's appointment, that appointment by the Bhimasetu Swami constituted the plaintiff the head of Bhandarkare mutt. The contention on the other side was that there was no dwandva right as alleged, that the 1 defendant's position as Swami was void of real analogy to that of a trustee, that his lunacy did not divest him of his right to the headship, that until his death there was no vacancy and that the plaintiff therefore derived no right to the mutt by virtue of the appointment relied on by him, even granting that the Bhimasetu Swami had the power to fill up a vacancy should any such have occurred.

(3.) The 1 defendant having continued to be a lunatic down bo his death pending the suit, the question for determination is whether the appointment relied on by the plaintiff was made in circumstances which could confer on him the status claimed, assuming that the Bhimasetu Swami had a right to nominate as alleged-- in short, whether at the date of the suit or prior to it there was a vacancy in the headship of Bhandarkare mutt.