BHAGWATI J.: - (1.) THE Judgment of the court was delivered by
(2.) THIS Appeal is directed against a judgment of the High court of Judicature for the State of Punjab at Simla in Letters Patent Appeal No. 108. of 1951 reversing the judgment of a single Judge of the High court in Regular Second Appeal No. 942 of 1949 & dismissing the Appellant's suit with costs throughout. The suit out of which the present Appeal arises was instituted by the Appellant in the court of the Subordinate Judge, First Class, Delhi, against the Respondents 1 & 2 for a declaration that he was the Mahant of the Temple of Bhaironji and as such entitled to the properties and the perquisities attached thereto including the right to worship in the Temple of Sri Kalkaji and to recover the income from rents etc., as also from offerings and for other reliefs. The case of the Appellant was that one Baba Balak Nath was the Mahant of the Temple of Bhaironji and he left him surviving his three Chelas Sehaj Nath, Maya Nath and Sahib Nath. The pedigree showing the representation of these three lines of descent from Balak Nath is given below: (See pedigree on page 193.) It shows that Bhola Nath was the last representative of the line of Sehaj Nath. He died on 10/4/1918, without leaving him surviving any Chela or Gurbhai (co-disciple) with the result that the line of Sehaj Nath became extinct. Pancham Nath was then the representative of the line of Sahib Nath and Sandhiya Nath was the representative of the line of Maya Nath. On the extinction of the line of Sehaj Nath, the estate and the right, title and interest of the last representative of that line devolved upon the surviving lines, viz., the lines of Sahib Nath & Maya Nath & Pancham Nath and Sandhiya Nath inherited the same in equal shares. Pancham Nath was succeeded by his Chela Mam Chand Nath and after the death of Mam Chand Nath the Appellant, the other Chela of Pancham Nath and Gurbhai of the deceased succeeded to the estate of Pancham Nath. Sandhiya Nath was succeeded by his Chela Shanker Nath. Shanker Nath, however, was removed by the Bhekh Bara Panth on account of his immorality and Hardwari Nath, another Chela of Sandhiya Nath, was appointed the Mahant in his place. Hardwari Nath filed a suit in December 1941 against Shanker Nath which ended in a compromise decree, and, when Hardwari Nath Wed to take possession JUDGEMENT_192_AIR(SC)_1956Image1.jpg of the property in pursuance of the decree, Shanker; Nath murdered him and was, in his turn, sentenced to death on 18/04/1943. Badlu Nath, another Chela of Sandhiya Nath and Gurbhai of Shanker Nath then succeeded to the estate of Sandhiya Nath. There was, however, a dispute in regard to the mutation of names between Badlu Nath and Respondent 1 who claimed to be the Chela of Phul Nath who was a Chela of Naina Nath, an earlier representative of the line of Maya Nath. While this dispute was going on Badlu Nath died on 23/9/1945 without leaving any Chela with the result that the line of Maya Nath also became extinct and the estate and the right, title and interest of Badlu Nath, the last representative of that line, devolved upon the Appellant who was the representative of the surviving line of Sahib Nath. The Appellant contended that respondent 1 was not entitled to succeed Badlu Nath and had no right, title or interest in the estate left by him. The rule of succession propounded by the Appellant was formulated by him in paragraphs 4 and 6 of the plaint as under: "Para 4. Balak Nath, aforesaid, was Abdhut Jogi. Abdhut Jogis do not marry and according to law and custom succession devolves from 'Guru to Chela' and if one Chela does not survive, then it devolves upon the next one. In the same way, if a line becomes extinct and no Chela is left in that line then, the Chelas of the remaining line inherit its share. Para 6. The rule of succession to the property left by Balak Nath is clear from the pedigree-table given hereof. Among all the three aforesaid lines according to custom and law succession devolved from a 'Guru' to a 'Chela', after the death of one Chela to the other Chela. But in case of extinction of a line and no Chela having been left therein succession devolved upon the remaining lines". After setting out the custom as above, the Appellant gave in para 7 of the plaint an illustration of the extinction of a line, no Chela having been left therein and the consequent devolution of succession upon the remaining lines:- "Para 7'. Bhola Nath, Chela of Shiv Nath co-sharer, died sonless that is without leaving a Chela. Accordingly Baba Sandhiya Nath and Baba Pancham Nath, proprietors of the other two lines, succeeded to onethird of the estate left by the deceased as his heirs according to law & custom. Moreover vide orders dated 19-4-1918, mutation in respect of succession to the deceased was sanctioned in favour of Baba Sandhiya Nath and Baba Pancham Nath in equal shares". The Respondent 1 disputed this claim of the Appellant. The rule of succession was propounded by him in paragraph 4 of his written statement as under:- "The Avdhut Jogis do not marry. Only the Chela who is nominated by Guru as his successor in his lifetime or in whose favour a will is made by the Guru and whose nomination is subsequently approved by the Bhek, becomes the Gaddi Nashin. If a Guru does not nominate his Chela as his successor, Bhekh Bara Panth appoints the successor of the deceased according to the custom prevailing in the Bhek. The person so selected by the Bhek becomes the lawful heir and successor. A Chela lias got no right to succeed merely on the ground of his being Chela. It is necessary according to the custom that he should be nominated by Guru and then his nomination be approved by the Bhek. Moreover a Guru Bhai (Co-disciple) has no right to succeed 194 simply on the ground of his being Guru Bhai". The parties went to trial on the basis of these pleadings and the main contest between them turned on what was the rule of succession in regard to this institution. The trial court held that the custom set up by the Appellant was proved, viz., that the Gaddi of Bhaironji ana the rights to Puja and to offerings in Mandir Kalkaji as well as the property attached to that institution, and the land in the village Bahapur devolved from 'Guru' to 'Chela'; in case there was no Chela, the Gurbhai of the last Mahant succeeded and if none of them was available and the line became extinct, the above rights devolved upon the surviving line. The Appellant was accordingly found to be the rightful claimant to the Gaddi and rights and interests of Sandhiya Nath in both the above religious institutions and to lands in village Bahapur. The suit was, therefore, decreed in favour of the Appellant with costs.
(3.) THE Respondent 1 took an appeal to the court of the District Judge, Delhi, and the District Judge, Delhi, accepted the conclusion of the trial court in regard to the rule of succession, dismissed the appeal and confirmed the decree passed by the trial court in favour of the Appellant though it varied the order of costs ordering both the parties to bear their own costs in both the courts. A second appeal was filed by Respondent 1 against this decision of the District Judge, Delhi, in the High court of Judicature for the State of Punjab at Simla. This appeal was heard by a single Judge who also confirmed the decision or the trial court and dismissed the appeal with costs throughout. THE Respondent 1 filed a Letters Patent appeal against this decision of the single Judge. THE division bench, hearing the Letters Patent appeal, came to a contrary conclusion, held that the Appellant had not proved the custom set up by him and allowed the appeal dismissing the Appellants suit with costs throughout, This Appeal was filed by the Appellant against that decision of the division bench of the High court of Judicature for the State of Punjab at Simla on a certificate granted by the High court under Art. 133 of the Constitution. The only point which arises for considrration before us is whether the Appellant has succeeded in proving the rule or succession propounded by him in the plaint. It may be observed at the outset that Respondent 1 failed to prove the rule of succession which he set out in para 4 of his written statement and the finding reached by the trial court, in this behalf that there has never been any election to the office of Mahant in these institutions was not challenged in the court of the District Judge, Delhi, nor before the High court. Mr. Achhru Ram appearing before us for Respondent 1 also did not challenge that finding with the result that that contention must be taken as negatived. The Appellant has, however, got to succeed on the strength of his own title and not on the infirmity of that of Respondent 1 and he has, therefore, got to establish the rule of succession propounded by him in paras 4 and 8 of the plaint. The elective principle having been negatived it can be safely assumed that the succession to the estate in these lines of descent from Balak Nath was hereditary and it devolved from 'Guru' to 'Chela'. As a matter of fact, the findings reached by the District Judge, Delhi, in regard to the succession in these three lines go to establish that the rule of succession was from 'Guru' to 'Chela'. The facts found by him were as under: - "The really important evidence is of the actual facts of succession in these three lines. From the evidence that has been available it appears that in 1898 Agdi Nath who was in tne line of Sahib Nath was succeeded by his Chela Ram Rikh Nath who in his turn was succeeded by his Chela Pancham Nath. In 1930 Pancham Nath surrendered the estate to his Chela Mam Chand Nath who died in 1943 and was succeeded by his Gurbhai Prithi Nath plaintiff. In the line of Sehaj Nath the evidence shows that Sanwat Nath died in 1892 and was succeeded by his Chela Shiv Nath who died in 1910 and was succeeded by his Chela Bhola Nath. In 1918 Bhola Nath died without leaving a Chela. There was no Gurbhai of the previous Mahant either, nor any Chela of such Gurbhai and the line was taken to be extinct. In the line of Maya Nath the evidence shows that Naina Nath died in 1866 and was succeeded by his Chela Roop Nath. He, however, absconded in 1897 and was succeeded by Misri Nath a Chela of his Gurbhai. Tulsi Nath who claimed to be Chela of Naina Nath disputed the succession and the matter went to court but was settled in favour of Misri Nath. He letter died and was succeeded by his Chela Sandhiya Nath. It would thus appear that in these lines either the Chela 'of tne last Mahant or his Gurbhai or the Chela of the Gurbhai succeeded 195 and no one more remotely connected with the last Mahant has ever succeeded". These findings are sufficient to establish the first part of the rule of succession propounded by the Appellant, viz., that succession devolves from 'Guru' to 'Chela' and if one 'Chela' does not survive then it devolves upon the other 'Chela', meaning thereby the other Chela of the last Mahant who would thus be 'the 'Gurbhai' of the 'Chela' who died. The succession would thus be in the line of descent from the last Mahant who was the representative of the particular line 'qua' whom it would be determined whether his Chela or Chelas succeed to his property. This position is supported by what happened in the case of succession to the property of Pancham Nath in the line of Sahib Nath. It is also supported, apart from the alleged elective principle set up by Respondent 1, by what happened in regard to the succession to the property of Sanahiya Nath. Shankar Nath succeeded Sandhiya Nath hut when he was removed from the Gaddi on account of his immorality, Hardwari Nath the other Chela succeeded to Sandhiya Nath and when Hardwari Nath was murdered, Badlu Nath still another Chela .of Sandhiya Nath succeeded to these properties. ;