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TMI Blog1954 (4) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... as instituted by Sital Das, who is the appellant before us, in the Court of the Subordinate Judge, First Class Jullundur on 2nd January 1946 making the two lessees, mentioned above, parties defendants, for recovery of possession of the lands comprised in the lease, on the allegation that Sital Das was the legally appointed Mahant of the Thakardwara after the death of Kishore Das and that the lease, executed by the latter, was illegal and inoperative on grounds, 'inter alia' that it was a colourable transaction, executed without consideration and not supported by legal necessity. Sital Das was admittedly not a disciple of Kishore Das, the last Mahant, and he based his claim as superior of the institution solely on the ground that he was duly appointed as Mahant by the 'Bhek' of the assembly of Bairagi Mahants of the same order, to which Kishore Das belonged, along with 'Sewaks' or worshippers of the Thakardwara itself. 2. In the plaint, as it was originally framed, two other persons were joined as co-plaintiffs along with Sital Das; one of them was Mahant Hira Das who purported to be the head of a Bairagi institution at Sahri, said to be the parent inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal necessity and was hence binding on the institution. 5. It appears that on the 24th July 1946 a copy of a registered will, alleged to have been executed by Kishore Das only four days before his death, was produced in court and by that will the testator purported to appoint Ishar Das and Lachman Das, described as his two disciples, joint managers of the Thakardwara after his death. Upon this, the Subordinate Judge made an order directing that Ishar Das and Lachman Das should be added as parties defendants in order that the suit may be decided in their presence. This was done and on that very day, namely, the 24th of July 1946, the plaintiff put in an amended petition of plaint impleading Ishar Das and Lachman Das as defendants 3 and 4 to the suit. A new paragraph was added to the plaint in which it was stated that if any will or wills were at all executed by Kishore Das in favour of defendants 3 and 4, the same were fictitious and collusive. The deceased Mahant, it was said, had no right to make a testamentary disposition of his rights as Mahant and such disposition could not affect in any way the rights of the plaintiff. On the 26th October 1946, Ishar Das and Lachman Das, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never a 'chela' of the late Mahant, nor had he renounced the world. There was also no proper evidence to show that he was appointed Mahant by the 'Bhek' or the 'Sewaks'. Lastly, it was held that the lease was not executed for legal necessity and was not binding on the institution. The recital of payment of ₹ 5,000/- as premium for the lease was found to be fictitious and the rent reserved to be grossly inadequate. On these findings, the learned Subordinate Judge allowed the plaintiff's claim and passed a decree in his favour as prayed for. 8. Against this decision there was an appeal taken by the defendants to the Punjab High Court and the appeal was heard by a Division Bench consisting of Khosla and Harnam Singh JJ. The only points canvassed before the High Court were those covered by issues 1 and 4. The learned Judges held, differing from the trial court, that Sital Das was not able to prove that he was a spiritual agnate of the deceased Mahant, nor was it established that the meeting held at Jamsher on the 23rd July 1945, at which Sital Das was said to have been appointed was a proper meeting of the 'Bhek' and the 'Sewaks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment which, he alleged, was ratified by the 'Bhek' of the Bairagis on the seventeenth day after the demise of the last Mahant. The case set up by him seems to be that none but a 'chela' of the last Mahant can succeed to the office, that it is open to a Mahant to nominate during his lifetime his successor from amongst his 'chelas' the 'Bhek' or assembly of Sadhus is more or less a confirming authority which ratifies the wishes expressed by the deceased Mahant. 11. On the question of custom, the plaintiff examined a number of Bairagi Mahants as his witnesses and it seems that both the courts below have placed reliance upon their evidence. Mahant Hira Das (C/P. W. 1), who is the head of the Bairagi shrine at Sahri, states in his deposition that the custom among Bairagis is that, on the death of the last Mahant, his 'chela' and failing a 'chela', his 'Bhatija chela' or 'Gurubhai' succeeds to the Mahant-ship and it is the 'Bhek' and the 'Sewaks' who make the appointment by applying Tilak to the person elected. C/P. W. 2 Brahm Das, who is also associated with a Bairagi institution, says that after a Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'chela' succeeds to the office as a matter of course. He can acquire rights only by appointment and the authority to appoint is vested in the 'Bhek' and the 'Sewaks'. This has been judicially noticed in the case of --'Jiwan Das v. Hira Das', AIR 1937 Lah 311 (B), where the dispute was as regards succession to Mahantship of the shrine at Sahri which also is admittedly an institution of Ram Kabir Bairagis. 13. This being the nature of the custom in regard to succession to Mahantship in the Thakardwara at Jamsher the first question that requires consideration is whether Kishore Das, at the time of his death, had left any disciple of his own. If Ishar Das is proved to be a 'chela' of Kishore Das, it is conceded that the plaintiff, who admittedly is not the 'chela' of Kishore Das, was not eligible for appointment as a Mahant and even if the 'Bhek' and the 'Sewaks' nominated him he could not, in law, acquire the rights of a Mahant. If, on the other hand, Ishar Das was not a 'chela' at all, the question would then arise whether the plaintiff was a 'Bhatija chela' or a spiritual agnate of Kishore Das as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants' side, that Ishar Das is the same person as Ujagar Singh, whose father was one Ganga Singh, a resident of Mannan. To prove that Ishar Das never left his house, the plaintiff has produced the Khasra Girdwaris papers of village Mannan (Ex. P-7) from Kharif 1938 up to Rabi 1946 and these papers show certain lands under the personal cultivation of Ujagar Singh and Kartar Singh as co-sharers, both being described as sons of Ganga Singh. It may be, as the defendants point out, that these Khasra papers carry no presumption of correctness but they are certainly relevant evidence admissible under section 35 of the Indian Evidence Act and they do support the plaintiff's story that far from renouncing the world and embracing the life of an ascetic, Ishar Das or Ujagar Singh, as he was called, was carrying on cultivation with his brother and nephews during the years 1938 to 1946. Ishar Das stated in course of his cross-examination that he did not cultivate his lands, but in the same breath he admitted that he was joint with his nephews with regard to his paternal properties. It is argued by Mr. Achhru Ram that even though a man has renounced the world his name might st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt does not appear to have been proved by any of the witnesses and does not bear any exhibit mark. It has not been referred to, even incidentally, in the judgment of either of the courts below and if as a matter of fact such a will existed and Ishar Das had already been appointed a Mahant, there seems to be no conceivable reason why Kishore Das should execute another will just before his death. We are further unable to see how this document came on the record at all. Mr. Achhru Ram argues that the document being more than 30 years old, there is a statutory presumption available to it under section 90 of the Indian Evidence Act. But this contention is altogether unavailing. The (language of section. 90 of the Indian Evidence Act requires (he production of the particular document in regard to which the court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under section 65 of the Evidence Act and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dwara ever since his initiation which happened many years ago, he does not know who occupy the neighbouring houses. He says that he performed the 'Kirya Karam' or the last rites of Kishore Das but he could not tell what these ceremonies were. The only thing that he remembers is that he had his head shaved and his beard and moustaches removed as part of the ceremony. Strangely however, a photograph, which he himself produces in court and which is supposed to be a picture of the gathering of the 'Bhek' and the 'Sewaks' on the day of his appointment, shows him with long hair, beard and moustaches, although the shaving ceremony is said to have been performed only four days before that date. 18. A number of witnesses have been examined by both sides on this point and while the plaintiff's witnesses assert that Ishar Das, who was a Sikh Jat by birth, never became a Bairagi and never was adopted as a 'chela' by Kishore. Das, the defendants' witnesses say that he was in fact a 'chela' and lived with Kishore Das. We cannot place much reliance upon oral evidence of such a character and basing our conclusion on the documentary evidence ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1912 of the court of the Subordinate Judge, Jullundur in which Kishore Das along with one Vidya Das figured as plaintiffs and Mangal Das, who was so to say the spiritual grandfather of Sital Das, was one of the defendants. The High Court has rejected the case of the plaintiff on this point substantially on two grounds. According to the learned Judges, the evidence adduced by the plaintiff falls short of establishing that Ram Krishna Das was the common spiritual ancestor of Kishore Das and the plaintiff. The other ground assigned is that the judgment (Ex. P-3) is not admissible in evidence under any of the provisions of the Indian Evidence Act and no reliance could consequently be placed upon it. In our opinion neither of these grounds appears to be sound. Two of the Mahant witnesses examined by the plaintiff said in their depositions that Sital Das was the 'Bhatija Chela' of Kishore Das. They mentioned the names of some of the spiritual ascendants of both of them, though Ram Krishna Das was not specifically mentioned as the common spiritual ancestor. Mahant Hira Das says in his deposition: Sital Das is not a 'chela' of Kishore Das. He is his 'Bhati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and this relation is traced through Ram Krishna Das, the common ancestor. We agree with the High Court that in the absence of any evidence to show as to who propounded this pedigree which the Subordinate Judge acted upon, it is not possible to say that it was an admission by Kishore Das through whom Ishar Das lays his claim and consequently the pedigree would not be an admission relevant under section 21 of the Indian Evidence Act. But the judgment itself, we think, can be received in evidence under section 13 of the Evidence Act as a transaction in which Kishore Das, from whom Ishar Das purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree. The decree also recognised the right of Kishore Das to institute the suit as such collateral. We think therefore that the judgment could be received in evidence and although it is not by any means conclusive and has got to be weighed and appraised for what it is worth, it can be used in support of the oral evidence adduced in the case. It is to be noted that this part of the plaintiff's story was not challenged by the defendants in their evidence at all. In our opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iragis of the locality were present at the gathering and so also were a large number of worshippers. After 'Havan', the ceremony in connection with the Pagri ((Turban) was performed and the whole congregation touched the Pagri and Hira Das tied it on the head of Sital Das. 22. There is a complete record of these proceedings which was signed by the worshippers present there and we do not think that its genuineness can be seriously questioned. Besides Ram Charan Das, three other Bairagi Mahants, who have been examined by the plaintiff, fully support the story. One of these is Hira Das of Sahri institution who performed the last rites of Kishore Das and took a leading part in the subsequent proceedings. The learned Subordinate Judge on a consideration of the evidence came to the conclusion that the plaintiff's story was true and that he was validly appointed a Mahant at the meeting held on the 23rd July 1945. 23. The High Court however differed from the view taken by the Subordinate Judge. In the opinion of the learned Judges of the High Court, the meeting held on 23rd July 1945 was not a proper meeting of the 'Bhek' and the 'Sewaks' entitled to appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther there is a practice in this institution to issue formal invitations on such occasions and none of the witnesses examined on the defendants' side have spoken to the issuing of formal notices before defendant No. 3 was said to have been appointed. In our opinion, on the evidence as it stands the decision of the Subordinate Judge appears to be correct and we would prefer it to that of the learned Judges of the High Court. We hold therefore that Sital Das, the plaintiff, was eligible for appointment as a Mahant and in fact was so appointed by the 'Bhek' and the 'Sewaks' assembled at Jamsher Thakardwara on the 23rd of July 1945. 25. In view of these findings it remains for us to consider whether the lease in favour of defendants 1 and 2 which has been challenged in this suit is supported by legal necessity and is binding on the institution. On this point the finding of the Subordinate Judge was clearly against the lessees and it appears from the judgment of the High Court that this finding of the trial judge was not challenged before the learned Judges of the High Court at all. As the lease was not a permanent one but was only for a period of 10 years, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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