Vaidya, J.
1. The main question which arises in the above First Appeal, is whether the appellant-plaintiff Rukminibai can claim any right title or interest in the suit properties comprising of a house dedicated to Mahanubhava Panth situated in Pimpalas in taluka Niphad District Nasik; another house dedicated to Mahanubhava Panth situated in village. Wadali Taluka Niphad; and in the three pieces of lands which belonged to the other Mahanubhava Panth and to a share in the management of Puja and other archa in the said Math.
2. It is well settled that once a Math is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution. In a Math it is the custom or practice of a particular institution which determines as to how a successor is to be appointed. In various institutions the custom is that in order to entitle a Chela to succeed, he must be appointed or nominated by the reigning Mohunt during his lifetime or shortly before his death and this may be done either by a written declaration or some sort of testamentary document.
3. In other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the lifetime of the last Mohunt or when the funeral ceremonies of the latter are performed. When the Mohunt has the right to appoint his successor, he may exercise the right by an act inter vivos or by will. In a Math it is possible for the Mohunt to make over the endowment during his life time to his chela whom he appoints as a successor.
4. In many cases when a successor is appointed by Mohunt, he is installed in office with certain ceremonies. This cannot be deemed to be essential. (See Mahanth Bhagwan v. Girija Nandan : 1973CriLJ470 .) In Mukherjea's The Hindu Law of Religious and Charitable Trusts, third edn., 1970, at pages 269 and 270, the law is summarised as follows:
Three things you would have to bear in mind in connection with the question of succession to the office of a Mohunt. The first is that if the grantor has laid down any particular rule of succession, that is to be given effect to. Secondly, in the absence of any grant the usage of the particular institution is to be followed; and in the third place, the party who lays claim to the office of a Mohunt on the strength of any such usage must establish it affirmatively by proper legal evidence. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he be a disciple of the last Mohunt, unless he succeeds in proving the particular usage under which succession takes place in the particular institution.
(See Genda Puri v. Chhatar Puri .
5. We are concerned in the present case with the Math and Mohunt properties all what is known as Mahanubhava Panth. It is to be regretted that neither in the plaint nor in the written-statement or the evidence, the parties have tried to plead or establish the true nature of the suit Maths and properties in accordance with Mahanubhava Panth.
6. In Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram : [1954]1SCR817 , where the question was about the fact of the conversion of a Mahar into Mahanubhava Panth with respect to his inclusion in the scheduled caste for the purposes of the allegation Bose J. speaking for the Court observed, at page 836, as follows:
The only question here is whether he ceased to be a Mahar when he joined the Mahanubhava Panth. This m gave rise to much controversy and we have been presented with many conflicting opinions. Thus, the Imperial Gazetteer of India, Volume XXI, page 301, states that the founder of the sect repudiated the caste system as also a multiplicity of Gods and insisted on the monotheistic principle. At the same time it says that he taught his disciples to eat with none but the initiated and to break off all former ties of caste and religion. Russell in Volume IV of his Tribes and Castes of the Central Provinces says that the Manbhaos (Mahanubhau) is a religious sect or order which has 'now' (1911) become a caste. The Central Provinces Ethnographic Survey, Volume IX, says the same thing at page 107 and at page 110 and adds that members of the sect often act as priests or gurus to the Mahars.
As against this, the Election Tribunal has quoted a number of opinions which tend the other way. Thus, V. B. Kolte says at page 247, of his Shri Chandradhar Charitra that no serious attempt has been made by them to abolish caste, and Ketkar says at page 76, Volume XVIII of the 1926 edition of his Maharashtriya Dhnyankosh that there are two divisions among the Mahanubhava, one of Sanyasis who renounce the world and the other a secular one. The latter observe the caste system and follow the rituals of their own caste and carry on social contacts with their caste people and marry among them. Similar views are expressed by Bal Krishna Mahanubhava Shastri. But we are not really concerned with their theology. What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.
7. In the Gazetteer of the Bombay Presidency, Volume XVI Nasik, published by James M. Campbell, in August 1883, at page 73, it was said,
. Manbhavs, of both sexes, live together in maths or religious houses. They all shave the head and wear black clothes. They wander about in bands and receive children devoted to their order by their parents. They are respected by the people, but hated by the Brahmans to whose power they are opposed.
8. In Maharashtra State Gazetteers, Nasik District, published in October 1975, by the Government of Maharashtra, it is said (p. 259):
Manbhavas: Manbhavas live in maths. They all shave their heads and wear black clothes. They wander about in bands and receive children devoted to their order by their parents. They are respected by the people.
9. No other information about the Mahanubhava Panth or the management of the Maths and particularly the succession to the Maths and Mahanubhava Panth's properties could be gathered by us at the hearing of the appeal or from the evidence which is recorded in the present case.
10. In Krishna Singh v. Mathura Ahir : AIR1972All273 , it was said at page 282,
To sum up, my opinion is that even though as a result of custom, usage or practice or of sacramental precept Sodras might have been considered to be incapable of entering into the order of Sanyasam at one time, such disqualification ceased to exist long ago and can no longer be held to exist now.
11. In any event so far as the present case is concerned there is no dispute between the parties that the Maths belong to Mahanubhava Panth in Nasik District and both the plaintiff and the defendant claimed the same on the basis of that being appointed as Shishya.
12. In the plaint filed by the plaintiff no reference is made to any usage of the Math for Mahanubhava Panth. It is merely stated that the suit property generally belonged to the plaintiff and the defendant, both of them together having half share and the other half being enjoyed in terms by Pandit Guru Bhika Buwa, Babu Guru Bhika Buwa and Arjun Murlidhar Buwa who are not parties to the suit. It is difficult to understand how the suit could be filed without even making those persons parties to the present suit.
13. The plaintiff merely claimed her half share which was in the possession of the defendant saying that she was the disciple of Rajdharbuwa. Defendant is the disciple of Umabai. Both Umabai and Rajdharbuwa were the disciples of Yesubuwa. Yesubuwa, Umabai and Rajdharbuwa are all dead. Umabai and Rajdharbuwa had each one half share in the suit properties.
14. It was the case of the plaintiff that after the death of Rajdharbuwa, his one half share came to the plaintiff who is his Shishya. The suit properties are not divided and the parties are jointly enjoying them, though in the matter of performing the Puja and Archa, the half share belongs to Pandit Rajguru Bhikabuwa and others. It is said that the defendant was avoiding to give income of the land to the plaintiff and hence on September 30, 1967 the plaintiff gave a notice to the defendant claiming partition and separate possession of her one half share in the suit properties. As the defendant did not comply with the notice, the plaintiff has filed the suit for partition and separate possession of her one half share in the suit properties.
15. The defendant by his written-statement exh. 17, denies the plaintiff's claim and her share. According to him, the suit properties originally belonged to Rajdharbuwa. After Rajdharbuwa's death it came to Dajibuwa and Naneraj who were his Shishyas. Naneraj had four Shishyas: (1) Awadhut, (2) Gopal, (3) Ragho and (4) Jayabai. Of these, Awadhut and Jayabai did not adopt any Shishya. Gopal adopted one Chimanaji as his Shishya. Chimanaji did not adopt any Shishya and hence the line of Gopal was discontinued. Ragho adopted Janardhan as his Shishya. Janardhan adopted Laxman as his Shishya, but Laxman did not adopt any Shishya and hence his line was discontinued. Dajibuwa who was the other Shishya of Rajdharbuwa adopted Rangubuwa and Gajubuwa as his Shishyas. Gajubuwa did not adopt any Shishya and hence after his death his line was discontinued. Rangubuwa adopted Yesubuwa as his Shishya. Yesubuwa adopted Umabai and Rajdharbuwa as his Shishya, and through him the suit properties were being enjoyed by Umabai and Rajdharbuwa. Umabai adopted the defendant as her Shishya.
16. Rajdharbuwa adopted Dattubuwa as his Shishya, Dattubuwa is dead and as he did not adopt any Shishya, his line was discontinued. After the death of Dattubuwa, his share in the property came to Nanabuwa as his heir. The defendant admits that the plaintiff is the Shishya of Rajdharbuwa. But according to him Rajdharbuwa made the plaintiff as his Shishya after he became a Mahant. He submitted that according to the custom prevailing in the Mahanubhava Panth when a man becomes a Mahant, he renounces the world and has no right over the estate that he had before he became a Mahant. So after Rajdharbuwa became a Mahant, he was succeeded by his Shishya Dattubuwa who became the owner of the share of Rajdharbuwa. As the plaintiff was adopted by Rajdharbuwa as his Shishya after Rajdharbuwa became a Mahant, the plaintiff had no right in the property that Rajdharbuwa had before he became a Mahant, and hence the plaintiff had no right in the suit properties.
17. She has also no right to perform the Puja and Archa of the deities in the Math at Mauje Sukene or in the Maths of the village Pimpalas and Wadali. The defendant denied that the plaintiff was enjoying the suit property along with him. According to him the plaintiff was never in possession of the suit properties as he was in the possession thereof for more than twelve years, he had become the owner of the suit properties by adverse possession and the plaintiff's suit was barred by time.
18. The learned Civil Judge framed as many as eight issues but no issue was specifically raised with regard to the usage on which the plaintiff was claiming her right or the usage according to which the defendant submitted that the plaintiff had no right as she was appointed after Rajdharbuwa became a Mahant. On behalf of the plaintiff, the plaintiff herself was examined and she repeated whatever was stated in the plaint without mentioning a word about the usage. She no doubt admitted that she was made Shishya and her Guru was known as; Mahant Sukenkarbuwa. Among the Mahanubhava one who is learned is chosen as a Mahant. Mahanubhava other than Mahant were called as Bhikshuks.
19. She further stated in the cross-examination that by becoming a Mahant, the man becomes a bairagi but denied that by becoming a bairagi he relinquishes all his rights over the estate. She said that at Aurangabad there was a Mahant Nagraj as the Mahant of their Math at Aurangabad. There was also a Math at Lasalgaon, where Wanwalebuwa was a Mahant. She further admitted that her witnesses were not Mahanubhava but they were followers of Mahanubhava and Shishya of Guru Mahant Sukenkar. She said that the whole village was the Shishya of Rajdharbuwa.
20. She told that she came to Sukene in 1954. She told the defendant that she would sweep the Math and light the lamps therein and asked him to give her something every year for that and hence the defendant used to give her Rs. 30 every year. She examined one Bhika Ganpat Bhandare, to prove the payment made to her by the defendant and one Shankar Punja Bhandare to show that both the plaintiff and defendant were in enjoyment of the suit property and they had 1/4th share in the Math at Sukene. Shankar Bhandare admitted in the cross-examination that he was not Mahanubhava and that the plaintiff was. his Guru sister. This was all the evidence led by the plaintiff in support of her case.
21. On behalf of the defendant, the defendant who was eighty-five years old and who was described as Bhikshuk or beggar, submitted what he had stated in the written-statement that as plaintiff was adopted by Rajdharbuwa she had no right title or interest to the suit property. He had to admit in the cross-examination that it here was no record in the Math showing the genealogy. According to him Umabai was not allowed to perform any ceremonies to the deities. Dattatraya, Krishna and Chakradharswami are the only deities in the Mahanubhava sect.
22. According to him the main temple of their sect is at Vrudhapur. He does not know if Chakradharswami spent his childhood in Vrudhapur but he stayed in. that village. The Math's gadi goes according to Gurushishya Parampara but there are no written rules about it. After the death of Umabai he succeeded to the Gadi. The man succeeding to the Gadi was a Balbramhachari and did not marry. Umabai was also a Balbramhacharin. Dattubuwa was also a Balbramhachari. Rajdharbuwa made Dattubuwa as his Shishya. After Rajdharbuwa became a Mahant, he made Thakubai as his Shishya, After Rajdharbuwa became a Mahant he also made Sakharam as a Shishya. Rajdharbuwa made Thakubai as his Shishya about twenty-five years ago.
23. He does not know how many years ago Rajdharbuwa made Sakharam as his Shishya. He made the plaintiff a Shishya after he had already made Dattubuwa a Shishya. Dattubuwa did not adopt any Shishya. Even though a man becomes a Mahant, he stays in the Math and visits different villages. Even though a man is not a Mahant, he stays in the Math and also visits villages. The witness said that he had made one Shishya, and his name is Bapu. There is the custom that after a man becomes Mahant he loses all the right over the Gadi. There is no written rule for that. There were no suits and hence there were no decisions of the Court to show that the man after he becomes a Mahant loses his rights over the Gadi.
24. In Nasik District Karanjkarbuwa, Paithankarbuwa, Shewalekarbuwa, Wanwalebuwa are Mahants. At present there is Sukenkarbuwa Mahant at Sukene. He cannot say whose Shishya he is. He admitted in the cross-examination that he was giving the amount for sweeping to the plaintiff. The only other witness examined by him were Mahant Nagraj who supported the defendant in saying that after a man becomes Mahant he has no personal estate of his own.
25. According to Mahanubhava Panth, before a man becomes a Mahant he; is called a Bhikshuk, If a Bhikshuk has got Shishyas his estate on his becoming a Mahant goes to those Shishyas and if he has no Shishyas that estate goes to the Gadi but not to the Mahant.
26. In the cross-examination he said that he was adopted by his Guru when he was a child of 2 years and he installed a Math at Aurangabad but he did not know when Nagraj became Mahant and whether he got the estate from Nagraj. Defendant's last witness was Panditraj Guru Bhikabuwa Pujari, whose evidence also did not clearly establish the so called usage.
27. The learned Civil Judge held that the plaintiff had failed to establish her rights as claimed in the suit because the evidence laid by the defendant showed that by becoming a Mahant he had no right over the estate that he had before becoming a Mahant. He also held that the plaintiff had no share in the right of worshipping the deities in the Math at Mauje Sukene and in the Maths at Pimpalas and Wadali, as the suit properties were for the last more than twelve years in the exclusive possession of the defendant and the defendant had become the owner of the suit properties by reason of adverse possession. He, therefore, dismissed the plaintiff's suit
28. It is regrettable that neither of the parties were conscious of the rules of Hindu law regarding succession to Math and Math properties, which as already stated above must in the matter of succession will be governed by the usage of particular Math. The evidence led by the defendant was not sufficient or well established to support his contention that after becoming a Mahant he has no right to the management of the property. Even the defendant and his witnesses have to admit that Mahant in Maths were managing Mahanubhava Panth's Math.
29. In our opinion, the suit was totally misconceived as neither in the plaint nor in the written-statement nor in the course of the evidence the requirement of establishing of usage was at any time borne in the mind by the parties and their advocates. The plaintiff did not plead any usage supporting her right and claimed partition and possession as if the Mahanubhava Panth Maths were private properties of Shishyas.
30. Neither the lower Court nor the learned advocates and parties were conscious of the possible application of the Bombay Public Trust Act, 1950, to the Mahanubhava Panth Maths and properties as prima facie the definition of 'public trust' would include such Math under Section 2(13) as the suit itself was misconceived ignoring the rules of Hindu law and the provisions of the Bombay Public Trust Act, 1950, the plaintiff's suit is liable to be dismissed on the ground that she did mot set up the usage supporting her right in respect of the suit Math properties of Mahanubhava Panth.
31. Having regard to this view of the matter the learned Civil Judge cannot be said to be right in applying the rule of adverse possession to such properties.
32. For the above reasons we dismiss the appeal confirming the decree dismissing the suit though not agreeing with the reasons given by the learned Civil Judge, nothing decided in this matter or nothing observed hereinabove shall affect the rights and remedies of the parties which may be available to them under the provisions of the Bombay Public Trust Act, 1950 nor the powers of Charity Commissioner or officers exercising the powers under the said Act in respect of the suit property.
33. In the circumstances of the case, the parties should bear their own costs throughout. The decree for cost passed by the trial Court is therefore set aside.